What Are Henry's Ethical Duties to Frank Irving as an Attorney?

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September 30, 2014

The Horseman of War on Sleepy Hollow is a lawyer. Or pretending to be one. Either way, just lovely for our reputation as attorneys.

The reveal came at the end of The Kindred when Henry visited former Sheriff Frank Irving in a prison psychiatric hospital. The NEW Sheriff in town apparently was pushing the limits on cruel and unusual punishment, seeking not just psych evaluations, but threats of electric shock therapy. “Henry the Lawyer” appeared to put a stop to the tests, which is what a lawyer is exactly supposed to do for his client at object police torture.

However, Henry had Irving sign papers (most likely the engagement letter) that pricked the former sheriff’s finger, in effect making him sign the engagement letter in blood.

This raises many important legal issues. No one should EVER sign a contract of any type without reading it first. God knows what evil clause is in there that could negatively impact Frank Irving. No legal fees or retainer could include someone’s soul, even though not specifically stated in any state’s ethical rules.

Henry might be a powerful warlock, but that does not mean he passed the bar in the late 18th Century. New York does not permit people to engage in the unauthorized practice of law, warlock or not. The law specifically prohibits any “natural” person from holding themselves out to the public to practice law (including appearing in Court and advertising), without having been licensed, admitted to practice law in New York, and taken an oath to the Constitution. NY CLS Jud § 478.

If Henry is a licensed attorney, he has several major breaches of his ethical duties. The first being having his client sign a blood oath that likely goes against his client’s interests. This act would violate his Duty of Loyalty to Frank Irving to not act adversely against his client.

Henry also has a significant conflict of interest with Irving, as Henry’s goal is to bring about the Apocalypse under the direction of Moloch, which goes against Irving’s interests. A lawyer may not represent someone if a lawyer’s professional judgment will be adversely affected by the lawyer’s own business or personal interests. NY CLS Jud Appx R 1.7(a)(2). As Henry wants to destroy the world and use Irving in some way to achieve that goal, this conflict of interest unquestionably would violate Henry’s ethical obligations to Irving.

Henry is also violating his duties to New York State and the US Constitution, with his active criminal conspiracy to kidnap his mother, commit murder, and bring about the end of the world. All of these actions would result in disbarment.

I am She-Hulk!

By

Jessica_alegalgeek

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September 30, 2014

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Ninety percent of lawyering is conversation…[The other ten percent is] mostly beating up robots.” Jennifer Walters

Okay, I didn’t get a blood transfusion from Bruce Banner, I’m not green, nor am I that strong, but I am a lawyer! And, like Jennifer Walters (She-Hulk’s alter ego), I left a big firm to go smaller. My departure wasn’t quite as dramatic (no tables were destroyed) and I joined a small boutique firm instead of going solo, but some of the challenges are the same (I just wish I could find some office space as cool as hers!).

The perks of going smaller can be big, as life as an associate in biglaw (as we call life at the big firms) can be a grind, with long hours worked and health destroyed. Like She-Hulk at the beginning of Episode 1, many associates work those long hours in the hopes of getting a big bonus (bonuses are a bit of an obsession for biglaw associates), which they need to pay off their massive law school debt. So leaving biglaw can be a scary but liberating experience.

These similarities were the reason I started reading the new She-Hulk storyline, which I first learned about in the ABA Journal. Josh has already discussed some other She-Hulk issues in the current storyline, but my favorite story to date was right there in the very first episode: the patent lawsuit with Iron Man.

Welcome to the world of IP litigation. While patent troll plaintiffs are a problem, so too are big companies that can overwhelm individual inventors with armies of lawyers (from biglaw!), mountains of motions, and enormous ediscovery productions. Patent litigation is an expensive mess, even as DC tries to correct some of the worst of the problems (with questionable success).

Jennifer Walters, in her patent lawsuit, still had to deal with a creepy defense attorney, overwhelming litigation defense strategies, and other standard legal obstacles. But, unlike most lawyers, she also had to fight Tony Stark’s robots. Of course, she’s She-Hulk so she was able to deal with the robots with minimal problems.

She then circumvented Stark’s counsel by talking to Iron Man directly. While it’s cool that she’s friends with Tony and (spoiler alert!) was able to talk sense into him about her client’s claim to the disputed invention, she violated a California State Bar Rule of Professional Conduct by speaking to directly to the opposing party about the lawsuit. Under California’s rules (and the rules of most – if not all – states), a lawyer can’t speak directly to the opposing party about the lawsuit if the opposing party has an attorney unless the opposing party’s attorney consents to the communication.

I’m pretty certain Stark’s attorney didn’t okay the communication, which means he could file a complaint with the state bar about Walters’ violation of the rules of professional conduct. But, as we know, superheroes don’t always have to follow all the rules we mere mortals are bound by!

She-Hulk is probably the first comic book that I can relate to at least a little, even if (once again) she is a better-dressed lawyer than I am. Now if they just added in some kids so she had to juggle work, family, and being a superhero, I would truly be able to identify with her!

