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Federal appeals judges have told an attorney representing Sports Illustrated that attorney-client privilege in the libel case doesn’t release the lawyer from his commitment to help identify a confidential source. “Even if lawyers cannot be counted upon to inform the court on all occasions when a witness is perjuring herself,” wrote Judge Edward E. Carnes of the 11th U.S. Circuit Court of Appeals, “we think courts still have the right to hold lawyers to their word.” The lawyer stuck between his duty to keep his client’s secrets and his reluctant promise to a panel of the 11th Circuit is Gary C. Huckaby of Bradley Arant Rose & White in Huntsville, Ala. Huckaby is defending the magazine against a $20 million suit brought by former University of Alabama football coach Mike Price. In 2003 the magazine reported that the married Price invited two women he met at a strip club to his Pensacola, Fla., hotel room and had sex there. Price denied having sex with any woman in his hotel room that night, according to the 11th Circuit’s ruling on July 15. In pursuing the libel suit, he has sought the identity of an anonymous source for the article. An Alabama federal judge ordered Sports Illustrated to identify the confidential source, and the magazine appealed. At oral argument in May, Carnes; Judge William H. Pryor Jr.; and, sitting by designation, Senior U.S. District Judge J. Owen Forrester asked Huckaby what he would do in a deposition if he heard the confidential source deny being the source. “It would be fair to say that counsel was somewhat uncomfortable with this question,” Carnes wrote for the panel in July, “but he did assure us that he would do his duty as an officer of the court and inform the district court that the witness’ sworn denial was false.” The panel’s July decision vacated the order that SI disclose its source’s identity. But Carnes showed how Price could learn the source’s name by deposing four women known to have been interviewed by the SI reporter, Don Yaeger, and asking each whether she was the source. The magazine asked the court to rehear the matter and cited attorney-client privilege and professional ethical standards as reasons why the court should not force Huckaby to identify the source if she lied at her deposition. In the panel’s rejection of the magazine’s motion for a rehearing, Carnes on Friday dismissed what he called the magazine’s “perfect prerogative of an officer of the court to stand silently by as the search for truth is led astray by perjury — assuming, of course, that the perjury serves his client’s interests.” “That is an interesting position,” he added. “Whatever its merit in general circumstances, there may be problems with it in situations involving the search for a confidential source in a libel case, as this case illustrates.” Price v. Time Inc., No. 04-13027. Huckaby said in an interview Monday that disputes about facts ought to be resolved at trial, adding it was “inappropriate” to place a duty on a media lawyer to come forward at a pretrial deposition to correct false testimony given by somebody other than his client. He reiterated a point he made in the petition for rehearing — that neither Alabama nor the American Bar Association requires lawyers to correct lies made by third parties during depositions conducted by the opposition. “The media counsel must always avoid offering perjured testimony,” Huckaby said, but he added that he is not responsible for lies made by someone else — someone he is not representing. Huckaby added that he does not believe the court’s decision will have far-reaching effects for media lawyers elsewhere. “The case turns strictly on the facts of this case, and it does not stand for any precedent along these lines,” he said. That said, the case has interested some of the nation’s major news organizations, many of which lined up as amicus curiae on the magazine’s behalf. They include NBC, Newsweek, The New York Times, The Wall Street Journal and The Washington Post. Eric P. Robinson, a staff attorney for the New York-based Media Law Resource Center, a nonprofit group that researches and tracks First Amendment and press libel cases, said that in media law terms, the 11th Circuit’s decision is roughly equivalent to a criminal case where a judge asks the defense lawyer to reveal whether a defendant is guilty. Robinson said the 11th Circuit’s decision seeks to circumvent a reporter’s protection of confidential sources by placing pressure on an attorney. “We’re troubled by it,” Robinson said. “Even though this is based on state law, it’s part of a larger trend � of the weakening of the reporter’s privilege.” Robinson said that trend includes the case of New York Times reporter Judith Miller, jailed for refusing to disclose the identity of a source she interviewed, even though she did not publish what she learned.

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