Pre-Trial Publicity, the First Amendment, and "The Fugitive" - Part Two, Gagging the Lawyers

Judge Walton's gag order in the Rogers Clemens perjury case directed the lawyers for the "parties and witnesses" to "refrain from making any further statements about this case to the media or in public settings outside the courtroom that are 'substantially likely to have a materially prejudicial effect' on this case. Gentile v. State Bar Nev., 501 U.S. 1030,1076 (1991)." By citing Gentile, Judge Walton raises the question of whether the lawyers needed to be covered by the gag order, because if they are licensed in a jurisdiction that has adopted ABA Model Rule of Professional Conduct 3.6, they already have an ethical obligation not to make any out of court statement that will have a "substantial likelihood of materially prejudicing an adjudicative proceeding."

I am very familiar with the Gentile case, as it was one of the cases where the ABA submitted an amicus brief while I was its General Counsel. Dominic Gentile was a Nevada lawyer who held a press conference the day after his client, Grady Sanders, was indicted for the theft of cocaine and money that was being used in an undercover operation. Mr. Gentile read from a prepared statement, and then responded to questions. The gist of Mr. Gentile's statements were that his client was being used as a scapegoat to try to cover up for police misconduct, since the person who most likely stole the drugs and money was a Las Vegas police detective.

Six months after his indictment, a jury acquitted Mr. Sanders of all charges. Subsequently, the State Bar of Nevada filed a complaint against Mr. Gentile, alleging that the statements he made during the press conference violated Nevada Supreme Court Rule 177, which prohibited Mr. Gentile from making out of court statements to the media that he knew or reasonably should have known would have a "substantial likelihood of materially prejudicing" Mr. Sanders' trial. The Southern Nevada Disciplinary Board found that Mr. Gentile violated Rule 177 and recommended that he be privately reprimanded. The Nevada Supreme Court affirmed, rejecting Mr. Gentile's argument that Rule 177 violated his right to free speech.

Nevada Supreme Court Rule 177 was identical to ABA Model Rule of Professional Conduct 3.6, which, at the time Gentile was decided, had been adopted - either verbatim or with insignificant variations, by 32 States. Therefore, when the case reached the United States Supreme Court, the ABA filed an amicus brief arguing that Rule 177 did not unconstitutionally infringe on Mr. Gentile's right to freedom of speech. Although a fractured Supreme Court reversed the judgment that Mr. Gentile had violated Rule 177, the Court did hold that the "substantial likelihood of material prejudice" standard did not violate the First Amendment:

The restraint on speech is narrowly tailored to achieve [the State's] objectives. The regulation of attorneys' speech is limited - it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys' comments until after the trial. While supported by the substantial state interest in preventing prejudice to an adjudicative proceeding by those who have a duty to protect its integrity, the Rule is limited on its face to preventing only speech having a substantial likelihood of materially prejudicing that proceeding.

Gentile, 501 U.S. at 1076. Since the Supreme Court decided that lawyers can be disciplined for making out of court statements that are "substantially likely to have a materially prejudicial effect," one wonders whether it was necessary for Judge Walton to cover the lawyers in his gag order. Considering that Judge Walton's order provides that "[f]urther action in violation of this admonition will be confronted with the full authority of the Court," it appears that he wanted to make the lawyers subject to the court's contempt powers in addition to any possible disciplinary proceeding.

Notwithstanding the Supreme Court's decision on the First Amendment issue, a majority of the Justices agreed with the following statement of Justice Kennedy, wherein he concluded that sometimes a lawyer is obligated to advocate for the client "in the court of public opinion:"

An attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.

Gentile, 501 U.S. at 1043. In consideration of Justice Kennedy's statement, the ABA amended Model Rule 3.6 to add the following provision:

(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.

Pre-Trial Publicity, the First Amendment, and "The Fugitive" - Part One, Gagging the Parties and Controlling the Media

In this post from last week, I wrote about the order entered by U.S. District Court Judge Reggie Walton in the Rogers Clemens perjury case prohibiting Clemens, potential witnesses and lawyers "from making any future statements about this case to the media or in a public setting outside the courtroom." An order prohibiting participants in a case from commenting to reporters or the public infringes on the First Amendment rights of the individuals gagged. Gag orders also interfere with the media's efforts to gather and disseminate news, again implicating the First Amendment. What interests are being served by this use of judicial power to curtail First Amendment rights?

Judges justify gag orders as necessary to protect a person's right to a fair trial, the fair administration of justice, or the sanctity of jury deliberations. The power to gag trial participants comes from the Fifth and Sixth Amendments as interpreted by the Supreme Court in the case of Sheppard v. Maxwell, 384 U.S. 333 (1966), otherwise known as the Sam Sheppard murder case.

