CBJ - March 2012 #02. "There's a TV news crew in the lobby asking for a partner ".

Author:By Diane Karpman

California Bar Journal


CBJ - March 2012 #02.

"There's a TV news crew in the lobby asking for a partner "

The California LawyerMarch 2012"There's a TV news crew in the lobby asking for a partner " By Diane KarpmanSpinning is not just an exercise using a stationary bike, but also a term used to describe the manipulation of news media by lawyers and others in high-profile cases.

Some authorities have suggested that if the prosecution is indicting your client (not just technically but also by verbal abuse) that it's almost malpractice not to mitigate the toxic environment created by adverse publicity. Alan Dershowitz writes in his foreword for Spinning The Law: Trying Cases in the Court of Public Opinion, by Kendall Coffey, "In today's work of multimedia, twenty-four-hour news cycles, the role of lawyers does not stop at the courtroom door, or even the courthouse steps." (Spinning the Law, page 7)

Obviously, spinning goes on in lots of different types of cases: high-visibility criminal cases; celebrity family cases; high-profile tort claims; big defective product cases; and political cases. These can all be tried in the court of public opinion. "The fear of negative publicity can inspire the parties to negotiate a solution before the judicial process reaches its own conclusion." (Spinning the Law, page 293)

"Wait a minute," you are saying. Isn't there a rule prohibiting trial publicity?" (Rule 5-120) The rule is a basic statement restricting lawyers from making statements to the media when they know or should know that there is a substantial likelihood of materially prejudicing an adjudicative proceeding.

Nobody is certain what that means, especially in California. There is not a single reported decision imposing discipline on a California lawyer for violation of the rule, and The State Bar Court Reporter fails to indicate if a violation has ever been charged. Complaints have been filed against high-profile lawyers, but they do not seem to result in discipline. A former chief trial counsel in a private conversation said they would not enforce the rule. It is that controversial.

Until the debacle known as the OJ Simpson case, California never had a rule. The Board of Governors at that time (after taking and considering public comment) suggested a much narrower rule than the American Bar Association's rule...

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