Criminal Justice Section  

   Welcome

Criminal Justice Magazine
Fall 2004
Volume 19 Number 3

Ethics

The Role of Lawyers in Client Media Campaigns

By Peter A. Joy and Kevin C. McMunigal

Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western University School of Law in Cleveland, Ohio. Both are contributing editors to Criminal Justice magazine.


Media campaigns to protect public images and fend off criminal liability are becoming increasingly popular among high-profile defendants. Martha Stewart, for example, agreed to be interviewed on television and created a Web site providing information about her trial. Arthur Andersen also used a Web site as well as newspaper advertisements to counter prosecution charges of wrongdoing, and even posted a background paper prepared by its lawyers asserting “factual and legal errors” in the government’s case. And Richard Scrushy, former CEO of HealthSouth, not only has a Web site entitled News Source: Setting the Record Straight on which he frequently posts statements by his trial counsel, but he went from a frequent guest on radio talk shows to cohosting with his wife a weekly television program called Viewpoint in Birmingham, Alabama, where he faces trial.
But what role may lawyers play in their clients’ media campaigns? Ethics rules govern the public comments of lawyers involved in investigating or litigating a criminal case. Model Rule 3.6 bars such a lawyer from making “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”
Lawyer ethics rules, though, obviously do not and cannot govern clients, most of whom are not lawyers. Unless the trial judge imposes a gag order, clients are free to speak about their cases if they choose to do so.
How should a lawyer operate in an environment in which the lawyer’s speech is restricted but a client’s is not? What ethics issues is the lawyer likely to face? One might think that if it is the client who is speaking and not the lawyer, then no legal ethics issues are raised. But closer examination reveals a number of challenging questions that client statements to the media present to the client’s lawyer.

Rewards and risks
To better understand these ethics issues, it is helpful to briefly canvass the potential rewards and risks of clients talking to the media.
Why do some clients decide to do it? Surely, one motivation is simply to protect the client’s reputation. Criminal investigations and charges routinely generate information, allegations, and rumors impugning the defendant. The public may interpret silence by the client as an admission that the negative things heard about the defendant are true. The defendant may also hope that positive publicity generated by a defendant’s statements may influence jurors, judges, witnesses, and perhaps even the prosecutor in ways favorable to the defendant.
Most lawyers, though, advise their clients not to talk to the press and most clients heed that advice. Why? Lawyers and their clients may fear that public statements by a defendant might reveal confidential information and tip off the prosecutor to the defense’s trial strategy. Public statements may also create evidentiary admissions and generate useful impeachment material for cross-examination, such as a prior inconsistent statement. Making an early statement may also force the defendant to take an early strategic position based on imperfect information. If the defense later decides to change that position as more information is received from the prosecution, both client and lawyer may lose credibility.

Who decides?
Who makes the decision whether or not a client should engage in a media campaign? The lawyer? Or the client? Model Rule 1.2 tells us that the objectives of the representation are for the client to decide but that the means for achieving them are for the lawyer to decide in consultation with the client. The question of whether or not the client should engage with the media prior to and during a trial certainly seems like a means decision for the lawyer. The media campaign is a means to advance the objective of shielding the defendant from criminal punishment.
But if the lawyer, in theory, under Model Rule 1.2 has final say on this question, is there any practical way for the lawyer to keep the client from making a public statement? The lawyer has ultimate control over the question of what arguments to put in an appellate brief since the lawyer writes and files the brief. Similarly, the lawyer has ultimate control over what matters to raise during cross-examination since the lawyer asks the questions during cross-examination. By contrast, the lawyer has no practical way to control whether a client, especially one not in custody, speaks to the media.
If the decision is the client’s to make under Model Rule 1.2, most clients are likely to defer to their lawyers and effectively cede to them the power to make the decision. A wise lawyer will try to avoid having to confront this issue by talking it over with the client and reaching a decision both agree upon.
What if a client wants to make a public statement for a reason unrelated to winning the criminal case? A business executive charged with a crime, for example, might be motivated to minimize damage to future business interests even if a media campaign increases the risk of conviction. This is an objectives question for the client to decide. The defense lawyer is likely to place a very high value on minimizing risk of conviction and a relatively low value on a client’s future business interests. This is so in part because the lawyer’s professional training and competitive instincts lead the lawyer to focus almost exclusively on winning the case, and in part because the outcome of the case influences the lawyer’s reputation and future business interests. There is a risk the lawyer may be unresponsive to the client’s interests unrelated to minimizing conviction.

Competence
Regardless of who gets to make the decision about waging a media campaign, the lawyer has to weigh the risks and rewards such a campaign presents. If the lawyer makes the decision, such weighing of the risks and rewards is necessary to make that decision competently. If the client makes the decision, then the lawyer needs to advise the client about that decision. Weighing the risks and rewards is again necessary for the lawyer to act competently in the role of advisor, just as it is to act competently as the decision maker.
As noted before, most criminal lawyers advise their clients not to talk to anyone, much less the media, while a case is pending. Even high profile defendants usually keep quiet. This suggests that lawyers and clients in most cases conclude that the risks of statements to the media typically outweigh the rewards. How does a lawyer competently decide whether the risks or rewards are greater? This is a difficult decision to make because it may be hard to predict how clients will present themselves, what questions might be asked, and how the public, jurors, witnesses, judges, and prosecutors will react to what the clients say. Some clients may be able to afford to hire experts to help the lawyer in making these predictions. But many will not, in which case the lawyer must assess all this on his or her own.
With wealthy, high profile clients and corporate clients, it may be a challenge for the criminal lawyer to get the client to appreciate the risks of a media campaign. Some clients—especially ones with large egos who are used to receiving positive press—may be strongly inclined to defend themselves publicly when they have been publicly attacked. The client’s business advisors and business lawyers may be more concerned about reducing business damage than in minimizing conviction risk and may reinforce a client’s inclination to speak publicly. The defense lawyer may need to work hard to get the client to understand the risks posed by public comment, most of which are not readily apparent to anyone who lacks criminal trial experience.

