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A N 8 D 8 8 BA E 1 R SINC Web address: http://www.nylj.com Volume 239—no. 34 thursday, february 21, 2008 Outside Counsel

By Katherine A. Helm and Gene W. Lee Strategy in Court of Public Opinion: The Clemens Case

don’t care what other people think” is an do you draw the line between spin-doctoring and “ oft-uttered phrase that conveys a hackneyed abusing the truth? Enter the skillful attorneys. sentiment. Many people say it, but few truly This kind of a case was made for trial in the Imean it. Popular opinion, by its very nature, daily press, where every opinion counts as much as informs the attitudes and beliefs of most people to another and everyone has a right to express his or some degree. Some people base their entire self- her viewpoint. No doubt that everyone will have worth on popular opinion of themselves. Others, like a viewpoint about how a high-profile figure should politicians and celebrities, may stake their professional behave. Americans want famed figures to be role careers on it. models of all personal and public virtues. Mr. Clemens Consider the present controversy surrounding has been unabashed in using his celebrity status to Roger Clemens. Here is one celebrity who has, over appeal to his fans to give him the benefit of the doubt. the past two months, faced severe public scrutiny Katherine A. Helm Gene W. Lee A role model of an athlete must be a role model as a over the listing of his name in the Mitchell Report human being, right? Realistic or not, Mr. Clemens may on performance-enhancing drugs in baseball. Mr. be able to shroud himself in controversy to suspend Clemens’ name appeared in the report thanks to his disbelief, or at least to kick up enough dust to cloak former personal trainer, Brian McNamee, who told his actions in ambiguity, in the minds of the public, federal investigators that he injected Mr. Clemens Mr. McNamee said he was injecting Mr. Clemens and his baseball colleagues and, perhaps most critically, with steroids and human growth hormone in 1998, before the time Mr. Pettitte admits to having received the Hall of Fame voters. 2000 and 2001. such injections from Mr. McNamee. Public opinion sustains itself. No facts are needed Mr. Clemens has publicly denied the allegations, when speculation alone can form the basis of the stating that Mr. McNamee injected him only with prevailing public view. So how should things get painkiller, lidocaine, and vitamin B12. Mr. Clemens’ Congressional Committee Hearings resolved, now that the whole nation is watching? lawyers, Rusty Hardin and Lenny Breuer, have set out At present, congressional committee hearings are Does Mr. Clemens need to speak through his lawyer to clear their client’s name by defending Mr. Clemens superseding action in the courts. Mr. Clemens and when addressing the public? No, although Barry Bonds in the press and before Congress, and by aggressively Mr. McNamee went mano a mano in a hearing of the should serve as a cautionary tale on what not to do. questioning Mr. McNamee’s credibility, drumming House Committee on Oversight and Government Mr. Bonds must now convince a jury that he did out a suit against Mr. McNamee for defamation. The Reform on Feb. 13, and the results weren’t pretty. not perjure himself when he told a grand jury he suit alleges that Mr. McNamee’s statements about Dissembling was the name of the game and thought the substance he received from his trainer Mr. Clemens were groundless and malicious and partisanship was palpable. It is entirely possible Mr. was flaxseed oil, although his case is distinguishable. that they served to injure Mr. Clemens’ character, Clemens or Mr. McNamee or both may end up facing Mr. Clemens hasn’t been called before a grand jury reputation, financial status, mental state, you name a Justice Department perjury investigation, as have (yet). Mr. Clemens hasn’t been sued by anyone it. Mr. McNamee’s lawyers, Richard Emery and Earl other athletes such as Barry Bonds, Marion Jones, and (yet). All of this begs the question: What is the Ward, had previously threatened a defamation suit Miguel Tejada. The only real clarity that emerged is role of Mr. Clemens’ lead lawyer, Rusty Hardin, against Mr. Clemens but none has been filed. that, for the foreseeable future, this case is going to be now and going forward, with a Justice Department Setting aside the intricacies of tort law on libel and tried in the hearts and minds of the American public, investigation looming? slander, the crux of any defamation suit is whether i.e., the court of public opinion. In that setting, what the defendant made false statements of fact. Truth rules and proofs apply? Attorney’s Role is almost always a defense. Proving truth may be difficult for Mr. McNamee, although his odds seem No Defined Burdens of Proof Rusty Hardin’s role is to persuade the public that Mr. to be improving. Within the past week or so, Mr. Clemens let Mr. McNamee inject him, but that Mr. McNamee unveiled drug paraphernalia and dated The contradictory accounts of erstwhile friends Mr. Clemens did not believe (or might not have known) photos that he claims provide corroborating evidence Clemens and Mr. McNamee lie at the heart of the he was being injected with illegal substances. Besides, for his eyewitness accounts of Mr. Clemens’ drug use. controversy. Mr. Clemens