Feb. 19, 2021
Ethically conducting trial in the court of public opinion
Phineas T. Barnum is often attributed with introducing the notion that there is no such thing as bad publicity. But clients who find the media discussing their names in an unflattering light may disagree.
Phineas T. Barnum is often attributed with introducing the notion that there is no such thing as bad publicity. But clients who find the media discussing their names in an unflattering light may disagree. And, as is human nature, in an effort to bolster their reputations that have just taken a hit, they often want to respond. In many cases, they are cognizant that the middle of litigation is a time when they should consult with, if not rely on, their lawyers regarding such statements. In an era where “no comment” — whether fairly or not — is accompanied with assumptions, these situations lead to clients naturally turning to their lawyers to ask, “What are you going to do about this?”
In such situations, lawyers find themselves in a middle ground where there are two interests to serve. On the one hand, they are supposed to serve as the advisors to and the champions of their clients. That is easily recognized and accepted. But they also owe duties to serve the justice system. In addressing state-imposed regulations on lawyers’ conduct regarding trial publicity, the U.S. Supreme Court stated, “Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.” Consistent with this, the 9th Circuit has noted that the lower standard for prior restraints regarding pretrial publicity does not apply to lawyers, “who are officers of the court subject to fiduciary and ethical obligations.”
With these concepts in mind, lawyers cannot just say whatever they want to the press. California’s Rule of Professional Conduct 3.6 provides that a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
The rule is designed to prevent lawyers from polluting the jury pool and, therefore, precluding a fair trial. The goal is to make sure that any information being considered at trial is admissible evidence, a standard that public statements are not held to.
Ultimately, the determination of whether a statement is prejudicial is done on a case-by-case basis. There is no single standard. But certain factors may play a more significant role in that analysis. The rule expressly provides that whether a statement violates this rule depends on many factors, including whether the extrajudicial statement presents clearly inadmissible information as evidence to prove or disprove a disputed material fact; whether the statement contains information the lawyer knows is false, deceptive, or misleading; whether the statement violates a lawful prohibition, such as existing law or court order; and the proximity of the statement to trial. As a practical matter, courts have considered other factors such as whether it is criminal matter — which would presumptively be more sensitive to extrajudicial speech, whether it will be a jury or bench trial, and how central the information is to the ultimate questions in the litigation.
So what can lawyer’s do? Regardless of the situation, lawyers are free to provide enumerated basic details. These include the claims, offenses, and defenses involved, the names of the parties, information contained in the public record, the fact that an investigation is ongoing, scheduling and results in the litigation to date, requests for assistance in obtaining evidence, and warnings of danger when reasonably necessary to protect against substantial harm to individuals. In criminal cases, additional information may be provided regarding the accused, including the identity, the residence, the occupation, information necessary for apprehension (if not apprehended), the identity of investigating officers and arresting officers, the length of the investigation, and the fact, time, and place of the accused’s arrest.
Indeed, this limited list of information, particularly as it relates to “information in the public record” and the “result of any step of the litigation” may be quite significant and can potentially swing opinions about the litigation subject. But some information beyond this may still receive publicity.
For that reason, lawyers are permitted to “make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client” provided that such statement “be limited to such information as is necessary to mitigate the recent adverse publicity.” It is important to note that the rule does not require that the publicity comes from the opposing counsel, or any particular source. The purpose for this exception is to provide a safeguard against an unfair trial by allowing parties to respond through their counsel to information that is false, unreliable, or inadmissible.
But it is important to note the limitations on this. The undue prejudicial effect of the initial statement must be substantial, and the lawyer’s response must be narrowly tailored to addressing that information, and go no further. Bringing this together, a lawyer may make statements limited to information as necessary to mitigate the publicity as long as the lawyer’s statements are unlikely to materially prejudice an adjudicative proceeding. As a practical approach, lawyers might recount the evidence in the public record that specifically counters negative publicity.
And when discussing these parameters for the type of information that may be subject to publicity, it may be easy to forget that the Rules of Professional Conduct provide some guidance to lawyers about publicity outside of Rule 3.6. Just because a statement is made to the media does not mean that it can occur without consideration of other ethical requirements. Consistent with Rule 1.6, lawyers must still protect confidential information, including what their clients instruct them not to disclose, and regardless of whether it is information that is publicly known. Rule 1.4 requires that statements to others be truthful. And, to the extent that lawyers use the opportunity to discuss their own services, they must be cognizant of the rules regarding lawyer advertising.
Once clearing the question of what a lawyer can do, it usually makes sense to ask the question whether the conduct that is permissible is also something that should be done under the circumstances. Beyond the ethical, it is usually a good idea to consider what the consequences will be. For example, a litigation adversary may use another lawyer’s media response as an opportunity to create more headlines by engaging in a very public joust that keeps highlighting negative points and merely escalates the situation.
There are many reasons why a case may receive publicity. It could be one that has societal importance. It could involve well-known parties. Or it could simply have a fascinating story that captures the press’s and the public’s imagination. Lawyers may respond in many forums, but the same rules apply to all public statements. So, while still serving as their clients’ champions, the lawyers should still consider the forgoing in preserving the integrity of our legal system.