Listen!: The South Carolina Bar fends off an attack ad by first paying attention to signals

Vol. 38 No. 6


Verbal and written attacks on lawyers and judges are not new; in fact, even Founding Father John Adams was widely criticized for defending British soldiers in the run-up to the Revolutionary War. While bar associations occasionally find themselves deciding how and whether to respond to an attack on a judge’s decision, or a condemnation of lawyers, it’s unusual to have to do so in the middle of a high-profile race for governor.

The South Carolina Bar found itself in just that position recently, responding to campaign ads that, for the bar, called into questioned the essence of the American criminal justice system. The S.C. Bar was prepared to respond.

The state’s gubernatorial race pits incumbent Republican Gov. Nikki Haley against Democratic state Sen. Vincent Sheheen, who is also a lawyer. In April, the Republican Governors Association began airing a statewide TV commercial that attacked Sheheen for defending those charged with crimes. Among its claims were that “Vincent Sheheen made money off criminals … represented others charged with violent acts … So next time Sheheen says he’ll protect women from violent criminals, ask him, ‘What about the ones who paid him?’”

The S.C. Bar responded to the ad by immediately launching S.C. Lawyers: The Facts, a website that, its introduction says, “refutes the misinformation that is being spread and provides education about the legal profession and the service provided by lawyers to the citizens of South Carolina.” The site features a Q&A about some common misconceptions, a series of video interviews with lawyers who are “Proud to be a South Carolina Lawyer,” news releases about those who participate in public service activities as well as practicing law, and a link to a 2013 study on the economic impact of lawyers on the state’s economy.

Alice Paylor, then president of the bar, wrote in a news release that the site was intended to “defend the legal profession against blanket political attacks against lawyers and those who criticize certain types of lawyers.” In short, the bar responded quickly with a focused message that directly refuted the ad’s claims.

A quick response with a slow build

How was the bar able to respond so comprehensively, on such short notice? Preliminary planning began four years ago during the last gubernatorial race, explains Leah Johnson, the bar’s assistant executive director.

Toward the end of that campaign, there was a “late blitz of anti-lawyer advertising, specifically geared toward trial lawyers. It wasn’t as egregious as what we saw this year, but it was enough to put us on notice that there were some unwarranted attacks and unwarranted criticisms being leveled toward the legal profession as part of the election campaign,” Johnson recalls. “[We thought], ‘We’re probably going to see more of this.’”

Bar staff began discussing how the bar could respond to any future attacks. In particular, Johnson says, they discussed at length what a mandatory bar could and should do, and at what point it could legitimately enter a public controversy over the role of lawyers.

In fall 2013—months before the RGA launched its attack ad—S.C. Bar Executive Director Bob Wells presented the idea of developing a website. “We are limited in what we can do to avoid appearing partisan, and this was a way we could respond and give some factual information to the public,” says Leigh Thomas, the bar’s communications director. “This was a way we could prepare in advance, in case we needed to launch something.”

The bar's Board of Governors approved the concept, and bar staff began to gather content for the site, subject to approval by the Executive Committee.

Once the site was completed, the bar waited and “monitored the political climate” to see if anything happened that required it to be launched, Thomas says. In April, with the release of the RGA ad, the S.C. Bar decided “It’s time to press ‘go’ on this,” she adds.

With the website launch, the bar also notified its members and the public about the site. There was an article in the bar’s e-newsletter, as well as a statement from Paylor in the e-newsletter and on the S.C. Bar website. The bar also posted information about the site via its Twitter and Facebook accounts. “It sort of exploded from there,” Thomas says.

Response to the response

A flood of media inquiries descended on the bar, with many journalists wanting to speak with Paylor, Johnson says. There were also positive reactions from S.C. Bar members and from other bar associations. “It was a very energizing time for us at the bar,” Johnson recalls, “to do something in defense of our members that was received so well.”

Those other bars that responded included the American Bar Association. ABA President James R. Silkenat wrote a public letter to the RGA and its chair, Gov. Chris Christie of New Jersey, asking that the ad be withdrawn.

