Superman the Movie opened on December 15, 1978. This film is truly the first superhero movie of the modern era with effects that brought a comic book character to life. Jessica and I sat down to discuss the legal issues in the movie and its legacy on the comic book movies we love today.
The classic WKRP in Cincinnati episode “Turkeys Away,” is one of the greatest moments in television history. The radio station had a surprise Thanksgiving promotion that involved a helicopter “setting free” live turkeys from 2,000 feet above the Pinedale Shopping Mall. Unfortunately, the turkeys could not fly.
Dropping Turkeys from a Helicopter is Animal Abuse
There are many ways to prepare turkeys for Thanksgiving dinner. Dropping them from a helicopter is not one of them.
Ohio law states that no person shall needlessly mutilate or kill an animal. Ohio Rev. Code Ann. § 959.13(A)(1). Dropping a flightless bird from 2,000 feet luckily has not appeared in Ohio case law, but would be the textbook definition of “mutilate.” Reporter Les Nessman described the turkeys hitting the ground like bags of wet cement. There is no question that the turkeys were mutilated by their high velocity impact on pavement and cars.
It was Negligence to Drop Turkeys from a Helicopter
Station manager Arthur Carlson claimed he thought turkeys could fly. Moreover, he stated his plan “should have worked.” There is a strong argument Carlson was negligent for his plan that resulted in the Pinedale Shopping Mall being bombed with live turkeys.
In order to prove Arthur Carlson was negligent, there first must be a duty; a breach of that duty, and an injury resulting from that breach. Menifee v. Ohio Welding Prods., Inc., 472 N.E.2d 707, 710 (Ohio 1984). The test to determine whether the risk of injury was foreseeable is whether “a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act.” Id., citations omitted.
Dropping objects out of a helicopter is objectively a dangerous activity that could result in those on the ground being injured. As such, there would be a duty to not drop objects from a helicopter on a parking lot with people. However, Carlson honesty thought turkeys could fly. Was that reasonable?
There is a strong argument that Carlson should have researched whether turkeys could fly, instead of assuming they could. Has anyone seen a flock of turkeys migrate south for the winter? Moreover, since Herb Tarlek purchased the turkeys at a farm, did Carlson think they somehow were kept in pens to avoid flying away?
There is a compelling argument that a reasonably prudent person would not have thrown a second turkey out of a helicopter after seeing the first turkey did not take flight upon release. Even if Carlson had a good faith reasonable belief that turkeys could fly, that belief was no longer reasonable after seeing the first bird in free fall.
Those suffering property damage from turkeys crashing into their cars could recover from Carlson’s negligence, because dropping turkeys out of a helicopter would have been a breach of Carlson’s duty to not drop flightless birds out of a helicopter over a populated area. However, being reasonably prudent would not have made one of the greatest moments in television history.
There are very few people who are cultural icons that redefined pop culture. Stan Lee was one such individual who helped inspire imagination and joy for decades. Lee did not do this alone, as other titans such as Jack Kirby, Joe Simon, Steve Ditko, Bill Everett, all were invaluable to creating the pop culture golden age we live in today, especially Jack Kirby.
Stan Lee was a force of nature who represented the best of being a geek. Lee was honored at the first Geekie Awards in 2013, where Lee wowed the crowd with his “Ode to Geeks.” Stan the Man will be greatly missed and his memory will be eternal.
Stan Against Evil is back! The season is off to a strong start as a love letter to The X-Files, Koljack the Night Stalker, and Kaiju movies.
The second episode entitled The Hex Files has Agent Nesbitt of the New Hampshire Bureau for Paranormal Phenomena (NHBPP) performing an autopsy on a demonic victim.
Sheriff Evie asked if they could just go in and perform an autopsy, which raises the issue of who can perform autopsies.
New Hampshire law on performance of autopsies state:
I. If the supervising medical examiner, attorney general, or county attorney deems that an autopsy is necessary, he or she shall direct that one be made. The commissioner of the department of health and human services may, pursuant to RSA 126-A:5, V, request an autopsy of any individual who dies while admitted to, a resident of, or receiving care from New Hampshire hospital, Glencliff home, or any other residential facility operated by the department or a contract service provider.
