Legal ethics

Obviously, there really is such a thing as bad publicity.

So, earlier this week I was fortunate enough to be able to participate in a seminar put together by Bloomberg Law that focused on the risks and benefits for lawyers in speaking to the press. I think it was a pretty good panel presentation, it was free of charge to attendees, and I believe you can still register for it and access it on demand at this link.

We limited our discussion – unsurprisingly – to situations where a lawyer is being contacted by a reporter either because the lawyer is directly involved in representing a client in a high-profile matter or because the reporter is looking for feedback and hopefully quotable material from the lawyer as an expert of some sort in an area relevant to the story.

So, the circumstances of the situations highlighted in today’s post most definitely do not come up. Today’s post focuses on two examples of highly unwanted publicity for attorneys. Neither one is entirely self-inflicted, though one of the two situations can at least be said to truly be entirely self-inflected if you believe at all in the intended lessons of The Streisand Effect.

The first example is yet another warning of the dangers of the digital age and how (1) often things are recorded by others; and (2) quickly recordings can be disseminated. This story is that of a defense lawyer in California bragging at an internal firm event about winning a medical malpractice case that, perhaps, involved facts that should have resulted in a different outcome. Because we all have access to the video of the speech, it is certain that the lawyer involved at least gave voice to the notion that he and other lawyers at his firm had won a case that they should have lost on the facts. The details of who exactly video recorded the remarks, why they were doing so, and why they decided to disseminate them publicly are not included in the first level of this story, so it is hard to make it anything much beyond a general cautionary tale for lawyers to think about how comfortable they can ever be about talking about a client’s matter if the way they are doing it is something they would rather not the client or others ever hear. To be clear, it looks like the error was coming from inside the firm as the video was briefly posted to the firm’s own Instagram account so it was likely an error by someone who thought it might be good marketing. The Los Angeles Times treatment of the story grabs quotes from the same lawyer at the trial of the case that, in a jurisdiction that has a Model Rule version of RPC 3.4(e), could well be a violation of the rules against going too far in stating personal opinions about “the justness of a cause” or “the culpability of a civil litigant.”

The second example is, in a way, so brutal that it makes me wonder if the way to get lawyers to better understand The Streisand Effect is to rebrand it for modern times as The Leavitt Effect (or maybe better yet “The Leavitt Alone Effect.”)

There were lots of things I wouldn’t have wondered about a week ago. One such thing is whether there was any possibility that the county attorney for Utah County in Utah might be a cannibal. Then I saw this story.

Now, I’m pretty certain that he isn’t. I’m less certain than I would have been a week or so ago if you had just asked me cold whether an attorney with that guy’s name in Utah was a cannibal. I mean it must be a pretty rare trait even among the worst people, but it wasn’t even a thought that crossed my mind as possible until the guy held a press conference to make sure everyone knew that decades-old allegations that he was a cannibal were untrue.

I’m paraphrasing someone much more influential than me, but if you’re holding a press conference to deny being a cannibal …. you’re losing the media war. Now, as is discussed during the press conference in question, apparently some random person in the lawyer’s local community was unearthing very old allegations of this nature at a time in which he is running for re-election and even the local sheriff’s office seemed to be willing to investigate, but surely if there were someone with more savvy in the area of public relations had been consulted, the lawyer would have not opted to hold the press conference.

There seems little doubt that the press conference was the cause of The ABA Journal taking notice as well as all the other news outlets within (and beyond) Utah mentioned in that piece.

I’ve written here repeatedly about the risks for lawyers in taking allegations made against them in one corner of the online world and seeking to refute them but repeat them and cause them to become much more widely publicized and discussed. This story of course involves a reminder that the same phenomenon can happen IRL as opposed to only online.