New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

NHBA`s 2-volume Practice and Procedure Handbook has evolved into a first-source reference for New Hampshire Practitioners of all levels of experience.

Trust your transactions to the only payment solution recommended by over 50 bar associations.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency

Member Login
username and password

Bar News - February 23, 2001


Attorney, Prepare Thyself to Meet the Press! But How?

By: Peter J. Gardner

As business crises become more frequent, attorneys will increasingly be called on to assist crisis management teams to determine how best to frame statements to the public. Our rules of professional responsibility, however, may be too limited to offer adequate guidance on what attorneys themselves may say to the public in a crisis management situation, and may offer even less guidance when legal action against a business client may be far in the future.

A business crisis is an event that has the potential to threaten a business's most valuable asset-its reputation-in the eyes of the company's stakeholders,1 which include shareholders, suppliers, customers, employees, regulators and of course the public.2 Because an organization's public response to a crisis may determine whether the company will survive,3 thus making effective crisis management essential in preserving shareholder value,4 a company may be as concerned with press coverage as with eventual legal action.5

So many crises, so little news

Crises seem to occur more frequently in this age of instant communication where the threshold of a news "event" seems to be dropping steadily lower6 as ever larger numbers of media outlets must fill time or space.7 (As an example, this past New Year's Eve morning on the East Coast, MSNBC emblazoned a "Breaking News" banner across the TV screen. The "breaking news" was the fireworks display in Sydney, which had just begun Australia's New Year's celebration.) In this context, business crises-environmental, technological, confrontational, crises of malevolence or of managerial failure8-may become even more threatening as the public grows ever quicker to join social action groups intent on scrutinizing and challenging business practices.9

Journalists may contribute to the jarring nature of crisis coverage by presenting a crisis "with the volume turned all the way up" and then quickly moving on to another issue.10 But if journalists at times seem skeptical or cynical, they may only reflect an American public disillusioned after the assassination of President Kennedy and in the aftermath of Vietnam and Watergate.11 My own view is that journalists try to do a fair and thorough job of researching and reporting facts, but the effects of increasing deadline pressure and competition from other news outlets cannot be discounted.

Trial by media

A crisis management team will require solid legal advice before issuing public statements12 and in assessing future threats that may not be immediately apparent,13 for example whether an explanation might be construed as an admission.14 In addition, a well-considered public statement may deter a class action suit or discourage additional suits.15 Business attorneys should, therefore, be prepared to represent clients both in the legal arena and in the press,16 and to speak directly to the press if need be.17 But how should we be guided on those occasions in what we say or do?

A fundamental precept18 of the justice system is the right to a fair and impartial judicial hearing,19 yet this goal can be defeated by attorneys' attempts to influence the process through press statements20 or trial by newspaper.21 To prevent the corrosive effects22 of such interference, legal proceedings should not be conducted through the media23 or through any outside influence24 that might "fatally infect"25 a judicial proceeding, and thereby result in a denial of due process26 or render ultimate legal adjudication a "hollow formality."27

Of pending cases and clear and present dangers

In Gentile vs. State Bar of Nevada,28 a fractured29 U.S. Supreme Court held that statements of lawyers representing clients in pending cases may be regulated under a less demanding "substantial likelihood" standard rather than a "clear and present danger" standard.30 The Gentile Court emphasized, however, that restrictions on attorney statements apply only to statements substantially likely to have a materially prejudicial effect on an adjudication.31 Seizing on this limitation, the Ninth Circuit held Gentile to mean that lawyers' statements that had no direct and immediate impact on a trial and that were unrelated to a matter pending before the court may be sanctioned only if they pose a clear and present danger to the administration of justice.32

When a case is "pending" is to be determined by the circumstances of a specific situation,33 including whether the issue has in some way been brought into court and whether it is still there.34 The decisive consideration may be whether a court is "immediately balancing" the scales of justice, or "is, or presently will be, pondering a decision" that a statement seeks to affect.35

When, though, does the effect of a statement become too remote in time36 or the impact of prejudicial comment too dissipated37 to affect fair adjudication? Adverse media coverage six or seven months prior to trial may foster strong prejudice among prospective jurors,38 though press coverage two months prior to trial may require a showing that adverse publicity has fatally infected a trial,39 and inflammatory news accounts six weeks prior to trial may work no deprivation of due process at all.40

Justice Holmes considered a clear and present danger to be one that so imminently threatens our justice system that an immediate check on expression is required "to save the country."41 Justice Brandeis wrote that the "evil apprehended" must be so imminent that there is no opportunity for full discussion.42 Under the clear and present danger analysis the "substantive evil" must be "extremely serious and the degree of imminence extremely high" before speech can be curtailed.43 The danger "must not be remote or even probable; it must immediately imperil."44

