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special to the national law journal Joel Cohen is a partner at New York’s Stroock & Stroock & Lavan. Bennett L. Gershman is a professor at Pace University School of Law. The attorney’s role goes well beyond the courtroom. It includes, for better or worse, defending his or her client’s reputation and seeking vindication in the court of public opinion. To achieve this end, should an attorney’s confidential communications to a public relations consultant-let’s be straight, a “spin doctor”-retained by the lawyer be protected under the attorney-client and work-product privileges from compelled disclosure to an adverse party or investigating grand jury? Unlike an accountant, a polygrapher or a forensic expert, a spin doctor does not assist the lawyer in understanding the case itself-the traditional basis for protecting information received by an attorney from sources. However, a spin doctor may assist the lawyer in dealing with the media, and in influencing the message absorbed by the parties who will make decisions affecting the client’s interests, most notably prosecutors and regulators. In an important and controversial decision by Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York, concerning an anonymous target of a grand jury investigation, the privilege was held to apply to communications between and among a prospective defendant in a criminal case (the target appears from the context to be Martha Stewart), her lawyers and a public relations firm hired by the lawyers to aid in avoiding an indictment. Kaplan held that shielding from public disclosure private communications between a lawyer and a public relations firm furthered the administration of justice-the policy supporting the attorney-client privilege-by potentially influencing the prosecutor’s assessment of whether to bring criminal charges and what charges to bring. Probably the most important precedent supporting Kaplan was the U.S. Supreme Court’s decision in 1991 in Gentile v. Nevada State Bar, reversing the Nevada disciplinary conviction of a media-savvy attorney, Dominic Gentile. Gentile recognized the lawyer’s duties to influence the “court of public opinion that the client does not deserve to be tried.” Attorneys’ efforts to manipulate the media have not always received judicial approval. In affirming in 1995 a criminal contempt conviction of Bruce Cutler, John Gotti’s attorney, for his extrajudicial statements to the media, the 2d U.S. Circuit Court of Appeals in U.S. v. Cutler emphasized that measures must be taken by a trial judge to ensure that a jury pool will not be poisoned by an attorney’s media efforts on his client’s behalf. Whether an attorney’s spin control is a legitimate attempt under Gentile to influence public opinion, or an illegitimate attempt under Cutler to contaminate prospective jurors, may be a difficult line to draw. The line may be even more obscure when the attorney’s alleged purpose is to influence prosecutors (as they consider charges) rather than potential jurors. The former, Kaplan found, is a proper purpose. Prosecutors most assuredly consider public opinion polls in making charging decisions. So doesn’t it behoove a lawyer to try to influence those polls by shaping what the public knows and thinks? Indeed, spinning the media with sound bites may be more important than spinning the prosecutor with a legal memorandum about potential charges. Opinion polls regarding a popular client-such as O.J. Simpson once was-may lead a prosecutor to forgo seeking the death penalty, as occurred in Simpson’s case. Public opinion may also lead a prosecutor to drop or reconsider criminal charges. Consider the case of New York subway vigilante Bernard Goetz, who shot up a group of young black men he claimed were about to mug him. Initially, a grand jury declined to indict Goetz (possibly because the media had glamorized his actions). Then Goetz made incendiary public statements, boasting about his actions. Public opinion turned against him and the New York County district attorney took the unusual step of re-presenting the case to a new grand jury, essentially with no new evidence in his arsenal, resulting in an indictment of Goetz for attempted murder. Bad public relations can be as influential on a prosecutor as good public relations. Goetz should have listened to his lawyers and simply shut up. If lawyers properly retain experts to help them deal with this important aspect of the legal process, then protecting their confidential communications from disclosure, as Kaplan concluded, seems an obvious consequence. The policies that inform the attorney-client privilege justify extending it to communications with the media. A lawyer must be able to perform, as Kaplan wrote, “fundamental client functions” such as advising his client of the legal risks of speaking publicly and of the likely impact of alternative expressions. This goes hand in hand with avoiding or narrowing the charges against the client and zealously seeking acquittal or vindication. To do this, lawyers need to engage in forthright discussions of nonpublic facts and strategies with public relations consultants, without fear that the shared defense strategies, tactics and facts could be exposed through a grand jury or trial subpoena.

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