Tagged: Code of Professional Responsibility

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #386

DAREDEVIL IS GIVEN THE FINGER

Truer words were never spoken; or put into a first-person narrative caption.

You may recall that attorney – I mean I hope my old columns are at least a little memorable – Matt Murdock, who is secretly the super hero Daredevil, was recently disbarred in New York state after circumstances forced Matt to reveal publicly that he was Daredevil. When New York realized the number of ethical infractions Matt had committed to keep his secret identity secret, it barred him from its bar. Matt then moved to San Francisco, because he was still a licensed attorney in California. Well, that was then. This is now.

Now, everyone has forgotten that Matt is Daredevil, Matt is back in New York City, and his license to practice law in New York State has been reinstated. Don’t ask how.

Seriously, do not ask how, because I literally do not know. The current run on Daredevil simply dropped us in the middle of Matt’s new life without telling us how it happened. The only No explanation we’ve been given as to how Matt ignored Nat King Cole and proved his secret identity was forgettable is “unspecified circumstances.” Although I think we can safely rule out a deal with the devil though. Marvel tried this trick before; it had Mephisto make everyone forget Peter Parker was Spider-Man in “One More Day.” That bit of Faustian forgetfulness proved so unpopular Marvel retconned the Abaddon amnesia angle out of existence in “One Moment in Time.” (And you know what, don’t ask me about that either!)

All we know is what no one else knows, that Matt is Daredevil, that he can practice law in New York again, that he’s back in New York City, and that he’s working for the New York City District Attorney’s office. Considering Matt’s recent record is rife with a lack of legal ethics, some of us were taking bets on how long it would be before Matt breached legal ethics again.

Well, if you had five issues in the pool, you’re a winner.

For the first four issues of the new Daredevil run, Matt was fighting Tenfingers; a new crime lord in Chinatown who, true to his name, has a double dose of digits on each hand and some magic mojo he stole from the ninja assassin organization, the Hand. (Fingers? Hand? I’m sensing a theme here. I’m amazed we didn’t have guest appearances by Iron Fist or Mitt Romney.)

Anyway, Matt had been fighting Tenfingers in both his identities. Daredevil battled Tenfingers and his underlings in the streets. While ADA Matt tried to assemble a case against Tenfingers so he could be prosecuted. In both endeavors, Matt failed miserably. Not only could he not stop Tenfingers, he couldn’t even get Tenfingers to paws.

Because Matt had such spectacular lack of success, he was demoted from heading up the Tenfingers taskforce to the District Attorney’s E.C.A.B. or Early Case Assessment Bureau; meaning Matt will be spending a lot of time in Night Court. (Yes, the same night court where Harry Stone was a judge, but probably a different court room. Although this being a court room in the Marvel Universe, I’ll bet it has just as many crazies.)

imagesIn Daredevil v5 #5, Matt was heading to what was, I think, his first night in night court, when he got an alert that Daredevil should come to the temple in Chinatown where Tenfingers had his headquarters. Matt told his assistant, Ellen King, to cover for him in court. Ellen protested that she was a paralegal, not an attorney. Matt left anyway and narrative captioned those aforementioned truer words, “This is gonna bite me in the ass.”

I see one of three results from Matt’s actions. First, Ellen did the proper thing and told the judge that the attorney who was supposed to be in court skipped out and that she was only a paralegal, so couldn’t proceed. The judge was understandably upset with Matt then continued the court’s docket until either another day or until the DA’s office sent another attorney to cover for Matt. Either way both the judge and District Attorney Ben Hochberg were going to be pissed at Matt for this. (Can I say “pissed here at ComicMix? I guess we’ll find out.)

And I don’t mean a little bit pissed, I mean massively, Matt-gets-fired-and-brought-up-on-disciplinary-charges pissed. Cause in the real world, that’s what would probably happen to an attorney who was just reinstated after being disbarred for ethical violations and who then intentionally skipped a court date and left an unlicensed paralegal to handle his caseload.

The second possibility is that Ellen still did the correct thing and told the judge she couldn’t go forward. The judge then did the incorrect thing and forced Ellen to prosecute the cases in that night’s docket. Unlikely. This possibility would also result in Matt’s being fired and brought up on disciplinary charges, but it would also result in the judge being brought up on disciplinary charges for forcing an unlicensed paralegal to act as an attorney. It would probably also require all of the people who were arraigned that night to be arraigned again, when someone learned that a paralegal was operating as an attorney without a license. So I doubt the judge would do that.