II. The supervising medical examiner shall have the authority to conduct an autopsy and shall comply with any request by the attorney general, a county attorney, or the commissioner of health and human services to perform an autopsy.
N.H. Rev. Stat. Ann. § 611-B:17.
Agent Nesbitt performed an autopsy without a determination of necessity by the supervising medical examiner, attorney, or county attorney. While Evie is the town sheriff, she does not hold any of the required positions to order an autopsy. While Evie arguably had lawful access to the morgue in her official position, she cannot give permission for an autopsy to be performed. However, Sheriff Evie is in position to ask any of the authorized officials to grant Agent Nesbitt permission to perform an autopsy. Evie could have added that Nesbitt even had her own gloves if the county had budget concerns…
Season 3 of Daredevil was phenomenal, and easily one of the best seasons of the Marvel Netflix series, or of any show for that matter.
Major spoilers ahead if you have not finished Daredevil season 3!
Like most viewers who had just finished watching this masterpiece, I began to dissect the ethical issues presented by the protagonists’ plan to partner with Karen Page as they reopen their law firm with the name Nelson Murdock & Page. One of the final scenes of this season reunites Foggy Nelson, Karen Page, and Matt Murdock, as they happily discuss how they triumphed over seemingly insurmountable odds and a near invincible enemy without compromising their core values. It is clear that, despite the trials they have gone through, the battle-weary heroes have grown closer than ever before. In an homage to when he first dreamed up the law firm of Nelson & Murdock, Foggy grabs a napkin and designs a new plaque to memorialize the recreation of their firm. Unlike the original napkin, and in recognition of the struggles and obstacles they have overcome together, this plaque reads, “Nelson Murdock & Page.” This heartfelt moment presents an ethical issue: can a nonlawyer, like Karen, be a partner in a law firm? Karen points this out, and Foggy replies that Karen is “one hell of an investigator.” This, however, does not resolve the problem of whether a lawyer may partner with a nonlawyer, even one that is a skilled private investigator.
All lawyers are governed by rules of professional conduct. Foggy and Matt are subject to the New York Rules of Professional Conduct (“NYRPC”) which state, “A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.” NYRPC Rule 5.4(b). Rule 5.4 is titled “Professional Independence of a Lawyer” and was instituted to “protect the lawyer’s professional independence of judgment.” [1] The general theory behind subsection (b) is that if a lawyer were permitted to enter into a partnership arrangement with a nonlawyer, the nonlawyer, who is not beholden to the same ethical standards, may negatively impact the lawyer’s representation of clients in order to further the interests of the partnership. Although this rule against nonlawyer ownership has faced opposition in multiple jurisdictions, including New York, it remains in effect. In December 2011 the American Bar Association (ABA) Commission on Ethics 20/20 released for comment a discussion draft proposing a limited form of nonlawyer ownership of law firms.[2] In 2012, the New York State Bar Association House of Delegates responded to this discussion draft reaffirming its opposition at this time to any form of nonlawyer ownership of law firms.[3] Therefore, under the NYRPC Rule 5.4(b) Karen can not partner with Matt and Foggy to form a law firm in New York.
The dream of Nelson, Murdock, & Page (or Page Murdock & Nelson) is not necessarily over however. There are two ways in which the three could form a partnership, but they are unlikely. First, the three could give up on partnering to form a law firm. NYRPC Rule 5.4(b) only prohibits the partnership of lawyers and nonlawyers when the partnership provides legal services. Matt and Foggy could theoretically sacrifice their careers as attorneys and join Karen as a Private Investigator. Jessica Jones may resent the added competition, but there would be no ethical hurtles. This option is highly unlikely as Foggy and Matt seemed to be looking forward to reviving the glory days of helping the less fortunate in the courtroom and getting paid in chickens.
