By Michael Hoenig - New York Law Journal -
June 12, 2012
Last month's column, "Jurors'
Social Media and Internet Misbehavior,"1 reviewed
the growing problem of jurors, even in the face of court
admonitions, straying onto the Internet or using social media to
communicate about their cases. This phenomenon calls for
vigilance and aggressive steps by counsel and courts, to
prevent, cure and remediate misconduct. Although public
perception of jurors' Internet misconduct has grown, little
attention has been given to the potential threat to a fair trial
posed by various forms of attorney communications posted on
lawyers' websites, blogs and other Internet outlets. These may
be calculated to influence prospective or sitting jurors about a
An attorney (or her agent)
could rather easily "deposit" one-sided, misleading,
self-serving, extraneous or prejudicial, case-related
information onto sites that curious jurors could "find" using
simple Google searches. This article alerts readers to this
emergent, yet potent, danger.
Well before the explosive
impact of the Internet, one mechanism sometimes used to sway
potential or sitting jurors was advertising. Thus, in April
2002, in a class action suit in Trinidad, Colo., filed by
pharmacists claiming that Wal-Mart had violated the terms of
their employment contract, the court granted Wal-Mart a change
of venue to Denver based on a finding that the jury pool was
tainted with prejudicial pretrial advertising. (Culver v.
Wal-Mart Stores, No. 99 CV161 (Dist. Ct. Las Animas County,
Colo; filed Dec. 22, 1999))
The plaintiffs' law firm had
run two 30-second commercials in the local Trinidad market area
dramatizing a historical event that took place nearby many
decades earlier—the Ludlow Massacre. The ads ran 1,232 times
between Nov. 15 and Dec. 30, 2001. The trial was scheduled to
begin April 8, 2002. The commercials visually and verbally
described how mine workers and family members were killed in
1914 when workers went on strike for better pay and safer
working conditions. The ads used a selection of historical
black-and-white photographs showing workers being fired upon by
troops and their families' tents being set on fire.
The ad then transitioned into
modern times showing the plaintiffs' attorneys admonishing
Trinidad residents to "never forget" their civic responsibility
to defend workers struggling for fair pay. One ad closed with
the attorneys standing in front of the Ludlow Massacre memorial
statue. The other ended with the attorneys standing in front of
the local courthouse.2
In 2003, the defendant Bayer
was facing trial of a lawsuit involving Baycol, an
anti-cholesterol drug, in Corpus Christi, Texas. Bayer's public
relations executives sent letters to 2,100 people in the area
before a jury was chosen saying that people should "keep an open
mind" about the pharmaceutical company. The Texas judge asked
the county district attorney to investigate Bayer's sending the
letter. The company said the letter was a mistake and
apologized. Despite the judge's belief that sending the letter
was "outlandish," the judge proceeded with the trial. The jury
found in favor of Bayer.3 Haltom v. Bayer, No.
02-60165-00-0-4 (Nueces Co., Texas, Location 4, filed Jan. 21,
2002) (Judge James B. Klager)
In 1990, Northrop Corporation
initiated a television commercial campaign one week prior to
jury selection in a case in which the company and several of its
former employees faced charges of conspiracy to defraud the
federal government. The commercials ran on TV stations in Los
Angeles where the trial was to take place. The trial judge
granted the government's request for a restraining order
requiring Northrop to stop running the ads until after a verdict
was returned in the criminal case. United States v. Northrop,
No. CR 89-303 PAR, 1990 WL 71352 (C.D. Cal. Feb. 15, 1990)
In 2003, after Martha Stewart
was criminally indicted on conspiracy, obstruction of justice,
and securities fraud charges, she placed a full-page
advertisement in a nationally distributed newspaper, began a
website, and hired a public relations firm. Her website included
a letter from Stewart stating facts related to the charges as
she saw them and proclaiming her innocence.4
While advertising is a known
molder of consumer impressions using emotional appeals,
associations, images, likeability, lifestyle clues and links to
celebrities,5 such advertisements and their messages
are easily noticed by opposing parties who can go to court and
seek timely relief, such as a change of venue or postponement of
trial. However, the digital age, the Internet, the ubiquity of
computer ownership and hand-held devices, the speed with which
messages can be sent (and changed or withdrawn) and the
expansive range of target audiences has created a potential to
achieve the impression-molding effects of advertising but
without the expense, the expertise and the time lag. The sheer
speed and volume of messaging and other forms of communications
make policing such electronic traffic for lawyer misconduct a
Could case-involved lawyers
(or their agents) deposit messages about case facts or party
litigants or extraneous, non-admissible information on websites,
blogs or other Internet locations? Could they do so in a manner
that would allow a straying juror to find the information? Yes,
they can—especially if the opposing lawyers are oblivious to the
potential threat or too lazy or slothful or careless in doing
their due diligence when preparing for trial. Indeed, experience
shows that one of the popular items of juror Internet research
is to find out more about the courtroom attorneys. Prospective
or sitting jurors can peruse the attorney's website noting
biographical information, the firm's specialties, featured
clients, and the "war stories," crusades or victories many firms
describe. That information likely will be passed to other
Could a litigator
anticipating a trial, say, three months ahead, post information
on his site about the pendency of several of his "big" cases
including the one upcoming? And in describing the matter, could
the site make skillful, self-serving statements about the merits
of the case or his client's misfortune or the villainy of the
opposing party? Could the lawyer tout his expertise and past
success in obtaining large verdicts in similar cases against the
same defendant or against other defendants in the same industry
or in similar exposures? And what if some portions of the
message were untrue, incomplete, exaggerated or misleading?
