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Ethical Considerations in Trial Publicity

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Ethical Considerations in Trial Publicity ...

    Mid-Winter Meeting of the Ethics and Professional Responsibility Committee of the ABA Section of

    Labor and Employment Law

    Puerto Vallarta, Mexico

    Saturday, January 18, 2004

    TRIAL PUBLICITY ISSUES FOR LABOR &

    EMPLOYMENT LAW ATTORNEYS

    CAROLYN WITHERSPOON*

    CROSS GUNTER WITHERSPOON & GALCHUS, P.C.

    500 President Clinton Avenue, Suite 200

    Little Rock, Arkansas 72201

    Telephone: (501) 371-9999

    Fax: (501) 371-0035

    E-mail: cspoon@cgwg.com

____________________

    *Special thanks to Missy Leflar, an associate with Cross, Gunter, Witherspoon & Galchus, for her assistance

    with this presentation.

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    Trial Publicity Issues for Labor &

    Employment Law Attorneys

I. Introduction

    There are ethical issues concerning the use (or misuse) of the power inherent in preliminarily persuading people they should lean in one direction or the other prior to hearing the actual evidence of a case. In times past the primary means of achieving pre-trial publicity would have been limited to word of mouth and, only among a select few, the written word. Word of mouth has always traveled surprisingly fast. Technological advances have sped up the tempo of our communications with one another and thus have changed the shape of pre-trial and contemporaneous trial publicity issues. This trend began with the advent of radio and television in the twentieth century. According to Professors Gary Moran and Brian Cutler, authors of The Prejudicial Impact of Pretrial 1Publicity, the assassination of President John F. Kennedy was an important historical event in drawing widespread public attention to the correlation between bias and pretrial media publicity. The professors state:

    Three events in the 1960s served to encourage the

    participation of social scientists in judicial

    determinations of the fairness of trials in the face of

    widespread local publicity. Concern by the bar with

    media coverage of the Lee Harvey Oswald affair led

    to the American Bar Association Standards on Fair

    Trial and Free Press (1968). In the 1963 Zippo

    trademark legislation case, courts dropped prior

    objections to scientific surveys (Pollock, 1977). Last,

    the Supreme Court reached several landmark

    decisions dictating changes of venue in instances of 2extensive prejudicial media coverage.

     The professors note, with regard to the printed media, that there is a correlation between the number of times a person sees a news article about an impending trial and that person‟s bias regarding the defendant‟s guilt:

    The data present clear evidence of the practical

    significance of pretrial publicity. Persons who report

    having seen as many as five newspaper articles are

    substantially more inclined to say they feel there is a

    “lot of evidence” against the defendant. (Emphasis 3added.)

     1 Journal of Applied Social Psychology, 1991, Volume 21 No. 5, pp. 345-367 2 Id. at 345. 3 Id. at 354.

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     Ultimately, Drs. Moran and Cutler concluded “that even modest pretrial

    publicity can prejudice potential jurors against a defendant and that self-reports 4 Id. at 345. of impartiality should not be taken at face value.”

     In short, prospective jurors may claim that pretrial publicity does not bias them and they may, in fact, even believe it to be true. However, media coverage will, for good or ill, prejudice people in the direction of one party or another.

     5 Richard Crouch, an attorney and author of an article originally published in the Virginia State Bar Association‟s Family Law News entitled Section Program 6Covers Trials with Press Presence, Publicity, observed several attorneys

    (including the separate counsel for John and Lorena Bobbitt) and a reporter speak on the topic of trial publicity. The interesting statements and advice gleaned from the attorneys and the reporter by Mr. Crouch include the following:

    1. The press in its coverage of trials today is very

    different from the press of ten to fifteen years ago.

    2. [T]he no-comment position … is right. The difficult

    question ... is how you deal with the situation when

    the other side takes a very different approach and for

    whatever reasons there is significant “disinformation”

    out there.

    3. [It] gets very bad when the press is offering

    $100,000.00 for a pre-trial interview.

    4. [T]he jury feels that you are respecting them when

    they hear your story for the first time from you.

    5. [R]eporters by the hundreds are looking for anyone

    to nod a head in reply to a very slanted question.

    6. One must speak in sentences of no more than four

    words, with a definite period at the end.

    7. Never let yourself be taped.

     4 The United States is not the only country grappling with modern trial publicity issues. The issue has been researched in many countries, including those with legal systems similar to our own such as Australia, New Zealand, and Canada. It should be noted that as a practical matter some countries, for example England, have more latitude in handling trial publicity issues by judicially silencing the press since their courts don’t

    have to operate within American First Amendment/Free Press constraints. Are Jury Members Affected by

    Media Reports? Trevor B. Roydhouse, LAWS4431 Legal Research LLM course essay, University of New South Wales Faculty of Law, Session 2, 2001 5 Richard Crouch, Attorney at Law, Crouch & Crouch, 2111 Wilson Boulevard, Suite 550, Arlington, VA 22201, crouch@patriot.net. 6 Material from Mr. Crouch’s article is used with express permission of Author.

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    8. You can get some information that you need from the press ... How do you do this without talking to them? By listening very carefully to their questions. The less you say, the more the press will tell you, in trying to pry information out of you.

    9. [L]awyers should always remember that the judge as well as the jury will be reached by pre-trial publicity.

    10. [The press selects] the cases that will be causes celebre; you don‟t.

    11. [W]hatever will go into the newspaper will be a maximum of 500 words, including both sides of the argument. As for T.V., it will be 20 to 30 seconds.

12. [T]he press is 100% deadline-driven. It won‟t be

    news tomorrow, so they want to get what they can get before today‟s deadline.

    13. [Y]ou have to give reporters “the lead” (the intriguing first sentence that includes or foreshadows the whole concept they are trying to sell). That is the hook which supposedly makes the reader read the rest of the article.

    14. [T]he press is helpful to counsel because they have access to the other side‟s information. They can investigate far more angles, and investigate far better than you can or the other side can. They are being paid to do it.

    15. [T.]V. requires a “talking head.” In other words, you have to have someone as a spokesperson, who is moderately telegenic and willing to appear in order to get your views on the tube. T.V. reporters want to have the persons involved speaking.

    16. [P]ublicity can get you good witnesses. Twenty or thirty witnesses came forward [for the defense in one case]... as a result of the publicity.

    17. The defense team had made a decision to appear on no talk shows, because in this forum you have no control at all. However, they did do two talk

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    shows that were considered very important ones. Those shows‟ investigators found the most important defense witness of all, a next-door neighbor who had not spoken up before.

    18. [One party‟s] decision to go to the press is what ended up getting her the attention she needed, and the counsel she needed.

    19. In dealing with the press... you must make sure that the client is never caught off guard and forced to speak extemporaneously.

    20. The grandmother in [one] case chose to avoid the press entirely and then made the mistake of going

    on a daytime talk show, thinking she was going there to get sympathy, but of course being ambushed instead.

    21. [A]lthough competition between newspapers hardly exists anymore, because almost all cities are on-newspaper towns, there is now competition between the major newspapers of different cities... . There is also competition between individual journalists.

    22. Reporters eager to turn their stories into salable [sic] books are engaged in rather cutthroat competition against each other.

    23. [L]awyers ... [should] set their own rules at the beginning of every interview not at the end.

    24. [L]awyers should never speak in any way except on the record, for attribution.

    25. The DR [Disciplinary Rule] is really about criminal cases, and jury trials. ...Model Rule 3.6 ... has little relevance to what ... domestic relations lawyers do.

    26. You have the First Amendment right to speak out upon entering and leaving the courtroom. You also have a right to defend your client‟s reputation. You certainly should not mention anything that is inadmissible in evidence.

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    It should be remembered that it is not only the attorneys, reporters, parties, judges, and jurors who are potentially affected by pre-trial publicity. Victims and witnesses may be adversely emotionally impacted by becoming the center of an unwanted publicity storm or they might have to go through a second, traumatic trial experience if publicity causes the granting of a re-trial for the defendant. The public itself may be “traumatized” by media saturation of a terrible event, to the point of becoming fearful enough to demand that new laws be enacted by its lawmakers. If one takes two steps back and looks at the big picture, one can make an argument for a “ripple effect” caused by trial publicity starting with the attorneys at the epicenter and ending with the public being hit by the wider shock 7 and accompanying state rules exist to help guide waves. The ABA Model Rules

    the lawyers positioned in the aforementioned epicenter.

     7 American Bar Association Model Rules of Professional Conduct:

    Rule 1.6: Confidentiality of Information

    (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

    . . . .

    Comment Rule 1.6

    [1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer’s representation of the client. See Rule 1.18 for the lawyer’s duties with respect to

    information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and

    1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients.

    [2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed

    consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of the informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

    [3] [T]he confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

    . . . .

Rule 3.6 Trial Publicity

    (a) 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 will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

    (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

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(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

    (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, occupation and family status of the accused;

    (ii) if the accused has not been apprehended, information necessary to aid in the apprehension of that person;

(iii) the fact, time and place of arrest; and

    (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

    (c) Notwithstanding paragraph (a), a lawyer may 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. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

    (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

Comment Rule 3.6

    [1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

    [2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c) requires compliance with such Rules.