A slightly more palatable option would involve leaving Hell’s Kitchen, and the entire state of New York for that matter. NYRPC’s Rule 5.4 is based on ABA Model Rules of Professional Conduct (“MRPC”) Rule 5.4. Most jurisdictions,[4] including New York, have adopted the MRPC, albeit with some changes. Most changes are relatively small, however Washington, D.C. has made a significant change to Rule 5.4.[5] Washington, D.C.’s Rule 5.4 permits nonlawyers to have an ownership interest in law firms, and has done so for over 20 years.[6] Washington, D.C.’s Rule 5.4 adds a limited exception for firms where the nonlawyer owner provides professional services for the law firm and the following conditions are met:
1) The partnership or organization has as its sole purpose providing legal services to clients;
2) All persons having such managerial authority or holding a financial interest undertake to abide by these Rules of Professional Conduct;
3) The lawyers who have a financial interest or managerial authority in the partnership or organization undertake to be responsible for the nonlawyer participants to the same extent as if nonlawyer participants were lawyers under Rule 5.1; and
4) The foregoing conditions are set forth in writing.[7]
Nelson Murdock and Page would likely be able to meet these conditions. The first requirement is that the nonlawyer with a financial interest in the firm must “perform[] professional services which assist the organization in providing legal services to clients.”[8] Here, Karen would be providing professional investigative services for the firm. The ABA’s Commission on Ethics 20/20 used Washington, D.C. as an example when considering a modification of Rule 5.4. In its discussion draft specifically used “investigators participating in the evaluation of cases and assisting in the evaluation of evidence and development of strategy,” as an example of a professional nonlawyer whose services would be ideally suited for partnership in a law firm. The remaining conditions would likely be easily satisfied as well. They clearly want to start a law practice with its sole purpose providing legal services to clients. Karen will have no problem agreeing to abide by the Rules of Professional Conduct. Matt and Foggy will take responsibility for Karen, and they will have no issue putting this all in writing. The only problem with this option is convincing Matt to leave his beloved Hell’s Kitchen and move to the nation’s capital.
It is worth noting that forming the firm in Washington, D.C. and keeping an office in Hell’s Kitchen is not an option. This issue was directly treated in a NYSBA Ethics Opinion.[9] In that case a New York attorney sought to either join a Washington, D.C. based firm with a nonlawyer partner or create a subsidiary office in New York for that firm. The Committee concluded that a New York-based lawyer practicing primarily in New York could not be a partner in a Washington, D.C. firm that is partially owned by a nonlawyer. The key factor in the Committee’s reasoning was the location of the majority of the attorney’s legal work. “Occasional litigation in New York” would be permissible, but “if the partnership were created for the very purpose of litigation in New York, establishing it in the District of Columbia would be ineffective to circumvent the New York rules on fee sharing.”[10] Creating a shell firm in Washington, D.C. to circumvent New York’s rules will not work.
Unless the partnership of Nelson Murdock and Page does the majority of its legal work in Washington, D.C. or does not do legal work at all, Matt and Foggy are going to run into ethical trouble if they try to partner with Karen and start a law firm. Until Karen passes the bar, “Nelson Murdock & Page” should probably stay on the napkin.
Only 3 years of school, hundreds of thousands of dollars in debt, and a two-day exam away.
[1] ABA Model Rules of Professional Conduct Rule 5.4, Comment.
[2] Jamie S. Gorelick and Michael Traynor, Discussion Paper on Alternative Law Practice Structure, December 2011, https://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20111202-ethics2020-discussion_draft-alps.authcheckdam.pdf
[3] http://www.nysba.org/workarea/DownloadAsset.aspx?id=26682
[4] California is the only U.S. jurisdiction which has not adopted the Model Rules of Professional Conduct as a base for its ethical rules.
[5] For a full treatment of the differences between jurisdictions, refer to the ABA website, e.g. https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_5_4.pdf
[6] A detailed history of Wasahington, D.C.’s Rules of Professional Conduct may be found here: https://www.law.cornell.edu/ethics/dc/narr/DC_NARR_0.HTM
[7] Washington, D.C. Rules of Professional Conduct Rule 5.4(b)
[8] Id.
