Lawyers and the News Media

Lawrence J. Zimmerman

Lawyers and the News Media

“The people will believe what the media tells them they believe.” –George Orwell

In Patterson v. Colorado, ex. rel., Attorney General, 205 U.S. 454, 462 (1907), Justice Oliver Wendell Holmes wrote: “[t]he theory of our system is that the conclusions to be reached in a case will be induced by evidence and argument in open court, and not by any outside influences, whether private talk or public print.”

We are all afraid of the media—their scrutiny, their questions, and our apprehension of saying something that may propel your case in an unwanted direction. What if I say something that gets my client in trouble? What if I plan to convey a specific message but they edit it and make it sound like something I did not mean to say? Should I just say no comment? Or I cannot comment? Or I do not want to discuss anything with you vultures?

All of the above are common worries to all trial lawyers because our first and foremost job is to protect our client’s interests. And, we need to place those interests above the interests of our own desire to bask in the glare of the klieg lights overhead and the boom microphones dangling 12 inches away from our forehead. Can a lawyer successfully or safely discuss his case with the media? The answer is a qualified one: Absolutely! To do so, however, you must know how to manage your message and deal with the media. First, managing your message requires understanding basic rules of professional conduct, as well as some law that governs lawyers who have cases with media coverage. Second, dealing with the media takes practice and forethought into what you are going to say, write, or even wear.

First, what are the rules and the law? Georgia’s Rules of Professional Conduct allow us to speak about our cases in public defense of a client and to publicize information that supports our client’s position. In a seminal opinion, In Re Gentile, the United States Supreme Court discussed whether it is ethical for a lawyer to have press conferences and speak with the media about one’s client. The issue in Gentilearose after an attorney discussed his client’s recent indictment with the media during a press conference. Upon observing the news coverage, the State Bar of Nevada took umbrage and accused the attorney of violating their professional rules of responsibility. In the opinion fashioned by then-Chief Justice Rehnquist, the Court stated:

The vigorous advocacy we demand of the legal profession is accepted because it takes place under the neutral, dispassionate control of the judicial system. Though cost and delays undermine it in all too many cases, the American judicial trial remains one of the purest, most rational forums for the lawful determination of disputes. A profession which takes just pride in these traditions may consider them disserved if lawyers use their skills and insight to make untested allegations in the press instead of in the courtroom. But constraints of professional responsibility and societal disapproval will act as sufficient safeguards in most cases. And in some circumstances press comment is necessary to protect the rights of the client and prevent abuse of the courts. It cannot be said that petitioner’s conduct demonstrated any real or specific threat to the legal process, and his statements have the full protection of the First Amendment.

The media’s power gives you a voice to express your message; it can be an extremely powerful outlet. That power, however, can also be dangerous when the message is not clear, or taken out of context, or the media spins your intended message to distort it. In fact, the real distortion may be the public’s perception of your case due to the media’s failure to investigate the real facts, or its failure to interview those willing to relay the truth. What can taint a case early on is if the prosecutor or police make statements to the media that end up driving the case. For instance, in the case of Justin Ross Harris, the Cobb County Police poisoned the well early on with some of their statements. Dana Pierce, the Public Information Officer told the media, “I’ve been in law enforcement for 34 years. What I know about this case shocks my conscience as a police officer, a father and a grandfather.” Alexis Stevens, Police: Manner of Toddler’s Death Was Homicide, Atlanta Journal Constitution, June 25, 2014. When Officer Pierce made this remark to the news, the quote sent Harris’s case into orbit, as far as the amount of coverage was concerned. Quite frankly, Pierce’s comment was very reckless—one that any experienced police officer in that situation should have known would prejudice the case against Justin Ross Harris.

Rule 3.6 of the Professional Rules of Conduct restricts what a prosecuting attorney and defense lawyer may say publicly about a case. A prosecutor is much more limited in their extrajudicial statements to the media, but both sides must still be careful not to prejudice the case.

Why are prosecutors limited to these issues? Clearly, a prosecutor could ruin in a blink of an eye not only someone’s life, but their public reputation should they make salacious and unfavorable comments about the person. In contrast, the client’s attorney can make any comment to the media or statement to protect their client in the public eye. Lawyers who represent individual clients have far more latitude to make assertions in the hopes of turning the tide of suspicion away from the client.

Under Rule 3.6 (c) of the Georgia Rules of Professional Conduct,

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. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

Comment 7 of Rule 3.6 bends the rule even more to allow the lawyer to respond to comments about their client. Comment 7 provides:

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. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

Most lawyers have a rule that they should never speak to a journalist about a pending case. Has anyone considered the real reason why lawyers do not talk to the media? Your client’s interests top your interests. No question about it. However, if you have a client and their case has garnered news coverage you need to ask yourself the following question: what will my client gain from me speaking to the media? Lawyers need to discuss with their clients whether the client wants the lawyer to make a statement. For lawyers, the negativity swirling around our clients may not impact our day-to-day activities since, as professionals, we are used to the pressure but your client may feel differently. Remember, the negative information asserted by the police, the District Attorney, and the items the media has “dug up” does not affect your reputation as a lawyer. But it does affect both your client’s criminal case and their reputation.

