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Ethical Concerns of Representing Dracula

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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.

#TBT: Buffy is back (from the dead)!

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I’ve been listening to the songs from Once More with Feeling a lot lately. [I’m glad La La Land helped spread some new love for musicals in Hollywood but it doesn’t hold a candle to the greatness that is Buffy’s musical episode.] And then I learned that it was twenty years ago this month that Buffy the Vampire Slayer, the TV show, began. So the signs were clear: it was time for me to write a post about my favorite geek TV show of all time.

I missed the beginning of the Buffy phenomenon, turned off both by the name (a problem I had with Jane the Virgin and My Crazy Ex-Girlfriend too, shows I’m now obsessed with) and the movie. I only caught on to the Buffy phenomenon a few years later, when I was in law school and FX started broadcasting reruns back to back. Back then–pre-DVRs, Hulu, and Netflix–reruns were the only way to catch up on a show you had otherwise missed. Once I caught up on the old ones I started watching the new episodes. And if I missed one of the new episodes, I had to go to Television Without Pity to find out what I missed. [Wow, how did we ever manage before all of these awesome new technologies that let us watch our shows whenever and wherever we want?]

Season five ended with one of the most amazing cliffhangers ever (spoiler alert!): Buffy realizes what her gift is and sacrifices herself to save her sister and the world. It was also the 100th episode of the show and the last episode on the WB so the wait to see what happened the next year on the UPN was excruciating.

Season six was criticized by many for being too dark, but I loved it. And the fact that Buffy’s death and resurrection brought us one of the most amazing Hollywood musicals ever only proves how amazing that season was. [I was just temporarily distracted by a review of the season six and it reminded me of how much I loved that season and its finale as well—Big Bad Willow was awesome! I’m also pleasantly surprised at what a true superstar Jonathon became. I loved Danny Strong’s acting on both Buffy and Gilmore Girls but I guess he’s even stronger as a writer!]

Season six was obviously about the entire Scooby Gang dealing with the ramifications of bringing Buffy back from the dead. Bringing her back was an impressive act of witchcraft by Willow, but as a legal geek, I was more interested in the logistics: What kind of paperwork does that involve?

The answer: A lot. It’s a painful process without a guaranteed solution so try to avoid this situation if at all possible (a good rule for hellmouths as well).

The usual reason a non-dead person has to deal with coming back from the dead is because their “death” was the result of a typographical error or they were declared dead in absentia. Buffy, of course, doesn’t fall into either of these categories–she actually came back from the dead and had to bust out of her own gravesite. Can’t blame her for falling into a destructive relationship with Spike after that trauma.

So what happens when you die?

“For three days after death, hair and fingernails continue to grow,
but phone calls taper off.” 
-Johnny Carson

More importantly, you get entered in the Social Security Administration’s Death Master File. Creepy as it sounds, that’s where the Social Security Administration has been keeping track of the Social Security numbers of everyone who’s died since 1980. Unfortunately, those numbers are still entered into the file by humans and sometimes errors occur, leading to people who are very much alive and well being told they are, in fact, dead.

And if your Social Security number comes up as “dead,” then you’re going to be treated like a zombie: no tax filings or refunds, no new driver’s license, rejections of any application where you’re required to provide a Social Security number. For some, it’s a brutal, years-long process that leaves them impoverished and depressed.

In addition, there can be other legal ramifications for being declared dead, especially if you were declared dead by a court in absentia. That means your estate has been disbursed, life insurance benefits paid, and Social Security disbursements made to dependents. California Probate Code Section 12408 addresses this in a section entitled “Reappearance of missing person; recovery of property; limitations of actions; order for final distribution conclusive as to parties; disputed identity of reappearing missing person.” Under that section, if you reappear you can recover assets (minus fees and costs) that are still in the possession of your estate’s personal representative. §12408(a)(1). You might be able to recover assets that have already been given to your beneficiaries, if that recovery is deemed “equitable in view of all of the circumstances.” §12408(a)(2). And if you reappear more than five years after your assets have been distributed, you’re out of luck. Id.

That’s not as bad as what happened to Donald Miller in Ohio. Declared dead by a court at the request of his ex-wife (he wasn’t paying his child support and couldn’t be found), he showed up years later and tried to be officially declared alive again. The court refused, however, explaining that under Ohio law he could only challenge a finding of death within three years of the order being entered. Miller had waited longer than that so the court told him he had to stay dead!

Presumably, the Scooby Gang was too busy fighting monsters in Sunnydale to notify the Social Security Administration about Buffy’s death – or distribute her meager assets. So all Buffy had to deal with was settling back into her old life, going through the motions as best she could:

Ah, Buffy and the Scooby Gang. It wasn’t a perfect show but it was a great show and many of its alum have gone on to make other great TV shows and movies. But there will never be another Buffy–she can only come back from the dead so many times! Next time, I’ll have to figure out what happens when a vampire regains his soul. Is there anyone tracking that?

