Litigation Public Relations:
The Lawyers' Duty to Balance News Coverage of Their Clients
by John C. Watson
Graduate Student: University of North Carolina at Chapel Hill
School of Journalism and Mass Communication CB# 3365
Howell Hall, Chapel Hill, N.C. 27599-3365
(919) 967-4142 E-MAIL: [log in to unmask]
Law Division - AEJMC Annual Convention Chicago, IL. 1997
Litigation Public Relations:
The Lawyers' Duty to Balance News Coverage of Their Clients
John C. Watson
Graduate Student - University of North Carolina at Chapel Hill
Law Division - AEJMC 1997 Annual Convention
Abstract
This paper asks whether lawyers' First Amendment right to speak about their
clients' cases in the mass media is evolving to become an obligation to argue
their cases in the court of public opinion as well as in the courts of law and
thereby balance the news coverage of their clients. The study focuses on the
evolution of this right/obligation through U.S. Supreme Court decisions and
rules promulgated by the American Bar Association.
Litigation Public Relations
Litigations Public Relations:
The Lawyers' Duty to Balance News Coverage of Their Clients
Introduction
Rodney King, the California man whose place in American history was secured by
a March 3, 1991 videotape that showed Los Angeles police officers vigorously
beating him, fired the lawyer who had advised him to avoid the news media and
shun publicity as he faced a criminal trial for driving while intoxicated,
eluding police and resisting arrest.[1] Kings's new lawyer, Milton C. Grimes,
took the opposite tact. He and King cultivated media contact to generate
publicity and "embark(ed) on a campaign to dispel any belief that (King) brought
the beating on himself, that he is just an ex-convict who cannot stay out of
trouble."[2] Looming in the distance was King's multi-million dollar police
brutality lawsuit against Los Angeles.[3]
When a case attracts extensive media coverage as King's did, the client's
public image becomes crucial to a wide variety of interests, including the
resolution of the legal issues and his ability to find work or live a life free
of stigma afterward. Grimes apparently recognized that and determined that
King's interests required more services than he would provide within the
boundaries of a courtroom. King needed someone to groom his public image.
Similarly, when 6-year-old beauty queen JonBenet Ramsey was found murdered in
the basement of her parents' Colorado home early this year, they quickly hired
attorneys and a public relations consultant.[4] King and the Ramseys recognized
the need to have someone represent them in the legal and public arenas. The
Ramseys, wealthy socialites, hired two sets of spokespersons while King, an
unemployed carpenter, chose an attorney to be his legal and public
representative. Attorneys often assume both roles in high-profile criminal
cases as a matter of course.
This paper will try to determine if by regularly assuming this public relations
role, which consists of interacting with the news media to frame[5] a
litigation-related problem in a manner that serves the interests of the client,
attorneys are creating an emerging ethical or contractual obligation to defend
their clients' images in the court of public opinion as zealously as they defend
their clients' rights in a court of law. This paper asks if this common practice
creates a contractual expectation that can be construed to be or evolves into a
contractual obligation. That is, does the fact that lawyers have the right to
present their clients' sides in high-profile litigation to the press and
frequently do so create among clients a reasonable expectation that they are
owed this public representation as one of the services of the attorney-client
contract? Is the day coming when a lawyer can be sued for malpractice for
failing to tend to a client's public image as well as his or her rights under
the law?
Courts and bar associations have recognized that attorneys have a limited right
to address the mass media pursuant to clients' legal needs, but none has
formally established any obligation to do so.[6] Yet the common practice of
attorneys tending to clients' public images in connection with pending legal
matters, which will be referred to hereafter as litigation public relations, is
implicitly recognized by the very fact that codes and rules of procedure have
been created to regulate that aspect of practicing law. One team of legal
scholars noted the evolution of the rules governing lawyers speaking to the
press about their cases and observed: "Out of court statements to influence
jurors and the public have traditionally been frowned on, but the norm of no
comment has changed to one of fair comment."[7]
The news media have a stake in whether lawyers become formally obligated to
tend to their clients' public images because news coverage of criminal justice
proceedings and some civil court matters is often unavoidably unbalanced because
one side will not talk to reporters. Often this is because attorneys advise
their clients not to speak to the press for fear that some harmful admission may
be published and later exploited during the trial. If lawyers become obligated
to speak, news stories about the arrest of a suspect in a crime will not
automatically or unavoidably appear unbalanced because the reporter would no
longer have to rely on the sole voice of the arrest report or prosecutor, whose
statements invariably bolster the perception that the suspect is guilty.
This study proceeds through four stages to assess whether professional rules
of practice are headed toward requiring a criminal defense attorney to engage in
litigation public relations when appropriate to clients' needs. The first stage
is a review of how legal and mass media scholars have addressed the issues
raised in this study. The second stage focuses on the rationales and techniques
suggested by scholars and practitioners who have facilitated, implemented, and
encouraged lawyers' efforts to engage in litigation public relations and help
move the optional practice toward becoming part of the required package of civil
or criminal defense services. The third stage of the study charts the evolution
of rules, codes, and case law that have controlled attorneys' interaction with
the mass media to determine how they have reached their current status and
whether the bar is moving toward making litigation public relations a
professional obligation.The final stage concentrates on whether malpractice or
contract law may compel lawyers to speak to the media pursuant to their clients'
interests.
Literature Review
The practice of litigation public relations is arguably as old as the American
judicial system, but the term is a modern construct. One of the earliest
recorded applications was the use of newspaper stories to bolster and undermine
the reputation of Aaron Burr before and during his treason trial in 1807.[8]
Susanne A. Roschwalb[9] and Richard A. Stack, professors at American University,
can be credited with labeling the concept in 1995 and convincing some modern
attorneys of the need to develop skills in this area of practice.[10] Their
book, accordingly titled Litigation Public Relations: Courting Public Opinion,
advocates making attorneys more adept in their increasingly common interactions
with the press. It offers advice on techniques for handling the media in legal
controversies that draw extensive public attention.
Roschwalb and Stack are among a growing number of scholars who have written
favorably about litigation public relations and have come close to saying
attorneys owe such services to their clients. "Because of the technology
available and the history of the public appetite, it is less likely than ever
that the proceedings in a court room can be secluded (from the proceedings in
the media)," Stack argued. "What is necessary is that lawyers, publicists and
the media work together before, during and after a trial to reach an
accommodation."[11]
Litigator Max D. Stern did precisely as Roschwalb and Stack would have advised
if they had written a dozen years earlier when he represented the defendant in a
highly publicized serial rape trial in Boston. The techniques Roschwalb and
Stack would later call litigation public relations were identified by Stern's
article in the Harvard Civil Rights-Civil Liberties Law Review as "public
defense."[12] Stern argued that a defendant has a right to a public defense to
balance the negative consequences he suffers when the public and the pool of
potential jurors are informed by the news media that he has been arrested or
indicted. This balance is essential to receive a fair trial. Accordingly, Stern
argued that a defendant has a First Amendment right to defend himself in the
news media. But in anticipation of litigation, his attorney should exercise that
right on his behalf.
Eight years later, the U.S. Supreme Court ruled in Gentile v. State Bar of
Nevada[13] that attorneys have a limited First Amendment right to speak to the
media about trials in which they are involved. In response, attorney Joseph Daly
argued in the American Journal of Trial Advocacy that the zeal attorneys are
ethically required to bring to their clients' causes may compel them to engage
in litigation public relations.[14] "The role of the criminal trial attorney is
to advocate zealously on behalf of the client," Daly wrote. Because press
coverage of a criminal proceeding usually begins with reports harmful to the
defendant, defense attorneys are left wondering if after such publicity a fair
trial is possible for the client, he argued. "In order to advocate zealously,
the defense lawyer may feel compelled to set the record straight, or in some
small way, to balance the avalanche of negative news coverage."[15] Daly urged
trial attorneys to be familiar with the limitations Gentile places on their
interaction with the mass media, but nonetheless encouraged them to call news
conferences when necessary.
A case comment published in the Bridgeport Law Review similarly observed that
in the face of adverse publicity, a criminal defendant is afraid of
incriminating himself and therefore must rely on the defense attorney to "make
his position known to the public." The author called such publicity "a necessary
and important form of advocacy."[16]
Jonathan M. Moses, writing in the influential Columbia Law Review, asserted in
a wide-ranging argument that lawyer "advocacy in the court of public opinion has
become a norm of the profession."[17] Moses also observed that " a growing
number of lawyers and clients believe a public relations strategy can get
results in certain kinds of cases. If so, the lawyers reason, they have a duty
to pursue such a strategy on behalf of clients."[18]
At the other end of the spectrum of opinion on the need for litigation public
relations is a handbook for lawyers published by three self-decribed "academic
lawyers," who referred disparagingly to attorneys who practice litigation public
relations as "the miscreants (who) have largely monopolized the headlines."[19]
The authors, William H. Fortune, Richard H. Underwood, and Edward J.
Imwinkelried, saw no reason to assume a defense attorney had an obligation to
groom a client's public image in the news media.
As this section has demonstrated, legal scholars have acknowledged that
litigation public relations is widely practiced within the legal profession.
Some have asserted that lawyers have an obligation to counterbalance the
negative image that is created when the media report the arrest or indictment of
a suspect. Others, while acknowledging the practice, frown upon it and see no
reason to institutionalize it.The practice of lawyers furthering their clients'
interests by framing the litigation issues in the news media may to be headed
for further entrenchment because, as one scholar argued, clients and lawyers
alike believe it works.
Lawyers as Spin Doctors
This stage of the paper examines why and how the advocacy and practice of
managing public perceptions pursuant to litigation have increased dramatically
during the 1990s and demonstrates the arenas into which it has spread.
Practitioners and advocates alike claim the parties' public images are
exceptionally important in high-profile litigation because lawyers have to be
concerned about how the public views their clients before, during, and after
trial.[20] The right spin[21] on a criminal prosecution or a defense-oriented
frame of the prosecution that appears in the media can make a conviction seem
like a miscarriage of justice, just as no spin or a prosecution-oriented frame
can undermine the cleansing of suspicion that an acquittal is supposed to
provide.
"Legal public relations strategies seem generally to be on an upswing,"
Jonathan Moses observed in 1995. "An entire industry of legal public relations
consultants has emerged to assist lawyers in dealing with the press on behalf of
clients."[22] Nadine Strosen, president of the American Civil Liberties Union,
explained the growth of legal public relations in a speech the same year, saying
that many criminal defense lawyers claim the scales of justice are already
heavily tilted against anyone accused of a crime and the defendant should
therefore have every possible opportunity to correct that imbalance.[23] "[D]o
defense counsel need to issue out-of court statements to offset the adverse
impact of public statements by government agents?" she asked?[24]
A cottage industry geared to training defense lawyers to make such statements
is betting its very existence on an affirmative answer to that question. Susanne
A. Roschwalb and Richard A. Stack's book, Litigation Public Relations: Courting
Public Opinion, is on the periphery of that industry because it is a collection
of articles that provide instruction in litigation public relations and analyze
the practice. Stack says he has submitted a second book on the subject to his
publisher under the working title Courts, Counselors and Correspondents: A Media
Relations Analysis of the Legal System, which he described as "a media training
manual for attorneys who are under the gun."[25] In the thick of the burgeoning
litigation public relations industry are such large public relations firms as
Edelman PR Worldwide, which reportedly established a special division for this
aspect of the trade and called it Edelman Litigation Communications.[26]
Criminal defense attorney Robert L. Shapiro provided a primer of sorts on
litigation public relations in a 1993 article he wrote for The Champion, the
magazine of the National Association of Criminal Defense Lawyers. He did not
bother arguing whether criminal defense lawyers have an obligation to engage in
litigation public relations but simply presumed the obligation existed. "When we
are retained for those high-profile cases, we are instantly thrust into the role
of a public relations person . . . . Our job switches from advocate to manager
and commentator. The lawyer's role as spokesperson may be equally important to
the outcome of a case as the skills of an advocate in the courtroom,"[27] he
wrote.
