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Nelson & Murdock: Worse Client Consultations Ever

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The fictional attorneys Franklin “Foggy” Nelson and Matt Murdock have the very real world problems with running a small law firm. Real attorneys every day have clients who cannot afford paying their legal bills. This has negative consequences on the operational costs of running a firm, from practice management software, to online legal research, to making payroll. While alternative fees are good, it is extremely difficult to keep the lights on when clients pay in bananas.

Nelson & Murdock have a serious ethical issue with how they conduct client consultations. Karen Page identifying each prospective client in the waiting room, publically disclosing each individual’s legal problem, potentially is a violation of a New York attorney’s duty of confidentiality to a prospective client.

New York’s Rules of Professional Conduct, Section 1.18(a) state that “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a “prospective client.” Every person in the waiting room of Nelson & Murdock had disclosed information to the Karen Page for the possibility of representation by Nelson & Murdock. Those communications arguably would have been protected under Section 1.18(b) from disclosure. Moreover, both Foggy Nelson and Matt Murdock had a duty to supervise Karen Page as a non-lawyer under New York’s Rules of Professional Conduct, Section 5.3, in how she maintained that information.

The New York State Bar Association Ethics Opinion 1067 addresses the duty of confidentiality to prospective clients under New York’s Rules of Professional Conduct, Section 1.18(b). The Opinion defines the test for confidentiality as follows:

Whether the prospective client’s identity, the fact of the consultation, and the subject matter of the consultation constitute confidential information turns on whether the information is protected by the attorney-client privilege, on whether disclosure likely would be embarrassing or detrimental to the prospective client, and on whether the prospective client has asked the lawyer not to disclose the information. 

Foggy Nelson and Matt Murdock should both discuss the importance of confidentiality with Karen Page for prospective clients. Whether or not there was an ethical violation would turn on each individual client. It is a smart practice to not create legal risk where there would otherwise be none.

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As to the matter of attorney’s fees, there is nothing in Rule 1.5 that would prohibit Nelson & Murdock being paid in pies as “excessive” legal fees (except as to calories). However, while pies are extremely tasty at accounts receivable meetings, they do not pay any bills.

Supreme Legal Geeks

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Justice Elena Kagan continues to proudly fly the geek flag in her recent dissent in Lockhart v. United States. It is a safe bet that the late Justice Scalia would have been proud of for Justice Kagan’s analysis of statutory sentence structure.

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Justice Kagan stated in dissent:

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.” Surely a person would have cause to protest if punished under that provision for violating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase—“involved with the new Star Wars movie,” “in New York,” “relating to insider trading”—applies to each term in the preceding list, not just the last.

Lockhart v. United States (2016) ___U.S.___ [136 S.Ct. 958, ___L.Ed.2d___].

Justice Kagan succinctly summed up the issue in one sentence: That ordinary understanding of how English works, in speech and writing alike, should decide this case. Id. 

It is refreshing to see a Supreme Court Justice who can make a point on common sense sentence construction while invoking both Star Wars and Zoolander.

Justice Kagan is the current legal geek on the Supreme Court. Time will tell if Judge Merrick Garland will be asked in Senate hearings on Han Solo’s Legal Justification to Shoot First, how the needs of the many outweigh the needs of the few, or if worthiness creates a revocable ownership interest in Thor’s Hammer.

Dr. Andrea Letamendi Podcast on Batman

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Batman issues 41 to 49 tell the story of Jim Gordon becoming the new Batman after the original Batman’s death in End Game. Dr. Andrea Letamendi from The Arkham Sessions shares her professional opinion what motivated Bruce Wayne to become Batman and Jim Gordon’s reasons to also wear the cowl. Join us to to hear Dr. Letamendi on Bruce Wayne’s mental state without memories of his personal trauma, Gordon’s growth with being Batman, and who made the greater sacrifice in issue 49, Julie Madison or Bruce Wayne.

Can a President Order Felons to Conduct Convert Opts?

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Agents of SHIELD is back to following President Elis’ orders, but could a [fictional] President order black opts with people who have broken the law? Join Jessica and I as we discuss the new season of Agents of SHIELD and all of Agent Carter season 2.

Stay Tune! Transferring to a New Hosting Partner

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We’re moving to a new hosting partner! Stay tune as we make enhancements to our site, update the database, and other improvements to The Legal Geeks.