[9] NYSBA Ethics Opinion 1038 (December 16, 2014), http://www.nysba.org/CustomTemplates/Content.aspx?id=53798
[10] Id.
The Bride of Frankenstein is a reminder that you literally cannot MAKE someone to love you. For anyone who thinks the myth of Pygmalion is a workable model in sculpting a woman to love you, Bride of Frankenstein is a healthy dose of reality. The story picks up from the ashes of the original Frankenstein, with enough changes in continuity that shows the producers had not planned to make a sequel of the original film.
The Mad Doctor
Dr. Septimus Pretorius is the archetype of the mad scientist without any ethics. Dr. Pretorius is the poster child on why the Nuremberg Code exists to protect people from human experimentation. Pretorius paid henchmen for access to catacombs, where he identified the body of a deceased woman, and noted that he hoped she had strong bones. Pretorius later stayed in the catacombs for the ambiance, where he enjoyed a bottle of wine with a coffin as a table. He took the creepiness up a notch by decorating coffin with a skull and bones for happy hour.
Laws globally are enacted to keep the living from doing everything Dr. Pretorius did in the catacombs. Anyone who knowingly “mutilates or disinters, wantonly disturbs, or willfully removes any human remains” without legal authority is guilty of a misdemeanor. Cal. Health & Safety Code § 7050.5(a). Moreover, anyone who removes any part of human remains from where they are interred, with intent to sell or dissect the remains, or with malice or wantonness, without legal authority, has committed a felony and is subject to imprisonment. Cal. Health & Safety Code § 7051; Cal. Penal Code § 1170(h). Furthermore, anyone who willfully mutilates, removes, or has sexual contact with human remains, is guilty of a felony. Cal. Health & Safety Code § 7052(a).
Dr. Septimus Pretorius willfully mutilated remains by placing the skull and bones on the coffin for his twisted picnic. This was at least a misdemeanor. The removing of the female corpse for medical experimentation is a felony.
But the crimes don’t stop there.
Crimes Against Frankenstein
Dr. Septimus Pretorius forced Dr. Henry Frankenstein to collaborate on creating a mate for Frankenstein’s Creature by kidnapping his wife Elizabeth. Pretorius held Elizabeth in an unknown location and threatened her safety in order to compel Dr. Frankenstein’s participation in creating a “friend” for the Creature.
It is worth noting that the collaboration between the two doctors sought Dr. Frankenstein’s knowledge to create a living body from corpses. Dr. Pretorius proved he could “grew” miniature people, thus would grow a brain for the Bride.
Pretorius had no moral reservations about holding people against their will. His homegrown homunculi were kept in glass jars; imprisoning Elizabeth was completely within his “means justify the ends” attitude.
Kidnapping is the forcible taking of a person. Cal. Penal Code § 207(a). Kidnapping someone for ransom is a felony that can be punished with life without parole if suffers bodily harm or is exposed to a substantial likelihood of death. Cal. Penal Code § 209. False imprisonment is the unlawful violation of the personal liberty of another. Cal. Penal Code § 236.
Elizabeth was taken by the Creature and imprisoned with threats against her life. Given the ease with the Creature had killed others, Elizabeth had been exposed to a substantial likelihood of death. Moreover, Elizabeth was taken in order to secure the compliance of Dr. Frankenstein in order to build a Bride for the Creature. This is a ransom case and Pretorius clearly committed multiple felonies.
Is Creating a Bride from a Reanimated Corpse Human Trafficking?
Dr. Septimus Pretorius compelled the help of Dr. Frankenstein and stole a human body (plus a heart on Frankenstein’s instructions) in order to build a mate for the Creature. This arguably is human trafficking…with the added twist that victim was brought to life by those who did the human trafficking.