Shapiro observed that newspaper reporters try to present balanced stories but
are hampered by a lack of communication with the defense lawyer. The lawyer,
therefore, is obliged to be a spokesperson for the client. "The reporting of an
arrest always exceeds the reporting of the acquittal,"[28] he warned.
Shapiro's primer included such minutiae as advising lawyers that saying "no
comment" to the press leaves the public with a negative impression; that the
press should be told that the client has the support of his family and friends;
that the lawyer is optimistic about the ultimate outcome of the case;[29] that
special care should be taken to make sure that the client appears in public
neat, well groomed and never in prison garb; that reporters should be
complimented on their objectivity;[30] that lawyers should talk to the print
media first; that on television "[y]ou do not have to be concerned with whether
the answer precisely addresses the question, since only the answer will be
aired"; that when addressing television reporters, "[s]peak low and speak
slow."[31]
That last bit of advice became the headline of a National Law Journal article
a year later when the newspaper wrote about Shapiro's first news conference
after taking over the murder defense of O.J. Simpson. Reporter Gail Diane Cox
wrote: "The jaded journalists who cover the court/crime beat went expecting
nothing more than a curt denial. [I]nstead they got 'one of the most captivating
news conferences ever on live TV.' "[32] Cox also revealed that Shapiro "has
been a regular on the continuing education of the bar circuit, instructing other
lawyers in how to hijack the media."[33]
Criticism of litigation public relations was expressed in an opinion piece in
the New York Times that indicated how widespread the practice was becoming even
in the sphere of civil litigation. The author, Carole Gorney, a journalism
professor at Lehigh University, referred to the practice as litigation
journalism.
Litigation blackmail is being committed in the United
States every day, aided and abetted by journalists, lawyers and
public relations consultants . . . Lawyers are hiring public
relations consultants to schedule talk-show appearances and
newspaper interviews for their clients in an obvious attempt to
generate public sympathy and apply pressure on the defendants (in
civil lawsuits.)[34]
Gorney listed several cases in which plaintiffs and their attorneys were
featured on news programs and talk shows where the primary purpose was "forcing
out-of-court settlements and upping the ante in return for squashing the adverse
publicity."[35] She concluded with the recommendation that "[b]ar associations
require members to follow the rules of evidence set by law, not the press.
Public relations consultants should be held accountable by their professional
associations for participating in litigation journalism ... to avoid corrupting
the channels of communication and processes of government."[36]
Shapiro clearly does not see such publicity work as corrupting the criminal
justice system but as a means of serving it by nudging it back into the proper
balance that is lost from the minute the media report that a person is suspected
of a crime. A vital part of providing this service is cultivating a relationship
with the news media, Shapiro said, because "[t]he initial headlines of an arrest
often make the sacred presumption of innocence a myth. In reality, we have the
presumption of guilt."[37]
This presumption is built by prosecutors practicing litigation public
relations. Their relationships with the media are built in because their offices
are usually on the beat of the crime or courthouse reporters who visit them
regularly, often over a period of years, to gather information on hundreds of
crime stories. Los Angeles District Attorney Gilbert L. Garcetti's actions early
in the O.J. Simpson case, as reported in the National Law Journal, provided an
example of the prosecution's practice of litigation public relations.
"Garcetti's media blitz immediately after O.J. Simpson's arrest is producing
gasps. He racked up six network television appearances before the June 20
arraignment."[38] The article included an observation by an unnamed fellow
prosecutor who said he was surprised that Garcetti moved for a indictment, which
requires the proceedings of a grand jury, are closed to the press and public,
rather than pressing his prosecutorial advantage by holding a preliminary
hearing, which would have been open to media coverage. A preliminary hearing,
the prosecutor implied, would have allowed Garcetti to get his most damning
evidence into the press and to the public. "Laying out all that horrendous
evidence - assuming it is horrendous - with live testimony, early on is a great
way to communicate."[39]
This section of the paper has demonstrated how widespread the practice of
litigation public relations has become in the 1990s with cottage industries that
teach it, public relations consultants who specialize in it, and lawyers
representing clients in civil suits and criminal cases who practice it.
Considering the prevalence of the practice, there is reason to believe that when
a suspect in a crime hires a defense attorney, she might reasonably assume that
the counselor will provide representation in the court of public opinion as well
as in the courts of law.
Evolution of the Right to Speak
This section of the study traces the evolution of rules, codes, and case law
that have controlled attorneys' interaction with the mass media. It seeks to
show how these controls have reached their current status and determine whether
there is movement toward making litigation public relations a professional
obligation. It shows how the American judicial system has created a network of
rules to protect the administration of justice when its fairness is seen as
being threatened by the exercise of free speech or free press rights. These
rules are designed to ensure that trial verdicts are based solely on what occurs
within the courtroom. Rules have been created to restrict or even eliminate
outside expression, including information published in the mass media, that
could influence verdicts. Courts and bar associations have also used their
rule-making power to control the prosecution and defense lawyers, who are often
the sources of the potentially trial-influencing material published in the
media. Such efforts at control have required a careful handling of the First
Amendment's guarantees of free speech and a free press and the Sixth Amendment's
guarantee of a fair trial.
The initial and most enduring American judicial rule created to protect trial
verdicts from the outside influence of the news media was directed at jurors. In
the treason trial of former Vice-President Aaron Burr in 1807, John Marshall,
chief justice of the U.S. Supreme Court, ruled that the influence of news
stories on jurors' verdicts could be eliminated by dismissing any jurors who
could not affirm that their decision would be based only upon the evidence
produced at trial.[40]
The effort to keep the media from influencing the dispensing of justice was
supplemented for the first time by the rule-making power of the American Bar
Association in 1908 when it created 30 Canons of Legal Ethics. The rules, codes,
and canons approved by the ABA are commonly adopted in some form by the bar
associations of the states and the federal courts to such an extent that they
generally acquire the effect of law.[41] Canon 20 broadly denounced lawyers who
trafficked in litigation information by talking about their cases in the news
media.[42] Canon 20 said of these practices, "[g]enerally they are to be
condemned,"[43] but it also included wording indicating that a lawyer's
statements in a newspaper might sometimes be acceptable "[i]f the extreme
circumstances of a particular case justify a statement to the public. . . ."[44]
Here the legal profession had built its first door to prevent lawyers from
discussing cases in the press, but it made sure that door could be eased open in
time of need.
The ABA did not formally revisit the concerns addressed by Canon 20 until 60
years later. The states and the courts were left to devise their own controls
without the formal guidance of an updated national standard. During the
intervening years, sensational and intrusive coverage of controversial trials
was blamed for contributing to public hysteria and, in turn, producing unfair
trials. Among the most notable examples were the murder convictions and
executions of anarchists Nicola Sacco and Bartolomeo Vanzetti during the
1920s.[45] The conviction and execution of Bruno Hauptmann in the 1930s for the
kidnapping of the infant son of American aviation hero Charles A. Lindbergh was
also cited by the ABA when it finally renewed its efforts to prevent media
influence on trials. But it was the murder conviction of Dr. Sam Sheppard for
the murder of his wife and its reversal by the U.S. Supreme Court[46] and he
Warren Commission report[47] in the 1960s that galvanized the ABA into action.
The ABA was not subject to the High Court's holding in Sheppard, but seized
upon dictum in the Court's written opinion that said: "We interpret . . . Canon
20 to ban statements to the news media by prosecutors, assistant prosecutors and
their lawyer staff members, as to alleged confessions or inculpatory admissions
by the accused . . . . Such statements have the capacity to interfere with a
fair trial and cannot be countenanced."[48] Later the Court added,
"Collaboration between counsel and the press as to information affecting the
fairness of the trial is not only subject to regulation, but is highly
censurable and worthy of disciplinary measures.[49]
In 1968, two years after the Sheppard ruling was handed down, the ABA ended 60
years of official silence on the issue and adopted new rules governing lawyers'
interaction with the press when the fairness of a trial the lawyer was involved
in was at issue.[50] Notable among these regulations was Disciplinary Rule 7-107
and similar measures, which addressed trial publicity in a much more detailed
and broadly restrictive manner than Canon 20 had.[51] Trial attorneys were
concerned about the standards that would be used to regulate their ability to
discuss their cases in the media and attacked the restrictions as they were
adopted by various states.
Their most influential victory was provided in 1975 by a Chicago lawyers'
group. In that case, Chicago Council of Lawyers v. Bauer,[52] the Seventh
Circuit U.S. Court of Appeals struck down the Illinois version of DR 7-107,
which allowed lawyers to be punished for their statements to the press about
their cases "if there is a reasonable likelihood (emphasis added) that such
dissemination will interfere with a fair trial or otherwise prejudice the due
administration of justice."[53] The court said a stricter standard akin to the
"clear and present danger test" had to be applied to avoid impermissibly
impinging on the lawyers' First Amendment rights.[54] The court observed that
the Illinois rules had established "such a blanket prohibition whereby even a
trivial, totally innocuous statement could be a violation. The First Amendment
does not allow this broad sweep."[55]
A Virginia rule embodying the ABA's DR 7-107 was later challenged as a
restriction on lawyers' free speech. But the Fourth Circuit Court of Appeals
upheld it, even though the Virginia standard for allowing lawyers' speech to be
restricted was the "reasonable likelihood"[56] standard that the Seventh Circuit
found violated the First Amendment. These conflicts and the frequency of other
challenges to the ABA's restrictions led one commentator to observe that the ABA
realized "that the legal community had gone too far in trying to restrain
lawyers' speech."[57]
The effort to fix the problem produced the ABA's Model Rule of Professional
Conduct 3.6, which was approved by its members in 1978 and banned lawyers from
giving information to the media when they know "or reasonably should know that
it will have a substantial likelihood (emphasis added) of materially prejudicing
an adjudicative proceeding."[58] This substantial likelihood standard was more
protective of lawyers' First Amendment rights than the reasonable likelihood
standard of the old DR 7-107, but not as protective as the clear and present
danger standard that some lawyers wanted. As Stern observed in his law review
article, Rule 3.6 was the first to officially recognize "that attorneys for the
defense occupy a position that might require them to speak publicly in their
client's behalf."[59] This small concession was made in a footnote to an
advisory study that produced the rule,[60] but achieved greater importance three
years later in a minority opinion U.S. Supreme Court case that in some respects
advanced the cause of litigation public relations.
The case that led to the ruling was set in motion when defense lawyer Dominic
Gentile made a calculated effort to offset prosecution-framed news reports about
his client. He called a news conference and gave the news media a defense frame
for the case. The media had already reported that Gentile's client had been
indicted in the theft of drugs and money from an undercover police squad that
had stored them in vaults rented from the client. The stories also implied that
the other potential suspects, undercover police officers, had been virtually
cleared of suspicion. At the news conference, Gentile framed the case as an
attempt by the authorities to use his client as a scapegoat to cover their own
wrongdoing. The client was subsequently acquitted at trial, but the Nevada State
Bar Association sanctioned Gentile for violating Nevada Supreme Court Rule 177,
the state's version of Model Rule 3.6 (1981) which forbade statements to the
media that had a substantial likelihood of prejudicing a trial. Gentile
appealed to the U.S. Supreme Court challenging the rule and the bar
association's sanctions against him.