Civil Rights on Supergirl

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Just what are the civil rights of aliens being held by the DEO? Do extraterrestrials have a right to council? Can humans and aliens be held indefinitely without a trial?

SDCF Winter Soldier Mock Trial Report

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The Mock Trial of the Winter Soldier was an amazing success. The room was filled to capacity with over 120 people attending. The audience actually cheered for a mock trial. It is extremely reaffirming to see the public care so deeply about how our courts work. It was also cool to see so many Captain America shirts and the #FreeBucky hash tag.

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I want to thank the law students from McGeorge, Whittier, and Michigan, who poured their hearts into their opening statements, witness examinations, and closing arguments. The two teams actually held an informal meet and confer over the admissibility of trial exhibits, which resulted in a motion in limine before the trial. The students might not have realized it, but they actually were following the goal of “cooperation” as stated in the Amendments to the Federal Rule of Civil Procedure in our fictional criminal trial. There is plenty of hope for the future of the practice of law.

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The volunteers who were the witnesses truly brought the story to life. A huge thank you to all of them, especially Cat Kim, who is a graduate of Columbia and Judge Grewal’s law clerk. Cat volunteered to be the Black Widow, which included making her own costume.

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Cat was given the task of not stating Nick Fury is alive in the MCU, while also not committing perjury. She was outstanding and recruited her friend Andrew to be James Buchanan Barnes. Andrew flew out from Denver to help. He truly understood the character of Bucky, both in comics and the movies. Andrew worked very diligently with the Defense Team and expert to help capture Bucky’s mental state. Job well done to both Cat and Andrew.

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Dr. Janina Scarlet and Dr. Andrea Letamendi are both huge credits to the profession of psychology. Both wrote detailed expert reports that took a deep dive into PTSD and the mental capacity of whether Bucky knew right from wrong at the time of the charges against him. This trial was a battle of the experts and both doctors delivered big. Both doctors spend their days helping those who need help and I greatly appreciated their efforts to make this trial successful.

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This trial would not have happened without the amazing legal star power who volunteered to help our law students. Neel Chatterjee from Orrick is one of the best intellectual property lawyers in the country. Neel dutifully volunteered his time with the Prosecution team, working with law students and Dr. Letamendi in helping them prepare their case.

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Attorneys Jordon Huppert and Kean Zimmerman both worked with the Defense team helping them prepare. Jordon is based in Oregon and Kean in Connecticut, who both leveraged Google Docs and Skype to mentor law students in Sacramento, Michigan, and Whittier to prepare their case.

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Magistrate Judge Paul Grewal is an excellent community outreach ambassador for the Courts. Judge Grewal masterfully presided over the trial. This might have been the only time an audience cheer “here comes the judge.” I cannot thank the Judge enough for participating. It was also extremely endearing to see his daughter attend, who cosplayed as Supergirl. She deserves a medal for quietly sitting through our two-hour trial.

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The mock trial was also a serious validation of the right to a jury trial. The jurors deliberated as a panel, giving the audience a window into how juries work. Even with a fictional case, the comments made about the mental capacity of the Defendant were inspiring. The jurors paid attention, took notes, and were very thoughtful in their analysis.

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Only one juror thought Bucky was guilty and that he did understand the wrongfulness of his actions at the time of the charges, resulting in some interesting debate. The jury foreman asked the one holdout, “Not to get too personal, but when was the last time you were put in suspended animation?”

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Real juries do not have fact patterns like the Winter Soldier, but those who serve in real juries do their absolute best to ensure justice is served.

I want to thank Mike Towry for asking us to do a mock trial at San Diego Comic Fest. This has been an amazing experience and I appreciate all he did for our law students to have this fantastic opportunity. Mike is a true statesman of geeks and a gentleman. Thank you for making this a reality.

In closing, I want to thank my friends at Zapproved for sponsoring the airfare for one of the mock trial students. One of the students is a night student, second in her class, and a mother of three. She also is fighting stage four-breast cancer. Law school is hard enough under normal circumstances, but to be excelling while having to endure cancer treatments is beyond inspiring. I appreciate Zapproved sponsoring her airline ticket and SDCF for covering her hotel in order for her to participate.