Vampire Servant Liability

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Vampires stories often have human servants to do the vampire’s bidding. In What We Do in the Shadows, the vampire Deacon employs his human servant Jackie to iron shirts, schedule night dental appointments, and lure co-eds to be a meal for Deacon and his flat mates. What is Jackie’s liability for Deacon’s feeding off humans?

If this were a normal employment case, the concept of “Respondeat Superior” would hold an employer responsible for the actions of the employee. The term means “let the superior answer.” Black’s Law Dictionary App, 9th Edition.

In California, “a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.” Cal Civ Code § 2338.

This is not a normal employment case between a master and agent. First off, leading people to a final meal of canned spaghetti before being murdered is a crime. Secondly, holding the servant responsible for the master’s actions flips the doctrine of Respondeat Superior.

The vintage language of “master and servant” might define Deacon and Jackie’s relationship, but today it would be called a criminal conspiracy. A conspiracy is when two or more people conspire to commit a crime. Cal Pen Code § 182(a)(1). Planning to drain two human beings of blood would be murder (the unlawful killing of a human being with malice aforethought). Cal Pen Code § 187.

Jackie only led victims to Deacon’s flat and did not actually participate in killing anyone. However, Jackie could be charged for murder, despite NOT personally killing someone. When there is a conspiracy to commit murder, the punishment is the same as committing first-degree murder. See, Cal Pen Code § 182. Moreover, Jackie took multiple overt acts in furtherance of the conspiracy, from finding people to take the vampires’ home, entering the home with the victims, and leaving the property before the victims were killed. All of these actions are overt acts that would subject her to prosecution for murder.

Some vampire servants might argue the insanity defense, claiming that the vampire had the servant under hypnosis to do the vampire’s bidding. This would fail in Jackie’s case, as the housewife acted as a servant in exchange for being turned into a vampire herself at a future date.

As I have made clear in the past, I despise sparkling teenage vampire stories. What We Do in the Shadows is a fun horror-comedy. Check it out.

S.H.I.E.L.D. and First Impressions

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Holy fudge!  I’m not surprised but I am thrilled that Marvel’s Agents of S.H.I.E.L.D. was so freakin’ awesome.  My first impressions (because I know y’all have been waiting for them!) are as follows:

  • I thought the premiere was a ton of fun and a great translation of the Marvel universe to the small screen.  I don’t care what the New York Times says!
  • I love that Gunn is the first guy (and first superhero) we see.  I guess he’s only guest starring (and I’ve been avoiding all spoilers so I don’t know what the long-term plan is) but I hope to see more of him.
  • Speaking of Gunn, it’s great how much Joss uses his actors again.  I was a big fan of Ron Glass in Firefly and really loved him (and his fashions) in Barney Miller, so I was thrilled to see him show up in the premiere.
  • And, finally, the ending’s homage to Back to the Future (we’re big fans of that around here) was great.  They might as well have said, “Roads?  Where we’re going, we don’t need roads.”

Bottom line: I thought the premiere was great and I can’t wait to see how the show develops.  My only question is, if Agent Coulson is still alive, is there a chance Anya is too?  I still miss her.

 

The Legal Geeks’ First Year: Oh what a year!

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Close-up of a vampire zombie in mid attack.

I can’t believe I’ve been a Legal Geek for a year already (I’ve been a dork for decades more)!  I wasn’t sure what to expect when Josh and I started this adventure last summer but I have to say it’s been more exciting than I could have anticipated.  While it’s all been great, below are some of my personal highlights from my first year as a Legal Geek:

Josh_Reading_Countdown

Meeting and working with my geeky partner, Josh.  Josh is a ton of fun and I’ve learned more from him about US Presidents than I learned in high school.  Plus, he’s one of the most creative attorneys I know (certainly far more creative than I am), so I always enjoy reading his posts!

io9!  I still remember where I was when I found out io9 was going to publish my piece on judicial opinions with Star Trek references (I was at the Dells with my little girl, who wasn’t impressed).  I’ve been a fan of io9 for a long time so it was a personal highlight to have something I wrote on that website.  Plus, I was very impressed by the judges’ creativity.

Gavel

And speaking of creative judges, I’m so glad I’ve had the opportunity to meet and talk with some great judges through this blog, especially Judge Sciarrino.  I met him at a conference in Park City and we’ve done some fun video posts together.  He’s creative, clever, and I’ve never met anyone else who knows as much about Star Wars.

Close-up of a vampire zombie in mid attack.

 

Letting my geek colors fly!  Having the opportunity to talk about some of my favorite shows, books, and movies is awesome.  I’m a huge fan of Buffy, Veronica Mars, Robert Heinlein, John Carter, Terry Pratchett, Star Trek, and many more sci-fi authors and shows.  And I know this may be hard to believe, but I don’t get to talk about this stuff much in my ordinary life.