The High Court ruled that Rule 177's and Model Rule 3.6's "substantial
likelihood" standard for determining when attorneys' speech to the media can be
curtailed did not violate the lawyers' First Amendment rights. Gentile was
exonerated, however, because the Court found the Nevada version of the rule
included confusing provisions and therefore was so vague that Gentile could not
know for certain which of his statements to the press were permissible and which
were not. This uncertainty developed because the Nevada rule prohibited a
certain type of statement to the press but exempted a "safe harbor" of
statements which were permissible. The distinction between the two was not clear
enough to allow the lawyer to know when he had wavered from permissible into
impermissible speech to the media.The Gentile ruling is sometimes cited to show
the advancement of lawyers' rights to make appeals to public opinion on behalf
of their clients. But as Moses observed, "What Gentile did not do, at least not
directly, is decide when, if or how lawyers should advocate in the court of
public opinion."[61]
In his minority opinion, however, Justice Kennedy indicated that litigation
public relations was not only permitted, but perhaps even required in some
cases. "An attorney's duties do not begin inside the courtroom door," Kennedy
wrote. "He or she cannot ignore the practical implications of a legal proceeding
for the client . . . . [A]n attorney may take reasonable steps to defend a
client's reputation and reduce the adverse consequences of indictment."[62]
Proponents of litigation public relations could take heart from this bit of
dicta because it led the ABA to loosen restrictions on lawyers' out-of-court
statements much as the dicta in Sheppard led the ABA to tighten the restraints.
As Jonathan Moses observed in the Columbia Law Review, "[T]he immediate response
to Gentile was an effort to make sure that it did not 'chill' attorney speech on
behalf of clients."[63] A Nevada commission led by Gentile proposed a state bar
rule that would allow lawyers a "public right of reply" to statements that
damaged their clients' interests and would "freely allow speech that could be
characterized as political."[64] The right-of-reply concept was grounded in the
Sixth Amendment's guarantee of a fair trial and the recognition that defense
attorneys should not be expected to stand silently while reports in the media
damaged their clients' prospects of winning an acquittal.
For the next several years numerous law review articles commented on the
Gentile ruling, and many criticized the Court's majority opinion for impugning
the propriety of lawyer appeals to the court of public opinion and "failing to
recognize the realities of modern practice."[65]
Comments in the Annotated Model Rules of Professional Conduct, which is
published by the Center for Professional Responsibility of the American Bar
Association, reported that Model Rule 3.6 was "substantially amended" August 10,
1994, to meet the concerns expressed in Gentile.[66] It was modified to
specifically apply to lawyers talking about litigation they were handling. The
rule's prior language that limited lawyers to talking only about the general
nature of a case was altered to allow them to elaborate. It permitted a lawyer
to publicly "make a necessary response to protect a client from undue
prejudicial effect of recent publicity not initiated by the lawyer or the
lawyer's client."[67] This is commonly referred to as the "fair reply"
provision. The revisions also dropped the six specifically identified statements
that would be considered prejudicial and which the Supreme Court cited as
causing confusion in Nevada's Rule 177. But the six returned in Comment 5 of the
ABA rule. The revisions also indicated lawyers would be given even more freedom
to speak to the media in cases that were to be tried without a jury. Rule 3.8
was addressed in the same session and was recast "to require prosecutors to
refrain from playing to the media to sway community and juror sentiment."[68]
When these revisions were being debated by the ABA House of Delegates, federal
prosecutor Michael H. Dettmer, president of the State Bar of Michigan, was
quoted complaining that they would create "a right of reply free-for-all, with
press releases begetting press releases."[69] He claimed the changes "condone
the practice of trial in the media."[70] Attorney William H. Jeffress Jr., a
member of the committee that sponsored the revisions, defended them as necessary
to allow defense lawyers to mitigate adverse publicity that can arise even from
proper comments by prosecutors.[71]
The revisions were approved despite the fact that the vote was taken with the
massive media coverage of the O.J. Simpson murder trial as a backdrop. "The
Simpson case illustrates why it's appropriate to have a rule that attempts to
strike a reasonable balance between a fair trial and freedom of the press and
free speech," Washington, D.C. attorney David Isbell told the National Law
Journal.[72]
The ABA revisions allowing defense attorneys a right of reply indicate that the
adversarial relationship that is a key to the American judicial system is being
expanded to reach outside of the courtroom, implicitly recognizing the outside
forum as a proper arena where an attorney's duty to zealously defend his or her
client remains paramount.[73]
Among the other indicators of the growing acceptance of litigation public
relations is the willingness of courts to approve the bills lawyers submit for
performing public relations work on behalf of their clients. In a successful
racial discrimination lawsuit against the San Francisco Fire Department in 1992,
for example, a federal appeals court approved payments to the prevailing lawyers
who had billed specifically for holding press conferences and conducting public
relations on behalf of their clients' cause. The ruling said such work by
attorneys "where narrowly focused on fostering the litigation goals of their
clients is compensable."[74]
This portion of the paper has traced the progress of litigation public
relations from the early 20th century, when the practice was condemned by ABA
Canon 20 as inappropriate and deserving of punishment, to the twilight of the
20th century when the foremost professional association of American lawyers and
the Supreme Court accept it as a right that can be exercised with a generous
degree of freedom. Between the early 1900s and the late 1960s, efforts to ensure
trial fairness progressed from carefully screening jurors to include muzzling
lawyers. Lawyers began successfully asserting their First Amendment rights to
speak about their trials and publicly defend their clients' interests in the
1970s, just as the media were also winning greater rights to report on criminal
cases.[75] Through the 1980s and 1990s lawyers expanded and legitimized their
right to speak about their cases.
Those who hope to convert that right to speak into an obligation could find
support in the dicta of Supreme Court Justice Kennedy's minority opinion in
Gentile. To date, however, only a small minority of scholarly voices are
echoing Kennedy's assertion that a lawyer's right to manage public perceptions
to advance the interests of his or her clients might actually be an obligation
to do so.
When Custom Becomes Contract
This portion of the paper considers contract and malpractice law to determine
if the progression of the lawyers' right to address the news media to advocate
for their clients is becoming an obligation to do so. Do the frequent
appearances of lawyers plying the mass media in pursuit of their clients
interests create among clients a legitimate expectation that lawyers hired for
highly publicized criminal or civil cases will provide such public relations
services automatically? Are litigation public relations services among the
bundle of unspecified services that lawyers are obligated to provide when they
contract to serve clients?
A malpractice lawsuit based on allegations of breach of contract or
professional negligence could determine if the obligation exists in an
individual case. Scholars may express opinions on the issue, as surveyed earlier
in this paper, and hope to eventually persuade those with the power to decide if
lawyers are so obliged. Or the ABA could establish or deny such an obligation
through its rule-making authority, but as this paper has already demonstrated,
its members are divided over the issue and ABA rules change slowly through the
democratic process. A malpractice or breach-of-contract lawsuit brought by a
client claiming his lawyer failed to be an advocate for him in the media might
begin the process of settling the issue at the speed of trial and appeal.This
study did not find any reported cases of clients making such claims against
their lawyers, but now seeks to determine if there is a theoretical legal basis
for them.
A lawsuit accusing an attorney of malpractice would be based on the tort of
negligence, or a breach of contract theory or an amalgam of the two. "Clearly
within the definition of legal malpractice is the negligent rendition of
professional services,"[76] wrote Ronald E. Mallen and Jeffrey M. Smith in
their four-volume treatise, Legal Malpractice. "The standard sometimes is
alternatively stated in terms of an implied contract to exercise ordinary skill
and knowledge, and corresponds to the standard of care used to evaluate
competence (footnotes omitted). In that respect, an attorney's exposure is
comparable to that of other professionals."[77]
Mallen and Smith seem to indicate that clients currently have the ability to
instruct their attorneys to tend to their public images in concert with the
handling of highly publicized civil or criminal litigation. "The basic rule is
that an attorney specifically instructed by the client should follow those
instructions with reasonable care . . . or be liable for all damages proximately
caused by the failure."[78] In such a case, the lawyer would have an obligation
to engage in litigation public relations.
Such instruction would move any subsequent malpractice action into the realm of
breach of contract. To prevail, the client would have to prove that the lawyer
agreed to follow the specific instructions. [O]f course, the instructions must
be ethically proper and not offend public policy . . . . Virtually any subject
matter may be the subject of the client's specific instructions."[79] The courts
have established that it is legal for lawyers to speak to the media on behalf of
their clients' causes and the ABA has determined it is ethical to do so within
the limitations discussed earlier in this paper. Certified criminal trial
advocate John Wesley Hall Jr. came to the conclusion in his treatise that
"[a]ttorneys can be sued for damages for breach of contract for failure to
perform legally permissible services which the attorney expressly or impliedly
(sic) agreed to perform."[80]
Cases in which there is no express contract for litigation public relations
services to complement the traditional legal services contract would be more
problematic. In such cases, circumstances and custom may create an implied
contract for such services. Mallen and Smith relied on extensive case law to
conclude that in attorney-client contracts "[t]he attorney impliedly(sic)
contracts to exercise ordinary skill and knowledge in the rendition of
professional services. This implied promise is, of course, to comply with the
standard of care that determined negligence."[81] Experts, other lawyers or
legal scholars would have to be called to testify to establish what the standard
of care is. They would have to say whether it is customary for lawyers in this
community, under these circumstances to engage in litigation public relations.
In large urban settings such as Los Angeles, New York, Chicago, or Atlanta it
might be possible to establish that it is customary for attorneys handling
high-profile cases to make media appeals. The standard of care an attorney would
be required to adhere to would depend on whether he or she is considered to be a
specialist or advertised as a specialist. In that case, the lawyer would be held
to a higher standard of care. Court rulings, ABA rules and the proliferation of
the practice would be considered, but would not necessarily be determinative of
the issue. Such a determination would be a factual one and therefore not binding
on any other case.
In summary, there is a basis in the law of attorney malpractice for
establishing in individual cases a lawyer's obligation, implicitly and
explicitly, to practice litigation public relations on behalf of a client.
Establishing the obligation throughout the profession would require action by
the ABA or rulings from the courts of last resort.
Conclusion
There appear to be grounds to expect that one day the courts and bar
associations will decide that lawyers' obligations to their clients extend also
to the court of public opinion. A primary step in this direction would be
recognizing that the limited First Amendment right that the courts and bar have
said allows lawyers to speak outside of court and in the public arena belongs
not to the lawyer but to the client. There is no similar confusion with respect
to who owns the Sixth Amendment right exercised by attorneys when they cross
examine witnesses who have testified against their clients in criminal cases.
Clearly the lawyers are exercising the clients' Sixth Amendment right to
confront witnesses against them. Lawyers are required to do so because cross
examination is crucial to the clients' interests and requires a level of skill
and training that a lay person can not be expected to have. For precisely the
same reasons, lawyers could be required to exercise their clients' First
Amendment rights as part of the litigation duties in the court of public
opinion. In so doing, the presumption of innocence in a criminal trial might
have a chance to exist and the quest for balance in news accounts of litigation
might find an ally.
Appendix A
DR 7-107 Trial Publicity.
(A) A lawyer participating in or associated with the investigation of a
criminal matter shall not make or participate in making an extra judicial
statement that a reasonable person would expect to be disseminated by means of
public communication and that does more than state without elaboration: (1)
Information contained in a public record. (2) That the investigation is in
progress. (3) The general scope of the investigation including a description of
the offense and, if permitted by law, the identity of the victim. (4) A request
for assistance in apprehending a suspect or assistance in other matters and the
information necessary thereto. (5) A warning to the public of any dangers.
