by Jeff Trexler
In my last post, we looked at the attorney-client privilege question addressed by yesterday’s Ninth Circuit ruling in favor of DC. But does a clear victory for DC in a this rather technical legal issue signal a greater loss for the Siegel and Shuster heirs?
As a preamble: here’s my comment from last time to bring you up to speed:
@Paul O’Brien My next post goes into some of the key legal implications of this letter. It does indeed go beyond the bare fact of an apparent conflict–WB argues that due to the transfer of future Superman copyright interests to a joint venture with Pacific, the court has specific legal grounds to nullify the termination and everything else since the Shuster estate’s 1992 agreement with DC and the terms (allegedly) agreed upon between DC and the Siegel heirs.As discussed in my recent posts here at The Beat, Warner Brothers (WB) has made the heirs’ lawyer, Marc Toberoff, a prime target in its attempt to foil the heirs’ termination of the transfer of the Superman copyright back in 1938. The not so hidden subtext: the WB’s argument was not frivolous–there is indeed a substantial chance that Toberoff’s alleged conflict of interest, along with the surprisingly weak brief filed in the Siegel appeal, could undo the Siegel heirs’ half-ownership of the Superman copyright.
Today’s Ninth Circuit opinion gave a clear signal that Toberoff’s conflict of interest, allegedly proven in the documents due to be entered into evidence in the District Court, could be fatal to the both the Siegels’ and Shusters’ claims. Perhaps the most telling passage in regard to the Superman dispute is the third paragraph of the panel’s opinion:
To pursue these goals, Toberoff created a joint venture between the Heirs and an entity he owned. Toberoff served as both a business advisor and an attorney for that venture. The ethical and professional concerns raised by Toberoff’s actions will likely occur to many readers, but they are not before this court.
When a court goes out of its way to note that many people would find behavior in a closely related case to be problematic, what they say may not be binding but it can be most revealing. In this passing observation, the court indicates that by having a substantial financial interest in the outcome of the heirs’ respective cases, Toberoff might be tempted to put personal gain over the best interest of his clients–a serious ethical breach.
Another couple passages pertinent to the Siegel case come in the opinion’s closing legal analysis. While addressing the core doctrinal points, the panel gives not so subtle jabs at the competence and character of Toberoff’s representation.
First, the panel notes that Toberoff might have been able to preserve attorney-client privilege in key parts of the disputed documents if he had made certain basic court filings–filings that he had failed to make.
Then, in response to Toberoff’s argument that he may have turned over without his clients’ knowledge or direction, the court does not stop by noting the presumption that the heirs consented to actions on their behalf. The judges also return to Toberoff’s evident conflict-of-interest in a telling footnote:
There is also evidence that Toberoff should himself be treated as a co-client. After all, Toberoff represented all of the Petitioners, including a joint venture between the Heirs and himself in which he had a controlling interest.
If the court in Pacific Pictures should decide that there was indeed a substantial conflict of interest, the consequences could go well beyond Toberoff’s removal as attorney for the Siegel and Shuster heirs. As we saw in when reviewing the appellate briefs, WB argues that Toberoff’s interference led the Siegel heirs to improperly reject a generous binding settlement. A finding against Toberoff on the conflict-of-interest issue would only reinforce WB’s effort to erase the impression that this is a dispute between a noble family and a greedy corporation, a reframing of the case that could exert a subtle but significant influence on the court’s decision on the legal issues.
What’s more, WB has claimed that Toberoff’s substantial financial interest has serious legal consequences for the validity of the Siegel and Shuster heirs’ attempts to terminate the copyright in various Superman-related properties. In Pacific Pictures, WB argues that Toberoff improperly interfered with both the Siegel settlement and a 1992 agreement with the Shuster estate. The company further asks the court to nullify the heirs’ termination claims on a number of grounds, such as
• Toberoff’s alleged illegal “trafficking” in future terminated copyrights,
• material misrepresentations allegedly made to the court regarding who held the Superman and Superman copyrights, and
• the explosive argument that the Shuster estate’s transfer of its termination interests to Toberoff’s Pacific Pictures left Shuster heir Mark Peavy with no ownership interest in the character–and thus no legal grounds for filing a valid termination claim.
Under normal circumstances, the question of whether documents provided to a government official are covered by attorney-client privilege is ordinarily a matter of little relevance to the comics community. However, as a result of today’s Ninth Circuit opinion, it may very well decide the fate of the both the Superboy and Superman copyrights.