It has long been surmised that the television drama "The Fugitive" was loosely based on the Sam Sheppard murder case. Dr. Sheppard's pregnant wife, Marilyn, was bludgeoned to death in the upstairs bedroom of their Ohio home in the early morning hours of July 4, 1954. Dr. Sheppard testified that he had fallen asleep downstairs, and was awaken by a cry from his wife. He rushed upstairs and encountered "a bushy-haired man" standing over his wife's bed. Sheppard struggled with the intruder, who knocked him unconscious. When he regained consciousness, he went downstairs to investigate a noise, and again encountered the intruder. Dr. Sheppard chased the intruder out of the house, struggled with him again, and was again knocked unconscious.

After an investigation, indictment, and nine week trial that ended in December 1954, Dr. Sheppard was convicted of murdering his wife. His case came before the Supreme Court on a federal habeas petition raising the issue of whether Dr. Sheppard had been deprived of a fair trial because of the trial judge's failure to protect him sufficiently from the "massive, pervasive and prejudicial publicity that attended his prosecution."

The Court's decision in Sheppard v. Maxwell is fascinating reading, describing in detail not only the extent of the pre-trial publicity, but how at trial the courtroom was taken over by the media and the jurors turned into media stars. In addition, the trial was apparently the first time that a helicopter was used to gather news. The jury visited the Sheppard house on the first day of trial. The time of the visit was revealed so far in advance that one of the newspapers was able to rent a helicopter and fly over the house taking pictures of the jurors on their tour.

Not surprisingly, the Supreme Court granted Dr. Sheppard's habeas petition, concluding that he did not receive a fair trial consistent with due process. The Court admonished the trial judge for not responding forcefully to the pre-trial publicity about the case:

[T]he court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the information thus disclosed was inaccurate, leading to groundless rumors and confusion. . . . Under such circumstances, the judge should have at least warned the newspapers to check the accuracy of their accounts. And it is obvious that the judge should have further sought to alleviate this problem by imposing control over the statements made to the news media by counsel, witnesses, and especially the Coroner and police officers. The prosecution repeatedly made evidence available to the news media which was never offered in the trial. Much of the "evidence" disseminated in this fashion was clearly inadmissible. The exclusion of such evidence in court is rendered meaningless when news media make it available to the public. . . . The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge's failure to take any action. . . . Effective control of these sources—concededly within the court's power—might well have prevented the divulgence of inaccurate information, rumors, and accusations that made up much of the inflammatory publicity, at least after Sheppard's indictment.

Having concluded that "the court's fundamental error is compounded by the holding that it lacked power to control the publicity about the trial," the Court specifically set forth the ways in which the trial court could have controlled potentially prejudicial publicity:

More specifically, the trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters, such as the refusal of Sheppard to submit to interrogation or take any lie detector tests; any statement made by Sheppard to officials; the identity of prospective witnesses or their probable testimony; any belief in guilt or innocence; or like statements concerning the merits of the case. . . . Being advised of the great public interest in the case, the mass coverage of the press, and the potential prejudicial impact of publicity, the court could also have requested the appropriate city and county officials to promulgate a regulation with respect to dissemination of information about the case by their employees. In addition, reporters who wrote or broadcast prejudicial stories, could have been warned as to the impropriety of publishing material not introduced in the proceedings. . . . Had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom—not pieced together from extrajudicial statements.

There is an old legal adage that "hard cases make bad law." The "carnival atmosphere" that surrounded the Sam Sheppard murder case, and the fact that the trial court judge not only did little to curb it, but in some instances facilitated it, may have led to the Supreme Court's conclusion that trial court judges must use "strong measures" to ensure that the accused receives a trial "free from outside influences." Absent the circumstances in this case, it is difficult to reconcile the Supreme Court's statements that the judge "should have at least warned the newspapers to check the accuracy of their accounts," that "reporters who wrote or broadcast prejudicial stories could have been warned as to the impropriety of publishing material not introduced in the proceedings," and that "the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom" with the freedom of the press guaranteed by the First Amendment.

Grounded Rocket

United States District Judge Reggie Walton has decided to shut down Roger Clemens' inner Blagojevich. As you may know, the seven time Cy Young Award winning pitcher was indicted last Thursday for perjury and obstruction of justice related to his testimony before Congress in February 2008 denying the use of performance enhancing drugs. Shortly after the charges were announced, Clemens posted the following statement on Twitter:

I never took HGH or Steroids. And I did not lie to Congress. I look forward to challenging the Governments accusations, and hope people will keep an open mind until trial. I appreciate all the support I have been getting. I am happy to finally have my day in court.

