Prime-Time Cases

• Author: David L. Hudson Jr.
• Pages: 24-25

Prime-Time Cases

Celebrity attorneys face challenges, ethical pitfalls

By David L. Hudson Jr.

Some lawyers might fi nd the idea of

representing high-profi le clients on the

public stage to be an exciting ca reer oppor-

tunity. These days it’s commonplace to fi nd

attorneys such as Micha el Avenatti, who

represents adult fi lm actress Stormy Da niels,

talking about their c ases on TV—many hoping to use

the public forum to the advantage of t heir client and

their fi rm.

But attorneys who have been in the limelight say it’s

important to be aware of t he challenges that come with

representing celebrities and how miss teps can impact

their reputat ion and yours.

“Attorneys can easily get se duced by the media and

spend far too much time focusing on the cour t of public

opinion instead of the cour t in which the case will be

tried,” says Laurie Le venson, a professor at Loyola Law

School who has writ ten on lawyers’ free speech rights

and dealing with med ia coverage of cases. “Attorneys can

risk violating ethic al rules regarding confi dentiality,

being unprepared for trial, a nd making improper,

extrajudicial pretr ial comments.”

HANDLING PRETRIAL PUBLICITY

A major challenge for celebrity attor neys is dealing

with the media and the ma elstrom of attention foisted

on one’s client, particularly when the client is fa cing

salacious allegat ions of misconduct. Mark Geragos,

a criminal defens e attorney based in Los

Angeles who has represented cl ients

including Michael Jackson, Winona Ryder

and Gary Condit , says it’s a factor attorneys

must constantly consider “in t his day and

age of internet trolls and mi sinformation.”

The legal rules sometimes l imit what

lawyers can say on beha lf of their clients.

Additionally, sometimes judges issue gag

orders to control the fl ow of information.

“I’ve always thought the legal profession

has had a far-to o-narrow conception of what

lawyers should be able to say to defend and

protect their clients in the public aren a,”

says Rusty Hardin , an attorney based in

Houston who has represented scores of

famous athletes, includi ng baseball star

Roger Clemens, and political fi gures.

Rule 3.6(a) of the ABA Model Rules

of Professional Conduct reads: “A

lawyer who is part icipating or has

participated in t he investigation or

litigation of a matter shall not ma ke

an extrajudicial s tatement that the

lawyer knows or reasona bly should know will be

disseminated by mea ns of public communication

and will have a substa ntial likelihood of materially

prejudicing an adjudicative procee ding in the matter.”

The U.S. Supreme Court approved this sta ndard

when it upheld the constitutionality of a simi lar

Nevada rule in Ge ntile v. State Bar of Nevada (19 91):

“We agree with the majorit y of the states that the

‘substantial likeli hood of material prejudice’ standard

constitutes a const itutionally permissible balance

between the First A mendment rights of attorneys in

pending cases and the st ate’s interest in fair trials.”

But when does speech constitute a subst antial

likelihood of materia lly prejudicing a pending case?

“What does that even mea n?” Hardin says. “ The rule

uses vague langu age. The ethical rules as to pretr ial

publicity are generally w ritten by people who have

never represented famous people. What get s under

my skin is the way the legal profession of ten looks down

on lawyers and public personalitie s who are only trying

to save their careers a nd feel compelled to speak publicly

in defense of allegations that t hey feel are unfounded.”

Hardin stresse s that attorneys should be allowed to

respond to t he allegations, spec ulation and

innuendo that ricochet across t he modern 24/7

news cycle, part icularly because livelihoods

often are at sta ke.

“I believe the First Amendment is a lot

stronger in many ways than t he ethical rules

have recognized,” Hardi n says. “I do believe

there are limits a s to what lawyers can say

in pending cases. But I thi nk, for example,

that gag orders benefi t only the government

or the person making the ac cusations. It is

unfair to tie the a ccused person’s hands

behind their back when the media is f ree

to talk about it all t hey want.”

MANAGING EGOS

Celebrities are used t o being in control

and are accust omed to a level of deference

and even impunity. These traits mean

their attor neys must continuously en sure

clients are remaini ng candid with them.

There is also the challenge of client

control and control of what outside

handlers do and say.

24 || ABA JOURNAL AUGUST 2018

PHOTOS BY JSTONE/SHUTTERSTOCK.COM, JOHN EVERETT

“LAWYERS NEED TO

REMEMBER THAT THE

CLIENT IS THE BOSS.”

— RUSTY HARDIN

Practice

Ethics

Adult fi lm actress Storm y Daniels with attorney M ichael Avenatti