July 18, 2012 Articles

Ethical Rules for Litigating in the Court of Public Opinion

Even Aaron Burr had a hard time getting a fair trial.

By Michael Downey

Lawyers are sometimes tempted to seek an advantage in a lawsuit by cultivating or influencing media attention to support their case. In other instances, lawyers may believe existing media attention is unjustly casting a negative light on the lawyers’ clients, deserving a public response. Such situations reflect lawyers’ admirable desires to advocate zealously for clients and to protect their clients’ reputations as well as their legal interests.

The U.S. Constitution protects both the right of lawyers to speak in defense of their clients and the right of the public to learn about litigated matters. Yet, such protections and rights have limits. For lawyers, their rules of professional conduct provide four major limits. This article discusses these four limits: (1) the limit that American Bar Association Model Rule 3.6 imposes on extrajudicial statements during civil and criminal investigations and litigation; (2) additional limits that Model Rule 3.8(f) imposes on prosecutors regarding extrajudicial comments; (3) restrictions that Model Rule 8.2 places on criticisms of the judges; and (4) the prohibitions that Model Rule 8.4 contains against misrepresentations and conduct prejudicial to the administration of justice. In addition, this article addresses the rather unusual application of Federal Rule of Civil Procedure 11 to punish a lawyer for his use of the mediia in Whitehead v. Food Max of Mississippi, Inc., 332 F.3d 796 (5th Cir. 2003) (en banc).

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