'May it Please the Camera,... I Mean the Court' - An Intrajudicial Solution to an Extrajudicial Problem
68 Pages Posted: 5 Jan 2012
Date Written: September 1, 2004
This Article explores the depths of the ethical issues presented when lawyers zealously advocate on behalf of their clients to the media, as well as the negative public policy ramifications that such behavior generates. The latter effect most seriously signals the need for reform in this area.
Part II of the Article provides insight into the principal source of the problem-the ineffectiveness of the existing regulatory devices. This section traces the evolution of the ethical rules that pertain to public commentary by lawyers from the early days of steadfast condemnation to the modern approach of autious equivocation. It also considers court-imposed gag orders and highlights various inadequacies from which they suffer.
Part III then examines the consequences of the present regulatory scheme by demonstrating how prevalent and problematic extrajudicial advocacy has become. It also reveals the widespread disdain with which such conduct is viewed and the destructive impact extrajudicial advocacy has on the image of the profession and the public's perception of the justice system in general.
In Part IV, I suggest that a logical solution would be to equate the court of public opinion with courts of law for purposes of professional regulation. In other words, lawyers who advocate on behalf of their clients in the court of public opinion should be subject to court-like ethical and procedural constraints. A plausible and efficient means for accomplishing this would be through the enactment of a uniform procedural rule requiring any lawyer who makes a reported extrajudicial statement concerning a pending case to prepare and file a transcript or detailed written summary thereof with the court within a specified number of days of the statement's broadcast or publication. The attorney who makes or is responsible for the statement must sign the filing and thereby subjects himself or herself to all the ethical, procedural, or other rules, statutes, or inherent authority that pertain to any other official filing of record -- thus placing extrajudicial advocacy on equal regulatory footing with its intrajudicial counterpart. There may be other effective ways to create intrajudicial accountability for lawyers who choose to litigate in the court of public opinion. As this Article demonstrates, however, in the absence of such accountability, lawyers are likely to continue to test the ill-defined limits that presently exist, to the collective detriment of the profession and our entire system of justice.
Keywords: Ethics, Media, Legal Representation, Rule 3.6, Professional Responsibility
JEL Classification: K19, K3
Suggested Citation: Suggested Citation