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The Unsung Power of Trial Publicity

By Diana K. Rodgers

Diana K. Rodgers is an attorney with the law firm of Nemecek & Cole in Encino, California, where she focuses on legal malpractice defense. She is a member of LACBA's Professional Responsibility and Ethics Committee. The opinions expressed herein are her own.

I once fifth-chaired a trial against an experienced lawyer who gave several gripping press conferences. I watched the interviews in fascination, anger, and horror (in that order) as the lawyer cleverly spun her client's tale. Ultimately, the jury ruled in her client's favor. While I do not believe that the jury was affected by the lawyer's statements to the media (she had facts and law on her side), I witnessed firsthand the potent power of trial publicity.

On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct (new rules). The new rules, which closely follow the Model Rules of Professional Conduct adopted by a majority of states, go into effect on November 1, 2018.  New Rule 3.6 (currently numbered Rule 5-120) governs trial publicity.

Rule 3.6 has not received as much publicity as other rules (such as conflicts of interest). After all, many of us try to avoid trial publicity so that our clients are not adversely affected by negative press, or so if we lose, the whole world doesn't hear about it. But trial publicity plays a crucial role in our knowledge and understanding of business, current events, and even politics.

Take the case of Stephanie Clifford v. Donald J. Trump, Essential Consultants, LLP, and Michael Cohen.[1] Defendant Michael Cohen filed an ex parte application for a temporary restraining order barring plaintiff's lawyer, Michael Avenatti, from making certain statements about Cohen or the case. Cohen estimated that since the lawsuit had been filed on March 6, 2018, Avenatti had made approximately 170 television appearances during which he discussed the facts and circumstances surrounding the case[2] and issued at least 439 public tweets about the case to his 538,000 Twitter followers.

Cohen argued that Avenatti routinely contended that he (Cohen) had no credibility, speculated about the outcome of various aspects of the case, and asserted that Cohen would be indicted within the next three months for various crimes. Cohen argued that Avenatti violated former Rule 5-120 regarding trial publicity, among other rules.

No one watching Avenatti's interviews could deny their effectiveness at casting doubt on Cohen's ethics. I have often wondered whether Avenatti was complying with his own ethical duties.

Scope of Rule 3.6

As the U.S Supreme Court has noted, "[f]ew, if any, interests under the Constitution are more fundamental than the right to a fair trial by 'impartial' jurors, and an outcome affected by extrajudicial statements would violate that fundamental right . . . ."[3] Rule 3.6 provides reasonable restrictions which protect the right to a fair trial while permitting attorneys and litigants to exercise their First Amendment rights.

Rule 3.6 applies to a "lawyer who is participating or has participated" in "investigations or litigation of a matter."[4] The term "investigations" includes criminal investigations.[5] The phrase "litigation of a matter" includes lawsuits that have been filed, whether or not the matter reaches trial.[6]

Statements Prohibited By Rule 3.6

Rule 3.6 prohibits a lawyer from making an "extrajudicial statement" that the lawyer "knows or reasonably should know"[7] will "(i) be disseminated by means of public communication and (ii) have a substantial[8] likelihood of materially prejudicing an adjudicative proceeding in the matter." Therefore, a lawyer must know or reasonably should know both that the statement will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. This clarifies the language of the current rule.

Rule 3.6 also prohibits lawyers from making statements that violate the lawyer's duties pursuant to Business and Professions Code section 6068, subdivision (e) and new Rule 1.6 of the Rules of Professional Conduct ("Confidential Information of a Client"), which requires a lawyer to maintain the confidential information of her client.[9]

Permitted Statements

Subject to rules regarding client confidentiality, Rule 3.6 subdivision (b) permits a lawyer to state:

1) the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved;

2) information contained in a public record;

3) that an investigation of a matter is in progress;

4) the scheduling or result of any step in litigation;

5) a request for assistance in obtaining evidence and information necessary thereto;

6) a warning of danger concerning the behavior of a person involved only to the extent that dissemination is reasonably necessary to protect the individual or the public.

In criminal cases, an attorney (prosecutors and criminal defense counsel) may make additional statements.[10]

Mitigation

Rule 3.6 carries forward the important ability of a lawyer to mitigate adverse publicity. 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."[11] A statement made pursuant to this paragraph "shall be limited to such information as is necessary to mitigate the recent adverse publicity."[12]

Appropriate Statements

The comments to Rule 3.6 are essentially unchanged from former Rule 5-120, and provide a non-exhaustive set of factors to be used to determine whether a statement violates the rule. These include: 1) whether the statement presents inadmissible evidence for the purpose of proving or disproving a material fact in issue; 2) whether the statement is false, deceptive, violative of the lawyer's duties to be truthful; 3) whether the statement violates a gag order, protective order, statute, rule of court, or special rule of confidentiality; and 4) the timing of the statement.

Speaking of gag orders, Clifford successfully opposed Cohen's request for a temporary restraining order. Judge S. James Otero determined the requested order was too broad, and that the court did not have the authority to impose a gag order on an attorney "due to the potential effect of his comments on a proceeding outside the court's jurisdiction (the SDNY action).[13] Judge Otero noted that Avenatti is subject to former Rule 5-120 and local court rules, and if his extrajudicial statements improperly violate these rules, he will be subject to discipline.[14]

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[1] Stephanie Clifford v. Donald Trump et al., 2:18-cv-02217-SJO-FFM.

[2] According to Michael Cohen, Michael Avenatti had given interviews on televised national news programs, including with Anderson Cooper, Alisyn Camerota, Jake Tapper, and Don Lemon on CNN, Rachel Maddow, Lawrence O'Donnell, and Ari Melber on MSNBC, Bill Maher on Real Time with Bill Maher, and Stephen Colbert on The Late Show With Stephen Colbert.

[3] Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, 1075-1076 (upholding the Nevada State Bar's rule regarding trial publicity).

[4] The rule also applies to statements made by another lawyer in the firm or government agency with a lawyer subject to paragraph (a). (Rule 3.6, para. (d).)

[5] See, Rule 3.6, para. (b)(7).

[6] See, Rule 3.6, para. (b)(4), which permits statements regarding "the scheduling or result of any step in litigation."

[7] Rule 1.0.1., para. (f), which goes into effect on November 1, 2018, defines "knowingly," "known," or "knows" as "actual knowledge of the fact in question." A person's knowledge "may be inferred from circumstances." (Id.)

[8] Rule 1.0.1. para. (l) defines "substantial" as: "'Substantial' when used in reference to degree or extent means a material matter of clear and weighty importance."

[9] Bus. &. Prof. Code 6068, subd. (e)(1) provides that it is the duty of an attorney "[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."

[10] See, Rule 3.6, para. (b)(7)(i–iv). See also, Rule 3.8, Special Responsibilities of a Prosecutor, para. (e) for additional duties of prosecutors in connection with extrajudicial statements about criminal proceedings.

[11] Rule 3.6, para. (c).

[12] Id.

[13] Minute Order dated July 31, 2018, p. 6, Clifford v. Trump, et al., CV 18-02217.

[14] Id. at p. 7.