The third possibility is that Ellen did the stupid thing and didn’t tell the judge she was only a paralegal and actually handled Matt’s caseload. This result is also unlikely. It would still result in Matt being disciplined and still force the court to re-arraign everyone who appeared in night court that evening. It would also probably result in Ellen’s being fired. She couldn’t be disbarred, because she wasn’t an attorney, but the DA’s office would fired her and possibly bring her up on criminal charges for practicing law without a license. I don’t see Ellen doing that to herself.

You may have noticed that in all three of my possible scenarios, Matt gets disciplined for skipping out on court and leaving an unlicensed paralegal to cover for him. No matter what the judge and Ellen did, Matt is going to take it on the chin. And considering he’s a super hero, that’s a pretty prominent chin.

So, yeah, I guess you could say it’s gonna bite Matt in the ass. I think it’s going to do a few more things to him, too, but I know I can’t say what those are here in ComicMix.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #376

THE SPIRIT AND LAWYERING OOPS

“Look at my diploma. Does it say Placebo State University?”

That’s what I wanted to say to my clients then they complained that they didn’t want a public defender, they wanted a real lawyer. Now I always thought I had made up good ol’ Placebo State. Then I read Will Eisner’s The Spirit #5 and the dialog of one Chadwick Swineheart attorney at law. Then I realized there really must have been a P.S.U., because Chadwick obviously attended that august institution. And based on the knowledge of law he demonstrated in this story, Swineheart attended it in July.

In said story, the Spirit, masked crime fighter of Central City, was trying to find out the current whereabouts and master plan of The Octopus, master criminal and the Spirit’s archenemy. Spirit broke into the office of the Octopus’s lawyer, the aforementioned Mr. Swineheart, rifled Swineheart’s files, and started reading like a teenager devouring the Twilight trilogy. When Swineheart caught Spirit in flagrante lectio, Spirit asked Swineheart, “So tell me … Where’s The Octopus? What’s his latest game?”

Swineheart steeled himself and said, “Private, stolen documents are against the law. Inadmissible as evidence.” To which Spirit answered, “One of the many reasons I’m not a cop.” After this compelling legal argument, Swineheart coughed up everything he knew about the Octopus. And, considering the way he was portrayed, Swineheart probably dislodged a hairball, too.

So how many different legal mistakes did Mr. Swineheart make in said scene? Surprisingly, not violating the code of professional responsibility by revealing privileged information about his client. That’s one of the few things Swineheart didn’t get wrong.

Swineheart told Spirit that the Octopus “is running some big scam to sell inferior plate steel to a government contractor.” I added the emphasis, because it showed the Octopus was running an on-going criminal activity and was going to commit future criminal acts. The Code of Professional Responsibility permits an attorney to reveal privileged information when a client is going to commit a future crime in order to prevent said crime from happening. So Swineheart was correct on this one.

However, one out of several is only a good record if you’re playing Football in Cleveland. For lawyers it’s lousy. Even Hamilton Burger won all the ones he tried after Perry Mason told him where to look.

So what did Swineheart get wrong? Let’s start with the concept that “Private, stolen documents are against the law. Inadmissible as evidence.” Sure they are. If someone stole a bunch of private documents from a business to sell to its competitor, wouldn’t those stolen documents be admissible in the industrial espionage trial as proof that the theft occurred? Of course they would. So private, stolen documents are admissible as evidence.

Now before you accuse me of being fast and loose with the law, because Swineheart obviously meant that you can’t steal private documents from him and use them as evidence against him or his client, let me respond to your accusation. You’re right.

But don’t go gloating that you caught me in an error; not yet. Sure Swineheart probably did mean you can’t steal private documents from him and use them as evidence against him or his client. It doesn’t matter. Either way you interpret Swineheart’s statement, he was incorrect.

Private citizens can break into lawyer offices – or other places – and steal private incriminating documents – or other incriminating evidence – and turn that information over the police. The police and prosecutors office may then, in turn, use that information as evidence in prosecutions against the persons who had evidence stolen from them.

I’ve written about this before, so everybody let’s say it together, It’s the Silver Platter Doctrine. Hey, Swineheart, I didn’t hear you back there. I said, “everybody!”

