In the age of at-your-fingertips social media, some defense attorneys are struggling with a new challenge: controlling their own clients.
Just ask Martin Shkreli’s lawyer.
Practitioners said they had rarely encountered a client as unruly as Shkreli, the pharmaceutical executive now on trial for securities fraud. They had little to offer in the way of advice for lawyers in similar circumstances—other than to spell out the consequences, and if necessary, walk away.
Shkreli has been outspoken since his arrest in late 2015, even though his attorney, Benjamin Brafman, told reporters shortly after he was retained that he wanted “to try this case in the courtroom and not in the media.”
In his trial in Brooklyn federal court, Shkreli had an impromptu gaggle last week with news reporters, commenting on evidence the jury had just heard.
Meanwhile, Shkreli had apparently been tweeting from a new Twitter handle, after his original handle was banned.
“I would very much appreciate it if he did not talk to the press because sometimes he doesn’t have a filter,” Brafman told a CNBC reporter afterward, a comment cited by prosecutors in court records.
After prosecutors sought a broad gag order for Shkreli, Eastern District Judge Kiyo Matsumoto on Wednesday told Shkreli to stop making statements about the case in the courthouse or around the vicinity of the courthouse, stopping short of prohibiting statements elsewhere or on social media.
It’s not uncommon that clients have to be reminded not to discuss the case, said Justin Sher, a partner with white-collar defense boutique Sher Tremonte. “I think every criminal attorney faces it,” said Sher, but added that usually clients are tempted to talk with others who are potentially involved in the case, friends or family, not the press.
What’s more rare, defense attorneys said, was for clients to continue ignoring their lawyers’ advice.
Elkan Abramowitz, a partner at Morvillo Abramowitz Grand Iason & Anello, speaking generally about his experience in cases, said he never had such an experience.
“I would go crazy because I think it’s counterproductive” he said. “I might even quit over it.”
In such circumstance, Abramowitz said, “You can ask to be relieved and say you have irreconcilable differences and sometimes the judge will let that happen.” But such a request in the middle of the trial would get denied or result in a mistrial ruling, he said.
New York University legal ethics professor Stephen Gillers, who spoke about general guidelines with difficult clients, said if a lawyer can’t quit the case, “then the second thing to do is sit the client down and explain in very dramatic terms what the client is doing to interfere in your work.”
He added, “Just paint a very dramatic picture.”
Ballard Spahr white-collar defense partner Charles Stillman said attorneys can ask clients, “Do you want to do everything you can to be convicted, to do everything you can to aggravate the judge,” and upon conviction, “get the maximum sentence?”
“Lay it out in stark terms,” said Stillman.
With particularly unruly clients, Gillers recommended that lawyers write a private memorandum outlining the advice that he or she gave to the client, in case of later accusations of ineffective assistance of counsel or legal malpractice.
“What you’re worried about is a client coming back and saying, my lawyer never told me not to do this,” said Gillers.
In the Public Eye
For those clients who can’t avoid the press, such as politicians, there are other strategies.
Attorneys and clients can memorize a set of canned responses, said Stillman, recalling the actions he took when he represented New York City Mayor David Dinkins during an investigation.
“We tried to control the situation. At the same time, given the visibility of your client, you can’t cut off access,” Stillman said.
Still, some attorneys see the wisdom of clients speaking out publicly in their own defense.
Sam Adam Jr., a Chicago defense attorney who represented former Illinois Gov. Rod Blagojevich in his first public corruption trial, said his client’s poll ratings had improved over the course of months between arrest and the trial opening, while his client was making public statements. He believes those statements led jurors to have a more open mind at trial.
Blagojevich had a mistrial ruling initially on most counts and was ultimately convicted in his second trial.
“I’m a fan of speaking out publicly in the right circumstance,” he said. “In many high-profile cases, in people who are experienced in speaking, you want them out here saying ‘I didn’t do, X, Y and Z.’ To stay silent is a way of condemning yourself.”
Finally, there’s President Donald Trump.
Maybe not coincidentally, the world’s most prominent politician is famously unreserved on Twitter, confounding his lawyers by commenting on everything from legal challenges to his immigrations orders to the ongoing investigations into his campaign’s contacts with Russia.
His lawyers, at least for now, seem resigned to Trump’s ways. As Robert Luskin of Paul Hastings told The New York Times Magazine in a story about the president’s legal team on Wednesday: “There are folks who come to you because you have a certain expertise and folks who come to you because they have already figured out what they want and need, and they want to use you as a dinner fork.”
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