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Trial Publicity: Public Statements Made by an Attorney during Court Proceedings have Limits

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Talk is cheap…until lawyers get involved.

“Lawyers: are persons who write a 10,000 word document and call it a brief.” – Franz Kafka

Mouthpiece: n. old-fashion slang for one’s lawyer. Burton’s Legal Thesaurus, 4E. (2007). Retrieved August 8, 2018, from https://legal-dictionary.thefreedictionary.com/mouthpiece

There are thousands of sated comedians in the world who make a living off the caricature of loquacious litigators. Indeed, it is probably a fair statement that attorneys like to talk. Attend any bar event anywhere in the country and, more likely than not, you will find a group attorneys exchanging war stories. Lawyers, especially trial attorneys, relish opportunities to reminisce about trials won, how incomprehensible it is that they lost a “slam dunk” motion, or the occasional client they never want to see again.

Most of the time, idle attorney chatter over rubber chicken bar association dinners is entirely benign. However, public statements made by an attorney during a trial or the pendency of case that may go to trial is consequential all of the time. This is because, as Chief Justice Rehnquist observed, “a lawyer’s extrajudicial statements pose a threat to the fairness of a trial due to an attorney’s special access to information.” Gentile v. State Bar of Nevada, 501 U.S. 1031, 1071 (1991). In theory, an attorney’s comments on the scope of evidence or a case’s merits could predispose a jury pool and, thus, unintentionally (or deliberately) prejudice a judicial outcome.

The fear of such prejudice is so strong because its impact is so damaging to the confidence of the administration of justice that the American Bar Association, through the ABA Rules of Professional Conduct (which serve as a model for the ethics rules of most jurisdictions), actually imposed guidelines curtailing a lawyer’s freedom of speech in certain circumstances. For example, under Model Rule 3.6, lawyers are prohibited from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” ABA Model Rule 3.6(a). The rule goes on to describe certain statements that a lawyer may make. A lawyer may state: (1) the claim, offense or defense of the case; (2) public information; (3) that the investigation of the matter is in progress; (4) the scheduling or result of an event in litigation; (5) a request for the public’s help in obtaining information; (6) “a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest;” and (7) certain comments with respect to criminal cases. See ABA Model Rule 3.6(b). A lawyer also is permitted to make statements that he believes are necessary to protect a client from the substantial undue prejudicial effect of recent publicity. See ABA Model Rule 3.6(c). Model Rule 3.6 has been adopted, with or without changes, by most jurisdictions.

Courts recognize, however, that there is a constitutional balancing act between limiting an attorney’s speech rights and ensuring unbiased adjudications. Towards that end, the United States Supreme Court has held that a jurisdiction’s restrictions on attorney speech are permissible only when they are no greater than necessary to protect “the integrity and fairness of a State’s judicial system.” Gentile, 501 U.S. at 1075. This constitutional struggle most recently was highlighted by President Trump’s former lawyer, Michael Cohen, in a case involving a non-disclosure clause of a settlement agreement between the chief executive and an alleged adult film paramour.

Specifically, the United States District Court for the Central District of California, denied Michael Cohen’s ex parte application for a restraining order in Clifford v. Donald J. Trump, et al. CV 18-02217 SJO (FFMx) (order denying defendant Michael Cohen’s Ex Parte Application for a Restraining Order). In Clifford, Defendant Michael Cohen applied for a restraining order on June 14, 2018 against the plaintiff’s attorney, Michael Avenatti. Id. Cohen sought to prevent Avenatti from making statements regarding:

(1) the character, credibility, or reputation of a party and/or their respective counsel; (2) the identity of a witness or the expected testimony of a party or witness; (3) the contents of any testimony, admission, or statement given by a defendant or that person’s refusal or failure to make a statement; (4) the identity or nature of physical evidence expected to be presented or the absence of such physical evidence; (5) the strengths or weaknesses of the case of either party; and (6) any information the lawyer knows or reasonably should know is likely to be inadmissible as evidence and would create a substantial risk of prejudice if disclosed.” Id.

 Cohen’s application cited to over 170 television appearances and 439 public tweets by Avenatti discussing the alleged facts and circumstances of the case. Id. Cohen described how Avenatti previously commented that Mr. Cohen “has a history of thuggish behavior” and “is going to be indicted within the next three months” for “bank fraud, wire fraud, campaign finance violations” or “a whole host of potential criminal conduct.” Id. Cohen also accused Avenatti of speculating about the outcome of the case.

Interestingly, a few months earlier, the Southern District of New York in a related action, admonished Avenatti’s conduct, prompting Avenatti to withdraw his application to be admitted pro hac vice in the SDNY action. Id. The New York federal court told Avenatti that:

If you participate here, you would not be able to declare your opinion as to Mr. Cohen’s guilt, which you did; you would not be able to give publicity to documents that are not public. It would change your conduct…I don’t want you to have some existence in limbo, where you are free to denigrate Mr. Cohen and I believe potentially deprive him of a fair trial by tainting a jury pool.

Id.

 Yet, Cohen’s application was denied. The Central District of California noted that the Supreme Court hesitates to restrain prior behavior and the Defendant failed to clearly demonstrate why a drastic measure was warranted. Id. The court went on to describe Cohen’s application as overly broad and the court recognized that there were less restrictive alternatives than issuing a restraining order. Id. The court concluded that while Avenatti is subject to the Rules of Professional Conduct and the local rules of the court, “[u]nless or until Defendant can demonstrate that Mr. Avenatti’s statements are substantially likely to impact his right to a fair trial in this action, [ ] a prior restraint is impermissible.” Id.

For now the Cohen-Avenatti dispute seemingly has resolved in Avenatti’s favor. Avenatti’s extrajudicial comments, however, almost certainly again will become a stormy legal issue as the Clifford case proceeds. To this point, cases that do not involve alleged bawdy hijinks prove instructive. Recently, Johnson & Johnson argued, in part, before the Missouri Court of Appeals that a $55 million dollar verdict against it in an asbestos talc case should be overturned. See Ristesund v. Johnson & Johnson, et al., 2017 WL 5885587. Johnson & Johnson contended that the evidence established that the jury pool was tainted through the statements of plaintiffs’ counsel which created “intense publicity in the city of St. Louis [and included] information about prior talc trials and information that the court had ruled inadmissible in this case….”  Id. at 119. Johnson and Johnson’s appellate brief went on to describe that the jurors had open discussions on an earlier talc verdict. Id. at 121. Although the Missouri Court of Appeals vacated the Ristesund verdict on other grounds, extrajudicial case comments from the plaintiffs’ counsel provided the defense an appellate argument—which could have been a mortal, self-inflicted wound.

Whether an attorney represents presidents, peelers, or asbestos plaintiffs, one message should be universally held: be careful what you say about your case outside of court. It is not worth having to challenge a restraining order or appeal just to have an interesting anecdote to share with your colleagues over a rubber chicken bar association dinner.