Rocket

In addition to this tweet, Clemens' lawyer, Rusty Hardin, held a news conference in Houston during which he said that the government was wrong to charge Clemens and that he looked forward to proving his innocence. Finally, on Friday Clemens appeared on a Boston radio station to further proclaim his innocence.

Apparently, all of this was too much for Judge Walton, a no-nonsense jurist who presided over the Scooter Libby trial. Last night he issued a sternly written two-page order directing "all interested participants [to] refrain from making any further statements about this case to the media or in public settings outside the courtroom." Judge Walton noted:

There has already been extensive media coverage about the case fueled, at least in part, by the comments made by the defendant, the defendant's counsel [and] individuals who presumably will be witnesses if this case proceeds to trial . . . To issue public comments to the media that, whether intentional or not, may affect the ability of the court to empanel an impartial jury (and to maintain the jury's impartiality throughout the trial if one is empaneled) the undersigned member of the court will not tolerate such behavior from anyone."

Judge Walton added that any violation of his order "will be confronted with the full authority of the Court."

Getting The Communications Professionals And Lawyers To Work Together In A Crisis

Over the weekend, the New York Times published a lengthy article on the public relations and crisis management mistakes of Toyota, Goldman Sachs, and BP: "P.R. Missteps Fueled Fiascos at BP, Toyota and Goldman - In Case Of Emergency: What Not To Do," The New York Times, August 21, 2010. Of particular interest to me was the discussion of how conflicts between the public relations consultants and the legal team can contribute to an ineffective public relations response to a crisis. For example, in the case of BP, the conflicts between the two groups was described as follows:

The company had to contend with a classic corporate quandary of balancing advice from counselors with starkly different considerations, according to people familiar with BP’s deliberations who requested anonymity because the advice was confidential. In times of crisis, communications professionals and lawyers often pursue conflicting agendas. Communications strategists are inclined to mollify public anger with expressions of concern, while lawyers warn that contrition can be construed as admissions of guilt in potentially expensive lawsuits. For BP, this tension burst into view in May, when executives went to Capitol Hill with officials from two of its contractors: Transocean, which owned the offshore rig that exploded, and Halliburton, which aided BP in drilling. Executives from the three companies each disowned culpability while pointing fingers at one another. “What that screamed is the lawyers are in control,” says Mr. Reeves. “All it did was get everybody all the more peeved at them.”

The author returned to this theme later in the article in the following discussion about Toyota's public relations problems:

Above all, crisis management is conducted with stress and sleeplessness layered atop the usual factionalism and politics afflicting any big organization. Mr. Dezenhall, the strategist, is amused by crises as glimpsed in movies, where people sit at banks of synchronized computers, speaking calmly into headsets. “The reality is absolute chaos,” he says. “Nobody knows what the facts are. The lawyers are trying to get the P.R. consultants fired and the P.R. consultants are criticizing the lawyers. Everybody despises each other. It’s a totally unmanageable situation. A corporation in crisis is not a corporation. It is a collection of panicked individuals motivated by self-preservation.”

As a lawyer and communications consultant, one of my objectives in a crisis situation is to make sure that the communications professionals and lawyers are working together instead of pursuing potentially conflicting agendas. Often this involves convincing the legal team that effective crisis management and brand preservation can work hand-in-hand with the legal strategy, while at the same time convincing the communications professionals that legitimate concerns about corporate liability must be taken into account in designing the communications strategy. The client is the ultimate beneficiary when each group of professionals gives a little rather than seeking to dominate the other.

Social Media Shenanigans?

Last month I blogged about a dispute between Westwood College, Inc., a for-profit college, and some of its former students who contend that the school violated consumer protection laws. The plaintiffs were allegedly recruited through a Facebook page, Warnings About Westwood, and a website, westwoodscammed.me, both of which were started and maintained by a law firm in Tampa, Florida that is representing the students. Westwood has filed a defamation lawsuit against the law firm, alleging that it was smeared by the law firm's use of social media like Facebook and Twitter to spread the word about Westwood.

