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Beyond The HeadlinesIMPORTANT NOTICE: This article is provided solely for research and archival purposes. MCLE self-study credit is no longer available. Even if you follow the instructions and submit payment you will not be granted MCLE self-study credit. Please note that low-cost MCLE is provided by the California Lawyers Association, pursuant to Business and Professions Code section 6056. When handling a high profile case, lawyers must be aware of California rules that govern trial publicity By Wendy Patrick Mazzarella
You are getting ready for work and have the morning news on in the background. Your ears perk up as you recognize the name of your big case on the news. As you look at the television, to your horror, you see your opposing counsel holding a press conference on the courthouse steps, blasting your side of the case and your witnesses. Incensed at the unfair and untrue statements you just heard, you can’t wait to get hold of the press to tell them the real story. Legally and ethically, what can you do? There are important legal and ethical rules to keep in mind when handling a high profile case. California lawyers are bound by California Rule of Professional Conduct (CRPC) 5-120, Trial Publicity, as well as the mandates of California Business and Professions Code Section 6068(a), Duties as an Attorney. The American Bar Association (ABA) also provides guidance in this area through Model Rule of Professional Conduct 3.6 — Trial Publicity. Should you discuss your case with the press? Many lawyers never reach the ethical dilemmas presented by trial publicity because they maintain a strict policy of never discussing their case outside the courtroom. Lawyers who choose this policy, however, should remember that simply telling reporters “no comment” may not be the best way to handle media requests. There is no downside to forging positive relationships with members of the press, even if you choose not to discuss your case. Many attorneys suggest using an explanation along the lines of “due to attorney-client privilege I am unable to discuss the facts of the case out of court, but you are welcome to attend the [next court hearing].” Other lawyers prefer to cooperate by educating the press about issues relating to “these types of cases generally,” without revealing any specific facts of their case. While it is true we are never “off the record” with the media, many members of the press will appreciate any information you can provide them that will be of assistance. Along these lines, they do not have an interest in making you look bad, because you may be a valuable source of legal information for them in the future. Laurie Levenson, professor and director of the Center for Ethical Advocacy at Loyola law school, advises lawyers to think carefully before talking about their cases with the press. She points out that not only does speaking to the press result in a battle being fought both inside and outside of the courtroom, but many lawyers foolishly give away their trial strategies when they talk to the media. As a law professor, she also recognizes that most lawyers have not been trained to interact with the media, a reality that is glaringly obvious through the fact that many lawyers “speak in drone.” Notwithstanding the downsides, it is certainly possible to present an impressive synopsis of your case to the press that is both effective and ethical. It is with this goal in mind that we turn to the legal and ethical rules that govern what you say about your case to the press. We will begin with the history of the trial publicity rules, an examination of which provides a look at the evolution of ethical standards leading up to the current trial publicity rule we follow in California. The birth of the gag order: Sheppard v. Maxwell “A circus environment” was an appropriate description of the atmosphere of massive pre-trial publicity surrounding the murder trial of Dr. Sam Sheppard in Sheppard v. Maxwell ((1966) 384 U.S. 333). This is the landmark case where the United States Supreme Court balanced the constitutional right to free speech against the right to a fair trial. The Sheppard Court concluded that the massive publicity surrounding the trial of Dr. Sheppard, who stood accused of murdering his pregnant wife, violated his due process right to a fair trial. The Court stated that the trial court should have prohibited out-of-court statements by the attorneys or parties that discussed prejudicial matters. The holding of Sheppard became the standard for gag orders, designed to prevent prejudicial trial publicity. Ethics rules nationwide have been modeled after the legal principles decided in Sheppard. Most rules on the subject now prohibit attorneys from making statements that would have a “substantial likelihood of prejudicing an adjudicative proceeding.” The evolution of California Rule of Professional Conduct 5-120 After the Sheppard v. Maxwell decision, the ABA established its Model Code of Professional Conduct which included Disciplinary Rule (DR) 7-107 governing trial publicity. In 1983 the ABA came out with Model Rule 3.6 governing trial publicity. The original version of Rule 3.6 prohibited the same type of statements that were listed in DR 7-107. These prohibited statements included references to the character, criminal record or credibility of the defendant, the identity of anticipated witnesses and their expected testimony, admissions and confessions of the defendant or the defendant’s failure to cooperate, the results of tests or the defendant’s refusal to take them, and opinions on the defendant’s guilt. When Rule 3.6 was amended in 1994, the prohibited statements were moved to the Comment. Although no longer expressly prohibited, the disfavored statements are now referred to as “certain subjects which are more likely than not to have a material prejudicial effect on a proceeding …” (Rule 3.6 Comment [5].) Another way to read this is that these are statements you would be wise to avoid making unless absolutely necessary. California Rule of Professional Conduct 5-120: Trial publicity California Rule of Professional Conduct 5-120(A) states that “a member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Subsection (B) provides some exceptions to the Rule: “Notwithstanding paragraph (A), a member may state:
When faced with unfair trial publicity from the opposing party, subsection (C) permits a reasonable reply statement: “Notwithstanding paragraph (A), a member may make a statement that a reasonable member would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the member or the member’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.” The discussion section of this rule specifies that it “applies equally to prosecutors and criminal defense counsel.” The discussion section also explains that whether or not an out-of-court statement violates this rule depends on many factors. These factors include:
