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Ethics Byte

"There’s a TV news crew in the lobby asking for a partner …"

By Diane Karpman

Diane KarpmanSpinning is not just an exercise using a stationary bike, but also a term used to describe the manipulation of news media by lawyers and others in high-profile cases.

Some authorities have suggested that if the prosecution is indicting your client (not just technically but also by verbal abuse) that it’s almost malpractice not to mitigate the toxic environment created by adverse publicity. Alan Dershowitz writes in his foreword for Spinning The Law: Trying Cases in the Court of Public Opinion, by Kendall Coffey, “In today’s work of multimedia, twenty-four-hour news cycles, the role of lawyers does not stop at the courtroom door, or even the courthouse steps.” (Spinning the Law, page 7)

Obviously, spinning goes on in lots of different types of cases: high-visibility criminal cases; celebrity family cases; high-profile tort claims; big defective product cases; and political cases. These can all be tried in the court of public opinion. “The fear of negative publicity can inspire the parties to negotiate a solution before the judicial process reaches its own conclusion.” (Spinning the Law, page 293)

“Wait a minute,” you are saying. Isn’t there a rule prohibiting trial publicity?” (Rule 5-120) The rule is a basic statement restricting lawyers from making statements to the media when they know or should know that there is a substantial likelihood of materially prejudicing an adjudicative proceeding.           

Nobody is certain what that means, especially in California. There is not a single reported decision imposing discipline on a California lawyer for violation of the rule, and The State Bar Court Reporter fails to indicate if a violation has ever been charged. Complaints have been filed against high-profile lawyers, but they do not seem to result in discipline. A former chief trial counsel in a private conversation said they would not enforce the rule. It is that controversial.

Until the debacle known as the OJ Simpson case, California never had a rule. The Board of Governors at that time (after taking and considering public comment) suggested a much narrower rule than the American Bar Association’s rule. Then, the California Supreme Court suddenly adopted a rule substantially similar to the ABA version. Many consider the rule vague and imprecise, and suggest it has a chilling effect on lawyer speech by silencing lawyers. The public is denied accurate and truthful information, and left to rely upon a former sister-in-law of the victim, a third-cousin-once-removed, or a pundit with a talk show, who has a time slot to fill.

Remember, the rule applies to “trial” publicity; and there is a special retaliation clause: if one side is poisoning the media, the other side is allowed to “set the record straight.”

Americans seem to have a special fascination with trials, but it is also reported that during the French Revolution, the mob often controlled the resolution of proceedings.

A similar rule was interpreted by the US Supreme Court in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), wherein Justice Kennedy held that the rule as interpreted by the Nevada Supreme Court was void for vagueness, failed to provide fair notice to those to whom it was directed, and was so imprecise that discriminatory enforcement was a real possibility.

As a side story (there always seems to be one in ethics cases), when the case finally reached the US Supreme Court (according to Dominic Gentile), he was on the Nevada State Bar’s board, so he was essentially on both sides of the litigation.

Often, prosecutors run afoul of the rule. Think about the Duke University lacrosse case and Michael NiFong, who was disbarred over his media behavior and other conduct. Prosecutors must be especially careful because they are “ministers of justice.”

In terms of applying the rule, the type of case is critical. High profile criminal matters justify much more restraint. Also, timing is very important. Was the remark on the eve of jury selection? There are reported cases involving the imposition of discipline out of state.

One interesting aspect of applying Spinning The Law to real-life practice, is the explosion of dedicated “lawyer spinners” in law firms attempting to influence public opinion. About a decade ago, in a high-profile Los Angeles case, a megafirm was sued for legal malpractice and had a partner dedicated to speak with media, armed with PowerPoint. In a more recent case, a reporter called about a motion for disqualification of a major law firm in Washington, DC, where partners were armed with talking points for conversations with journalists.

The point is that we are witnessing a major change from the old-fashioned era of “No comment,” to, “Come right in, and how can we help you report … story correctly, according to our spin?”

Diane Karpman can be contacted at (310) 887-3900 or Diane is a State Bar Certified Specialist in Legal Malpractice, and is often employed as ethics counsel in risk management for law firms.