Silkenat became aware of the ad shortly after it was shown, and he weighed how the ABA could best respond. “The ABA doesn’t support candidates, and we don't oppose or support anybody in any particular race,” he explains. “We didn’t see this as a political issue. We saw this as lawyers needing to represent clients. Representing a client is not an endorsement of that client’s views.

“The most disturbing part of this was the message to lawyers that their client’s past actions or beliefs might stain the lawyer’s career in ways that were really inappropriate.”

Even though the ABA membership is made up of a wide variety of lawyers with differing positions on issues, the decision to speak out against the RGA ad was “an easy one,” Silkenat says. “This was an attack on a lawyer for representing a client. No matter what party is involved, it’s not in the American tradition and is inappropriate for any party to do.”

Silkenat believes the political climate is worsening when it comes to campaigning. “Politics seems to be more polarized, and campaigns seem to be willing to say most anything,” he says. “We don’t want to get involved in any particular race, but [negatively] portraying a lawyer’s representation of a client, even if unpopular, should not be part of a campaign. That’s what a lawyer is supposed to do.”

The ABA has received no response from Christie or the RGA, although an attorney who represents Christie’s reelection campaign in the “Bridgegate” investigation has been widely quoted as criticizing the ad, Silkenat says. Neither the RGA nor Christie’s press office responded to Bar Leader’s request for comment.

In South Carolina, the release of the S.C. Lawyers: The Facts website, and its attendant publicity, was followed shortly by the release of a second RGA commercial, also targeting Sheheen for his criminal defense work. Johnson says the bar has not received any direct response from the RGA to the “Facts” website.

The New Jersey State Bar Association wrote to Christie, in his capacity as RGA chair, asking that the group retract the ad, says immediate past President Ralph Lamparello, who wrote the letter.

“My reaction was the reaction that almost any lawyer should have: We can’t start attacking people for their representation of an unpopular client,” Lamparello says.  

He took the matter to the NJSBA Executive Committee, which was unanimous in deciding to write to Christie, he recalls. “We deemed [the ad] to be inappropriate. And when I say ‘inappropriate,’ it was not a close call.” The bar did not receive a response to the letter.

The Pennsylvania Bar Association wrote to that state’s governor, Tom Corbett, a member of the RGA Executive Committee, asking him to “urge the RGA to remove this political attack ad.”

Explains immediate past President Forest Myers, one of three signers of the PBA letter, “These things are offensive, not just to lawyers, but should be offensive to everyone.” While the PBA, like the other bar associations, had no position on the candidates themselves, bar leaders found the ad to be “so offensive that the discussion was not whether we should take a position,” but how to phrase the letter.

Corbett’s office did not issue any public response to the letter, but Myers says his understanding is that it was read, and that the governor relayed the bar's concerns with the ad to the RGA. Corbett’s counsel’s office did not respond to a request for comment from Bar Leader.

The NJSBA, PBA, and ABA are all voluntary bars.

The Ohio State Bar Association did not respond in this case but has dealt with criticism of judges and lawyers in the past, and was among fellow bars that supported the S.C. Bar’s actions, says Bill Weisenberg, assistant executive director. “What the South Carolina Bar did here was to say, ‘There’s a line that was crossed here,’” he believes. “‘We’re going to stand up, and we’re going to defend against the unjust criticisms of a lawyer for doing his or her job.’”

National Conference of Bar Presidents President Carl Smallwood wrote a post on the group’s website detailing the events in South Carolina and inviting readers to think about how their bars would react in a similar situation. Smallwood says it’s important for bar associations to talk about whether speaking out in this kind of incident is a proper role for the bar—and if it is, what kind of response is appropriate. NCBP will have a program at its August Annual Meeting in Boston dedicated to this and other types of issues. The South Carolina Bar is one of the groups to be represented on the panel.

‘Wait and see’

Back in South Carolina, the S.C. Lawyers: The Facts website will remain up for at least the duration of the gubernatorial campaign, Thomas says, noting that the bar can always add content if the need arises.

“We’re in a wait-and-see mode,” Johnson says. “We have a sense that we won’t see any more [ads of this type], but if we do, we’ll reconvene and take another look.”



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