The Fourth Amendment forbids the police from making illegal searches and seizures. When they do, the evidence seized during said illegal search and seizure is excluded by the Exclusionary Rule. As the United States Supreme Court explained in Mapp v. Ohio, the rational of the Exclusionary Rule is that the police should not be able to benefit from it’s illegal behavior and excluding the illegally-seized evidence will deter the police from committing similar violations in the future.

The police don’t like the Exclusionary Rule. Prosecutor Offices don’t like the Exclusionary Rule. And, truth be told, neither do courts. In fact, the only people who seem to like the Exclusionary Rule are the criminals.

No one likes letting criminals go because key evidence that would have convicted said criminal has to be excluded. As a result, courts have carved some exceptions into the Exclusionary Rule. And by “some,” I mean courts have carved so many exceptions into the Rule it looks like a turkey one hour after Thanksgiving dinner.

One of the chief exceptions to the Exclusion Rule looks at the rule’s justification that it deters future police misconduct The courts routinely hold that if excluding the evidence would not deter future police misconduct, then there is no underlying justification to excluding the evidence and it should not be excluded.

So if private citizens make an illegal search and find evidence which they turn over to the police, the underlying future misconduct justification doesn’t apply. Excluding the evidence would not deter future police misconduct, as there was no police misconduct in the first place. The misconduct was all on the part of the private citizen.

Sure the private citizen might have broken the law by trespassing and stealing evidence, but the police did nothing wrong. So the evidence should not be suppressed. See, Burdeau v. McDowell, a decision of the United States Supreme Court which holds precisely what I just wrote.

Naturally it did. If Burdeau didn’t support the argument I was making, would I have cited to it as support? Maybe if I were Chadwick Swineheart. But I’m not, so the Burdeau case says precisely what I argued.

The Burdeau case came out in 1921. It’s not exactly new law. Even if this current Spirit series takes place sometime in the past, it still has to take place after 1921. After all, The Spirit didn’t even start until 1940. So there’s no reason for Swineheart not to have know Burdeau’s rule and that evidence stolen by the Spirit would be admissible in court.

Okay, there’s one reason: Swineheart is to legal scholarship what the Quadruple Bypass Burger is to Jenny Craig.

But here’s what really hurts in the whole Swineheart matter. I’ve written about the Silver Platter doctrine before. I don’t think several times before would be an exaggeration. You’d think that a lawyer who’s an actual comic-book character would read the column of the foremost comic-book legal analyst. But >>sob<< he doesn’t.

Maybe that’s why he’s such a lousy lawyer.

The Law Is A Ass #367: Daredevil’s Work Ethic Actually Works For A Change

Daredevil Vol 4. #15.1Will the real Matt Murdock please stand up?

I have, in the past, detailed incidents where Matt Murdock, New York lawyer and secret identity of the super hero Daredevil, put the ick in legal ethics. I have, in fact, done more detailing than a guy prepping cars for the show room.

Then along came Daredevil v 4 #15.1 and its story “Worlds Collide.” It’s a story set so early in the career of Matt Murdock and Daredevil, that he and Foggy Nelson hadn’t even formed the law firm Nelson and Murdock yet. Matt was a first-year associate at the prestigious Manhattan law firm Hutchins & Wheeler. Was still wearing his original red and yellow costume. And, apparently, was so new to the practice of law that Matt hadn’t yet learned how easy it was to game the system.

On one of his first patrols as Daredevil found a gunshot victim lying dead in Central Park. He heard the elevated heartbeat of three men running away from the crime scene. He chased the closest of the three men, Luiz Sifeuntes, who threw the murder weapon away as he ran. Then Daredevil caught Sifuentes, tied him to a tree, and made an anonymous call to the police.

Sometime later, Hutchins & Wheeler took on Mr. Sifuentes’s case as part of its obligation to provide five thousand hours of pro bono work. Mr. Wheeler assigned the case to Matt.

When Matt talked with Sifuentes, his client said he was walking in the park and went to the crime scene after he heard gunshots. He saw the victim lying on the ground, saw the gun, and picked it up for no known reason other than the one we all know; that’s what innocent people in stories always do when they find dead bodies with recently-fired guns lying next to them. They pick up the furshlugginer gun and give the state what looks like an air-trite case against them. Seriously, this plot device has been used so often that I think complaining that it’s a cliché has become a cliché.