Did the Doctor Need Courtney Woods to Have a Permission Slip to Travel in the TARDIS?

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Josh Gilliland

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September 29, 2014

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The Doctor Who episode “The Caretaker” ends with the Doctor taking the 14-year-old student Courtney Woods (who called herself “Destructive Influence”) on a trip in the TARDIS to dispose of Skovox Blitzer in deep space.

Could a school janitor take a 14-year-old off school premises in a time machine without a permission slip? The law in most countries would say no.

The state of California is a good example of the requirements for conducting a “field trip.” A school district can conduct ” excursions in connection with courses of instruction or school-related…educational…activities” within the state, outside of the state, or in a foreign country. Trips abroad can be “permitted to familiarize students with the language, history, geography, natural sciences, and other studies relative to the district’s course of study for pupils.” Cal Ed Code § 35330(a)(1).

Legally speaking, leaving planet Earth for a distant section of space would be “outside of the state.” As the Doctor took Courtney just into space, she was not in “a foreign country,” but an interstellar void.

A school district has broad immunity on field trips, because “all persons making the field trip or excursion shall be deemed to have waived all claims against the district for injury, accident, illness, or death occurring during or by reason of the field trip or excursion.” Wolfe v. Dublin Unified School Dist., 56 Cal. App. 4th 126, 128 (Cal. App. 1st Dist.1997), citing Cal Ed Code § 35330.

However, there is one giant requirement with field trips: Students need written parental consent to go on a field trip. This consent is known as a “permission slip.” Generally speaking, students who do not have a signed permission slip remain at a school in an alternative activity. Wolfe v. Dublin Unified School Dist., 56 Cal. App. 4th 126, 128 (Cal. App. 1st Dist.1997).

Some permission slips need to explain what the students are doing and know risks in order for parents to give their informed consent (such as after school sports). As such, parents are giving their express agreement to assume the risk of the activity. Such express agreements are valid if they do not violate public policy. Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, 1372 (Cal. App. 4th Dist.1996).

Which brings us to the Doctor and Courtney. It is highly unlikely there was a permission slip signed by Courtney’s parents for her to travel into space. Just imagine what such a permission slip would look like to include known risks. While there would be high educational value in deep space exploration with an alien to dispose of an alien war machine, the risk of doing so would in no way be approved by a school district, even with Ian Chesterton as headmaster.

No Fly Lists & False Imprisonment on Agents of SHIELD

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Josh Gilliland

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September 25, 2014

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Jessica Mederson and Josh Gilliland loved the season premiere of Agents of SHIELD. Josh & Jess breaks down how the No Fly List works, Grant Ward’s due process claims for false imprisonment, and just why the heck did Xena grab the 084?

Mild Treason & Silence of the Lambs on Agents of SHIELD

By

Josh Gilliland

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September 24, 2014

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Agents of SHIELD kicked off with a great World War II introduction featuring Agent Carter and the Howling Commandos. I have high hopes for Season 2 and really enjoyed the premiere. However, the episode also had a HYDRA of legal issues, because they kept cutting off heads with two more torts or crimes growing to take its place.

Flying the Friendly Skies

Director Coulson has been flying coach to recruit SHIELD Agents. As “Phil Coulson” is likely on not just the “No-Fly List,” but the FBI most wanted list, Director Coulson has to be traveling under a fake name.

To have an understanding of how air security works, the Federal Bureau of Investigation (FBI) administers the Terrorist Screening Center (TSC), which develops and maintains the government’s Terrorist Screening Database (TSDB). The No-Fly List is a subset of the TSDB. The TSC provides the TSA with the No-Fly List. Latif v. Holder, 2014 U.S. Dist. LEXIS 85450 (D. Or.June 24, 2014).

If Coulson was flying coach, he had to be doing so under a false identity. This would mean he is either committing identity theft or fraud. Moreover, the government would view his recruitment efforts as not one for a cool club, but a terrorist organization.

Is Buddy the Dog Still Howling Agent Ward?

Grant Ward has achieved a new level of creepiness while talking to Skye in his cell. Besides taking obsessive to a new level, Ward actually would have a real legal gripe against Director Coulson: Ward had been falsely imprisoned by a former law enforcement agency without a trial in solitary confinement.

There are very valid reasons Ward should be in prison for all the people he killed, terrorists he aided, and weapons of mass destruction he stole. However, the Constitution guarantees everyone in the United States the right to know why they are arrested, the right to an attorney, the right to a trial, the right to confront witnesses, plus many other “inalienable” rights. There is little question Ward earned a firing squad for his treason, however, he should have had a trial. Moreover, as SHIELD is no more, keeping Ward locked in a high security basement would be false imprisonment.

