The Law Is A Ass #325: Did Daredevil Have To Be Disbarred?
The story in question is Daredevil v.3 # 36. The law in question is… Well, that would be telling. Which is exactly what I’ll be doing for the next thousand words or so, telling you about that law.
Daredevil v. 3 # 36 was the culmination of a multi-part story. Multi-part story short: Robert Oglivy has been framed for murder. Robert’s father wanted Matt Murdock, who is secretly Daredevil, to represent his son. Matt was reluctant, because Ogilvy was the head of the latest iteration the Sons of the Serpent – a racist hate group which secretly controlled the New York City justice system. Ogilvy blackmailed Matt by threatening to out Matt as Daredevil, unless Matt agreed to help Robert.
In order to take away Ogilvy’s leverage, Matt…
…testified in Robert’s trial and admitted under oath that he was Daredevil. To cover his tracks, Ogilvy ordered a Serpent strike squad to come to the courtroom.
Meanwhile, Daredevil recognized the voice of Judge Pierce, who was presiding over Robert’s trial, as that of the man who had sent a squad of assassins to kill Matt the night before. Matt deduced Pierce was also a Son of the Serpent and had framed Robert in order to supplant Ogilvy as the Supreme Serpent.
Matt’s hyper senses detected the strike squad approaching the courtroom. So, after Matt made his big reveal about Judge Pierce, he removed his clothes – well his outer clothes, Marvel isn’t pushing the envelope of how adult comic books can be quite that far – to reveal his Daredevil costume. One SWAK, BIFF, SSSWIK, FWAK, THWAK, BLAM, RRNCH, GNAAAAH, KRNK, and FWAM later, the fight was over. The Sons of the Serpents were thwarted. Their control over the New York judicial system was exposed. And thwarted. Oh, and Matt and his law partner, Foggy Nelson, faced a variety of ethical charges stemming from the fact that Matt was secretly Daredevil.
What ethics violations? I’ll just mention the ones I’ve written about in the past, because they’re easy to find.
Matt routinely represented super villains he had caught as Daredevil, villains who had routinely tried to kill Daredevil. That’s a conflict of interests. See, Matt might have resented the people who tried to kill him – I know I would – and might not have represented them to the fullest of his ability. Even if only subconsciously. He should never have taken those cases. Okay, maybe it’s not a biggie, but it’s a start.
Next we have the events of “Playing to the Camera” from Daredevil v. 2 #s 20-25. In Daredevil v. 2 # 21, Matt agreed to represent Samuel Griggs, who wanted to sue Daredevil for property damage caused during a fight between Daredevil and some ninjas. Matt knew that he never had this fight so wasn’t culpable. He agreed to take the case because he planned to use the information he learned from Griggs to investigate the matter and exonerate Daredevil.
So Matt was going to use information he learned from his client to work against his client’s interests. The New York Code of Professional Responsibility commands that a lawyer represent his client zealously. Using your client’s information against the client’s interests is not zealous representation.
And then there’s also the conflict of interests inherent in any case where a lawyer agrees to sue himself. How can any lawyer give his best efforts to a client that is suing the lawyer?
In Daredevil v. 2 # 25, Matt persuaded Spider-Man to dress up in a Daredevil costume and testify in court about the matter. Having Spider-Man testify as Daredevil was suborning perjury, which is “conduct involving dishonesty, fraud, deceit, or misrepresentation” and a violation of the Code of Professional Responsibility.
It should be noted that Matt didn’t actually ask the questions of Spider-Man during the trial, Foggy did. That’s because, at the same time Spider-Man perjured himself by pretending to be Daredevil, Matt was in Times Square as Daredevil. This made it look like Daredevil wasn’t just one person but multiple people all operating under the costume. Then Matt came into the court and argued that the case couldn’t go forward because the court had no way of knowing which of the multiple Daredevils actually caused the damage to Mr. Griggs’s property. It couldn’t be sure that the correct Daredevil was being sued.
Once again, Matt intentionally placed false information before the court. He knew that there weren’t two Daredevils. He knew his argument was a fraud upon the court. He knew it was – you guessed it – a violation of the Code of Professional Responsibility. He did it anyway.
And remember that years long continuity that started in Daredevil v. 2 # 32, when The Daily Globe printed an article exposing Matt Murdock as being Daredevil? In Daredevil v. 2 # 36, Matt tried to preserve his secret identity by filing a multi-multi-multi-multi-million dollar libel lawsuit against The Daily Globe. The problem is that Matt was Daredevil, so the Globe’s article was true. Under the libel laws, a true article cannot be libel.
Matt intentionally filed a libel suit over an article he knew was true. The Code of Professional Responsibility says a lawyer may not, “knowingly advance a claim … that is unwarranted under existing law.” Would filing a libel suit over an article the lawyer knows is true count as “unwarranted?” Does Count von Count count?
And, while we’re at it, the judges hearing Matt’s case must not have been too thrilled over that whole period where Daredevil became the head of The Hand, a group of ninja assassins who had a base of operations in Hell’s Kitchen.
Now I have no problem with the judges disciplining Matt for his multiple violations ethics. Hell, I wrote about them and said Matt should be disciplined. But the discipline the judges took was to disbar Matt from practicing law in New York.
In some states, like Ohio, disbarment is permanent. A lawyer who has been disbarred cannot be reinstated to the practice of law in that state. That’s why those states only disbar lawyers in extreme cases. Usually courts order an indefinite suspension of the lawyer’s license. It’s like a disbarment, as it can last for however long the courts want it to last; even forever. But it isn’t permanent. Indefinite suspensions are imposed so that if, years down the road, the court relents, it can reinstate the lawyer to the practice of law. It provides some leeway. As disbarment is permanent, courts don’t often invoke this “nuclear option.”
In New York disbarment isn’t permanent. A disbarred attorney can move to be reinstated after seven years have passed. But in those states where disbarment isn’t permanent, getting reinstated to the bar is extremely rare. So even in states where disbarred attorneys can be reinstated, the courts have adopted indefinite suspensions, because disbarment is like a death penalty.
In the case of Daredevil v. 3 # 36, the judges actually expressed both their sympathy for Matt’s situation and their appreciation for what Matt had done. If the judges were sympathetic and appreciative, it’s far more likely that they would have suspended Matt’s license indefinitely rather than disbar him and give his career a virtual death penalty. I’m not saying they wouldn’t have disbarred Matt. I’m just saying I’m not sure they would have.
As a result of being disbarred, Matt left New York and moved back to San Francisco, where he had lived and practiced law years before. He hadn’t been disbarred in California, so he could practice law there.
So, is Matt’s New York law career over? Not necessarily. He can wait the seven years. But seven years Marvel time would be more like seventy years in real-world time; which for us, the readers, would be forever. But if Matt didn’t want to wait that long, he has another option: federal court.
Matt has practiced in federal court in New York, so he has been admitted to the federal bar for the Southern District of New York. He was not disbarred by the federal court of New York, so he can still practice there, even though New York disbarred him. A lawyer can practice in the federal court system, as long as he is admitted to any state bar in the country. As Matt is a member of the California Bar, he could practice in federal court in New York.
I give this information should any Daredevil writer want to move Matt back to New York in the not-too-distant future, as opposed to after seventy years of real-world time. Why? Because I don’t want to see some story where Matt presents even more false evidence to a court in order to get himself reinstated to the New York Bar. That would make me lose all respect for him.