Lights, Cameras,..., Action?

The phone rings. It's the executive producer of a top evening news magazine show airing on one of the major networks.

The producers are interested in putting together a 15-minute piece on one of your high-profile clients, the widow of a man killed in a mass commercial airline crash. The video would include interviews of your client, as well as talking to you, the lawyer, for comments on the accident and the pending case.

The trial is probably years away, but already much has been said publicly about the accident and the filing of cases by surviving family members. You are forced to ponder now the impact such a television spot would have on your case; the judge; potential jurors; but, most importantly, your client.

Lawyers often take their case to the court of public opinion, particularly when the issues have a social impact, as so many civil cases do. But talking to the media presents a potential conflict between the First Amendment right of free speech and the right to a fair trial guaranteed by the due process clause of the 14th Amendment, should potential jurors be exposed to irrelevant or inappropriate information that an opposing lawyer is unable to counter in the proper forum.

Both the Illinois Rules of Professional Conduct and the American Bar Association counterpart allow an attorney to announce the scheduling or result of any step in the litigation, the general nature of the claim or defense, and any information contained in a public record.

Rule 3.6 of the Illinois Rules of Professional Conduct, which governs trial publicity, provides that the lawyer may state that "an investigation of the matter is in progress, including the general scope of the investigation, the offense, claim or defense involved, and, except when prohibited by law, the identity of the persons involved." As specific as these guidelines may appear, in practice, they can be very slippery.

Illinois courts have adopted a less restrictive rule than some states. A handful of states restrict attorney speech when it may result in a reasonable likelihood of prejudice to the trial, language taken from the 1969 ABA Model Code of Professional Responsibility. The 7th U.S. Circuit Court of Appeals questioned this standard as too broad a sweep under the First Amendment. Chicago City Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert. Denied, 427 U.S. 912 (1976).

To withstand constitutional scrutiny, Illinois follows the standard that parties and their attorneys can be restrained from making extrajudicial comments about pending civil trial "only if the record contains sufficient specific findings by the trial court establishing that the parties' and their attorneys' conduct poses a clear and present danger or a serious and imminent threat to the fairness and integrity of the trial." Kemner v. Monsanto Co., 112 Ill.2d 223, 492 N.E.2d 1327 (1986).

A defendant's right to a fair trial before an impartial jury has always been the focal point for regulating attorney speech. But which is better? Operating in an information vacuum in order to preserve all comment until after the trial? Or in a public arena in which all relevant information is brought forth on all sides of the issues? Jurors need not be uninformed to be impartial. And restricting an attorney's speech does not necessarily insure a fair trial. The public's right to know must be factored in as well.

Although some lawyers make rash misstatements about their pending cases or attempt to alter the course of the proceedings through the press, the rules are not so chilling as to prevent an attorney from educating the public about the progress of the case or the social issues underlying a lawsuit that may impact a larger audience.

Judges can control this process through gag orders, although they generally represent a prior restraint on free speech that has been viewed as a serious infringement of First Amendment rights, as was found in a gag order placed on lawyers and police in the World Trade Center bombing case. A change of venue has been found effective to stem pretrial publicity, as is being done in the Oklahoma bombing case.

In the wake of the double murder trial of O.J. Simpson, the Menendez brothers, the William Kennedy Smith rape trial, even the publicized investigation of Richard Jewell in the Olympic bombing last year, the nation has become highly sensitized to the role of the lawyer as the client's zealous advocate and his ability to educate the public through the press. And now, more and more civil cases are becoming high profile - child custody battles and cases against corporations or governmental bodies involving issues of great national concern, such as civil rights violations or hazardous products.

Turning to the hypothetical above, one must ask what would be gained from such a pervasive story? Is the public interest at the core of the store or mere voyeurism? You can never be sure. The question realistically becomes how much control of a story does an attorney have after giving a reporter an interview? The answer: none.

As tempting as it may seem to use every avenue to advocate your client's case, it is not guaranteed that any publicity will be to your client's advantage, or will, at the very least, be fair for all parties involved.

The media today are big business. And big business means selling a product, which often means emphasizing the most sensational aspect of a case, not necessarily the facts most important to you, your client and the public.

As Andy Warhol said, everyone will be world-famous for 15 minutes. But in the case of this 15-minute promise of fame, your client may be well-advised to wait for her moment in the sun.