Ethical Rules for Litigating in the Court of Public Opinion

© 2013 Armstrong Teasdale LLP

1


My Background

Litigation partner and legal ethics lawyer

• Advise law firms and legal departments on ethics and risk managementissues

• Teach legal ethics at Washington University and St. Louis University

• Expert witness in almost 20 cases

100+ interviews include

• New York Times, Wall Street Journal, National Law Journal, ABA Journal,Post Dispatch, St. Louis Business Journal, Missouri Lawyers Weekly

• NPR's Talk of the Nation

• Local television and newspapers

2


(Some of) My High-Profile "Cases"

3


4


Dealing with the Media

5


Basics of Media Response

Who is our spokesperson? Who are the audiences? What is our message? How will we deliver that message?

6


7


Hunter v. Virginia State Bar (2013)

8


Is Litigation Pending/Expected?

If "yes," Missouri Rule 4-3.6 – Model Rule 3.6 – applies

If "no," no special regulations

9


Rule 3.6

10


Gentile v. State Bar of Nevada (US 1991)

11


Rule 3.6

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.

12


Breaking Rule 3.6(a) Down

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

13


Lawyer Who Has Participated

Investigation or litigation• What about general counsel?

Rule 3.6(d) broadens prohibition to entire firm• "No lawyer associated in a firm or government agency with a

lawyer subject to [Rule 3.6](a) shall make a statement prohibited by paragraph (a).

14


Making an Extrajudicial Statement

Statements made to or filed in court usually not covered• "Litigation privilege" may be informative

Sharing court documents with third parties may create liability

15


Disseminated by "Public Communication"

Original focus was on traditional media Lawyer knew or should have known of dissemination

Now includes blogs and other Web 2.0 communications

16


Substantial Likelihood → Material Prejudice

Content of statement Nature of proceeding – criminal or civil or regulatory? Admissibility of information disclosed Timing of statement New or shocking

17


Need for Protection

Possible influence on the "actual outcome of the trial" Possible prejudice to the jury venire "even if an untainted

panel can ultimately be found"

18


Safe-Harbor "Guideposts" – Rule 3.6(b)

Notwithstanding paragraph (a), a lawyer may state:• the claim, offense or defense involved and, except when

prohibited by law, the identity of the persons involved;

• information contained in a public record;

• that an investigation of a matter is in progress;

• the scheduling or result of any step in litigation;

• a request for assistance in obtaining evidence and information necessary thereto;

• 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 . . .

19


Criminal Prosecution Exception – Rule 3.6(b)(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 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

20


Where Danger Lurks – Rule 3.6 comment [5]

1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, 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 . . . 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.

21


Right of Reply – Rule 3.6(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.

22


Beware Special Protections

Rule 3.6 comment [2] "Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation,"

23


Special Limits for Prosecutors

24


25


Rule 3.8(f)

The prosecutor in a criminal case shall: . . .• except for statements that are necessary to inform the public of

the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

26


Criticizing Judges

27


"Evil, Unfair Witch"

28


Criticizing Judges – Rule 8.2(a)

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

29


Application of Rule 8.2

Applies to public and private comments "Reckless disregard," not "know or should know" Subjective versus objective

• Colorado requires malice No limit on "true" statements No (?) limit on opinion statements

30


Rule 8.4

31


Rule 8.4 – "Catch-All" Rule

It is professional misconduct for a lawyer to:a) violate or attempt to violate the Rules of Professional Conduct,

knowingly assist or induce another to do so, or do so through the acts of another;

b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

d) engage in conduct that is prejudicial to the administration of justice; . . .

32


Rule 8.4(c) – No "fraud, deceit, misrepresentations"

Iowa Supreme Court Board of Professional Ethics & Conduct v. Visser (Iowa 2001) – lawyer admonished under Rule for letter stating inaccurately judge had "already determined [the opposing party was] unlikely to succeed on the merits of his far-fetched claims"

33


Rule 8.4(d) – "Conduct prejudicial to the administration of justice"

Mississippi Bar v. Lumumba (Mississippi 2005) lawyer disciplined for post-trial statement to local newspaper that a judge "had the judicial temperament of a barbarian"

34


Federal Rule of CivilProcedure 11

or Missouri Rule 55.03(c)

35


Whitehead v. Food Max of Mississippi, Inc. (5th Cir. 2003)

Lawyer obtained $3.4 million judgment against Kmart With media in tow, lawyer attempted to execute on local

store's vault and cash register Court imposed sanctions for filing a pleading for "any

improper purpose, such as to harass" an opposing party: found public execution was to "embarrass Kmart and advance his personal position"

36


FRCP 11 – No "improper purpose"

FRCP 11(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

i. it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; . . .

37


Statements from (Nonlawyer) Representatives

38


What Limits on Clients

Possible jury tampering Rule 8.4 prohibits violating rules "through act of another"

• Rule 5.3 – and specific provision in Rule 3.8(f) – require lawyers to exercise reasonable supervision over nonlawyers

39


Privilege and PR Consultants

Case law quite inconsistent Leading case – In re Grand Jury Subpoenas Dated March 24,

2003, 265 F. Supp. 2d 321 (SDNY 2003) (involving Martha Stewart) suggests Kovel doctrine should govern• Is PR consultant "reasonably necessary" for representation

• Likened to interpreter

But, e.g., Haugh v. Schroder Investment Management, 2003 WL 21998674 (SDNY August 25, 2003), found privilege did not apply

40


Suggestions to Protect PR Consultations

Have lawyer serve as primary conduit to consultant including on hiring and billing

Hire litigation-focused consultant for the litigation Make sure documents reflect litigation focus (specific matters,

specific files, specific bills) Limit who can access PR consultant's work Don't disclose PR consultants to adversaries Limit information shared with PR consultant Make sure tasks relate to actual litigation Use separate matters and files for litigation-related matters

41


Planning Your Litigation PR Strategy

Be careful what is said outside court Be truthful Leave judges alone Consider using nonlawyer – or uninvolved lawyer –

spokesperson Decide whether PR consultant's work will be privileged

42


Thank You

Michael Downey314-342-8072 [email protected]

- Or www.MissouriEthicsLawyer.com

43

Ethical Rules for Litigating in the Court of Public Opinion

Career

armstrong teasdale llp

armstrong teasdale llp

armstrong teasdale llp

armstrong teasdale llp

armstrong teasdale llp

criminal investigation

missouri rule

model rule