and Mr. McNamee each is as Mr. Clemens has argued in his public statements What is more, former teammate Andy Pettitte, who seeking to advance his version of the events. In the to date, how do you prove a negative? As every good was also named in the Mitchell Report, testified to court of public opinion, unlike in a court of law, there defense attorney knows, a plea of “not guilty” doesn’t congressional lawyers that Mr. Clemens admitted to are no clearly defined burdens of proof. The burden mean you didn’t do it; it just means your opponent will having taken human growth hormone during the time largely depends on whether the majority of Americans have to prove it. No one knows this better than Rusty believe or disbelieve one of the parties over the other. Hardin, a former state prosecutor-turned-celebrity Mr. McNamee wants the public to believe he told the lawyer the New York Times has called a “raconteur, truth, and Mr. Clemens wants the public to disbelieve, showman, charmer, tactician, egotist” and a “charmer Katherine A. Helm is a technical adviser and or at least question, Mr. McNamee’s character and of juries and journalists.”1 Gene W. Lee is a partner in the litigation department credibility. But the truth depends on who defines it. Mr. Hardin rushed out of the gates doing and at Ropes & Gray. Evidence aside, the name of the game is spin. How saying all the right things to the press: “I believe a New York Law Journal thursday, february 21, 2008 client who’s telling the truth should tell the world crucial in assessing possible prejudice. Obviously, engage in public debate” that could obstruct the the truth.” Mr. Hardin advanced the theory that Mr. statements that are made closer to trial will be more administration of justice.4 Armed with the ruling’s McNamee is not a truth teller, and Mr. Clemens is. Mr. likely to taint a potential jury pool. latitude, Mr. Hardin has zealously tried to demonstrate Hardin declined to represent Andy Pettitte because Both Model Rule 3.6 and DR 7-107 contain that Mr. Clemens does not deserve to be tried for the Mr. Pettitte said Mr. McNamee was telling the truth specific safe harbor exemptions for statements to the accusations of the Mitchell Report. about him. Mr. Hardin advocated that his role is press that are not prejudicial. An additional general to appeal to the public’s sense of fairness and dispel provision, more powerful and more vague than any of Analysis negative assumptions about Mr. Clemens. Mr. Hardin the specific exemptions, allows for corrective publicity. has maintained that he is representing Mr. Clemens That is, Rule 3.6(c) and DR 7-107(a) specifically A measured response to negative publicity is one because he believes him. It’s a simple story and easy to authorize a lawyer to protect a client by making that is limited to contain just enough information to follow, which means it will have many followers. statements to mitigate recent adverse publicity that mitigate the prejudice created by the statements of Mr. Hardin’s defense strategy has run into substantially prejudices the client. In practice, this others. Up to now, Roger Clemens’ case has been tried some trouble, and could well run into more, as exception can prove to be somewhat of a hornet’s primarily in the press. Mr. McNamee made statements Mr. McNamee’s lawyers, or Justice Department nest. Understanding just what sort of statements will to federal investigators that he knew or reasonably investigators, usher in circumstantial evidence. counteract the substantial prejudicial effect of recent should have known would be disseminated in the Never mind the significance or admissibility of the publicity, without causing further prejudice, can end Mitchell Report. evidence (bloody gauze?), for this isn’t about a trial up being anyone’s best guess. The Comment to Rule So what can Mr. Hardin do to mitigate prejudice to in court. It is about a trial in the press. Mr. Hardin 3.6(c) is equally wooly, indicating that extrajudicial Mr. Clemens? The prophylactic nature of the ethics has significant ground to cover because Mr. Clemens statements that might otherwise raise a question rules seems to be rather impotent here. In considering has already been pilloried by the media. Mr. Hardin’s under the rule “may be permissible when they are the intent underlying Mr. Hardin’s statements to the most recent blunder, involving the brow-beating of made in response to statements made publicly by press, it seems hard to imagine how anything at this federal investigator Jeff Novitzky, certainly didn’t help another party, another party’s lawyer, or third persons, point would fall outside the rules’ protective umbrella matters and instead placed Mr. Hardin under fire by where a reasonable lawyer would believe a public of corrective publicity. As Mr. Hardin might say, how the very congressional committee investigating his response is required in order to avoid prejudice to the can you taint the justice system with the truth? client. To get results, therefore, Mr. Hardin may feel lawyer’s client.”2 Dealing with the media in a high profile case is he has to roll up his sleeves and get his hands dirty. hardly a matter for novice counsel. Attorneys must be How dirty? What are the ethics involved? Namely, adept at balancing the duty of zeal to the client with can a lawyer use all means at