June 01, 2015

Scruples: Responding to Media Reports about Your Client’s Case

What a litigator can and cannot do about critical press comments by another lawyer.

Michael Downey

After seeing the email, Ethox promptly called Paradox’s cell phone.

“I’m so glad you saw my message,” Paradox answered the phone. “I’ve got another problem with Nemesis.”

“What is it now?” Ethox asked.

“We are getting ready to defend Central Hospital at trial,” Paradox responded. “It’s a serious case. A patient died. Today a newspaper story quotes Nemesis saying some harsh things about the hospital.”

“What’s Nemesis’s role in the case?” Ethox queried.

“That’s just it. Nemesis has absolutely no role in the case. In fact, I’m not aware of any time that Nemesis has even sued Central Hospital.”

“And you are wondering how the ethics rules limit what Nemesis can say about the case?”

“Precisely.”

“Unfortunately,” Ethox admitted, “probably not very much, as long as Nemesis is not being deceitful or dishonest.”

“Really?” Paradox voiced displeasure.

“ABA Model Rule of Professional Conduct 3.6 limits what a lawyer can say about pending litigation,” Ethox explained. “But subsections (a) and (c) apply only to lawyers who participate in the investigation or litigation of a matter, as well as other lawyers in their firm or law department.

“You said that Nemesis was probably not involved in the litigation at all,” Ethox continued. “So Rule 3.6 would probably not limit Nemesis’s comments. Nemesis would be free to speak with reporters about the case as long as Nemesis was careful not to engage in misconduct prohibited by Rule 8.4—for example, by making false statements.”

“Oh,” Paradox digested Ethox’s words. “Central Hospital is not going to be pleased about this. Nemesis has said some nasty things to the press. My contacts are worried that Nemesis’s comments are harming the hospital’s reputation as well as its defense in this case.”

“Central Hospital does not have to sit quiet,” Ethox responded. “There are several things the hospital can do. First, the hospital can respond to negative publicity. Free speech is a First Amendment right, and the hospital’s community relations staff are not lawyers, so they don’t have to worry about the ethics rules . . . as long as they are not acting as your agent.”

“I am sure community relations could say a lot,” Paradox agreed.

“My primary concern, then, would be that you said this case was getting close to trial,” Ethox remarked. “If that is accurate, the hospital may want to take care to avoid doing anything that a judge might interpret as interfering with jury selection.

“That said,” Ethox continued, “the fact that the press has already started reporting on this case—without you or your client trying to attract media attention—triggers the right you have as the hospital’s lawyer to assist in responding.”

“It does?” Paradox wondered.

“Absolutely,” Ethox responded. “Under Rule 3.6(c), a lawyer may make a statement that a ‘reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.’

“It sounds like the hospital is understandably worried,” Ethox empathized, “about the media reports and Nemesis’s comments having a negative impact both in this case and in general.”

“Absolutely,” Paradox confirmed.

“Well, that is the exact harm that the drafters of Rule 3.6 realize lawyers have a right and even a duty to help their clients avoid,” Ethox explained. “So subsection (c) allows a lawyer to work with a client in responding to negative publicity, as long as the lawyer or lawyer’s client did not initiate the media coverage.

“Finally,” Ethox wrapped up, “if Nemesis’s comments really were very negative and nasty, they might give rise to a tort claim like defamation. But, as we have previously discussed, it is very hard to prevail on such a claim. So I doubt that would really be a useful course of action.”

Michael Downey

The author is the founder of Downey Law Group LLC, St. Louis. He also teaches legal ethics and law firm practice, and testifies as an expert witness on such matters.