Assault on the US Military

SHIELD agents kidnapped General Talbot and made an armed assault on a secure military facility to capture government property from the SSR. All of these things are bad from a legal perspective, but there was a significant change in tactics since TAHITI: the SHIELD agents used ICERs (formerly known as “Night Night” Guns) on military personnel. This is a marked improvement since the good guys killed two people without justification to save Skye. As the heroes were not using lethal weapons on US soldiers, this makes the likelihood of pardons for stopping HYDRA more likely in the future.

First Legal Issues in Gotham: Can Selina Kyle Be Prosecuted as an Adult?

By

Josh Gilliland

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September 23, 2014

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The series of Gotham kicked off with a multitude of legal issues to cover the 75 years of Batman. The series is fantastic and brings the world of Gotham City to life. It is time to turn on the Bat-Signal and discuss the issues presented in the first episode.

Let’s start with Selina Kyle, the girl who will become Catwoman. As a minor, Kyle leaps from rooftops and uses a knife to cut open a grocery bag to steal milk. Immediately after taking the milk, Kyle pick pockets a man’s wallet.

If Selina Kyle were an adult, she could be convicted of grand theft in California, because she took the property from the person of another. Cal Pen Code § 487(c). If Selina was in New York, merely placing her hands in the proximity of another person’s pocket or handbag would be “jostling,” a class A misdemeanor. NY CLS Penal § 165.25. Taking the wallet would be a second crime of theft.

As Selina is not a legal adult, but engaged in crimes that would be grand theft, prosecuting her as an adult would be difficult. While the use of the knife might entice a DA to charge her as an adult, it would fail, as the knife was not used to commit murder, which is one of the exceptions for prosecuting minors in Juvenile Court. Cal Wel & Inst Code § 602. As such, Selina would likely be found “delinquent” and prosecuted in Juvenile Court.

Granted, Selina following young Bruce Wayne is not yet stalking, but probably more an interest in having seen his parents murdered. There is no ice-breaker for “I was there when your parents were gunned down. Do you need a hug?” So, we will give her the benefit of the doubt she is trying to find a way to say hello in the least awkward way possible.

James Gordon

Detective Jim Gordon is one of the few TV/comic book characters who openly cares about Due Process of law. It is very refreshing, like a cool glass of milk. In the first 5 minutes of meeting Gordon, we see him save a police officer, avoid a gunfight, and attempt to stop police officers from beating the suspect who was already under arrested and restrained. Alfred’s comment “You’re new. Good luck mate,” highlighted that Gordon is the idealist DA’s son who wanted to see a murder suspect put on trial, opposed to killed in a gunfight.

Gorden also showed no fear in chasing down facts to prove the wrong man was killed resisting arrest for the murder of Thomas and Martha Wayne. Moreover, when confronted by a crime boss about maintaining order and told to murder Oswald Cobblepot, he faked the future Penguin’s death. While that does create a huge problem with Cobblepot on the run killing people, Gorden did not himself become a murder.

Alfred Pennyworth

The Wayne’s Butler immediately took charge in caring for the young Bruce Wayne. While it would take time for Thomas and Martha Wayne’s wills to be probated, Alfred has to legally become the adopted father for Bruce Wayne. Probate and custody is not exactly thrilling TV, so it is unlikely we will see Pennyworth’s application for legal guardianship of Bruce Wayne.

To the Bat-Poles

Gotham had a strong start and I wish the series success. I do hope to see Adam West make a cameo, perhaps as a judge or grandfather in a family portrait.

Did the Doctor Commit Bank Robbery in Time Heist?

By

Josh Gilliland

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September 22, 2014

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The Doctor Who episode “Time Heist” is a lot like Ocean’s 11 mixed with the myth of the Minotaur, with the twist of saving the Minotaur.

Did the Doctor, Clara, Psi, Saibra, actually commit bank robbery while saving the Teller from the Bank of Karabraxos? The answer is yes, but not because they saved the Teller.

In the United States, a person commits “bank robbery” if they enter a bank with the intent to commit any felony, or any larceny, or take any property from a bank belonging to another person that is at least $1,000 in value. 18 USCS § 2113(a) and (b).

The Doctor’s ultimate reason for breaking into the bank is to rescue the Teller and his mate who had been imprisoned in Director Karabraxos’ private vault. It is not the fact the Doctor saved the Teller and his mate that constituted bank robbery, but taking the items to restore Psi’s memories and medicine for Saibra’s mutation. Unless those items belonged to the elderly Ms. Karabraxos who effectively hired the Doctor to conduct the heist, those two items were under the custody and control of the bank, most likely over a $1,000 in value, and would meet the plain language of the statute.

However, if Ms. Karabraxos owned those items, then she could have properly paid the Psi and Saibra for saving the Teller from her own bank. Moreover, the Doctor and his companions could not be breaking into a bank if they had permission from the owner, even if she was in the future.

Additionally, as the Bank of Karabraxos was holding one creature in slavery, plus one other imprisoned as leverage, this was one bank that was operating outside the bounds of the law. Moreover, erasing the minds of suspected criminals and putting them on display showed the bank was operating under its own legal system. There is no way such an organization could be insured by the FDIC or be recognized as a lawful bank.