Jottings By An Employer's Lawyer

Thursday, July 28, 2005

STOP THE PRESSES! Law Firm Prepares for Trial!


So here's the headline: Orange County in the Hot Seat Again Only Months After Jury Awarded Former County Employee a $1.7 Million Verdict. Not too unusual you say, until you read it and find it is a PRESS RELEASE by a lawsuit that begins "[Law Firm] today announced it is preparing for trial in a suit against the County of Orange for wrongful discrimination and termination of a county employee." What? Quick let's turn on the printing press, just next week we have lawyers who "are preparing to take a deposition," "preparing requests for production," even "preparing to give a client some advice."

And in fact, this law firm has earlier this summer announced that it "filed a second amended complaint" and last summer it "retains experts for testimony." WOW! Isn't there a line of decency somewhere?

Or maybe there is a more serious side to this release since the 2nd sentence is "Opening arguments are set to begin on August 22, 2005...". The "press release" then goes on to give plaintiff's side of the story (favorably of course) and highlights a recent verdict against the defendant, Orange County, highlighting a MDV awarded against it in April of this year. There may well be another purpose, but the only thing that I can see that this release does would be to taint the jury pool. Surely that, or influencing the settlement process, is not the intent of the law firm which issued the press release.

I will be interested in seeing what the legal ethics specialists in the blogosphere have to say about this one, and what the defense counsel and the Court do. Maybe nothing, in which case the legal system may be in worse shape than I thought.

Update:For technical reasons that are beyond me, comments do not show up on the front page of the blog, but if you go to the permalink page (by hitting the time post -- in this case Posted 8:45 AM), you will see a couple of comments so far. Both seem to think I over reacted.

The comments did, as thoughtful comments should, make me think about my view and my post. For one thing, the post is not written as clearly as it could have been. Trying to be both facetious (is it newsworthy that a lawfirm is "preparing" to do something?) -- and raise a serious point (the impact of this communication on a pending trial) was not done as well as it could have been. For example, the 2nd and 3rd press releases don't strike me as problematic, just somewhat silly, so the "line of decency" really referred to the pre-trial press release which goes to the more serious point, not those two releases.

I also checked the California Rules of Professional Conduct and the most applicable rule appears to be Rule 5-120 Trial Publicity. I don't know enough about the facts or the interpretation of the California Rules to know whether or not one would "know or reasonably should know that [this release] will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Or, even if it did, whether or not it would fit within one of the numerous exceptions that permit comment anyway.

Of course not everything that is within the rules is necessarily the "right" thing which is often in the eye of the beholder. This one doesn't seem right to me, but one of the good things about the blogosphere is the opportunity to get multiple views. So please check out the comments (and feel free to add your own.)


Comments:
I don't see an obvious ethics problem with this Press Release, Michael, unless the presentation of the facts is skewed beyond typical lawyer advocacy or pleadings.

I'm not expert in Taint Law, but it would be rather difficult to taint a jury pool with Press Releases like the one you've linked to. Who would see it? If it resulted in coverage in the main stream media, the reporter would probably present a more objective overall perspective.

I just Googled <"Barry Adams" +"County of Orange"> and did not get results for any of the firm's press releases on this case.

It seems to me that the firm might be hoping to find more clients using this tactic or to get its name in front of lawyers who might refer a case. If I were defendant's counsel I'd find a way to ask each potential juror whether he or she saw any of the press releases and formed an opinion on the case -- and maybe do it in a way suggesting the tactic is tacky or otherwise less then appropriate.
 
I don't see this as being that big of a deal. Law firms do this sort of thing all the time. Probably you see it more often when a case is filed but I don't see any ethics issue.
 
You should be more concerned about getting sued for defamation. Your comments are outrageous and ridiculous to say the least. Maybe you should practice more and blog less?
 
What about giving opinions on CA law when you are a TX lawyer only? Are there ethical implications associated with that? Just a thought....
 
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