Matt realized he shouldn’t represent Sifuentes, as he was the person who captured Sifuentes in the first place, so he tried to get off the case. Which was the ethical thing to do, as Matt had reason to doubt his ability to be objective and represent his client zealously. But Wheeler wouldn’t let Matt quit. So Matt, who couldn’t reveal the true reason he wanted off the case – i.e. his secret identity – continued to represent his client as best he could. He filed a motion to dismiss the case during the pre-trial probable cause hearing. The grounds for the motion were that Sifuentes was captured by a vigilante who might not even testify so the state wouldn’t be able to make its case.

This was a very sound argument. As I’ve written in the past, when the heroes capture criminals but don’t stick around to supply evidence, the state has no witnesses who can testify as to the defendant’s guilt. Without Daredevil’s testimony, the state would, literally, have no witness who could put Sifuentes at the scene of the crime or in possession of the murder weapon. Judge Mandelbaum said she would take Matt’s argument under advisement and didn’t rule on it.

Meanwhile, the prosecutor, who realized there was a major weakness in her case, offered Matt the chance to plead his client to manslaughter in the second degree. Matt took the offer to his client, because, as he correctly stated, he had a legal obligation to present any plea offer to his client.

A lawyer does have the ethical obligation to present all plea offers to a client. Even ones the lawyer might think are a bad deal. The lawyer can tell the client that he feels the plea offer is a bad deal and advise the client to reject it. But the lawyer still has the legal obligation to present the offer to the client and let the client decide whether he wants to accept it.

Matt advised his client that the offer was a good deal, but only if he were guilty. Again a very ethical and proper way to act. The client decided to accept the offer, because he felt a guaranteed fifteen year sentence – with parole after ten years with good behavior – was better than risking a possible twenty-five year to life sentence should he risk a trial and be convicted of murder in the second degree.

That’s how Matt spent his days, representing Luiz Sifuentes. That’s also how he spent his nights, because at night Daredevil went looking for, and ultimately found the two men actually involved in the shooting.

The next morning, Judge Mandelbaum denied Matt’s motion. She ruled that when an arrest was made by a vigilante such as Daredevil the decision of whether to proceed with that case should be handled on a case-by-case basis. Each case must be examined on its own merits, rather than allow a blanket ruling that all defendants apprehended by masked super heroes should be dismissed. As Luis Sifuentes was found at the scene and his fingerprints were on the murder weapon, that was enough evidence to bind him over for trial. The trial could decide whether there was enough evidence to convict him, should the vigilante Daredevil not testify.

This was absolutely the correct decision. No court would ever make a blanket ruling that any defendant apprehended by masked a vigilante should be set free. Such blanket rulings would prevent courts from reaching the ultimate question: the defendants’ quilt or innocence. But there was another reason why Judge Mandelbaum was correct in her ruling.

Matt made his motion to dismiss during a probable cause hearing. All that is decided in such hearings is whether there is enough evidence to proceed to trial. The state only has to prove that there’s sufficient evidence to establish that it is more probable than not that the defendant committed the crime. The state does not have to prove guilt beyond a reasonable doubt. So in a probable cause hearing, a police officer could testify that the department received an anonymous phone call of a shooting in Central Park and that when they arrived they found the defendant tied to a tree next to the victim and that the murder weapon, with the defendant’s fingerprints on it, was also found next to the victim. That degree of evidence might not be enough to prove guilt beyond a reasonable doubt in trial, should Daredevil not testify. But it would have been enough for a probable cause hearing. So Judge Mandelbaum was correct in denying the motion in the probable cause hearing.

Matt then informed the court that Mr. Sifuentes was not going to proceed with his plea bargain, because the previous night two other men were apprehended in connection with the murder. Matt further said that he believed any fingerprints on the bullets in the murder weapon would match one of these two men, not Mr. Sifuentes’s and that both men said they did not know Luiz Sifuentes. So Matt made a new motion to dismiss, one based on the argument that Mr. Sifuentes was actually innocent of the charges leveled against him.

Yes, I know this case was early in Matt’s career. Maybe because he was younger and just starting out, Matt wasn’t as daring as he would become. Or as willing to stretch his legal ethics worse than Spanx on Rebel Wilson. But it was so refreshing to read a story where Matt acted ethically and properly. Any chance we could get more of them?

A week later, Matt was rewarded for his ethical actions. I don’t know what actually happened. The two murderers probably confessed and exonerated Luis Sifuentes. All I know is that Judge Mandelbaum dismissed all the charges against Sifuentes “with prejudice.”