(B) A lawyer or firm associated with the prosecution of defense of a criminal
matter shall not, from the time of the filing of a complaint, information, or
indictment, the issuance of an arrest warrant, or arrest until the commencement
of the trial or dispositions without, make or participate in making an extra
judicial statement that a reasonable person would expect to be disseminated by
means of public communication and that relates to: (1) The character,
reputation, or prior criminal record (including arrests indictments, or other
charges of crime) of the accused. (2) The possibility of a plea of guilty to the
offense charged or to a lesser offense. (3) The existence or contents of any
confession, admission, or statement given by the accused or his refusal or
failure to make a statement. (4) The performance or results of any examinations
or tests or the refusal or failure of the accused to submit to examinations or
tests. (5) The identity, testimony, or credibility of a prospective witness. (6)
Any opinion as to the guilt or innocence of the accused, the evidence or merits
of the case.
(C) DR 7-107 (B) does not preclude a lawyer during such period from announcing:
(1) The name, age, residence, occupation, and family status of the accused. (2)
If the accused has not been apprehended, any information necessary to aid in his
apprehension or to warn the public of any dangers he may present. (3) A request
for assistance in obtaining evidence. (4) The identity of the victim of the
crime. (5) The Fact, time, and place of arrest, resistance, pursuit, and use of
weapons. (6) The identity of investigating and arresting officers or agencies
and the length of the investigation. (7) At the time of of seizure, a
description of the physical evidence seized, other than a confession, admission
or statement. (8) The nature, substance, or text of the charge. (9) Quotations
from or references to public records of the court in the case. (10) The
scheduling or result of any step in the judicial proceedings. (11) That the
accused denies the charges against him.
(D) During the selection of a jury or the trial of a criminal matter, a lawyer
or law firm associated with the prosecution or defense of a criminal matter
shall not make or participate in making an extra judicial statement that a
reasonable person would expect to be disseminated by means of public
communication and that relates to the trial, parties, or issues in the trial or
other matters that are reasonably likely to interfere with a fair trial, except
that he may quote from or refer without comment to public records of the court
in the case.
(E) After the completion of a trial or disposition without trial of a criminal
matter and prior to the imposition of sentence, a lawyer or law firm associated
with the prosecution or defense shall not make or participate in making an extra
judicial statement that a reasonable person would expect to be disseminated by
means of public communication and that is reasonably likely to affect the
imposition of sentence.
(F) The foregoing provisions of DR 7-107 also apply to professional disciplinary
proceedings and juvenile disciplinary proceedings when pertinent and consistent
with other law applicable to such proceedings.
(G) A lawyer or law firm associated with a civil action shall not during its
investigation or litigation make or participate in making an extra judicial
statement, other than a quotation from or reference to public records, that a
reasonable person would expect to be disseminated by means of public
communication and that relates to: (1) Evidence regarding the occurrence or
transaction involved. (2) The character, credibility, or criminal record of a
party, witness, or prospective witness. (3) The performance or results of any
examinations or tests or the refusal or failure of a party to submit to such.
(4) His opinion as to the merits of the claims or defenses of a party, except as
required by law or administrative rule. (5) Any other matter reasonably likely
to interfere with a fair trial of the action.
(H) During the pendency of an administrative proceedings, a lawyer or law firm
associated therewith shall not make or participate in making a statement, other
than a quotation from or reference to public records, that a reasonable person
would expect to be disseminated by means of public communication if it is made
outside the official course of the proceeding and relates to: (1) Evidence
regarding the occurrence or transaction involved. (2) The character, credibility
or criminal record of a party, witness, or prospective witness. (3) Physical
evidence or the performance result of any any examinations or tests or the
refusal or failure of a party to submit to such. (4) His opinion as to the
merits of the claims, defenses, or positions of an interested person. (5)Any
other matter reasonably likely to interfere with a fair hearing.
(I) The foregoing provisions of DR 7-107 do not preclude a lawyer from replying
to charges of misconduct publicly made against him or from participating in the
proceedings of legislative, administrative or other investigative bodies.
(J) A lawyer shall exercise reasonable care to prevent his employees and
associates from making an extrajudicial statement that he would be prevented
from making under DR 7-107.
[1] Philip M. Gollner, Law: Image-Making Strategy in the Rodney King Case, N.Y.
Times, Dec. 25, 1992, at A26.
[2] Id.
[3] See, Kenneth B. Noble, The Nation:The Endless Rodney King Case, N.Y. Times,
Feb. 4 1996, at sec. 4, p.5. King ultimately won a $3.8 million judgment against
Los Angeles and was not prosecuted for leading police on the high-speed chased
that led to his arrest and beating by the police officers.
[4] Bill Hewitt, Lost Innocent, People Weekly, Jan. 20, 1997, at 40.
[5] The terms "frame" and "framing," when used in this paper refer to the
concepts explained by sociologist Erving Goffman when he introduced frame
analysis to mass communication theory.See generally Stanley J. Baran & Dennis K.
Davis, Mass Communication Theory 297-301 (1995). Frames refer to expectations
used to make sense of a social situation. They presume that facts have no
intrinsic meaning but acquire meaning by being embedded in a frame or storyline
that organizes, emphasizes or downplays them to suggest how a storyline should
end or how a conflict should be resolved. See generally R.M. Entman, Framing:
Toward Clarification of a Fractured Paradigm, 43 J. Comm. 51 (1993).
[6] See generally Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), and ABA
Model Rules of Professional Conduct Rule 3.6 cmt. (1994)
[7] William H. Fortune et al., Modern Litigation and Professional
Responsibility Handbook: The Limits of Zealous Advocacy 279 (1996).
[8] J.Edward Gerald, News of Crime: Courts and Press in Conflict 70 (1983).
[9] Roschwalb died in 1996.
[10] Litigation Public Relations: Courting Public Opinion (Susanne A. Roschwalb
& Richard A. Stack eds., 1995).
[11] Id. at 231.
[12] Max D. Stern,The Right of the Accused to a Public Defense, 18 Harv.
C.R.-C.L. L. Rev.53 (1983).
[13] 501 U.S. 1030 (1991).
[14] Joseph L. Daly, What Can the Defense Say at a "Pre-formal Charge" Press
Conference? Gentile v. State Bar of Nevada Puts a Porous Gag on Trial Lawyers,
15 Am. J. Trial Advoc. 269 (Winter 1991-1992).
[15] Id.
[16] Sharon A. Peters, Comment, Gentile v. State Bar of Nevada: An Unprincipled
Departure from First Amendment Jurisprudence, 13 Bridgeport L. Rev. 217, 253
(1992).
[17] Jonathan M. Moses, Legal Spin Control: Ethics and Advocacy in the Court of
Public Opinion, 95 Colum. L. Rev. 1811, 1830-31 (1995).
[18] Id.
[19] Preface, Fortune et al., supra note 7, at xxvi.
[20] Clinical studies have indicated that the images and frames provided by the
media can have an effect on verdicts, sentencing, and even whether a prosecutor
decides to prosecute a case.See, e.g. Julian V. Roberts & Anthony N. Doob, News
Media Influences on Public Views of Sentencing, 14 L. & Hum. Behav. 451 (1990);
Edith Greene, Media Effects on Jurors, 14 L. & Hum. Behav. 439 (1990); Stacia
L. Haynie & Ernest A. Dover, Prosecutorial Discretion and Press Coverage, 22 Am.
Pol. Q. 370 (1994).
[21] The term spin, when used in this context in this paper, is synonymous with
framing and means presenting a given scenario or set of facts in a manner that
produces a desired effect or giving them meaning to produce an effect.
[22] Moses, supra note 17, at 1829.
[23] Nadine Strossen, Free Press and Fair Trial: Implications of the O.J.
Simpson Case, 26 U. Tol. L. Rev. 647 (1995). The article is a transcript of a
speech she delivered Feb. 2, 1995, at the University of Toledo College of Law.
[24] Id. at 650.
[25] Telephone interview with Robert A. Stack, co-editor, Litigation Public
relations: Courting Public Opinion (Mar. 24, 1997).
[26] Moses, supra note 17, at 1829.
[27] Robert L. Shapiro, Secrets of a Celebrity Lawyer, How O.J.'s Chief
Strategist Works the Press, Colum. J. Rev., Sept./Oct. 1994, at 25. The article
was reprinted from the Jan./Feb. 1993 edition of The Champion.
[28] Id.
[29] Shapiro, at 26.
[30] Shapiro, at 28.
[31] Shapiro, at 29.
[32] Gail Diane Cox, Speak Low and Speak Slow, Nat'l. L. J., Aug. 29,1994, at
A1.
[33] Id.
[34] Carole Gorney, Litigation Journalism is a Scourge, N.Y. Times, Feb. 15,
1993, at A15.
[35] Id.
[36] Id.
[37] Shapiro, supra note 27, at 26.
[38] Gail Diane Cox & Don J. Benedictis, O.J.'s Prosecution is D.A.'s Debut,
Nat'l. L. J., July 4, 1994, at A4.
[39] Id.
[40] United States v. Burr, 25 F. Cas. 49 (No. 14,692g) (C.C.D. Va. 1807).
[41] See generally Model Rules of Professional Conduct (1993 edition).
[42] See generally ABA Selected Statutes, Rules and Standards on the Legal
Profession (1990).
[43] Id. at 237, referring to Canon 20 as it was worded in 1908.
[44] Id.
[45] See generally Paul Avrich, Sacco and Vanzetti: The Anarchist Background
(1991); Osmond K. Fraenkel, The Sacco-Vanzetti Case (1931).
[46] Sheppard v. Maxwell, 384 U.S. 333 (1966).
[47] See the Report of the President's Commission on the Assassination of
President Kennedy 227 (1964). Commonly referred to as the Warren Commission
Report, because the commission that wrote it was led by U.S. Supreme Court
Justice Earl Warren, the report criticized the news media for its coverage of
the assassination of President John F. Kennedy and suspect Lee Harvey Oswald. It
also faulted the media's demands for access that led to the conditions that
allowed Jack Ruby to get close enough to Oswald to kill him.
[48] Sheppard, infra note 46, at 361.
[49] Id. at 363.
[50] The revisions were formally titled ABA Standards for Criminal Justice,
Standards Relating to Fair Trial and Free Press (1968).
[51] The text of DR 7-107 Trial Publicity is reprinted in Appendix A.
[52] 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1975).
[53] Id . at 249.
[54] Id.
[55] Id. at 251.
[56] Hirschkop v. Snead, 594 F.2d 362 (4th Cir. 1979).
[57] Moses, supra note 17, at 1823.
[58] Model Rule 3.6 (1978). The comment accompanying the rule explained that it
resembles DR 7-107 but "transforms the particulars in DR 7-107 into an
illustrative compilation that gives fair notice of conduct ordinarily posing
dangers to the fair administration of justice."
[59] Stern, supra note 12, at 92.
[60] Id.
[61] Moses, supra note 17, at 1826.
[62] Gentile, 501 U.S. 1030, 1043 (1991).
[63] Moses, supra note 17, at 1830.
[64] Id. at n.109.
[65] Id. at 1831, n.110.
[66] Annotated Model Rules of Professional Conduct 351 (3rd ed. 1996).
[67] Id.
[68] Fortune et al., supra note 7, at 285.
[69] James Podhers, Amended Rules on Trial Publicity May Give Lawyers More to
Talk About, A.B.A.J., Oct. 1994, at 100.
[70] Id.
[71] Id.
[72] Randall Samborn, ABA Meeting Features Trial Publicity Debate, Nat'l L.J.,
Aug.8, 1994, at A6.
[73] See, Moses, supra note 17, at 1850.