Westwood is not the only company that has filed suit alleging it is a victim of social media. Corporate Counsel is reporting that on August 2, 2010, Ocean Spray Cranberries, Inc. filed a lawsuit in federal court in Boston against Decas Cranberry Sales, Inc. Ocean Spray alleges that Decas hired InkHouse Media + Marketing to develop a "false and misleading social media campaign." Ocean Spray contends that InkHouse, on behalf of Decas, launched a website called "Scamberry.org," which reported that Ocean Spray was selling a sweetened dried cranberry product made largely from corn syrup and few cranberries. According to Ocean Spray, the scamberry.org site made no mention of Decas; instead it was attributed to "the Scamberry Initiative" and described Scamberry.org as "a consumer education initiative about mislabeling." In addition to the website, Ocean Spray also alleges that Decas used "internet blogs . . . , Facebook accounts, YouTube videos and Twitter postings that . . . led consumers to believe that [Scamberry.org was] an independent non-profit consumer advocacy group" rather than Decas itself. Ocean Spray alleges Decas' actions violated the Agricultural Fair Practices Act, the Lanham Act, and the Massachusetts Unfair and Deceptive Trade Practices Act. The Corporate Counsel article about the Ocean Spray lawsuit can be found here.

Always Be Prepared

I have been helping a client with media training this week. It is extremely important that corporate representatives be prepared with a message and talking points before going out to face the cameras. The representatives should also be coached through a session where they face likely questions and have formulated answers that are both credible and advance the corporate message. If you follow the link below, you will see an instance where a corporate representative was unprepared to go on camera.

http://cbs11tv.com/video/?id=27434@ktvt.dayport.com

Maintaining Privileges

In my last post, "Martha Talks," I discussed how Martha Stewart was the first to use a personal website as part of her litigations communications strategy. Stewart's use of public relations to help maintain her image and brand as the ImClone scandal unfolded also yielded one of the first written opinions addressing the issue of whether communications with PR professionals are covered by the attorney-client or work-product privileges, In re Grand Jury Subpoenas, 265 F.Supp.2d 321 (S.D.N.Y. 2003).

Before charges were filed against Ms. Stewart, her lawyers hired The Brunswick Group ("Brunswick"), a New York public relations firm, "out of concern" that:

"unbalanced and often inaccurate press reports about [Stewart] created a clear risk that the prosecutors and regulator conducting the various investigations would feel public pressure to bring some kind of charges."

Not surprisingly, the government subpoenaed witnesses and documents from Brunswick regarding its representation of Ms. Stewart. Brunswick employees declined to appear or provide the subpoenaed documents on the ground that the information sought by the grand jury had been generated in the course of Brunswick's engagement by Ms. Stewart's lawyers, as part of their defense of Ms. Stewart, and were therefore protected by the attorney-client privilege and constituted attorney work product.

The court declined to completely enforce the subpoenas, concluding that communications between Ms. Stewart and Brunswick, both in and outside the presence of her attorneys, were protected by the attorney-client privilege insofar as such communications were directed at giving or obtaining legal advice. The court observed that during a high profile grand jury investigation, Ms. Stewart and her defense team were faced with efforts by the media, prosecutors, and law enforcement personnel to "color public opinion." It noted its awareness that such activities are often engaged in, "certainly to the detriment of the subject's general reputation but also, in the most extreme cases, to the detriment of his or her ability to obtain a fair trial." The court found that efforts to counteract this reality must take into account potential legal ramifications, and that this was a situation in which the lawyers needed outside assistance, since, as the court observed, "dealing with the media in a high profile case probably is not a matter for amateurs." Thus, the ability of lawyers to perform

"some of their most fundamental client functions - such as (a) advising the client of the legal risks of speaking publicly and of the likely legal impact of possible alternative expressions, (b) seeking to avoid or narrow charges brought against the client, and (c) zealously seeking acquital or vindication - would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers' public relations consultants."

According to the court,

"there is no practical way for such discussions to occur with the public relations consultants if the lawyers were not able to inform the consultants of at least some non-public facts, as well as the lawyers' defense tactics, free of the fear the consultants could be forced to disclose those discussions."

Thus the court held that it would find the following communications to be protected by the attorney-client privilege:

1) Confidential communications

2) Between lawyers, the client, and public relations consultants

3) Hired by the lawyers to assist them in dealing with the media in cases such as this one

4) That are made for the purpose of giving or receiving advice

5) Directed at handling the client's legal problems

Applying this test, the court protected all but two conversations between Ms. Stewart and Brunswick - one where Ms. Stewart asked Brunswick for its opinion of a day's particularly heavy media coverage and the second when the discussion concerned a problem with a wire service story.

Despite what appears to be clear guidance in the court's decision in the Martha Stewart matter, whether the attorney-client privilege applies to communications between lawyers, clients and litigation communications consultants can be so fact specific that lawyers should not assume that they can indiscriminately hire consultants and assume that all communications will fall within the privilege. Below are links to two excellent articles that provide further analysis on the steps necessary to protect communications made to litigation communications consultants.

1) Attorneys and public relations consultants: privileged or perilous communications?

2) Preserving Privilege