his disposal to influence xxxxxxxxxxxxxx the duty to serve as an officer of the court. A lawyer public opinion? Dealing with the media in must exercise sound judgment and discretion before Mr. Hardin was quoted in the New York Times a high profile case is hardly making a public statement, which involves weighing as saying there are “no rules” in the court of public the desire or need for the public’s right to know opinion. Such chest thumping is inaccurate. There a matter for novice counsel. against the need for fair hearings and a likelihood of are manifold ethical boundaries associated with trying Attorneys must be adept at potential prejudice. Rusty Hardin is an experienced a case in the press. Indeed, the rules of professional trial attorney who has been the target of criticism for responsibility serve as the main check on counsel balancing the duty of zeal to the playing hard and fast with these ethical rules during his to act responsibly when making public comments client with the duty to serve as previous representation of high profile clients Enron about pending cases. Members of the legal profession Corp. and Anna Nicole Smith. With a linguistic have conscribed freedom to speak publicly about an officer of the court. sleight of hand, Mr. Hardin has dismissed allegations their clients’ cases. A lawyer’s right to free speech xxxxxxxxxxxxxx that he has misused the media in the past. under the First Amendment can only be limited in certain situations, one such situation being when a Conclusion lawyer’s statements are likely to be prejudicial and threaten the fair administration of justice. Whether any statement will have a substantial In the Clemens case, Mr. Hardin has certainly made likelihood of materially prejudicing a legal proceeding many well-publicized statements to the press, both ‘Gentile v. State Bar Nevada’ will naturally depend upon the facts of each case. before and after the initiation of legal proceedings Such considerations will also depend upon the skill against Mr. McNamee and congressional proceedings Gentile v. State Bar of Nevada, 501 U.S. 1030 and craftiness of the lawyers involved. The ethical involving his client. Have these statements (1991) is the leading Supreme Court case that set boundaries are wide in the practice of law and a good been appropriate? the standard on the extent to which attorney speech lawyer, like a good pitcher, knows how to paint the What is appropriate is that Mr. Clemens, whose to the media can be restricted, by state laws or ethical corners. Indeed, the legal stratagems in the Clemens reputation has always been that of a pitcher unafraid standards of professional responsibility. In Gentile, the case have become increasingly expansive. What are to throw close to batters, is being represented by a Court held that such rules are constitutional only if the chances that Mr. Hardin could be brought up on lawyer who throws high and inside. they limit speech that a lawyer knows, or reasonably disciplinary charges for commenting to the media? should know, will have a substantial likelihood of Unlikely, although Mr. Hardin’s recent gaffe with Mr. ••••••••••••••••••••••••••••• material prejudice to an adjudicative proceeding. Novitzky led House Oversight Committee Chairman 1. Duff Wilson, “Entertainer and Fighter is Clemens’ Lead The ABA’s Model Rules and Code of Professional Henry A. Waxman, D-Calif., to interpret Mr. Hardin’s Lawyer,” The New York Times, Dec. 28, 2007. Responsibility embody the Gentile holding that the 2. Comment [7]. intemperate press statements as potentially crossing 3. Gentile, 501 U.S. at 1043 (U.S. 1991). interest in fair trials outweighs the First Amendment the line into the criminal act of intimidating a federal 4. Id. at 1074. rights of the attorney, the client, and the media. The agent. Another overshot by Mr. Hardin could make limitations on trial publicity appear in Model Rule an ethical slap down the least of his worries. 3.6 and Disciplinary Rule 7-107, respectively, which Nevertheless, as Justice Anthony Kennedy reminds provide that a lawyer shall not make an extrajudicial us, “[a]n attorney’s duties do not begin inside the statement that a reasonable person would expect to courtroom door.”3 Justice Kennedy even carved out a be disseminated by means of public communication special role for defense attorneys in Gentile, albeit on if the lawyer knows or reasonably should know that dissent, to “pursue lawful strategies to obtain dismissal it will have a substantial likelihood of materially of an indictment or reduction of charges, including prejudicing an adjudicative proceeding. An explicit an attempt to demonstrate in the court of public limitation of Rule 3.6 is that it only applies to lawyers opinion that the client does not deserved to be tried.” Reprinted with permission from the February 21, 2008 edition who are participating or have participated in the of the New York Law Journal © 2008 ALM Properties, Inc. Chief Justice William Rehnquist’s majority opinion All rights reserved. Further duplication without permission is investigation or litigation at hand. An implicit tempered this reasoning only somewhat, reminding prohibited. For information, contact 212-545-6111 or reprints@ limitation is that the timing of the statement is attorneys of their “fiduciary responsibility not to alm.com. # 070-03-08-0004