Looking for guidance

Both Model Rule 3.645 and New Hampshire Rule 3.646 provide little guidance on how lawyers should conduct themselves when there is little or no substantial likelihood of significantly influencing a judicial proceeding.47 This can be especially inconvenient where statements are to be made far in advance of a possible trial,48 and even more so when there is no legal proceeding in sight.49 To make matters more difficult still, in our era of instant news virtually any issue might generate media coverage and affect the opinion of a potential juror,50 making it a seemingly impossible standard to require jurors to be entirely free from such influence.51 It is crucial, therefore, that attorneys distinguish between straightforward factual comment and inflammatory, adverse comment,52 that we consider the tone and extent of what we do to precipitate news coverage,53and that we weigh how much our early public statements may affect an eventual jury pool against the benefit such statements may afford our clients.54

New Hampshire Rule 3.6(a) omits the Model Rule 3.6(a) provision that a lawyer who is participating or has participated in the investigation of a matter should not make extrajudicial statements that may have a substantial likelihood of materially prejudicing an adjudicative proceeding.55 This may, in its effect, make the New Hampshire rule more broadly applicable than the Model Rule. In jurisdictions that have, however, adopted the Model Rule 3.6(a) investigation component, Dr. Reed E. Loder, professor of law at Vermont Law School, suggests that it be broadly construed as attorneys look for guidance when making public statements early on.

A decent self-restraint

Should lawyers become increasingly involved in crisis management communications, as I believe we will, we should be guided by a resolve to preserve the reputation of the judicial system in the mind of the public56 and, as a general principle, should exercise "decent self-restraint"57 when making statements likely to interfere with a fair trial,58 no matter how far in the future a trial may be.

At a time of extremely rapid evolution in the nature, structure and tone of media coverage, the ethical framework that governs what business attorneys may say when their clients face a crisis seems to be a deeper, more complicated and more significant issue59 than our profession may have realized. Remembering that the profession of a lawyer is a privilege burdened with conditions,60 we must be conscientious, indeed, as we defend our standards of propriety and honor61 in the tension between representing our clients at times of crisis and fulfilling our ethical obligations.

Peter J. Gardner is an associate at the law firm of Stebbins, Bradley, Wood & Harvey in Hanover, New Hampshire, and is a member of the Overseas Press Club of America.

ENDNOTES

  1. Otto Lerbinger, Managing Corporate Crises: Strategies for Executives, 1 (1986).

  2. John J. Donlon & David B. Zoffer, Developing a Crisis Management Plan, ACCA Docket, Sep. 2000, at 24.

  3. Laurence Barton, Crisis in organizations: managing and communicating in the heat of chaos, 15 (1993).

  4. John J. Donlon, supra note 2, at 30.

  5. Jonathan M. Moses, Note, Legal Spin Control: Ethics and Advocacy in the Court of Public Opinion. 95 Colum. L. Rev. 1811, 1833 (1995) (footnotes omitted).

  6. Dieudonnée ten Berge, The First 24 Hours: A comprehensive guide to successful crisis communications, 10 (1990).

  7. Id.

  8. Lerbinger, supra note 1, at 6-7.

  9. Id., at i.

  10. James M. Fallows, Breaking the news: how the media undermine American democracy, 267 (1996).

  11. Peter Hannaford, Talking Back to the Media, 1 (1986).

  12. Steve Albrecht, Crisis management for corporate self-defense: how to protect your organization in a crisis . . . how to stop a crisis before it starts, 109 (1996).