[74] Davis v. City and County of San Francisco, 976 F.2d 1536, 1545 (9th Cir.
1992).
[75] See, e.g., Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976); Landmark
Communications Inc. v. Virginia 435 U.S. 829 (1978); Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555 (1980).
[76] Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, 3-4 (4th ed.
1996).
[77] Id.
[78] Id. at 593.
[79] Id.
[80] John Wesley Hall Jr., Professional Responsibility of the Criminal Lawyer
1070 (2nd ed. 1996).
[81] Mallen & Smith, at 591.
Litigation Public Relations
Litigations Public Relations:
The Lawyers' Duty to Balance News Coverage of Their Clients
Introduction
Rodney King, the California man whose place in American history was secured by
a March 3, 1991 videotape that showed Los Angeles police officers vigorously
beating him, fired the lawyer who had advised him to avoid the news media and
shun publicity as he faced a criminal trial for driving while intoxicated,
eluding police and resisting arrest.[1] Kings's new lawyer, Milton C. Grimes,
took the opposite tact. He and King cultivated media contact to generate
publicity and "embark(ed) on a campaign to dispel any belief that (King) brought
the beating on himself, that he is just an ex-convict who cannot stay out of
trouble."[2] Looming in the distance was King's multi-million dollar police
brutality lawsuit against Los Angeles.[3]
When a case attracts extensive media coverage as King's did, the client's
public image becomes crucial to a wide variety of interests, including the
resolution of the legal issues and his ability to find work or live a life free
of stigma afterward. Grimes apparently recognized that and determined that
King's interests required more services than he would provide within the
boundaries of a courtroom. King needed someone to groom his public image.
Similarly, when 6-year-old beauty queen JonBenet Ramsey was found murdered in
the basement of her parents' Colorado home early this year, they quickly hired
attorneys and a public relations consultant.[4] King and the Ramseys recognized
the need to have someone represent them in the legal and public arenas. The
Ramseys, wealthy socialites, hired two sets of spokespersons while King, an
unemployed carpenter, chose an attorney to be his legal and public
representative. Attorneys often assume both roles in high-profile criminal
cases as a matter of course.
This paper will try to determine if by regularly assuming this public relations
role, which consists of interacting with the news media to frame[5] a
litigation-related problem in a manner that serves the interests of the client,
attorneys are creating an emerging ethical or contractual obligation to defend
their clients' images in the court of public opinion as zealously as they defend
their clients' rights in a court of law. This paper asks if this common practice
creates a contractual expectation that can be construed to be or evolves into a
contractual obligation. That is, does the fact that lawyers have the right to
present their clients' sides in high-profile litigation to the press and
frequently do so create among clients a reasonable expectation that they are
owed this public representation as one of the services of the attorney-client
contract? Is the day coming when a lawyer can be sued for malpractice for
failing to tend to a client's public image as well as his or her rights under
the law?
Courts and bar associations have recognized that attorneys have a limited right
to address the mass media pursuant to clients' legal needs, but none has
formally established any obligation to do so.[6] Yet the common practice of
attorneys tending to clients' public images in connection with pending legal
matters, which will be referred to hereafter as litigation public relations, is
implicitly recognized by the very fact that codes and rules of procedure have
been created to regulate that aspect of practicing law. One team of legal
scholars noted the evolution of the rules governing lawyers speaking to the
press about their cases and observed: "Out of court statements to influence
jurors and the public have traditionally been frowned on, but the norm of no
comment has changed to one of fair comment."[7]
The news media have a stake in whether lawyers become formally obligated to
tend to their clients' public images because news coverage of criminal justice
proceedings and some civil court matters is often unavoidably unbalanced because
one side will not talk to reporters. Often this is because attorneys advise
their clients not to speak to the press for fear that some harmful admission may
be published and later exploited during the trial. If lawyers become obligated
to speak, news stories about the arrest of a suspect in a crime will not
automatically or unavoidably appear unbalanced because the reporter would no
longer have to rely on the sole voice of the arrest report or prosecutor, whose
statements invariably bolster the perception that the suspect is guilty.
This study proceeds through four stages to assess whether professional rules
of practice are headed toward requiring a criminal defense attorney to engage in
litigation public relations when appropriate to clients' needs. The first stage
is a review of how legal and mass media scholars have addressed the issues
raised in this study. The second stage focuses on the rationales and techniques
suggested by scholars and practitioners who have facilitated, implemented, and
encouraged lawyers' efforts to engage in litigation public relations and help
move the optional practice toward becoming part of the required package of civil
or criminal defense services. The third stage of the study charts the evolution
of rules, codes, and case law that have controlled attorneys' interaction with
the mass media to determine how they have reached their current status and
whether the bar is moving toward making litigation public relations a
professional obligation.The final stage concentrates on whether malpractice or
contract law may compel lawyers to speak to the media pursuant to their clients'
interests.
Literature Review
The practice of litigation public relations is arguably as old as the American
judicial system, but the term is a modern construct. One of the earliest
recorded applications was the use of newspaper stories to bolster and undermine
the reputation of Aaron Burr before and during his treason trial in 1807.[8]
Susanne A. Roschwalb[9] and Richard A. Stack, professors at American University,
can be credited with labeling the concept in 1995 and convincing some modern
attorneys of the need to develop skills in this area of practice.[10] Their
book, accordingly titled Litigation Public Relations: Courting Public Opinion,
advocates making attorneys more adept in their increasingly common interactions
with the press. It offers advice on techniques for handling the media in legal
controversies that draw extensive public attention.
Roschwalb and Stack are among a growing number of scholars who have written
favorably about litigation public relations and have come close to saying
attorneys owe such services to their clients. "Because of the technology
available and the history of the public appetite, it is less likely than ever
that the proceedings in a court room can be secluded (from the proceedings in
the media)," Stack argued. "What is necessary is that lawyers, publicists and
the media work together before, during and after a trial to reach an
accommodation."[11]
Litigator Max D. Stern did precisely as Roschwalb and Stack would have advised
if they had written a dozen years earlier when he represented the defendant in a
highly publicized serial rape trial in Boston. The techniques Roschwalb and
Stack would later call litigation public relations were identified by Stern's
article in the Harvard Civil Rights-Civil Liberties Law Review as "public
defense."[12] Stern argued that a defendant has a right to a public defense to
balance the negative consequences he suffers when the public and the pool of
potential jurors are informed by the news media that he has been arrested or
indicted. This balance is essential to receive a fair trial. Accordingly, Stern
argued that a defendant has a First Amendment right to defend himself in the
news media. But in anticipation of litigation, his attorney should exercise that
right on his behalf.
Eight years later, the U.S. Supreme Court ruled in Gentile v. State Bar of
Nevada[13] that attorneys have a limited First Amendment right to speak to the
media about trials in which they are involved. In response, attorney Joseph Daly
argued in the American Journal of Trial Advocacy that the zeal attorneys are
ethically required to bring to their clients' causes may compel them to engage
in litigation public relations.[14] "The role of the criminal trial attorney is
to advocate zealously on behalf of the client," Daly wrote. Because press
coverage of a criminal proceeding usually begins with reports harmful to the
defendant, defense attorneys are left wondering if after such publicity a fair
trial is possible for the client, he argued. "In order to advocate zealously,
the defense lawyer may feel compelled to set the record straight, or in some
small way, to balance the avalanche of negative news coverage."[15] Daly urged
trial attorneys to be familiar with the limitations Gentile places on their
interaction with the mass media, but nonetheless encouraged them to call news
conferences when necessary.
A case comment published in the Bridgeport Law Review similarly observed that
in the face of adverse publicity, a criminal defendant is afraid of
incriminating himself and therefore must rely on the defense attorney to "make
his position known to the public." The author called such publicity "a necessary
and important form of advocacy."[16]
Jonathan M. Moses, writing in the influential Columbia Law Review, asserted in
a wide-ranging argument that lawyer "advocacy in the court of public opinion has
become a norm of the profession."[17] Moses also observed that " a growing
number of lawyers and clients believe a public relations strategy can get
results in certain kinds of cases. If so, the lawyers reason, they have a duty
to pursue such a strategy on behalf of clients."[18]
At the other end of the spectrum of opinion on the need for litigation public
relations is a handbook for lawyers published by three self-decribed "academic
lawyers," who referred disparagingly to attorneys who practice litigation public
relations as "the miscreants (who) have largely monopolized the headlines."[19]
The authors, William H. Fortune, Richard H. Underwood, and Edward J.
Imwinkelried, saw no reason to assume a defense attorney had an obligation to
groom a client's public image in the news media.
As this section has demonstrated, legal scholars have acknowledged that
litigation public relations is widely practiced within the legal profession.
Some have asserted that lawyers have an obligation to counterbalance the
negative image that is created when the media report the arrest or indictment of
a suspect. Others, while acknowledging the practice, frown upon it and see no
reason to institutionalize it.The practice of lawyers furthering their clients'
interests by framing the litigation issues in the news media may to be headed
for further entrenchment because, as one scholar argued, clients and lawyers
alike believe it works.
Lawyers as Spin Doctors
This stage of the paper examines why and how the advocacy and practice of
managing public perceptions pursuant to litigation have increased dramatically
during the 1990s and demonstrates the arenas into which it has spread.
Practitioners and advocates alike claim the parties' public images are
exceptionally important in high-profile litigation because lawyers have to be
concerned about how the public views their clients before, during, and after
trial.[20] The right spin[21] on a criminal prosecution or a defense-oriented
frame of the prosecution that appears in the media can make a conviction seem
like a miscarriage of justice, just as no spin or a prosecution-oriented frame
can undermine the cleansing of suspicion that an acquittal is supposed to
provide.
"Legal public relations strategies seem generally to be on an upswing,"
Jonathan Moses observed in 1995. "An entire industry of legal public relations
consultants has emerged to assist lawyers in dealing with the press on behalf of
clients."[22] Nadine Strosen, president of the American Civil Liberties Union,
explained the growth of legal public relations in a speech the same year, saying
that many criminal defense lawyers claim the scales of justice are already
heavily tilted against anyone accused of a crime and the defendant should
therefore have every possible opportunity to correct that imbalance.[23] "[D]o
defense counsel need to issue out-of court statements to offset the adverse
impact of public statements by government agents?" she asked?[24]
A cottage industry geared to training defense lawyers to make such statements
is betting its very existence on an affirmative answer to that question. Susanne
A. Roschwalb and Richard A. Stack's book, Litigation Public Relations: Courting
Public Opinion, is on the periphery of that industry because it is a collection
of articles that provide instruction in litigation public relations and analyze
the practice. Stack says he has submitted a second book on the subject to his
publisher under the working title Courts, Counselors and Correspondents: A Media
Relations Analysis of the Legal System, which he described as "a media training
manual for attorneys who are under the gun."[25] In the thick of the burgeoning
litigation public relations industry are such large public relations firms as
Edelman PR Worldwide, which reportedly established a special division for this
aspect of the trade and called it Edelman Litigation Communications.[26]
Criminal defense attorney Robert L. Shapiro provided a primer of sorts on
litigation public relations in a 1993 article he wrote for The Champion, the
magazine of the National Association of Criminal Defense Lawyers. He did not
bother arguing whether criminal defense lawyers have an obligation to engage in
litigation public relations but simply presumed the obligation existed. "When we
are retained for those high-profile cases, we are instantly thrust into the role
of a public relations person . . . . Our job switches from advocate to manager
and commentator. The lawyer's role as spokesperson may be equally important to
the outcome of a case as the skills of an advocate in the courtroom,"[27] he
wrote.