    [3] The Rule sets forth a basic general prohibition against a lawyer's making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who are, or who have been involved in the investigation or litigation of a case, and their associates.

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    As you read through the Rules, you may find it an interesting exercise to bear in mind the most recent technological developments you have read about or seen on television. Ask yourself as you peruse each rule: Does this rule take into account... the internet? Cell phone picture displays? Hidden miniature cameras? For example, how effective is it for information to be kept from a jury if a juror goes home, logs on to the internet, and reads all about that information on the internet news page or sees the prejudicial photos? Did the client give the attorney true informed consent if the client wasn‟t aware of the mode of

    [4] Paragraph (b) identifies specific matters about which a lawyer's statements would not ordinarily be considered to present a substantial likelihood of material prejudice, and should not in any event be considered prohibited by the general prohibition of paragraph (a). Paragraph (b) is not intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement, but statements on other matters may be subject to paragraph (a).

    [5] There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:

    (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal

    investigation or witness, or the identity of a witness, or the expected testimony of a party or

    witness;

    (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of

    guilty to the offense or the existence or contents of any confession, admission, or statement given

    by a defendant or suspect or that person's refusal or failure to make a statement;

    (3) the performance or results of any examination or test or the refusal or failure of a person to

    submit to an examination or test, or the identity or nature of physical evidence expected to be

    presented;

    (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or

    proceeding that could result in incarceration;

    (5) information that the lawyer knows or reasonably should know is likely to be inadmissible as

    evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial

    trial; or

    (6) the fact that a defendant has been charged with a crime, unless there is included therein a

    statement explaining that the charge is merely an accusation and that the defendant is presumed

    innocent until and unless proven guilty.

    [6] Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected. The Rule will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different depending on the type of proceeding.

    [7] Finally, extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client. When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.

    [8] See Rule 3.8(f) for additional duties of prosecutors in connection with extrajudicial statements about criminal proceedings.

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    technology to be used in publicizing the information, i.e. if the client didn‟t understand that Aunt Edna in Alaska would be able to read about the sexual harassment details on the internet version of the local newspaper column?

     Model Rule 1.6 makes it clear that an attorney would be well advised to obtain clear permission from the client prior to participating in trial publicity activities. The attorney will want to take steps to ensure he or she is complying with the local “informed consent” definitions as construed by applicable case law.

    The scope of what the attorney would like to reveal publicly should also be discussed with the client, since facts going outside of those involved in the representation might be brought out, i.e. names of relatives and other personal information the client may wish to keep private. Proper authorization from the client and an agreement with the client of where the boundaries are as to what will and won‟t be discussed publicly should be the very first step.

     Once the attorney determines what he or she has permission from the client to discuss, a written list of the information in question might be useful. The attorney might want to analyze the information in terms of whether any of it needs to remain under the protective umbrella of the attorney/client privilege. Revealing information, even information the client has authorized the lawyer to reveal, might inadvertently lead to opposing counsel being able to argue waiver of the attorney/client privilege. The attorney should weigh out the expected gain of public revelation of the information against the risk of any unintended privilege waiver.

    Assuming an attorney has gotten proper authorization from the client and, after careful analysis, determines there is benefit in revealing some of the client‟s

    information to the media publicly, does the attorney enjoy the same unfettered Free Speech rights that other Americans do? It could be reasonably argued that of all Americans, lawyers are probably the least likely to take kindly to restrictions on their First Amendment rights to Free Speech. Nonetheless, ABA Model Rule 3.6 begins by infringing upon lawyers‟ First Amendment rights by stating in section “a” that they “shall not make an extradjudicial statement...” and section “d” making sure others in that lawyer‟s firm or government agency understand the prohibitions apply to them as well. Sections “b” and “c” carve out the “safe harbor” in which lawyers may make extrajudicial statements notwithstanding the prohibition set out in “a”. Most State rules will similarly set out prohibitions as 8 well as safe harbor exemptions.