Conflict of interest
Which way does the lawyer’s self-interest cut? In favor of or against client contact with the media? Will a lawyer’s self-interest in publicity as a means to attract future business distort judgments made and advice given regarding a client’s media campaign?
When clients take the unusual step of talking to the media, one must ask why they have departed from conventional wisdom. There may be legitimate reasons for both lawyer and client to engage with the media, but there is also the possibility that a lawyer with a high-profile client will offer advice that is warped by a personal desire for publicity based on the lawyer’s ego or the notion that any publicity is good for business. Conversely, a lawyer may fear that a client’s media campaign will so overshadow the lawyer’s role in defending the case that the lawyer is more averse than need be to a media campaign.
Whether the lawyer advises for or against a client’s possible media campaign, the advice should not be tainted by the lawyer’s self-interest.

Vicarious ethics violations?
Model Rule 8.4 states that “[i]t is professional misconduct to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” (emphasis added). If the client is going to make statements that would violate MR 3.6 if the lawyer made them, does the lawyer violate Rule 8.4 (a) by advising, encouraging, and/or assisting the client in a public relations campaign? In other words, what if the client becomes the lawyer’s mouthpiece as a way to circumvent MR 3.6?
Consider the following scenario. The defense’s investigation finds damaging information about the character and credibility of a government witness. However, the lawyer concludes that he or she is barred from making a public statement about it because MR 3.6 and Comment [5] list “the character, credibility, and reputation . . . of a . . . witness” as subjects that are more likely than not to create prejudice. But the lawyer and client together decide to have the client hold a press conference at which the client will disclose the damaging information about the witness. Has the lawyer violated MR 3.6 through the acts of another?
When a client simply passes information to the public that he or she has learned from the lawyer, such as an analysis of the weaknesses of the prosecution’s case, then the client is again acting as the lawyer’s mouthpiece. Arthur Andersen did exactly this on its Web site. If Rule 8.4 were read to permit a lawyer to provide prohibited statements to the media via the client, this strategy would allow the defense lawyer effectively to nullify MR 3.6.
But do the reasons for restricting lawyer speech apply if the client is doing the talking without the lawyer’s involvement? For example, isn’t the lawyer more likely to have access to and mention inadmissible evidence than the client? This might be one reason for controlling lawyer assistance in client media campaigns. The lawyer’s assistance may make the client’s public comments as likely to damage a trial as the lawyer’s comments. Imagine, for example, the lawyer passing on to the client inadmissible information such as the prior sexual history of the complaining witness in a rape case. Once the client has this information, the client is just as capable of materially prejudicing the trial process by repeating it to the press as the client’s lawyer.
At least one case has confronted this situation. In State v. Grossberg, 705 A.2d 608, 610 (Del. Super. Ct. 1997), the Superior Court of Delaware entered a gag order restricting the prosecutors, defense lawyers, and all law enforcement officers and other persons assisting or associated with counsel from making public comments about two capital murder cases involving the death of an infant, except statements made in accordance with Rule 3.6 of the Delaware ethics rules. Subsequent to the gag order, one of the defense lawyers arranged for his client and her parents to be interviewed by Barbara Walters for an ABC News 20/20 broadcast. During the interview, the defense lawyer directed his client to answer questions about how she felt concerning the death of her infant, her mourning the loss of her baby, and what she would say “when the Delaware prosecutors say that you are a baby-killer.” The client responded to the question about being a baby-killer, “It’s the furthest thing from the truth. The furthest thing. I wouldn’t hurt anybody or anything, especially something of mine.” (Id. at 611–12.) The court held that the lawyer’s preparation of his client and her parents “should have been limited to those areas which he himself would have been permitted to comment. Otherwise, Rule 3.6 is meaningless.” (Id. at 613.) Because of the lawyer’s attempt to circumvent Rule 3.6 through his client, and the lawyer’s own statements to the media relating to the character of his client, the court revoked the lawyer’s pro hac vice admission and removed him from the case. (Id.)
An ethics opinion from Pennsylvania also states that Rule 8.4 strictly limits a lawyer’s preparation of a client for media interviews to areas about which the lawyer would be permitted to comment pursuant to Rule 3.6. (See Pennsylvania Bar Assoc. Committee on Legal Ethics and Prof’l Resp., No. 94–27 (1994).) The ethics opinion notes, however, that Rule 3.6 does not apply to the client and “the only restriction on the client’s comments are those which stem from the client’s own conscience.” (Id.)

Conclusion
In this column, we have shown that there are a number of ethical and strategic issues lawyers need to think through when a client is considering a client media campaign. The answers to these questions are often not clear, and there is meager authority defining the ethical limits of media campaigns. Ethics committees need to address this area in greater detail to provide lawyers with more guidance. In the meantime, lawyers should be wary of becoming so enmeshed with a client media campaign as to expose themselves to charges that they used client media campaigns as proxies to violate the ethical limits on lawyers’ comments.




Return to Table of Contents - Fall 2004

Return to Criminal Justice magazine home page