Shapiro observed that newspaper reporters try to present balanced stories but
are hampered by a lack of communication with the defense lawyer. The lawyer,
therefore, is obliged to be a spokesperson for the client. "The reporting of an
arrest always exceeds the reporting of the acquittal,"[28] he warned.
Shapiro's primer included such minutiae as advising lawyers that saying "no
comment" to the press leaves the public with a negative impression; that the
press should be told that the client has the support of his family and friends;
that the lawyer is optimistic about the ultimate outcome of the case;[29] that
special care should be taken to make sure that the client appears in public
neat, well groomed and never in prison garb; that reporters should be
complimented on their objectivity;[30] that lawyers should talk to the print
media first; that on television "[y]ou do not have to be concerned with whether
the answer precisely addresses the question, since only the answer will be
aired"; that when addressing television reporters, "[s]peak low and speak
slow."[31]
That last bit of advice became the headline of a National Law Journal article
a year later when the newspaper wrote about Shapiro's first news conference
after taking over the murder defense of O.J. Simpson. Reporter Gail Diane Cox
wrote: "The jaded journalists who cover the court/crime beat went expecting
nothing more than a curt denial. [I]nstead they got 'one of the most captivating
news conferences ever on live TV.' "[32] Cox also revealed that Shapiro "has
been a regular on the continuing education of the bar circuit, instructing other
lawyers in how to hijack the media."[33]
Criticism of litigation public relations was expressed in an opinion piece in
the New York Times that indicated how widespread the practice was becoming even
in the sphere of civil litigation. The author, Carole Gorney, a journalism
professor at Lehigh University, referred to the practice as litigation
journalism.
Litigation blackmail is being committed in the United
States every day, aided and abetted by journalists, lawyers and
public relations consultants . . . Lawyers are hiring public
relations consultants to schedule talk-show appearances and
newspaper interviews for their clients in an obvious attempt to
generate public sympathy and apply pressure on the defendants (in
civil lawsuits.)[34]
Gorney listed several cases in which plaintiffs and their attorneys were
featured on news programs and talk shows where the primary purpose was "forcing
out-of-court settlements and upping the ante in return for squashing the adverse
publicity."[35] She concluded with the recommendation that "[b]ar associations
require members to follow the rules of evidence set by law, not the press.
Public relations consultants should be held accountable by their professional
associations for participating in litigation journalism ... to avoid corrupting
the channels of communication and processes of government."[36]
Shapiro clearly does not see such publicity work as corrupting the criminal
justice system but as a means of serving it by nudging it back into the proper
balance that is lost from the minute the media report that a person is suspected
of a crime. A vital part of providing this service is cultivating a relationship
with the news media, Shapiro said, because "[t]he initial headlines of an arrest
often make the sacred presumption of innocence a myth. In reality, we have the
presumption of guilt."[37]
This presumption is built by prosecutors practicing litigation public
relations. Their relationships with the media are built in because their offices
are usually on the beat of the crime or courthouse reporters who visit them
regularly, often over a period of years, to gather information on hundreds of
crime stories. Los Angeles District Attorney Gilbert L. Garcetti's actions early
in the O.J. Simpson case, as reported in the National Law Journal, provided an
example of the prosecution's practice of litigation public relations.
"Garcetti's media blitz immediately after O.J. Simpson's arrest is producing
gasps. He racked up six network television appearances before the June 20
arraignment."[38] The article included an observation by an unnamed fellow
prosecutor who said he was surprised that Garcetti moved for a indictment, which
requires the proceedings of a grand jury, are closed to the press and public,
rather than pressing his prosecutorial advantage by holding a preliminary
hearing, which would have been open to media coverage. A preliminary hearing,
the prosecutor implied, would have allowed Garcetti to get his most damning
evidence into the press and to the public. "Laying out all that horrendous
evidence - assuming it is horrendous - with live testimony, early on is a great
way to communicate."[39]
This section of the paper has demonstrated how widespread the practice of
litigation public relations has become in the 1990s with cottage industries that
teach it, public relations consultants who specialize in it, and lawyers
representing clients in civil suits and criminal cases who practice it.
Considering the prevalence of the practice, there is reason to believe that when
a suspect in a crime hires a defense attorney, she might reasonably assume that
the counselor will provide representation in the court of public opinion as well
as in the courts of law.
Evolution of the Right to Speak
This section of the study traces the evolution of rules, codes, and case law
that have controlled attorneys' interaction with the mass media. It seeks to
show how these controls have reached their current status and determine whether
there is movement toward making litigation public relations a professional
obligation. It shows how the American judicial system has created a network of
rules to protect the administration of justice when its fairness is seen as
being threatened by the exercise of free speech or free press rights. These
rules are designed to ensure that trial verdicts are based solely on what occurs
within the courtroom. Rules have been created to restrict or even eliminate
outside expression, including information published in the mass media, that
could influence verdicts. Courts and bar associations have also used their
rule-making power to control the prosecution and defense lawyers, who are often
the sources of the potentially trial-influencing material published in the
media. Such efforts at control have required a careful handling of the First
Amendment's guarantees of free speech and a free press and the Sixth Amendment's
guarantee of a fair trial.
The initial and most enduring American judicial rule created to protect trial
verdicts from the outside influence of the news media was directed at jurors. In
the treason trial of former Vice-President Aaron Burr in 1807, John Marshall,
chief justice of the U.S. Supreme Court, ruled that the influence of news
stories on jurors' verdicts could be eliminated by dismissing any jurors who
could not affirm that their decision would be based only upon the evidence
produced at trial.[40]
The effort to keep the media from influencing the dispensing of justice was
supplemented for the first time by the rule-making power of the American Bar
Association in 1908 when it created 30 Canons of Legal Ethics. The rules, codes,
and canons approved by the ABA are commonly adopted in some form by the bar
associations of the states and the federal courts to such an extent that they
generally acquire the effect of law.[41] Canon 20 broadly denounced lawyers who
trafficked in litigation information by talking about their cases in the news
media.[42] Canon 20 said of these practices, "[g]enerally they are to be
condemned,"[43] but it also included wording indicating that a lawyer's
statements in a newspaper might sometimes be acceptable "[i]f the extreme
circumstances of a particular case justify a statement to the public. . . ."[44]
Here the legal profession had built its first door to prevent lawyers from
discussing cases in the press, but it made sure that door could be eased open in
time of need.
The ABA did not formally revisit the concerns addressed by Canon 20 until 60
years later. The states and the courts were left to devise their own controls
without the formal guidance of an updated national standard. During the
intervening years, sensational and intrusive coverage of controversial trials
was blamed for contributing to public hysteria and, in turn, producing unfair
trials. Among the most notable examples were the murder convictions and
executions of anarchists Nicola Sacco and Bartolomeo Vanzetti during the
1920s.[45] The conviction and execution of Bruno Hauptmann in the 1930s for the
kidnapping of the infant son of American aviation hero Charles A. Lindbergh was
also cited by the ABA when it finally renewed its efforts to prevent media
influence on trials. But it was the murder conviction of Dr. Sam Sheppard for
the murder of his wife and its reversal by the U.S. Supreme Court[46] and he
Warren Commission report[47] in the 1960s that galvanized the ABA into action.
The ABA was not subject to the High Court's holding in Sheppard, but seized
upon dictum in the Court's written opinion that said: "We interpret . . . Canon
20 to ban statements to the news media by prosecutors, assistant prosecutors and
their lawyer staff members, as to alleged confessions or inculpatory admissions
by the accused . . . . Such statements have the capacity to interfere with a
fair trial and cannot be countenanced."[48] Later the Court added,
"Collaboration between counsel and the press as to information affecting the
fairness of the trial is not only subject to regulation, but is highly
censurable and worthy of disciplinary measures.[49]
In 1968, two years after the Sheppard ruling was handed down, the ABA ended 60
years of official silence on the issue and adopted new rules governing lawyers'
interaction with the press when the fairness of a trial the lawyer was involved
in was at issue.[50] Notable among these regulations was Disciplinary Rule 7-107
and similar measures, which addressed trial publicity in a much more detailed
and broadly restrictive manner than Canon 20 had.[51] Trial attorneys were
concerned about the standards that would be used to regulate their ability to
discuss their cases in the media and attacked the restrictions as they were
adopted by various states.
Their most influential victory was provided in 1975 by a Chicago lawyers'
group. In that case, Chicago Council of Lawyers v. Bauer,[52] the Seventh
Circuit U.S. Court of Appeals struck down the Illinois version of DR 7-107,
which allowed lawyers to be punished for their statements to the press about
their cases "if there is a reasonable likelihood (emphasis added) that such
dissemination will interfere with a fair trial or otherwise prejudice the due
administration of justice."[53] The court said a stricter standard akin to the
"clear and present danger test" had to be applied to avoid impermissibly
impinging on the lawyers' First Amendment rights.[54] The court observed that
the Illinois rules had established "such a blanket prohibition whereby even a
trivial, totally innocuous statement could be a violation. The First Amendment
does not allow this broad sweep."[55]
A Virginia rule embodying the ABA's DR 7-107 was later challenged as a
restriction on lawyers' free speech. But the Fourth Circuit Court of Appeals
upheld it, even though the Virginia standard for allowing lawyers' speech to be
restricted was the "reasonable likelihood"[56] standard that the Seventh Circuit
found violated the First Amendment. These conflicts and the frequency of other
challenges to the ABA's restrictions led one commentator to observe that the ABA
realized "that the legal community had gone too far in trying to restrain
lawyers' speech."[57]
The effort to fix the problem produced the ABA's Model Rule of Professional
Conduct 3.6, which was approved by its members in 1978 and banned lawyers from
giving information to the media when they know "or reasonably should know that
it will have a substantial likelihood (emphasis added) of materially prejudicing
an adjudicative proceeding."[58] This substantial likelihood standard was more
protective of lawyers' First Amendment rights than the reasonable likelihood
standard of the old DR 7-107, but not as protective as the clear and present
danger standard that some lawyers wanted. As Stern observed in his law review
article, Rule 3.6 was the first to officially recognize "that attorneys for the
defense occupy a position that might require them to speak publicly in their
client's behalf."[59] This small concession was made in a footnote to an
advisory study that produced the rule,[60] but achieved greater importance three
years later in a minority opinion U.S. Supreme Court case that in some respects
advanced the cause of litigation public relations.
The case that led to the ruling was set in motion when defense lawyer Dominic
Gentile made a calculated effort to offset prosecution-framed news reports about
his client. He called a news conference and gave the news media a defense frame
for the case. The media had already reported that Gentile's client had been
indicted in the theft of drugs and money from an undercover police squad that
had stored them in vaults rented from the client. The stories also implied that
the other potential suspects, undercover police officers, had been virtually
cleared of suspicion. At the news conference, Gentile framed the case as an
attempt by the authorities to use his client as a scapegoat to cover their own
wrongdoing. The client was subsequently acquitted at trial, but the Nevada State
Bar Association sanctioned Gentile for violating Nevada Supreme Court Rule 177,
the state's version of Model Rule 3.6 (1981) which forbade statements to the
media that had a substantial likelihood of prejudicing a trial. Gentile
appealed to the U.S. Supreme Court challenging the rule and the bar
association's sanctions against him.