What’s that mean, that the case against Luis Sifuentes was dismissed “with prejudice?” Why, it means I have something to write about next week.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #336: The Practice Makes Imperfect

Lara-Flynn-Boyle-image-lara-flynn-boyle-36103463-1466-2000I don’t care what the old saying says, in this case The Practice  makes imperfect.

David E. Kelly, the creator, producer and head writer of such shows as Picket Fences, Ally McBeal, and one – mercifully – unsold Wonder Woman  pilot was a practicing attorney in Boston, before he moved to Hollywood to become the creator, producer and head writer of such shows as Picket Fences and Ally McBeal. An interesting choice leaving the law for Hollywood producer. It’s one of the few career moves that wouldn’t be regarded as a step up.

One of Kelly’s biggest TV successes was The Practice, a show about a struggling criminal-defense and plaintiff’s personal injury law firm in Boston It was a show firmly rooted in Kelly’s own past, and a show which won both the Emmy and the Golden Globes award for best drama. By all accounts, it was a high-quality show.

I couldn’t watch it.

I tried, but I just couldn’t. Kelly seemed to forget his lawyer past in The Practice, and, as a result, we were condemned because he couldn’t repeat it. The show frequently opted for the highly dramatic in its situations and portrayals of the law, instead of the legally accurate. The Practice got the law so wrong, that, for me, it was more infuriating than entertaining.

Case in point: the January 5, 1998 episode “Line of Duty.” Bobby Donnell, the lead lawyer of the series played by Dylan McDermott, was sleeping with the enemy, in this case in the case in point, said enemy was prosecuting attorney Helen Gamble played by Laura Flynn Boyle. One night, while sleeping at Helen’s, Bobby learned the police were about to raid the drug house of a major drug dealer and arrest him. Problem for Bobby was said drug dealer was Bobby’s client. Bobby called his client to warn him of the impending raid and told the client to clear out and not be arrested. Then the problem for Bobby became the client decided to fight it out instead of clearing out and in the ensuing gun battle between drug dealers and police, a cop was killed.

So, ultimately the problem for Bobby was he found himself being prosecuted for aiding and abetting the murder of a cop. Surprisingly enough, we in the legal profession actually have a term for when this sort of thing happens; it’s, “Oh, this is not good.”

Aiding and abetting is a crime legislatures enact to keep people from helping criminals. It says that if you help a criminal commit a crime, you’re as guilty as the criminal who actually committed the act, even if you didn’t commit it yourself. In Massachusetts General Law Chapter 274 § 3, they call it being an accessory before the fact, but it’s the same thing. In Bobby’s case, the prosecution claimed that by warning his client of the impending arrest, Bobby helped him resist arrest so was equally responsible for the murders which occurred during the arrest.

Bobby had a normal defense he could have used. The law specifically says, “Whoever counsels, hires or otherwise procures a felony to be committed.” Bobby did none of these. He didn’t want his client to resist arrest or kill any police officers. All he wanted his client to do was clear out of his house so that he wouldn’t be arrested. Had he argued to the jury that he didn’t counsel his client to resist arrest or kill cops, a perfectly appropriate and legal defense, he probably would have been acquitted.

But Bobby didn’t argue the appropriate, even legal, defense to his case. That wouldn’t have be dramatic. Instead Bobby argued that under the Code of Professional Responsibility he had a duty to represent his client zealously, so he had an ethical obligation to inform his client of the impending raid. Bobby argued what he did wasn’t illegal but sanctioned by the law.

Guess what? It ain’t.

Oh, it’s true that Canon 7 of the Code of Professional Responsibility says, “A lawyer should represent a client zealously within the bounds of the law.” It is also true that zealous representation would include informing a client of things that could be injurious to the client. But there’s a catch in this legal obligation. It’s those pesky words, “within the bounds of the law.”

What that means is simple, a lawyer can’t break the law under normal circumstances and also can’t do it while representing a client. Indeed, the Code of Professional Responsibility specifically says a lawyer cannot knowingly engage in illegal conduct while representing a client. So, if warning his client about the impending arrest was be illegal, then Bobby had no ethical obligation to warn the client, because the Rules of Professional Responsibility require that a lawyer act within the boundaries of the law.

Would warning a client of an impending arrest be against the law? Do orcas poop penguins?

