Trial Publicity in the United States

Trial Publicity in Social Media in the United States and in California

By Christina M. Gagnier. She is the managing partner of Gagnier Margossian’s digital strategy consultancy in Chino and leads its IP and Technology practice. And by Lisa J. Borodkin, who has a private practice in Los Angeles specializing in Internet and entertainment law.

The growing use of social media demands that lawyers know more than ever about trial-publicity rules.

Trial-publicity rules often come into play in celebrity lawsuits and infamous criminal trials. But California Rule of Professional Conduct 5-120 prohibits participants in any investigation or litigation from making “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” ABA Model Rule of Professional Conduct 3.6 is substantially similar. And Business and Professions Code section 6068 reinforces Rule 5-120: Subsection 6068(b) requires bar members to “maintain the respect due to the courts of justice and judicial officers.” Subsection 6068(f) requires bar members “to advance no fact prejudicial to the honor or reputation of a party or witness” unless justice requires it.

Social media networks encourage sharing, and because tweets, status updates, and blogs are forms of “public communication” they qualify as extrajudicial statements. Tweeting about events during a trial, even if you believe you’re being appropriately ambiguous, leaves you little control over who views your content, unless you put in place the proper privacy settings. The judge, a juror, or a member of the media could easily come across your tweets, creating an unintended prejudicial effect.

All active California Bar members risk severe professional consequences if they fail to uphold the integrity of the judicial process, even when not serving in their role as a lawyer. For example, in 2009 a California attorney was suspended for 45 days for blogging about a criminal felony trial in which he was serving as a juror. During voir dire he failed to disclose that he was a lawyer, and in his blogs about the trial he disclosed the name of the judge, the specific crimes the defendant was accused of, and the defendant’s first name.

The defendant didn’t avoid conviction, but the lawyer-juror who voted to convict him wound up being disciplined. The State Bar Court found that his conduct “harmed significantly a client, the public, or the administration of justice.”

Perhaps the first rule of social media use for lawyers is that a tweet, blog, Facebook update, or FourSquare check-in triggers the ethical rules just as would a phone call, press conference, or interview. However, the rules allow lawyers to (1) publicize their roles in a case, within ethical bounds, and (2) respond publicly to another party’s prejudicial public statements about their client.

Many law firms often promote their involvement in a case to attract publicity. ABA Rule 3.6 allows firms to issue press releases about such involvement, provided it’s information that would be found in the public record. In the same vein, a firm could use social media tools, such as a blog, to publicize its cases, provided the contents are facts of public record, not opinions of counsel or “insider” information about the case.

Fortunately, the litigation privilege protecting statements made in judicial proceedings is as robust as ever. Legal document–sharing websites such as Justia.com are making public record documents increasingly searchable and readily accessible via the Internet, while the litigation privilege has expanded accordingly. In Vanginderen v. Cornell University (2009 WL 33320 (S.D. Cal.)), a California federal court rejected the plaintiff’s libel and false-light claims based on the novel theory that the defendants knew that court documents filed on a special motion to strike would “immediately appear world wide upon the Justia.com Web site.” The court held that the defendants’ prior knowledge that Justia .com would publish the filings did not overcome the litigation privilege.

Social media can also be used to publicly respond to another party’s public extrajudicial statements about a client. In monitoring Internet news alerts about your trial, you may come upon a Facebook Fan Page about your client, perhaps one titled, “John Smith Lawsuit Updates.” The good news, you tell Smith, is that he’s got more than 5,500 “fans.” The bad news is that the page contains inaccurate statements about him that only opposing counsel would’ve been privy to. Aside from musing (and hoping) that “nobody believes everything they read on the Internet,” what else can you do in such a situation?

Comment 7 to ABA Rule 3.6 allows a public response, as long as the purpose is to cure potential prejudicial effects on the trial. The rule explains, “When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.” (You can also notify the court and move for a mistrial or sanctions.) However, you can’t act under this provision if you made prior public statements that provoked or initiated the statements about your client.

An extra note of caution applies to attorneys working for clients with parallel criminal and civil proceedings. Keep in mind that the general duty of loyalty applies. Therefore, as an attorney representing a party in a civil proceeding, you must be careful that online communications don’t prejudice your client in a related criminal action, even if you’re not the lawyer handling that matter.

The primary purpose of the trial-publicity rules is to maintain the integrity of the legal process. Even if you believe your tweets, status updates, or blog posts are appropriate, they may have an unintended prejudicial effect. When in doubt, keep your comments factual and respectful, and stick to matters in the public record.

Trial Publicity Issues

Some Trial Publicity Rules:

• Rule 3.6: Trial Publicity – American Bar Association. The Advocate Rule 3.6 Trial Publicity states that a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement.
• Rule 3.6. Trial Publicity. – New Hampshire Judicial Branch. This rule, similarly, states that a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement.
• Rule 4-3.6 of the Florida Bar states that Prejudicial Extrajudicial Statements are Prohibited. And, therefore, a lawyer shall not make an extrajudicial statement.
• Rule 3.6. Trial Publicity. – Arkansas Judiciary: information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk.

Pretrial Publicity

When criminal cases gets media attention, trial courts may curtail the amount of pretrial publicity by imposing gag orders, restricting media reporting or closing the possibility of virtual meetings. Pretrial publicity can be help or hurt a defendant; therefore, it is important to manage pretrial publicity before it spins out of control. Pre-trial publicity is not an area of the law about which there is no dispute. One of the problems is when a juror has been exposed to pretrial publicity about the case in which he/she is part of the Jury.

Judges, jurors and arbitrators are often greatly affected by the pretrial publicity.