Business and Professions Code The issues involved in pretrial publicity may also implicate California Business and Professions Code §6068, which outlines the “Duties as an Attorney.” Subsection (a) states that one of the duties of an attorney is to obey the law and the Constitution. Improper and unethical public dissemination of non-public information that is likely to prejudice an upcoming trial may violate not only CRPC 5-120 but also may violate the right to a fair trial that is guaranteed to both sides in a criminal case, Cal. Constitution, Art. I, Section 29. Therefore, counsel’s failure to “obey the law and the Constitution” by releasing the above described offending material to the media for publication could arguably be a violation of the duties as an attorney under BP §6068(a). In protecting a defendant’s right to a fair trial, Sheppard v. Maxwell is a case about Constitutional law. BP §6068(a) mandates that an attorney support the Constitution. So even if a statement is permissible under RPC 5-120(C), for example if an attorney tells a reporter something that he or she said in court on the record, if the statement is so prejudicial that its dissemination will have a “reasonable likelihood of prejudicing” the trial, it may be unconstitutional, and therefore arguably violate BP §6068(a). Becoming aware of the interaction between the different rules in this area may save you countless hours of heartache and possible litigation down the road. Lest anyone take a violation of an attorney’s duties lightly, the California Business and Professions Code contains a section that spells out the potential punishment. BP §6103 states that: “A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.” In addition, a lawyer’s duty of candor follows them outside the courtroom. California Business and Professions Code §6106 states in pertinent part that: “the commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension” (emphasis added). Again, this rule governs what a lawyer says about his or her case inside and outside the courtroom. And §6128 imposes misdemeanor criminal liability on a lawyer who engages in or consents to any deceit or collusion “with intent to deceive the court or any party.” (BP §6128(a)) Punishment for violating this section is up to a six-month jail sentence or a fine of up to $2,500, or both. Model rule 3.6 — Trial Publicity ABA Model Rule 3.6 is virtually identical to CRPC 5-120, except that it contains one additional subsection, (d), which states that “[n]o lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).” While the ABA Rules are not binding authority in California, several of the Rule 3.6 Comment sections provide additional guidance on the issue of discussing your case outside of court. Rule 3.6 Comment [1]: This section recognizes the difficulty in balancing “the right to a fair trial and safeguarding the right of free expression.” Recognizing that the available information about a case must be suppressed to some extent with a jury trial pending, it is also true that “there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves.” And more generally, the public has a stake in remaining informed, and “has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern.” Rule 3.6 Comment [4]: This comment points out that subsection (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).” Note that subsection (b) is not an exhaustive list. Rule 3.6 Comment [5]: This instructive comment recognizes that there are certain subject areas that are dangerous. This comment characterizes the following areas as “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:
Note: These examples are critically important to take note of, as they represent subjects that were previously off limits under the previous ABA Canon DR 7-107, but are now permissible topics to discuss. However, although these areas are now permissible to discuss, this comment recognizes that these areas represent sensitive subjects that may be more likely than other areas to get a lawyer into trouble, and should potentially be avoided if possible. Rule 3.6 Comment [8] refers to Rule 3.8(f) regarding the additional duties that prosecutors have in connection with out-of-court statements about their cases. Rule 3.8, Special Responsibilities of a Prosecutor, allows in subsection (f) 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.” This section also specifies that a prosecutor in a criminal case shall not make out-of-court statements about their cases “that have a substantial likelihood of heightening public condemnation of the accused.” The rule goes even further, however, and states that a prosecutor must “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.” Comment [6] specifies that subsection (f) “requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor.” The comment does, however, provide some further guidance on satisfying this responsibility, as it states that “[o]rdinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law- enforcement personnel and other relevant individuals.” Regarding out of court statements about a case, Model Rule 4.1 — Truthfulness in Statements to Others, is also instructive. It states in pertinent part that “[i]n the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person.” Remedies There is a difference of opinion regarding which side is prejudiced more by pretrial publicity. Particularly in a criminal case, some feel a defendant’s celebrity status will ingratiate them to the jury, many of whom might be fan club members. Others, however, feel that jurors will judge celebrities more harshly and hold them to a higher standard. Whatever the truth in your case, there are certain measures a court may take in order to attempt to control the adverse trial publicity. Gag orders In response to pervasive pre-trial publicity, some judges will issue a gag order, which will usually direct parties and witnesses not to talk to the media about the case. Unfortunately, however, many gag orders are not followed. Trial attorney Mark Geragos, who has tried numerous high profile cases and has been gagged repeatedly by judges, describes many gag orders as “naïve.” He explains that there are always leaks of information surrounding high profile cases, and gag orders often end up being a disadvantage for the celebrity defendant. Another common issue is the scope of a gag order. This situation often arises when a witness in a criminal case is represented by independent counsel on a concurrent civil action involving the same facts, as was the case, for example, in the Scott Peterson murder trial where attorney Gloria Allred represented a witness in a separate civil proceeding. This scenario raises the question of whether the gag order on the criminal case prevents the civil lawyer from talking to the media. If it does not, the civil lawyer could potentially make statements about the facts of the case, and the criminal lawyers trying the case, who are in the best position to know the true facts, would be unable to respond to any reported inaccuracies due to the gag order. For the public, this may create a dangerously one-sided view of the case. Conclusion Handling a high profile case can be both exhilarating and exhausting. Attorneys must faithfully represent their clients and exercise good judgment in deciding when to talk about a case outside of court. When they do choose to speak to the media, they must have a working knowledge of the applicable legal and ethical rules that govern their statements, and avoid the temptation to litigate their case in the press. Tune in next month as we continue our discussion of the potential ethical dilemmas that face the practitioner who struggles to balance the interests of his or her client with the appetite of the media. • This article does not constitute legal advice. Please shepardize all case law before using. • Wendy Patrick Mazzarella is a San Diego County Deputy District Attorney who has tried a number of high profile cases. She chairs the San Diego County Bar Association Legal Ethics Committee and is a member of the State Bar Committee on Professional Responsibility and Conduct. Certification
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