The High Court ruled that Rule 177's and Model Rule 3.6's "substantial
likelihood" standard for determining when attorneys' speech to the media can be
curtailed did not violate the lawyers' First Amendment rights. Gentile was
exonerated, however, because the Court found the Nevada version of the rule
included confusing provisions and therefore was so vague that Gentile could not
know for certain which of his statements to the press were permissible and which
were not. This uncertainty developed because the Nevada rule prohibited a
certain type of statement to the press but exempted a "safe harbor" of
statements which were permissible. The distinction between the two was not clear
enough to allow the lawyer to know when he had wavered from permissible into
impermissible speech to the media.The Gentile ruling is sometimes cited to show
the advancement of lawyers' rights to make appeals to public opinion on behalf
of their clients. But as Moses observed, "What Gentile did not do, at least not
directly, is decide when, if or how lawyers should advocate in the court of
public opinion."[61]
In his minority opinion, however, Justice Kennedy indicated that litigation
public relations was not only permitted, but perhaps even required in some
cases. "An attorney's duties do not begin inside the courtroom door," Kennedy
wrote. "He or she cannot ignore the practical implications of a legal proceeding
for the client . . . . [A]n attorney may take reasonable steps to defend a
client's reputation and reduce the adverse consequences of indictment."[62]
Proponents of litigation public relations could take heart from this bit of
dicta because it led the ABA to loosen restrictions on lawyers' out-of-court
statements much as the dicta in Sheppard led the ABA to tighten the restraints.
As Jonathan Moses observed in the Columbia Law Review, "[T]he immediate response
to Gentile was an effort to make sure that it did not 'chill' attorney speech on
behalf of clients."[63] A Nevada commission led by Gentile proposed a state bar
rule that would allow lawyers a "public right of reply" to statements that
damaged their clients' interests and would "freely allow speech that could be
characterized as political."[64] The right-of-reply concept was grounded in the
Sixth Amendment's guarantee of a fair trial and the recognition that defense
attorneys should not be expected to stand silently while reports in the media
damaged their clients' prospects of winning an acquittal.
For the next several years numerous law review articles commented on the
Gentile ruling, and many criticized the Court's majority opinion for impugning
the propriety of lawyer appeals to the court of public opinion and "failing to
recognize the realities of modern practice."[65]
Comments in the Annotated Model Rules of Professional Conduct, which is
published by the Center for Professional Responsibility of the American Bar
Association, reported that Model Rule 3.6 was "substantially amended" August 10,
1994, to meet the concerns expressed in Gentile.[66] It was modified to
specifically apply to lawyers talking about litigation they were handling. The
rule's prior language that limited lawyers to talking only about the general
nature of a case was altered to allow them to elaborate. It permitted a lawyer
to publicly "make a necessary response to protect a client from undue
prejudicial effect of recent publicity not initiated by the lawyer or the
lawyer's client."[67] This is commonly referred to as the "fair reply"
provision. The revisions also dropped the six specifically identified statements
that would be considered prejudicial and which the Supreme Court cited as
causing confusion in Nevada's Rule 177. But the six returned in Comment 5 of the
ABA rule. The revisions also indicated lawyers would be given even more freedom
to speak to the media in cases that were to be tried without a jury. Rule 3.8
was addressed in the same session and was recast "to require prosecutors to
refrain from playing to the media to sway community and juror sentiment."[68]
When these revisions were being debated by the ABA House of Delegates, federal
prosecutor Michael H. Dettmer, president of the State Bar of Michigan, was
quoted complaining that they would create "a right of reply free-for-all, with
press releases begetting press releases."[69] He claimed the changes "condone
the practice of trial in the media."[70] Attorney William H. Jeffress Jr., a
member of the committee that sponsored the revisions, defended them as necessary
to allow defense lawyers to mitigate adverse publicity that can arise even from
proper comments by prosecutors.[71]
The revisions were approved despite the fact that the vote was taken with the
massive media coverage of the O.J. Simpson murder trial as a backdrop. "The
Simpson case illustrates why it's appropriate to have a rule that attempts to
strike a reasonable balance between a fair trial and freedom of the press and
free speech," Washington, D.C. attorney David Isbell told the National Law
Journal.[72]
The ABA revisions allowing defense attorneys a right of reply indicate that the
adversarial relationship that is a key to the American judicial system is being
expanded to reach outside of the courtroom, implicitly recognizing the outside
forum as a proper arena where an attorney's duty to zealously defend his or her
client remains paramount.[73]
Among the other indicators of the growing acceptance of litigation public
relations is the willingness of courts to approve the bills lawyers submit for
performing public relations work on behalf of their clients. In a successful
racial discrimination lawsuit against the San Francisco Fire Department in 1992,
for example, a federal appeals court approved payments to the prevailing lawyers
who had billed specifically for holding press conferences and conducting public
relations on behalf of their clients' cause. The ruling said such work by
attorneys "where narrowly focused on fostering the litigation goals of their
clients is compensable."[74]
This portion of the paper has traced the progress of litigation public
relations from the early 20th century, when the practice was condemned by ABA
Canon 20 as inappropriate and deserving of punishment, to the twilight of the
20th century when the foremost professional association of American lawyers and
the Supreme Court accept it as a right that can be exercised with a generous
degree of freedom. Between the early 1900s and the late 1960s, efforts to ensure
trial fairness progressed from carefully screening jurors to include muzzling
lawyers. Lawyers began successfully asserting their First Amendment rights to
speak about their trials and publicly defend their clients' interests in the
1970s, just as the media were also winning greater rights to report on criminal
cases.[75] Through the 1980s and 1990s lawyers expanded and legitimized their
right to speak about their cases.
Those who hope to convert that right to speak into an obligation could find
support in the dicta of Supreme Court Justice Kennedy's minority opinion in
Gentile. To date, however, only a small minority of scholarly voices are
echoing Kennedy's assertion that a lawyer's right to manage public perceptions
to advance the interests of his or her clients might actually be an obligation
to do so.
When Custom Becomes Contract
This portion of the paper considers contract and malpractice law to determine
if the progression of the lawyers' right to address the news media to advocate
for their clients is becoming an obligation to do so. Do the frequent
appearances of lawyers plying the mass media in pursuit of their clients
interests create among clients a legitimate expectation that lawyers hired for
highly publicized criminal or civil cases will provide such public relations
services automatically? Are litigation public relations services among the
bundle of unspecified services that lawyers are obligated to provide when they
contract to serve clients?
A malpractice lawsuit based on allegations of breach of contract or
professional negligence could determine if the obligation exists in an
individual case. Scholars may express opinions on the issue, as surveyed earlier
in this paper, and hope to eventually persuade those with the power to decide if
lawyers are so obliged. Or the ABA could establish or deny such an obligation
through its rule-making authority, but as this paper has already demonstrated,
its members are divided over the issue and ABA rules change slowly through the
democratic process. A malpractice or breach-of-contract lawsuit brought by a
client claiming his lawyer failed to be an advocate for him in the media might
begin the process of settling the issue at the speed of trial and appeal.This
study did not find any reported cases of clients making such claims against
their lawyers, but now seeks to determine if there is a theoretical legal basis
for them.
A lawsuit accusing an attorney of malpractice would be based on the tort of
negligence, or a breach of contract theory or an amalgam of the two. "Clearly
within the definition of legal malpractice is the negligent rendition of
professional services,"[76] wrote Ronald E. Mallen and Jeffrey M. Smith in
their four-volume treatise, Legal Malpractice. "The standard sometimes is
alternatively stated in terms of an implied contract to exercise ordinary skill
and knowledge, and corresponds to the standard of care used to evaluate
competence (footnotes omitted). In that respect, an attorney's exposure is
comparable to that of other professionals."[77]
Mallen and Smith seem to indicate that clients currently have the ability to
instruct their attorneys to tend to their public images in concert with the
handling of highly publicized civil or criminal litigation. "The basic rule is
that an attorney specifically instructed by the client should follow those
instructions with reasonable care . . . or be liable for all damages proximately
caused by the failure."[78] In such a case, the lawyer would have an obligation
to engage in litigation public relations.
Such instruction would move any subsequent malpractice action into the realm of
breach of contract. To prevail, the client would have to prove that the lawyer
agreed to follow the specific instructions. [O]f course, the instructions must
be ethically proper and not offend public policy . . . . Virtually any subject
matter may be the subject of the client's specific instructions."[79] The courts
have established that it is legal for lawyers to speak to the media on behalf of
their clients' causes and the ABA has determined it is ethical to do so within
the limitations discussed earlier in this paper. Certified criminal trial
advocate John Wesley Hall Jr. came to the conclusion in his treatise that
"[a]ttorneys can be sued for damages for breach of contract for failure to
perform legally permissible services which the attorney expressly or impliedly
(sic) agreed to perform."[80]
Cases in which there is no express contract for litigation public relations
services to complement the traditional legal services contract would be more
problematic. In such cases, circumstances and custom may create an implied
contract for such services. Mallen and Smith relied on extensive case law to
conclude that in attorney-client contracts "[t]he attorney impliedly(sic)
contracts to exercise ordinary skill and knowledge in the rendition of
professional services. This implied promise is, of course, to comply with the
standard of care that determined negligence."[81] Experts, other lawyers or
legal scholars would have to be called to testify to establish what the standard
of care is. They would have to say whether it is customary for lawyers in this
community, under these circumstances to engage in litigation public relations.
In large urban settings such as Los Angeles, New York, Chicago, or Atlanta it
might be possible to establish that it is customary for attorneys handling
high-profile cases to make media appeals. The standard of care an attorney would
be required to adhere to would depend on whether he or she is considered to be a
specialist or advertised as a specialist. In that case, the lawyer would be held
to a higher standard of care. Court rulings, ABA rules and the proliferation of
the practice would be considered, but would not necessarily be determinative of
the issue. Such a determination would be a factual one and therefore not binding
on any other case.
In summary, there is a basis in the law of attorney malpractice for
establishing in individual cases a lawyer's obligation, implicitly and
explicitly, to practice litigation public relations on behalf of a client.
Establishing the obligation throughout the profession would require action by
the ABA or rulings from the courts of last resort.
Conclusion
There appear to be grounds to expect that one day the courts and bar
associations will decide that lawyers' obligations to their clients extend also
to the court of public opinion. A primary step in this direction would be
recognizing that the limited First Amendment right that the courts and bar have
said allows lawyers to speak outside of court and in the public arena belongs
not to the lawyer but to the client. There is no similar confusion with respect
to who owns the Sixth Amendment right exercised by attorneys when they cross
examine witnesses who have testified against their clients in criminal cases.
Clearly the lawyers are exercising the clients' Sixth Amendment right to
confront witnesses against them. Lawyers are required to do so because cross
examination is crucial to the clients' interests and requires a level of skill
and training that a lay person can not be expected to have. For precisely the
same reasons, lawyers could be required to exercise their clients' First
Amendment rights as part of the litigation duties in the court of public
opinion. In so doing, the presumption of innocence in a criminal trial might
have a chance to exist and the quest for balance in news accounts of litigation
might find an ally.
Appendix A
DR 7-107 Trial Publicity.
(A) A lawyer participating in or associated with the investigation of a
criminal matter shall not make or participate in making an extra judicial
statement that a reasonable person would expect to be disseminated by means of
public communication and that does more than state without elaboration: (1)
Information contained in a public record. (2) That the investigation is in
progress. (3) The general scope of the investigation including a description of
the offense and, if permitted by law, the identity of the victim. (4) A request
for assistance in apprehending a suspect or assistance in other matters and the
information necessary thereto. (5) A warning to the public of any dangers.
(B) A lawyer or firm associated with the prosecution of defense of a criminal
matter shall not, from the time of the filing of a complaint, information, or
indictment, the issuance of an arrest warrant, or arrest until the commencement
of the trial or dispositions without, make or participate in making an extra
judicial statement that a reasonable person would expect to be disseminated by
means of public communication and that relates to: (1) The character,
reputation, or prior criminal record (including arrests indictments, or other
charges of crime) of the accused. (2) The possibility of a plea of guilty to the
offense charged or to a lesser offense. (3) The existence or contents of any
confession, admission, or statement given by the accused or his refusal or
failure to make a statement. (4) The performance or results of any examinations
or tests or the refusal or failure of the accused to submit to examinations or
tests. (5) The identity, testimony, or credibility of a prospective witness. (6)
Any opinion as to the guilt or innocence of the accused, the evidence or merits
of the case.
