Q. My client has just been indicted on 13 counts of fraud and every reporter in town has called me for comment. Should I call them back?
A. Before fielding their questions, ask yourself whether silence is "golden" or "prejudicial."
Warned against trying cases in the press, many lawyers limit their advocacy to the courtroom. Lest we taint the process, attorneys must refrain from "extrajudicial statements" in the media that they know or reasonably should know will have a "substantial likelihood of materially prejudicing an adjudicative proceeding."
That hasn't stopped prosecutors from orchestrating press conferences, issuing press releases and choreographing perp walks. Once they do, your silence isn't always golden. Beyond the potential to contaminate the jury pool, one-sided news coverage may tarnish your client's reputation and cause irreparable harm regardless of the ultimate outcome in court. The words "not guilty" won't magically restore the reputation of clients where years of disparaging stories preceded their exoneration. Indeed, after his acquittal in a high-profile case, one defendant famously asked, "Which office do I go to get my reputation back?"
Your law office isn't the answer. But, as advocates, we must often play a key role in the "court of public opinion." Rather than ignore disparaging press accounts, the rules of ethics let us balance the narrative. If we reasonably believe that our comments may be "required to protect a client from the substantial undue prejudicial effect of recent publicity" originating from other sources, we may comment as "necessary to mitigate the recent adverse publicity."
Taken literally, this narrow exception would muzzle lawyers until after headlines have already impaired the right to a fair trial. But in practice, those who choose their words wisely may mitigate reputational harm while promoting the administration of justice:
➤ Get Client Approval
Before discussing your case with reporters, you must review the advantages and disadvantages with your client. Without your client's informed consent, you must not reveal any information relating to the representation, regardless of whether it is privileged.
➤ Speak for the Client
Absent rare circumstances, do not let your client speak with the press. Lawyers who have done so often live to regret it, as client comments may be used against them at trial. By speaking on your client's behalf, you can avoid the pitfalls that may arise from errant or ill-considered statements.
➤ Keep It Simple
When speaking for your client, be careful with what you reveal about the evidence, your strategy and your response to specific allegations. Unlike a court of law, details aren't as critical in the court of public opinion where short "sound bites" work best. By limiting your comments to what you want the press to print, you will gain more control over the story itself and minimize the risk of confusion. Considering the fact that your adversary, the judge and potential jurors may also read your comments, less is more when it comes to press accounts.
➤ Respect the Reporter's Role
Reporters aren't our adversaries. Often, they are kindred spirits. Just as you work to hold prosecutors and other public officials accountable, enterprising journalists may expose abuses of power and enhance government transparency. In cases demanding such scrutiny, the fourth estate may be a powerful ally.
➤ Develop Reporter Rapport
To get a good report, you need good rapport with the reporter.
Some lawyers have tense relationships with the press. Responding to questions with a sterile "no comment," their reluctance to talk may actually harm client reputations.
The alternative does not require that you reveal case-specific information or answer all questions directly. General comments about the presumption of innocence, your client's desire to present his case in court, or the need to consider all the evidence may help to counter a rush to judgment. At the very least, they may remind the public that there are two sides to every story.
Even in cases where you cannot comment at all, you may still offer "off the record" guidance to a reporter to clarify issues, focus on more favorable facts and provide insight on your client's position. So long as you exercise care to establish the parameters of your communication, speaking "on background" and "without attribution" may foster a productive relationship as press coverage continues.
➤ Don't Be Self-Serving
You may not be in court, but you are still representing a client whose interests come before your own. When speaking to the press, leave your ego or desire for self-promotion out of it. If you do your job well, your dedication to your client's cause will speak volumes for your professionalism and qualities as counsel.
As lawyers, we are more accustomed to protecting our clients within a courtroom than we are outside of it. But if we act with proper discretion, we may defend our clients in the court of public opinion without tainting proceedings in a court of law.