Would such postings be permissible, as an exercise of First
Amendment rights? Well, if the information is not researched and
scrutinized by opposing counsel, if the statement's accuracy
goes unchecked or unchallenged or the matter is not brought to
the attention of the court in some appropriate application for
relief, then the issue will be largely academic. The message may
sit there by default waiting for the curious juror to find it
and share the nugget with others.
Lawyers do have First
Amendment rights to a wide range of speech but they are also
subject to reasonable restrictions as officers of the court and,
further, are bound by ethical rules.6 In the early
1980s the American Bar Association incorporated disciplinary
rules, standards and ethical considerations into the Model Rules
of Professional Conduct. Trial publicity was addressed in Rule
3.6. Currently, that rule prohibits an attorney from making "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
The rule goes on to describe
what a lawyer can say about the case. Additionally, Rule 8.4
prohibits "conduct involving dishonesty, fraud, deceit or
misrepresentation" and also states, "a lawyer or law firm shall
not: (a) violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do so, or do so
through the acts of another."
Gentile v. State Bar of Nevada,7 a lawyer
named Dominic Gentile held a press conference on the day of his
client's indictment, after weeks of negative publicity,
proclaiming his client's innocence and accusing the Las Vegas
Police Department of corruption and committing the crimes at
issue. This was months before a jury would be chosen. He limited
his comments to broad strokes of the defense.
Gentile's client was
acquitted, but the State Bar of Nevada disciplined Gentile for
his speech. The Supreme Court, in Justice Anthony Kennedy's
opinion, disposed of the case striking down Nevada's rule as
void for vagueness. But a five-justice majority in Chief Justice
William Rehnquist's opinion upheld the "substantial likelihood"
standard for restricting attorneys' extrajudicial speech that
materially prejudices an adjudicative proceeding.
Since then, judges seem to
limit and restrict extrajudicial speech in different ways: (1)
an outright ban on speech related to the trial, enjoining
participants from communicating with the public about the case;
(2) an expressly qualified, more narrowly tailored,
court-ordered restriction or "gag order" that applies, for
example, the "substantial likelihood" standard; (3) restrictions
that rely on local rules of the court and usually track the
language of ethics rules, or may proscribe certain types of
speech or bar speech on specified subjects (such as the
character of a witness); and other variants.8
Although courts proceed
cautiously in curtailing attorney speech, they will act to
prevent prejudicial pretrial publicity or outside influences
that could impair a fair trial. Likewise, because attorney
disciplinary rules prohibit extrajudicial statements that would
materially prejudice an adjudicative proceeding, courts can,
upon a proper showing, restrict attorney speech. In Niv v.
Hilton Hotels,9 in the Southern District of New
York, defendants moved for an order directing plaintiff's
Israeli counsel to remove a press release from the Internet, to
enjoin him from participating in the litigation and to enjoin
him from making public statements in violation of New York State
Disciplinary Rule 7-107.
