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 particular litigation.
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 herculean challenge.
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 jurors.
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 matter.”
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.”
In 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.
In 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 deemed insufficient.
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 done.
Michael Hoenig 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 716.
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. Va. 2008).
13. 2008 U.S. Dist. LEXIS 12064 (D. Colo. Feb. 4, 2008).