Litigation Ethics T

Frank Dunham Public Defender Conference McGuireWoods LLP Litigation Ethics T. Spahn (4/21/16) Hypotheticals and Analyses FRANK DUNHAM PUBLIC DEFENDER CONFERENCE Charlottesville, VA April 21, 2016 Litigation Ethics Hypotheticals and Analyses* Thomas E. Spahn McGuireWoods LLP * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. For ease of use, these analyses and citations use the generic term "legal ethics opinion" rather than the formal categories of the ABA's and state authorities' opinions -- including advisory, formal and informal. ______________________ © 2016 McGuireWoods LLP. McGuireWoods LLP grants you the right to download and/or reproduce this work for personal, educational use within your organization only, provided that you give proper attribution and do not alter the work. You are not permitted to re-publish or re-distribute the work to third parties without permission. Please email Thomas E. Spahn ([email protected]) with any questions or requests. 77036339_2 Frank Dunham Public Defender Conference McGuireWoods LLP Litigation Ethics T. Spahn (4/21/16) Hypotheticals and Analyses TABLE OF CONTENTS Hypo No. Subject Page Communications 1 Lawyers' Communications About Cases: Basic Principles ................... 1 2 Lawyers' Communications About Cases: Defining the Limits .............. 10 3 Lawyers' Communications About Cases: Application to Prosecutors ................................................................................................. 19 4 Lawyers' Communications About Judges ................................................ 26 Witnesses 5 Paying Fact Witnesses ............................................................................... 58 6 Paying Fact Witnesses a Contingent Fee ................................................. 67 7 Government Prosecutors Offering a Benefit to Fact Witnesses ............ 69 8 Paying Testifying Experts .......................................................................... 72 9 Preparing Fact Witnesses for Testimony ................................................. 78 i. 77036339_2 Frank Dunham Public Defender Conference McGuireWoods LLP Litigation Ethics T. Spahn (4/21/16) Hypotheticals and Analyses Lawyers' Communications About Cases: Basic Principles Hypothetical 1 You work with a civil rights group that takes an active role litigating discrimination cases, including issues involving discrimination in police traffic stops and in criminal trial jury selection. The media normally follows the lawsuits that your group files, and you wonder to what extent you and your colleagues can publicly comment on the lawsuits. Should there be any limits on lawyers' public communications about matters they are handling (other than their duty of confidentiality to clients, duty to obey court orders, avoiding torts such as defamation, etc.)? YES Analysis Surprisingly, the ABA did not wrestle with the issue of lawyers' public communications until the 1960s. The l964 Warren Commission investigating President Kennedy's assassination recommended that the organized bar address this issue. The move gained another impetus in 1966, when the United States Supreme Court reversed a criminal conviction because of prejudicial pre-trial publicity. Sheppard v. Maxwell, 384 U.S. 333 (1966). ABA Model Rules The ABA finally adopted a rule in 1968. ABA Model Rule 3.6 (entitled "Trial Publicity") starts with a fairly broad prohibition. A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. 1 77036339_2 Frank Dunham Public Defender Conference McGuireWoods LLP Litigation Ethics T. Spahn (4/21/16) Hypotheticals and Analyses ABA Model Rule 3.6(a). The ABA adopted the "substantial likelihood of material prejudice" standard after the United States Supreme Court used that formulation in Gentile v. State Bar, 501 U.S. 1030, 1075 (1991). ABA Model Rule 3.6 cmt. [1] acknowledges in its very first sentence that "[i]t is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression." As Comment [1] explains, allowing unfettered public communications in connection with trials would bypass such important concepts as the "exclusionary rules of evidence." On the other hand, there are "vital social interests" served by the "free dissemination of information about events having legal consequences and about legal proceedings themselves." Thus, the limitations only apply if the communications will be disseminated to the public, and might prejudice the proceeding. ABA Model Rule 3.6 then lists what amount to "safe harbor" statements that lawyers may publicly disseminate. Notwithstanding paragraph (a), a 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 2 77036339_2 Frank Dunham Public Defender Conference McGuireWoods LLP Litigation Ethics T. Spahn (4/21/16) Hypotheticals and Analyses 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. ABA Model Rule 3.6(b). Comment [5] contains an entirely separate list of public statements that would generally be prohibited under the ABA Model Rules standard. There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to: (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness; (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement; (3) the performance or results of any examination or test or the refusal or failure of a person to submit to 3 77036339_2 Frank Dunham Public Defender Conference McGuireWoods LLP Litigation Ethics T. Spahn (4/21/16) Hypotheticals and Analyses an examination or test, or the identity or nature of physical evidence expected to be presented; (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; (5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or (6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty. ABA Model Rule 3.6 cmt. [5]. Thus, the ABA Model Rules' approach to this issue involves a unique mix of: a general prohibition; a specific list of generally acceptable statements; and a specific list of generally unacceptable statements. Restatement The Restatement articulates the same basic prohibition. (1) In representing a client in a matter before a tribunal, a lawyer may not make a statement outside the proceeding that a reasonable person would expect to be disseminated by means of public communication when the lawyer knows or reasonably should know that the statement will have a substantial likelihood of materially prejudicing a juror or influencing or intimidating a prospective witness in the proceeding. Restatement (Third) of Law Governing Lawyers § 109 (2000). The Restatement explains the competing public policy principles in much the same way as the ABA Model Rules. 4 77036339_2 Frank Dunham Public Defender Conference McGuireWoods LLP Litigation Ethics T. Spahn (4/21/16) Hypotheticals and Analyses Restrictions on the out-of-court speech of advocates seek to balance three interests. First, the public and the media have an interest in access to facts and opinions about litigation because litigation has important public dimensions. Second, litigants may have an interest in placing a legal dispute before the public or in countering adverse publicity about the matter, and their lawyers may feel a corresponding duty to further the client's

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