Think about everyday life from the time you were a child until now. What if someone said something untruthful about you? Something untoward? Did you respond? How did you respond? Clearly, you responded to any character attacks. To remain silent while under attack is not natural; you want to respond. A lawyer has to balance the response versus the fear of impacting negatively your client’s case. And, a healthy fear of saying the wrong thing to the media is natural. Yet, the media can also be an ally. It is their job to investigate and illuminate injustices and tell the public any issues arising in the criminal justice courts. In fact, in State v. Marsh,2002 WL 537033 (Ga. Super. Ct. Mar. 7, 2002)[1], the Superior Court of Walker County reminded us of the important role the media plays in our cases. The Court wrote:

A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and the judicial processes to extensive public scrutiny and criticism. (Internal citations omitted).

Should you think there is a miscarriage of justice, the press may be your perfect friend in getting the story out. What about speaking to a reporter as a source, or in a story not attributed to you? Many times a lawyer may not want his name in a story for a myriad of reasons; however, the journalist is usually fine quoting an unnamed source since, for their purposes, it passes muster ethically. Do you have any protection? Yes. Should you choose to be used only as a source, there are two things to remember: (1) you must have confidence that the reporter is a person of their word; and (2) the reporter will never reveal your name. The latter is a common concern because you do not want to get dragged into a court proceeding where you are disclosed as the source. Of course, none of this gives anyone carte blanche to violate any client privileges or confidences.

It is important to know that Georgia has codified some protections for the media. “Qualified privilege,” codified at O.C.G.A. § 24-5-508 (2013), provides:

Any person, company, or other entity engaged in the gathering and dissemination of news for the public through any newspaper, book, magazine, radio or television broadcast, or electronic means shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that this privilege has been waived or that what is sought:

(1) Is material and relevant;

(2) Cannot be reasonably obtained by alternative means; and

(3) Is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.

The privilege may be overcome, but only if § 24-5-508’s three elements are met. See In re Paul, 270 Ga. 680, 685 (1999) (reporter did not waive qualified privilege against disclosure of unpublished information, and state failed to overcome privilege absent showing that information sought was material, necessary and unobtainable by other means).

Once a lawyer gains an understanding of the applicable law and professional rules of conduct, the second major concern becomes how do you manage your message when dealing with the media? Below is a very fluid list but here are some common ground rules. I will list them out and for purposes of truthful disclosure, I have borrowed some of these to assist me in dealing with the media:

  • Always tell the truth. If you cannot tell the truth, then you cannot talk to the media or make a statement. Anything that is false will be discovered and will not only harm your client but will ruin your reputation forever.
  • “No comment,” as the standard answer is not a very good one. We see lawyers leaving the courthouse or wherever they are and journalists rush up to them and the lawyer just says “no comment.” Well, no comment is actually a comment and it is not a helpful one. You need to come up with something that doesn’t sound so defensive even just adding a few words such as “we are investigating and would love to chat, but I am not in a position to comment yet without further exploring the situation.” Or, just a simple, “We are fully investigating the case and reviewing the situation and will have a statement once we have all of the facts.” It is important to note that in the world of 5-second sound bites the news most likely isn’t going to show you, the lawyer, saying “no comment,” because it is not good for the television viewers. Your client coming out of court with a bag over his head? They will show that all day long.
  • Never get angry or upset with a journalist because this will make for good television. Recently, I was watching the news and a reporter sandbagged a politician when he was coming out of his car. Now, she should not have done this, but the politician’s reaction was worse—he got very angry and heated with the journalist. This was exactly what the journalist hoped for and they played it over and over on the news. I called that politician and gave him some friendly advice. Also, remember Michael Grimm the politician who threatened to throw the reporter off a balcony?
  • Be very careful with “off the record” conversations. While you may say something is off the record, the reporter may not be as trustworthy. I will say that if you find trustworthy reporters who agree to have off the record conversations with you, it can be very beneficial. “Off the record” conversations can help you shape the story from your vantage point, and make the reporter feels like he owes it to you because you are giving him or her “first dibs” on the information.
  • Cultivate relationships with reporters. Reporters have their ears to the ground and, sometimes, are trying to chase down the same witnesses you are. If a reporter likes and trusts you, they will share this information with you. Should you cultivate such a relationship see the number one rule above: “always be honest.” If you are not comfortable discussing a topic, say so. You do not need to beat around the bush.
  • Always, always think through what you are going to say, or what you are going to write, if you release a statement. Usually, when you release a statement there is some deadline and a lot of pressure to get it right. I cannot stress to you enough that each word you write must have a meaning and be very clear. If it is not, people may question the meaning of what you wrote. Not everyone is going to get the message that you intended to convey, but you want most people to understand it.
  • When messaging, prepare some key points that you want to make clear to the public and speak with the reporter before and after the interview to renew your request that they get that into the story. As you know, these pieces are edited down to short “sound bites.” However, if you can establish good rapport and trust with the reporter they will help you convey the specific message you want to send.
  • Always be honest or do not say anything at all.

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