  13. Crisis Response: Inside Stories on Managing Image Under Siege, 284 (Jack Gottschalk ed., 1993).

  14. Laurence Barton, supra note 3, at 173.

  15. Jonathan M. Moses, supra note 5, at 1840 (footnotes omitted).

  16. Marion K. Pinsdorff, Communicating When Your Company Is Under Siege: Surviving Public Crisis, 53 (1987).

  17. Lawyers and Reporters: Understanding and Working with the Media, xxiv A.B.A. (Robert L. Rotherman ed., 2000).

  18. State v. Vandebogart, 136 N.H. 107, 110 (1992) (citing N.H. Const. pt. I, art. 15; U.S. Const. amends. VI, XIV).

  19. Craig v. Harney, 331 U.S. 367, 394-395 (1947) (Jackson, J., dissenting).

  20. Lawyers and Reporters: Understanding and Working with the Media, supra note 17, at 113.

  21. Stroble v. California, 343 U.S. 181, 201 (1952) (Frankfurter, J., dissenting).

  22. Pennekamp v. Florida, 328 U.S. 331, 366 (1946) (Frankfurter, J., concurring).

  23. Bridges v. California, 314 U.S. 252, 271 (1941).

  24. Patterson v. Colorado, 205 U.S. 454, 462 (1907).

  25. Stroble, at 191 (citing Lisbena v. California, 314 U.S. 219, 236 (1941)).

  26. Irvin v. Dowd, 366 U.S. 717, 729-730 (1961) (Frankfurter, J., concurring).

  27. Rideau v. Louisiana, 373 U.S. 723, 726 (1963). See also Nix v. Whiteside, 475 U.S. 157, 168 (1986); Sheppard v. Maxwell, 384 U.S. 350 (1966) (quoting Cox v. Louisiana, 379 U.S. 559, 583 (1965) (Black, J., dissenting)).

State v. Laaman, 114 N.H. 794, at 800 (1974) (quotations omitted), held that pretrial publicity could result in two types of prejudice with regard to a fair trial: "The first is inherent prejudice which exists when the publicity by its nature has so tainted the trial atmosphere that it will necessarily result in lack of due process. . . . The second is actual prejudice which exists when the publicity has infected the jurors to such an extent that the defendant cannot or has not received a fair and impartial jury trial."

  1. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
  2. The Gentile decision was highly fragmented. Chief Justice Rehnquist delivered the opinion of the Court with respect to Parts I and II, and delivered a dissenting opinion with respect to Part III, in which Justices White, Scalia and Souter joined. Justice Kennedy delivered the opinion of the Court with respect to Parts III and VI, and an opinion with respect to Parts I, II, IV, and V, in which Justices Marshall, Blackmun and Stevens joined. In a concurrence, Justice O'Connor joined the Chief Justice's opinion in Parts I and II, and joined Justice Kennedy's opinion in Parts III and VI.
  3. Gentile, at 1075 (emphasis added).
  4. Id., at 1075-1076.
  5. Standing Committee v. Yagman, 55 F.3d 1430, 1443 (9th Cir. 1995). The Seventh Circuit, however, at least in part rejected Yagman in In re Palmisano, 70 F.3d 483 (1995).
  6. Bridges v. California, 314 U.S. 252, 303-304 (1941) (Byrnes, J., dissenting).
  7. Pennekamp, at 369 (Frankfurter, J., concurring).
  8. Id (emphasis added).
  9. Id., at 348.
  10. Stroble, at 201 (Frankfurter, J., dissenting).
  11. Irvin, at 725-726.
  12. Rideau, at 729 (Clark, J., dissenting).
  13. Stroble, at 195.
  14. Bridges, at 252 n. 5 (quoting Holmes, J., dissenting in Abrams v. U.S., 250 U.S. 616, 630).
  15. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
  16. Bridges, at 263.
  17. Craig v. Harney, at 376. See also Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 844-45 (1978).
  18. Model rules of Professional Conduct Rule 3.6(a).
  19. N.H. Rules of Professional Conduct Rule 3.6(a).
  20. Jonathan M. Moses, supra note 5, at 1825-26 (footnotes omitted).
  21. Id., at 1839 (footnotes omitted).
  22. Id., at 1841 (footnotes omitted).
  23. Laaman, supra note 27.
  24. Rideau, at 733 (1963) (Clark, J., dissenting).
  25. State v. Pamela Smart, 136 N.H. 639, 649 (1993) (citation omitted).
  26. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554 (1976).
  27. Kevin Cole & Fred C. Zacharias, People v. Simpson: Perspective on the Implications for the Criminal Justice System: The Agony of Victory and the Ethics of Lawyer Speech. 69 S. Cal. L. Rev. 1627, 1653 (1996).
  28. Model rules of Professional Conduct Rule 3.6(a).
  29. Jonathan M. Moses, supra note 5, at 1854 (footnotes omitted).
  30. Pennekamp, at 334.
  31. Lawyers and Reporters: Understanding and Working with the Media, supra note 17, at 114.
  32. Kevin Cole & Fred C. Zacharias, supra note 54, at 1678.
  33. Gentile, at 1066 (quoting Cardozo, J., in In re Rouss, 221 N.Y. 81, 84 (1917), quoted in Theard v. U.S., 354 U.S. 278, 281 (1957)).
  34. In re Sawyer, 360 U.S. 622, 646-647 (1959) (Stewart, J., concurring).

 

NHLAP: A confidential Independent Resource

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer