As a lawyer in Charleston, South Carolina, I’ve spoken to the press on many occasions and I’ve appeared on TV interviews. More often than not, I’m commenting on some case or legal issue, but not about my own clients.
Does Pretrial Publicity Threaten the Fairness of a Trial in South Carolina?
For any lawyer dealing with a client or case that is newsworthy, there’s a temptation to engage in self-promotion by talking to the news media. Many lawyers see a high-profile case as a “marketing opportunity.” After all, you can’t buy the front page of the newspaper. In fact, many lawyers have seen their careers propelled forward by becoming household names after getting in front of the camera or talking to the press. However, pretrial publicity can potentially harm a client’s case. Before speaking to the news media, lawyers need to carefully consider their ethics, the facts of the case, their client’s interests, and what to say, if anything, publicly.
Pretrial Publicity in South Carolina & Lawyers’ Ethics
Under the South Carolina Rules of Professional Conduct, a lawyer can’t reveal information about a client unless the client consents. So, before a lawyer appears on camera or talks to news reporters, the lawyer must talk to the client to get his or her permission. Even if the client consents, the attorney must follow Rule 3.6 which deals with publicity. Under that rule, a lawyer shouldn’t make a statement that may have “a substantial likelihood of materially prejudicing” a case. The lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
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.
Every lawyer should familiarize themselves with their state’s code of conduct regarding the ethics of dealing with the news media before they give an interview.
Know Your Facts (Not Just Your Client’s Version of the Facts)
If a lawyer gets the facts wrong in a courtroom, the result can be humiliating and potentially damaging to the client’s case. If a lawyer gets the facts wrong in a news interview, the results can be PUBLICLY humiliating and damaging. Unfortunately, clients don’t always tell their lawyers the precise facts. Some clients forget important details. Some clients “confabulate” facts, particularly in a traumatic situation. Some clients simply don’t tell the truth. Whatever the circumstances may be, a lawyer would be wise to follow the words of former President Ronald Regan – trust but verify.
In What Ways Might Pretrial Publicity Damage the Outcome of a Civil or Criminal Trial in South Carolina?
In some cases, speaking to the news can be a huge benefit to a client. For example, in one of my cases, my client was run off of a highway by an 18-wheeler that left the scene of the accident. I quickly contacted every local news agency and asked them to run a story on the accident and to ask viewers to call in with any information to identify the truck and its driver. Another example would be speaking out regarding some legal injustice and urging the public to contact their state representatives to change the law. Having said that, speaking publicly about a potential criminal investigation isn’t necessarily in the client’s best interest. For example, when a lawyer speaks to the news about a criminal defendant, they are helping to keep the news story alive. Most criminal clients would rather stay out of the news instead of making headlines. No matter what the circumstances may be, a lawyer must give careful consideration as to what, if anything, the client has to gain by having his or her lawyer speak publicly about the case.
Don’t Give an Off-the-Cuff Interview
As lawyers, it is important for us to try to maintain some sort of control, in or out of the courtroom, on how our client is presented to the public. Lawyers must realize that what gets printed in a newspaper or broadcast on TV is largely out of the lawyer’s control. Specifically, news reporters edit comments, splice and cut interviews into sound bites, and sometimes put their particular “spin” on the news. So, even if a lawyer has a well-crafted statement to make on a client’s behalf, there’s no guarantee as to what the public actually reads or hears. Additionally, nothing a lawyer says is “off the record.” Therefore, a lawyer should carefully prepare what the lawyer will say. If you’re a lawyer who is going public on a client’s behalf, think of your statements in terms of the “sound bites” they will eventually become. In other words, craft a few concise, one-sentence messages that are no longer than 20 to 30 seconds. Also, never make a statement publicly that you wouldn’t say in court. If you get caught off guard by a news reporter who catches you walking out of your office or on the courthouse steps, ask the reporter to contact you later for an interview so that you have time to prepare your statement. In the end, figuring out what to say (and what not to say) in advance and sticking to your key messages is one way to keep some control over whether the interview is a balanced account of the situation.
Involve the Client Before You Speak Publicly
It’s the client’s choice whether the lawyer speaks publicly. Before a client consents, the lawyer should explain to the client all of the pros and the cons of making, or not making, any public statement. Additionally, the client has the right to know what the lawyer will say on the client’s behalf. The decision to speak publicly should not be made lightly or quickly. Once the lawyer makes a public statement, it can’t be taken back. One wrong message can make a client (or the lawyer) look like a buffoon or, even worse, damage the client’s case.
As for Aylor speaking publicly AFTER he dumped Slager, we may never know whether Slager gave Aylor consent to speak to the Daily Beast about his withdrawal. In any event, the ethical rules regarding publicity and the professional considerations I laid out in this article apply equally to both current and former clients. Based on the backlash stemming from Aylor’s interview with the Daily Beast, perhaps it would have been wise to keep silent.
Remember that Pride Comes Before the Fall
Taking on a high-profile case doesn’t mean you’re ready to be a high-profile lawyer. Before you “go it alone,” always remember that overconfidence typically leads to errors of judgment. If you’ve never dealt with an onslaught of media attention, especially the NEGATIVE attention in a case, consider getting help. At the very least, talk to an attorney who has experience dealing with the news media to get guidance on how to handle the publicity. Better still, consider associating the experienced lawyer as co-counsel in your case. In other words, ensure that you’re protecting the client’s interests instead of focusing on the “marketing opportunities” that come with a high-profile case.