The attorney had posted a
press release on an English language public relations website
run from Germany which made several assertions about the facts
of the case and the contents and tactics of defendants' motion
to dismiss. The lawyer declared to the court on May 31, 2007,
that he would remove the press release. His law firm reported on
June 13 that he was in the process of doing so. By July 18 he
still had not done so. The court gave him seven calendar days
from the date of its order to remove the release from the
website. Because the attorney agreed to become familiar with and
abide by the New York Code of Professional Responsibility, the
court said that an injunction against public statements would be
superfluous. However, should the attorney take a "cavalier
approach" to the rules, the court expected that defense counsel
will inform him about any violation.
In Nicholson v. Luce,10
two articles in the New York Post contained quotations
from deposition transcripts and quotations from the plaintiff's
attorney about the credibility of his clients and the probity of
a letter used at the depositions. The Supreme Court, New York
County, noted that the client, rather than the attorney, gave
the transcripts to the Post, but the court held that the
attorney's comments about the credibility of his clients and the
letter violated the disciplinary rule, justifying a monetary
sanction. In Seaman v. Wyckoff Heights Med. Center,11
plaintiff's counsel provided to the television show, A
Current Affair, the videotape of the deposition of
defendant's president and CEO. Saying that the intent and
purpose of pretrial discovery were maliciously violated, the
Supreme Court, Nassau County, awarded attorney fees and costs to
the other side as well as sanctions to be paid to the Lawyers'
Fund for Client Protection.
American Science & Engineering v. Autoclear,12
a patent infringement case, plaintiff claimed that defendant
issued a false and misleading press release regarding the
litigation which harmed its reputation, might have impacted its
stock price, and caused misleading information to be available
on popular financial Internet publications. Plaintiff sent a
clear retraction for defendant to print but, instead, defendant
offered to print its own clarification, a message plaintiff
The court, in the Eastern
District of Virginia, found defendant acted intentionally and in
bad faith. The court expressed concern about the extrajudicial
statements tainting or biasing the jury pool. Further, false and
misleading statements are not protected by the First Amendment.
Accordingly, the court ordered (1) removal by defendant within
24 hours of the press release from every website now displaying
it; (2) issuance of a corrected press release as drafted by
plaintiff; (3) and payment of attorney fees as a sanction.
Sometimes, however, the court
may deny restrictions on attorney speech, as occurred in
Pfahler v. Swimm,13 where the number of
newspaper articles and Internet postings were small, both sides
had some contact with the press about the case, and the
publicity was not so great that a fair trial was impaired.
Indeed, discovery had not been completed and no trial date was
set. The court said the jury would undergo "extensive voir dire"
in the area of pretrial publicity that will assure that a fair
and impartial jury will be selected. The court cautioned,
however, that the parties and counsel "act at their own peril."
Should the court determine that pretrial publicity warrants a
change of venue, the court "may very well consider imposing
appropriate sanctions at that time."
The danger to fair trials
posed by Internet-surfing jurors is exacerbated by lawyer
"advertising" of their prowess or success on websites, by
publishing case-specific information on firm sites or blogs or
other Internet outlets, by skillfully weaving inaccurate,
misleading or self-serving messages and "depositing" them where
straying jurors can "find" them. These can be purposeful
stratagems or innocent puffing. Despite First Amendment
protections, courts can restrict prejudicial speech by
attorneys. However, courts need to be informed first. Lawyers
should include this threat on their checklist of things to be
is a member of Herzfeld & Rubin.
1. Hoenig, New York Law
Journal, May 21, 2012, p. 3.
2. See R. Trager, S. Moriarty
& T. Duncan, "Selling Influence: Using Advertising to Prejudice
the Jury Pool," 83 Neb. L. Rev. 685, 687-690 (2005).
3. Id., 83 Neb. l. Rev. at
5. Id., at 692-703.
6. See Gentile v. State
Bar of Nevada, 501 U.S. 1030 (1991); Note, J.E. Pahl,
"Court-Ordered Restrictions on Trial—Participant Speech," 57
Duke L.J. 1113 (February 2008).
7. 501 U.S. 1030 (1991).
8. Note, J.E. Pahl, supra n.
6, 57 Duke L.J. at 1127-1130.
9. 2007 U.S. Dist. LEXIS
52749 (S.D.N.Y. July 18, 2007).
10. 2007 N.Y. Misc. LEXIS
5158 (Sup. Ct. N.Y. Co. June 21, 2007).
11. 2005 N.Y. Misc. LEXIS 956
(Sup. Ct. Nassau Co., March 29, 2005).
12. 606 F.Supp.2d. 617 (E.D.
13. 2008 U.S. Dist. LEXIS
12064 (D. Colo. Feb. 4, 2008).
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