UPDATE: Ninth Circuit corrects Superman opinion

John O'Brien May 11, 2012, 10:57am

PASADENA, Calif. (Legal Newsline) - The U.S. Court of Appeals for the Ninth Circuit has cleared the name of an attorney it portrayed as having stolen documents related to attorney's fight to claim possession of Superman.

Attorney David Michaels says his professional name has been destroyed by what has happened in a case involving the long-running dispute over who owns Superman - the heirs of the original writer and illustrator or DC Comics.

In an opinion released April 17, the Ninth Circuit wrote that Michaels stole documents from former boss Marc Toberoff and supplied them to DC Comics. The documents, the court said, outlined Toberoff's plan to claim Superman as his own through his representation of the heirs.

"I did not steal documents, draft a timeline, or send same to DC Comics," Michaels wrote to the court on May 4. "None of these facts have ever been determined to be true by a court of law.

"The inclusion of my name and the completely false factual accounts within the Ninth Circuit Opinion clearly suggest to the reader, as demonstrated by the enormous and growing coverage on the Internet, that I in fact was the alleged perpetrator."

On May 10, the Ninth Circuit amended its opinion to reflect that there has been no finding of wrongdoing on the part of Michaels.

The opinion settled an issue of attorney-client privilege on the documents. Judge Diarmuid O'Scannlain wrote that when Toberoff showed them to federal prosecutors in an attempt to bring charges against Michaels, he waived privilege. He was ordered to hand them over to DC Comics.

The initial opinion had Michaels first attempting to solicit business from the heirs, then sending them to executives at DC Comics.

Michaels explained his side of the story in his May 4 letter. He says he discovered facts that had to be immediately disclosed to the heirs to protect their interests, pursuant to California ethics rules.

Michaels says neither Toberoff nor the heirs felt compelled to report his actions to the State Bar, and he later passed a background investigation when he was hired as an attorney-adviser for the United States Tax Court in Washington, D.C.

In February 2011, Michaels told the Department of Justice that he did not send the documents to Warner Bros., which owns DC Comics.

"Apparently, the fact that my previous employment with Christensen Miller, a firm that has represented Warner, somehow justified Toberoff's outlandish claim," Michaels wrote.

"The meeting (with the DOJ) ended and I have not been contacted since. There will not be an indictment."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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