Every jurisdiction I know of has some sort of obstruction of justice law on its books. As I know of the jurisdiction of Massachusetts, it safe to assume Massachusetts has such a law. However, it’s even safer to check the Massachusetts General Laws to be sure. So I did. Chapter 274 § 4 of the Massachusetts General Laws, the accessories after the fact law, makes it a crime for someone to assist a person who has committed a felony, “with the intent that he shall avoid or escape … arrest.” Which brings us back to our problem child, Bobby.

He warned a client, not just a client but a felon, that said client was about to be arrested so that the felon could escape arrest. That’s a violation of the accessory after the fact law. So, under the Code of Professional Responsibility dictate that a lawyer act within the boundaries of the law, the fact that warning his client of an impending arrest would break the law obviated any duty Bobby thought he had to warn his client.

Still, Bobby made his argument that he had an ethical obligation to tell his client he was about to be busted. Worse the judge presiding over the case bought the argument and dismissed the charges against Bobby. Not surprising from a dramatic point of view, had Bobby been convicted, the show about his struggles to be a successful personal injury attorney would have ended. It’s kind of hard to chase ambulances within the confines of a 6 by 8 prison cell. But it was totally inaccurate from a legal point of view.

The outcome of Bobby’s case brings up another question. If Bobby didn’t know he had no ethical obligation to warn his client and the judge didn’t know Bobby’s argument was flawed, then what’s the deal with the Massachusetts legal system? Are Bostonian lawyers and judges participating in a totally different kind of Boston tea party? Maybe. That could be the reason judges and lawyers are always so high and mighty.

Author’s Note: Because of the Thanksgiving work week, which significantly shortened my work week this week, I took a column I once wrote as part of an introduction to a “The Law Is a Ass” book I was pitching back in the late 90s, edited it to bring it up to date and made it a stand alone column. But that’s why you’re suddenly getting a column about a 1998 TV show.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #333: SHE-HULK’S TRYING THE CASE AND OUR PATIENCE

SheHulk3Let’s see now, where were we before we were so rudely interrupted? Interrupted by me when I realized last week’s column was long enough, so decided to split it into two columns. Oh yes, She-Hulk V 3 # 9.

She-Hulk v 3 # 9 is Part Two of the three-part story, “The Good Old Days.” The titular good old days refer to a dock riot in Los Angeles in November of 1940, if that’s “good,” I think someone needs to invest in a new dictionary. The good old days also refer to the fact that during the incident Sam Folger died and now the grandchildren of Sam’s brother, Harold, are suing Steve (Captain America) Rogers for the wrongful death of their great-granduncle. Again, “good?” If you can’t afford a new dictionary, then at least bookmark dictionary.com.

Jennifer (She-Hulk) Walters was representing Cap and Matt (Daredevil) Murdock was representing the Foglers. Matt began his trial with the testimony of Officer McKinley, who told the jury what Harold Fogler said on his death bed sometime in 2014. Here’s Harold’s deathbed confession, as recounted by Officer McKinley.

In 1940, Harold left his mother and brother back in Brooklyn http://brooklyn.com/index.php and moved to Los Angeles. He fell in with a bad crowd. In early November, 1940, the bad crowd met in a warehouse near the Los Angeles docks to plan some trouble they were going to cause there. Harold stepped outside for some air where he was confronted by his little brother, Sam, who had left medical school and come across the country to accost Harold. Sam urged Harold to come back home to their heartbroken mother. Sam brought a friend with him, Steve Rogers, who was still in his pre-Captain America days.

Steve also started in lecturing Harold. And wouldn’t stop. Not even when the bad crowd hauled them into the warehouse. The boss tried to shut Steve up by pointing a Luger at Sam and threatening to kill Sam, if Steve kept talking. Steve kept talking. The boss killed Sam.

Now based on this account of what happened in Los Angels in 1940, Harold Fogler’s grand children were suing Steve Rogers, A.K.A. Captain America, for the wrongful death of their great-granduncle. They said Steve’s “wrongful act” and “neglect” caused Sam’s death.

I say what wrongful act or neglect?

In all U.S. jurisdictions including California, a negligence suit such as wrongful death has four basic elements which must be proven. The defendant must have owed the plaintiff a duty. The defendant must have breached that duty. The breach must have been the proximate cause of some injury to the plaintiff. And the plaintiff must have been damaged by said injuries.

I’ll tackle the injury element first, because it’s the easiest. Sam was killed. He suffered an injury. Death. Death’s the ultimate injury. But did Sam’s family suffer any damages from that injury?