(C) DR 7-107 (B) does not preclude a lawyer during such period from announcing:
(1) The name, age, residence, occupation, and family status of the accused. (2)
If the accused has not been apprehended, any information necessary to aid in his
apprehension or to warn the public of any dangers he may present. (3) A request
for assistance in obtaining evidence. (4) The identity of the victim of the
crime. (5) The Fact, time, and place of arrest, resistance, pursuit, and use of
weapons. (6) The identity of investigating and arresting officers or agencies
and the length of the investigation. (7) At the time of of seizure, a
description of the physical evidence seized, other than a confession, admission
or statement. (8) The nature, substance, or text of the charge. (9) Quotations
from or references to public records of the court in the case. (10) The
scheduling or result of any step in the judicial proceedings. (11) That the
accused denies the charges against him.
(D) During the selection of a jury or the trial of a criminal matter, a lawyer
or law firm associated with the prosecution or defense of a criminal matter
shall not make or participate in making an extra judicial statement that a
reasonable person would expect to be disseminated by means of public
communication and that relates to the trial, parties, or issues in the trial or
other matters that are reasonably likely to interfere with a fair trial, except
that he may quote from or refer without comment to public records of the court
in the case.
(E) After the completion of a trial or disposition without trial of a criminal
matter and prior to the imposition of sentence, a lawyer or law firm associated
with the prosecution or defense shall not make or participate in making an extra
judicial statement that a reasonable person would expect to be disseminated by
means of public communication and that is reasonably likely to affect the
imposition of sentence.
(F) The foregoing provisions of DR 7-107 also apply to professional disciplinary
proceedings and juvenile disciplinary proceedings when pertinent and consistent
with other law applicable to such proceedings.
(G) A lawyer or law firm associated with a civil action shall not during its
investigation or litigation make or participate in making an extra judicial
statement, other than a quotation from or reference to public records, that a
reasonable person would expect to be disseminated by means of public
communication and that relates to: (1) Evidence regarding the occurrence or
transaction involved. (2) The character, credibility, or criminal record of a
party, witness, or prospective witness. (3) The performance or results of any
examinations or tests or the refusal or failure of a party to submit to such.
(4) His opinion as to the merits of the claims or defenses of a party, except as
required by law or administrative rule. (5) Any other matter reasonably likely
to interfere with a fair trial of the action.
(H) During the pendency of an administrative proceedings, a lawyer or law firm
associated therewith shall not make or participate in making a statement, other
than a quotation from or reference to public records, that a reasonable person
would expect to be disseminated by means of public communication if it is made
outside the official course of the proceeding and relates to: (1) Evidence
regarding the occurrence or transaction involved. (2) The character, credibility
or criminal record of a party, witness, or prospective witness. (3) Physical
evidence or the performance result of any any examinations or tests or the
refusal or failure of a party to submit to such. (4) His opinion as to the
merits of the claims, defenses, or positions of an interested person. (5)Any
other matter reasonably likely to interfere with a fair hearing.
(I) The foregoing provisions of DR 7-107 do not preclude a lawyer from replying
to charges of misconduct publicly made against him or from participating in the
proceedings of legislative, administrative or other investigative bodies.
(J) A lawyer shall exercise reasonable care to prevent his employees and
associates from making an extrajudicial statement that he would be prevented
from making under DR 7-107.
[1] Philip M. Gollner, Law: Image-Making Strategy in the Rodney King Case, N.Y.
Times, Dec. 25, 1992, at A26.
[2] Id.
[3] See, Kenneth B. Noble, The Nation:The Endless Rodney King Case, N.Y. Times,
Feb. 4 1996, at sec. 4, p.5. King ultimately won a $3.8 million judgment against
Los Angeles and was not prosecuted for leading police on the high-speed chased
that led to his arrest and beating by the police officers.
[4] Bill Hewitt, Lost Innocent, People Weekly, Jan. 20, 1997, at 40.
[5] The terms "frame" and "framing," when used in this paper refer to the
concepts explained by sociologist Erving Goffman when he introduced frame
analysis to mass communication theory.See generally Stanley J. Baran & Dennis K.
Davis, Mass Communication Theory 297-301 (1995). Frames refer to expectations
used to make sense of a social situation. They presume that facts have no
intrinsic meaning but acquire meaning by being embedded in a frame or storyline
that organizes, emphasizes or downplays them to suggest how a storyline should
end or how a conflict should be resolved. See generally R.M. Entman, Framing:
Toward Clarification of a Fractured Paradigm, 43 J. Comm. 51 (1993).
[6] See generally Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), and ABA
Model Rules of Professional Conduct Rule 3.6 cmt. (1994)
[7] William H. Fortune et al., Modern Litigation and Professional
Responsibility Handbook: The Limits of Zealous Advocacy 279 (1996).
[8] J.Edward Gerald, News of Crime: Courts and Press in Conflict 70 (1983).
[9] Roschwalb died in 1996.
[10] Litigation Public Relations: Courting Public Opinion (Susanne A. Roschwalb
& Richard A. Stack eds., 1995).
[11] Id. at 231.
[12] Max D. Stern,The Right of the Accused to a Public Defense, 18 Harv.
C.R.-C.L. L. Rev.53 (1983).
[13] 501 U.S. 1030 (1991).
[14] Joseph L. Daly, What Can the Defense Say at a "Pre-formal Charge" Press
Conference? Gentile v. State Bar of Nevada Puts a Porous Gag on Trial Lawyers,
15 Am. J. Trial Advoc. 269 (Winter 1991-1992).
[15] Id.
[16] Sharon A. Peters, Comment, Gentile v. State Bar of Nevada: An Unprincipled
Departure from First Amendment Jurisprudence, 13 Bridgeport L. Rev. 217, 253
(1992).
[17] Jonathan M. Moses, Legal Spin Control: Ethics and Advocacy in the Court of
Public Opinion, 95 Colum. L. Rev. 1811, 1830-31 (1995).
[18] Id.
[19] Preface, Fortune et al., supra note 7, at xxvi.
[20] Clinical studies have indicated that the images and frames provided by the
media can have an effect on verdicts, sentencing, and even whether a prosecutor
decides to prosecute a case.See, e.g. Julian V. Roberts & Anthony N. Doob, News
Media Influences on Public Views of Sentencing, 14 L. & Hum. Behav. 451 (1990);
Edith Greene, Media Effects on Jurors, 14 L. & Hum. Behav. 439 (1990); Stacia
L. Haynie & Ernest A. Dover, Prosecutorial Discretion and Press Coverage, 22 Am.
Pol. Q. 370 (1994).
[21] The term spin, when used in this context in this paper, is synonymous with
framing and means presenting a given scenario or set of facts in a manner that
produces a desired effect or giving them meaning to produce an effect.
[22] Moses, supra note 17, at 1829.
[23] Nadine Strossen, Free Press and Fair Trial: Implications of the O.J.
Simpson Case, 26 U. Tol. L. Rev. 647 (1995). The article is a transcript of a
speech she delivered Feb. 2, 1995, at the University of Toledo College of Law.
[24] Id. at 650.
[25] Telephone interview with Robert A. Stack, co-editor, Litigation Public
relations: Courting Public Opinion (Mar. 24, 1997).
[26] Moses, supra note 17, at 1829.
[27] Robert L. Shapiro, Secrets of a Celebrity Lawyer, How O.J.'s Chief
Strategist Works the Press, Colum. J. Rev., Sept./Oct. 1994, at 25. The article
was reprinted from the Jan./Feb. 1993 edition of The Champion.
[28] Id.
[29] Shapiro, at 26.
[30] Shapiro, at 28.
[31] Shapiro, at 29.
[32] Gail Diane Cox, Speak Low and Speak Slow, Nat'l. L. J., Aug. 29,1994, at
A1.
[33] Id.
[34] Carole Gorney, Litigation Journalism is a Scourge, N.Y. Times, Feb. 15,
1993, at A15.
[35] Id.
[36] Id.
[37] Shapiro, supra note 27, at 26.
[38] Gail Diane Cox & Don J. Benedictis, O.J.'s Prosecution is D.A.'s Debut,
Nat'l. L. J., July 4, 1994, at A4.
[39] Id.
[40] United States v. Burr, 25 F. Cas. 49 (No. 14,692g) (C.C.D. Va. 1807).
[41] See generally Model Rules of Professional Conduct (1993 edition).
[42] See generally ABA Selected Statutes, Rules and Standards on the Legal
Profession (1990).
[43] Id. at 237, referring to Canon 20 as it was worded in 1908.
[44] Id.
[45] See generally Paul Avrich, Sacco and Vanzetti: The Anarchist Background
(1991); Osmond K. Fraenkel, The Sacco-Vanzetti Case (1931).
[46] Sheppard v. Maxwell, 384 U.S. 333 (1966).
[47] See the Report of the President's Commission on the Assassination of
President Kennedy 227 (1964). Commonly referred to as the Warren Commission
Report, because the commission that wrote it was led by U.S. Supreme Court
Justice Earl Warren, the report criticized the news media for its coverage of
the assassination of President John F. Kennedy and suspect Lee Harvey Oswald. It
also faulted the media's demands for access that led to the conditions that
allowed Jack Ruby to get close enough to Oswald to kill him.
[48] Sheppard, infra note 46, at 361.
[49] Id. at 363.
[50] The revisions were formally titled ABA Standards for Criminal Justice,
Standards Relating to Fair Trial and Free Press (1968).
[51] The text of DR 7-107 Trial Publicity is reprinted in Appendix A.
[52] 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1975).
[53] Id . at 249.
[54] Id.
[55] Id. at 251.
[56] Hirschkop v. Snead, 594 F.2d 362 (4th Cir. 1979).
[57] Moses, supra note 17, at 1823.
[58] Model Rule 3.6 (1978). The comment accompanying the rule explained that it
resembles DR 7-107 but "transforms the particulars in DR 7-107 into an
illustrative compilation that gives fair notice of conduct ordinarily posing
dangers to the fair administration of justice."
[59] Stern, supra note 12, at 92.
[60] Id.
[61] Moses, supra note 17, at 1826.
[62] Gentile, 501 U.S. 1030, 1043 (1991).
[63] Moses, supra note 17, at 1830.
[64] Id. at n.109.
[65] Id. at 1831, n.110.
[66] Annotated Model Rules of Professional Conduct 351 (3rd ed. 1996).
[67] Id.
[68] Fortune et al., supra note 7, at 285.
[69] James Podhers, Amended Rules on Trial Publicity May Give Lawyers More to
Talk About, A.B.A.J., Oct. 1994, at 100.
[70] Id.
[71] Id.
[72] Randall Samborn, ABA Meeting Features Trial Publicity Debate, Nat'l L.J.,
Aug.8, 1994, at A6.
[73] See, Moses, supra note 17, at 1850.
[74] Davis v. City and County of San Francisco, 976 F.2d 1536, 1545 (9th Cir.
1992).
[75] See, e.g., Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976); Landmark
Communications Inc. v. Virginia 435 U.S. 829 (1978); Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555 (1980).
[76] Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, 3-4 (4th ed.
1996).
[77] Id.
[78] Id. at 593.
[79] Id.
[80] John Wesley Hall Jr., Professional Responsibility of the Criminal Lawyer
1070 (2nd ed. 1996).
[81] Mallen & Smith, at 591.
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