Finally, as my friends and family know, I’m obsessed with Howard Stern and his show.  So when one of my favorite Stern Show producers actually retweeted my post – and then I got to have a brief Twitter conversation with him – I was over the moon with excitement.  Even my kids were excited for me that time!

Dr. Horrible – Gun Manufacturer

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As already established, I love Joss Whedon.  While Buffy will always be my first love, I think everything he does is great, each in its own special way.  Dr. Horrible’s Sing-Along Blog is fantastic for so many reasons, including: (1) its inspiration in the 2007-08 Writers Guild Strike; (2) its music; (3) its use of Neil Patrick Harris; and (4) Joss’s classic move of turning convetion on its head, in this case, by making the hero an insufferable stuffed shirt. (Nathan Fillion is great as Captain Hammer but he’ll always be Johnny from Two Guys, a Girl, and a Pizza Place to me, while Ryan Reynolds will always be Berg.)

Goggles

In addition to a reputation for excellence, Joss also has a well-deserved rep for killing off beloved characters.  In Dr. Horrible, of course, [SPOILER ALERT!] he killed the adorable, sweet, much loved Penny.  And while he killed her by impalement (a possible MO, per Josh, my partner in geekdom), it was as a result of the misfire of the Death Ray created by Dr. Horrible, although it was Captain Hammer who pulled the trigger.  Nevertheless, Dr. Horrible got the credit, in the eyes of the Evil League of Evil, for murdering Penny.  The question for The Legal Geeks, however, is what would the courts say about Dr. Horrible’s liability for Penny’s death?

In this situation, Dr. Horrible’s role would be similar to that of a gun manufacturer.  He created the Death Ray but he didn’t pull the trigger.  Indeed, he didn’t want Captain Hammer to pull the trigger, probably because the Death Ray was pointed directly at him at the time.  (Captain Hammer’s willingness to fire on a clearly-vanquished enemy can be compared to Captain Mal Reynold’s shooting of unarmed opponents.  This unusual willingness to have heroes act in morally grey ways is another Joss trademark, and one Josh and I discussed in comparison to George Lucas’s redo of Han Solo’s cantina gun shot.)

Death Ray

Dr. Horrible could argue that, as a gun manufacturer, he’s covered under the Protection of Lawful Commerce in Arms Act (the “PLCAA”), enacted by Congress in 2005.  This Act was passed in part to prevent lawsuits against manufactures of firearms “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed or intended.”  This statute, which exempts manufacturers of legal, nondefective firearms from liability in products liability actions for criminal use of the firearms, would presumably not apply here for two reasons.  First, while semiautomatic assault weapons may be legal, a “death ray” is probably not a legal firearm.  Second, the death ray was presumably defective, as it misfired dramatically after a mere drop to the floor (Dr. Horrible wasn’t the best at making these weapons – the Freeze Ray didn’t work consistently either).

Assuming the PLCAA doesn’t protect him from liability, the question is whether Dr. Horrible can be held liable for the product he created.  Dr. Horrible lives in California, where the general rule is that a manufacturer can be held liable for dangerous products, although there is no duty to warn of a product’s known risks or obvious dangers.  With regard to the Death Ray, the dangers of firing it are obvious, although death by impalement would not be an obvious danger, so Dr. Horrible couldn’t use that general rule to protect him from a suit by Penny’s family.

A key question for the jury in a case brought against Dr. Horrible by Penny’s family would be whether the Death Ray failed to perform as safely as an ordinary consumer would expect when the product is used in an intended or reasonably foreseeable manner.  Firing the weapon at a bad guy (by a hero, no less) is arguably a reasonably foreseeable use of the death ray.  That same gun exploding into deadly shrapenel, however, would not be an example of a gun performing as safely as an ordinary consumer would expect, thereby making Dr. Horrible liable.

If a negligence claim was brought in addition to a products liability test, the issues would be the same, although Penny’s family would also have to prove that the defect in the death ray was caused by Dr. Horrible’s negligence.  Again, a death ray that explodes after being dropped once is a poorly designed death ray and Penny’s family would have a strong argument that Dr. Horrible was negligent in designing the death ray.

Of course, this entire discussion may be moot because, as a result of Penny’s death, Dr. Horrible became a powerful evil leader.  Captain Hammer, meanwhile, was reduced to many hours in intensive therapy and was unable to stop Dr. Horrible.  So the courts may not have the capability to impose a judgment against Dr. Horrible — making him truly judgment-proof.

The Legal Geeks Analyze Buffy the Vampire Slayer

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Attorneys Jessica Mederson and Joshua Gilliland discuss Buffy the Vampire Slayer and the possible legal issues for the fictional Sunnydale High School and highlight the creative genius of Joss Whedon. Josh also pays tribute to the geek history of his hometown, Sunnyvale, California.