But Sam’s not suing. He’s dead. I’m not so sure how Sam’s injury translates to Sam’s great-grandnephews. The family maintains that Sam would have become a doctor, a successful surgeon and provided for Harold’s family. But can they prove that?

Yes, Sam was in medical school but no one knows Sam would have become a doctor. He could have flunked out. It was 1940, so he could have been drafted and died in World War II. If Sam survived the war and became a doctor, maybe he would have practiced in some rural community in Appalachia where his patients paid him in pigs. Even if Sam had become the greatest and richest surgeon in the history of the United States, he had no legal obligation to provide financial assistance to his brother, his brother’s children, or his brother’s grandchildren. Any financial damages in this suit were speculative. At best.

Speculative damages was only the bad news for the Fogler family. The worse news was that as difficult as proving damages would be, that’s the least of their worries.

The Foglers had to prove Steve had a duty to Sam Fogler and that Steve breached his duty. We know Steve didn’t breach a duty by killing Sam, because the boss killed Sam. The Fogler’s theory of breach of duty was that Steve had a duty to stop talking when the boss threatened to kill Sam and by continuing to talk, Steve negligently caused Sam’s death. As far as I understand the law, Steve had no such duty and, thus, didn’t breach such duty.

The bad crowd committed several crimes against Steve and Sam. Kidnaping. Criminal Threats. Probably more. But those are enough for our purposes, I say in a blatant attempt to limit the amount of research I have to do. No one has a duty to submit to a crime.

If criminals running a protection racket threaten to bomb a store unless the owner pays them money, the owner has no duty to pay the criminals money. If the owner refuses to pay and the criminals bomb the store killing one of the store’s employees, the owner is not liable to the employee’s family for wrongful death.

The owner had no duty to submit to the criminals’ extortion demands. And, because he had no duty to submit, he did not negligently cause the employee’s death by breaching a duty. One can’t breach a duty one didn’t have in the first place. Indeed, most jurisdictions would call the owner a hero for standing up to the extortionists, not a tortfeasor who caused a wrongful death.

The owner’s refusal to pay protection may have resulted in the employee’s death, but it didn’t cause the employee’s death. The only people who caused the employee’s death were the criminals who committed the superseding, intervening act of intentionally bombing the store. They’re the only ones who should be sued for wrongful death.

In the same way, Steve had no duty to submit to the gang’s threats. So there’s no breach of a duty in his acts. Moreover, Steve’s refusal to submit didn’t cause Sam’s death. The boss, a superceding and intervening cause, caused Sam’s death by intentionally shooting him. The Folgers’ case is weak, on three of the four elements for negligence. Steve didn’t breach any duty to Sam by his actions. Steve’s actions didn’t cause Sam’s death. And any monetary damages Sam’s great-grandnephews may have suffered are, as I said earlier, speculative.

Personally, I can’t imagine why any lawyer agreed to take the case in the first place. I especially can’t see why Matt Murdock agreed to take the case. The world now knows that Matt is Daredevil. Matt was just disbarred in New York for, among other things, agreeing to represent a man who wanted to sue Daredevil despite the massive conflict of interests that’s inherent in suing yourself. I can’t imagine why Matt would set himself up for another potential conflict of interests complaint – not to mention a legal malpractice – by agreeing to sue one of his best friends. That’s hardly, as the Code of Professional Responsibility put it, avoiding the appearance of impropriety.

The story tried to explain why Matt agreed to take the case. It was because Steve asked him to take the case. According to Matt, Steve argued, “if I’d ever been his friend, if I cared about what he’d done as Captain America, then I wouldn’t pull my punches.” I don’t buy it. The explanation, that is. I bought the comic. Don’t go accusing me of shoplifting.

I don’t care if Steve and Matt were BFFs, field trip buddies, and even prom dates, Matt shouldn’t have fallen for Steve’s friendship guilt trip by taking the case. Matt should have told Cap, “I can’t take the case. It’s a violation of my professional ethics. And if you’ve ever been my friend, you wouldn’t put me into this situation by asking me to commit malpractice.”

Well that’s it for Part Two of “The Good Old Days.” I promise I won’t write about She-Hulk V 3 # 9 next week. But as it was only Part Two of “The Good Old Days,” I can’t promise that I won’t write about She-Hulk v 3 # 10 http://marvel.wikia.com/She-Hulk_Vol_3_10 and Part Three of “The Good Old Days” in a few weeks.

Can’t promise? I can practically guarantee it.

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