Human trafficking is the deprivation of the personal liberty of another with the intent to obtain forced labor from the victim. This is a felony that can be punished in prison for 5, 8, or 12 years with a fine up to $500,000. Cal. Penal Code § 236.1(a).
The Bride immediately rejected the Creature after being brought to life and introduced to her “groom.” There is a defense that she was never actually deprived of her personal liberty, given how quickly the situation deteriorated, but that would ignore the Creature’s action to destroy the laboratory with “we belong dead.”
Love’s Labour’s Lost
The Creature survived being burned alive, shot at after saving a woman, pursued by a lynch mob, tortured, hunted, and imprisoned without the right to counsel. The one person who cared about him was a blind man who did not know the Creature was “a monster.” Cruelty drove the Creature straight to Dr. Pretorius who capitalized on the hate the Creature endured to transform him into “The Monster.” The Creature wanted only to be loved and took a dark path that lead to ruin. While the Creature ultimately realized what he had become, the real monsters were the ones who carried torches and strung the Creature up like an animal.
There is the long running lawyer joke that attorneys are vampires. However, the story of Dracula features an attorney who was retained by a creature of the night for leasing property in England. In the 1931 film, Renfield travels to Transylvania and quickly falls under Dracula’s spell. Renfield assists the vampire in traveling to England aboard a sailing ship, alerting Dracula when the sun had set for the Count’s nightly feeding on sailors. For a different take on the story closer to the book, check out the Fictional Podcast has a great three part series telling the story that follows Jonathan Harker on his ill-fated trip to Transylvania.
Here is a question worthy of a bar exam, what should a lawyer do if a vampire seeks their legal representation?
Client Discrimination Based on Status as a Vampire
Attorneys have a duty “[n]ever to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” Cal. Bus. & Prof. Code § 6068(h). Moreover, lawyers “shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in accepting or terminating representation of any client.” California Rules of Professional Conduct Rule 2-400(B)(2).
It would be wrong to reject representing a vampire on the sole basis the client is a vampire. Lawyers cannot discriminate based on a disability (such as being undead, bursting into fame if exposed to sunlight, and requiring human blood based on dietary restrictions), or national origin (such as being Transylvanian). These factors are alone not a basis for rejecting someone as a client and could be grounds for a discrimination lawsuit.
Lawyer Can’t Advise Breaking the Law
Renfield (or Harker in the book) did not know Dracula’s intentions besides his real property interests in England. This is important, because attorneys are not supposed to advise clients on violating laws. California Rules of Professional Conduct Rule 3-210. If the attorney knew that Dracula intended to travel to England in order to murder and feed on an unsuspecting population who did not decorate their homes with Crucifixes and Communion wafers, the attorney did not knowingly advocate violating the laws against murder. If the attorney knew Dracula’s intent, then there is a serious ethical breach.
Attorney-client Privilege Doesn’t Apply to Enabling Crimes
Attorneys have a duty to maintain their client’s confidential information. Cal. Bus. & Prof. Code § 6068(e)(1). However, an attorney may, but is not legally required, to reveal confidential information if the attorney believes it is necessary to prevent criminal activity that can result in death or substantial bodily harm. Cal. Bus. & Prof. Code § 6068(e)(2). Moreover, the attorney-client privilege does not apply if a lawyer’s services were sought to enable or aid anyone to commit a crime. Cal Evid Code § 956(a).
Dracula’s attorney would have to maintain his client’s confidential information that went into securing the real property agreements, but if the lawyer knew of Dracula’s intent to kill, then the lawyer has options for informing law enforcement. The attorney could inform the police of Dracula’s intent to kill people for their blood, which could include the location of Dracula’s properties. However, there is no legal requirement that the attorney has to inform law enforcement, which would make the lawyer a true monster if he decided to not take any action to stop his client from feeding on others.
If the attorney offered Dracula legal advice on how to murder, locations around London that would be prime hunting grounds, that advice would not be protected by the attorney-client privilege. At that point the lawyer has transformed from attorney to henchman, and is assisting with committing crimes.