     8 See Gentile v State Bar of Nevada, 501 U.S. 1030 (1991) for a discussion by the Court of various

    derivations of Model Rule 3.6 throughout the United States. The Court stated that at that time 31 States in addition to Nevada had adopted -- either verbatim or with insignificant variations -- Rule 3.6 of the ABA's Model Rules. Arizona, Arkansas, Connecticut, Idaho, Indiana, Kansas, Kentucky, Maryland, Mississippi, Missouri, New Mexico, Pennsylvania, Rhode Island, South Carolina, West Virginia, and Wyoming had adopted Model Rule 3.6 verbatim. Delaware, Florida, Louisiana, Montana, New Hampshire, New Jersey, New York, Oklahoma, South Dakota, Texas, and Wisconsin had adopted Model Rule 3.6 with minor modifications. Eleven States had adopted Disciplinary Rule 7-107 of the ABA's Code of Professional

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    Sometimes litigation will result from disagreement on the issue of whether an attorney swam a few laps outside the safe harbor. When that happens, the attorney will almost invariably argue that the state rule in question too broadly restricts attorneys‟ First Amendment rights in excess of what would be necessary 9 ensuring media publicity doesn‟t unduly to protect the prevailing legal standard

    impair the fair administration of justice. This was what happened in the seminal case of Gentile v State Bar of Nevada, 501 U.S. 1030 (1991). In that case an

    attorney held a press conference six months before his client‟s criminal trial in which he asserted his client‟s innocence and indicated that a police corruption 10defense would be used. After his client‟s acquittal, the Nevada State Bar

Responsibility, which was less protective of lawyer speech than Model Rule 3.6, in that it applied a

    "reasonable likelihood of prejudice" standard. Those states were Alaska, Colorado, Georgia, Hawaii, Iowa, Massachusetts, Nebraska, Ohio, Tennessee, and Vermont and had adopted Disciplinary Rule 7-107 verbatim. North Carolina also used the "reasonable likelihood of . . . prejudice" test. Only one State, Virginia, had explicitly adopted a clear and present danger standard, while four States and the District of Columbia had adopted standards that arguably approximated "clear and present danger." Those four states were: Illinois, which had a Rule of Professional Conduct 3.6 (1990) ("serious and imminent threat to the fairness of an adjudicative proceeding"); Maine, which had a Bar Rule of Professional Responsibility 3.7(j) (1990) ("substantial danger of interference with the administration of justice"); North Dakota, which had a Rule of Professional Conduct 3.6 (1990) ("serious and imminent threat of materially prejudicing an adjudicative proceeding"); Oregon, which had DR 7-107 (1991) ("serious and imminent threat to the fact-finding process in an adjudicative proceeding and acts with indifference to that effect"); and the District of Columbia, which had DR 7-101 (Supp. 1991) ("serious and imminent threat to the impartiality of the judge or jury"). Michigan and Washington had adopted only subsection (a) of Model Rule 3.6, and Minnesota had adopted only subsection (a) and limited its application to "pending criminal jury trial[s]." Utah had adopted a version of Model Rule 3.6 employing a "substantial likelihood of materially influencing" test. 9 The “prevailing legal standard” may vary from state to state according to controlling case law and

    according to which version of ABA Model Rule 3.6 the particular State’s judiciary is interpreting. 10 “I want to start this off by saying in clear terms that I think that this indictment is a significant event in the history of the evolution of the sophistication of the City of Las Vegas, because things of this nature, of exactly this nature have happened in New York with the French connection case and in Miami with cases -- at least two cases there -- have happened in Chicago as well, but all three of those cities have been honest enough to indict the people who did it; the police department, crooked cops. When this case goes to trial, and as it develops, you're going to see that the evidence will prove not only that Grady Sanders is an innocent person and had nothing to do with any of the charges that are being leveled against him, but that the person that was in the most direct position to have stolen the drugs and money, the American Express Travelers' checks, is Detective Steve Scholl. There is far more evidence that will establish that Detective Scholl took these drugs and took these American Express Travelers' checks than any other living human being. And I have to say that I feel that Grady Sanders is being used as a scapegoat to try to cover up for what has to be obvious to people at the Las Vegas Metropolitan Police Department and at the District Attorney's office. Now, with respect to these other charges that are contained in this indictment, the so-called other victims, as I sit here today I can tell you that one, two -- four of them are known drug dealers and convicted money launderers and drug dealers; three of whom didn't say a word about anything until after they were approached by Metro and after they were already in trouble and are trying to work themselves out of something. Now, up until the moment, of course, that they started going along with what detectives from Metro wanted them to say, these people were being held out as being incredible and liars by the very same people who are going to say now that you can believe them. Another problem that you are going to see develop here is the fact that of these other counts, at least four of them said nothing about any of this, about anything being missing until after the Las Vegas Metropolitan Police Department announced publicly last year their claim that drugs and American Express Travelers' checks were missing. Many of the contracts that these people had show on the face of the contract that there is $ 100,000 in insurance for the contents of the box. If you look at the indictment very closely, you're going to see that these claims fall under $100,000. Finally, there were only two claims on the face of the indictment that came to our attention

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