In Part 1 of this article, I posed the question of whether attorneys who seem obsessed with getting headlines and trying their case in the court of public opinion are unethical. At first blush, the antics of a few lawyers in Washington DC, California and Florida seem to violate a number of ethical prohibitions against bringing the practice of law into disrepute. I can’t remember at any time in modern times so many lawyers being indicted, convicted, accused or simply misleading the public about their clients. Many times this is due to the fact that the lawyers were in such a hurry to talk to the media that they forgot to get their facts straight.
I offer four attorneys to prove my point: Michael Cohen, Lanny Davis, Keith Davidson and Michael Avenetti. According to press releases, these attorneys rush to the press room to divulge attorney-client secrets, tape recordings of their clients, confidential aspects of their cases and more, apparently more concerned with their public image than representing their client. I wonder if any of these attorneys were paying attention when they took Professional Responsibility in law school. You can Google them to find out what they have been up to, it seems there are daily revelations that are simply outrageous.
It used to be that public commentary about active litigation was frowned upon. Many states limit the information that can be discussed. Apparently, especially in Washington DC, these rules have been routinely ignored. On the other side of the coin, attorneys are becoming more and more the “experts” that the media goes to for commentary about events of the day. Alan Dershowitz, Jeanine Pirro, Andrew Napolitano, Peter Johnson, Jr., Dan Abrams, David Wohl are all news analysts for major networks ABC, CBS, NBC and FOX.
These attorneys “analyze” legal issues breaking in the news in real time, often speculating about possible outcomes or mistakes other attorneys are making. These “analysts” often criticize their fellow attorneys even though they know nothing about the issue at stake. Dershowitz is often asked for his opinion about things he knows nothing about. Currently he is stating that the Special Counsel Robert Mueller is going to subpoena President Trump, even though he admits that he has no information to support that conclusion.
It is possible that Washington DC is in a parallel universe where ethical considerations do not concern attorney’s rush for publicity. In most places in this country, if a lawyer went on public TV and criticized a judge, a fellow attorney or his client, there would be hell to pay. I am patiently anticipating sanctions against most of the headline seeking attorneys who toss attorney-client privilege and confidentiality out the window.
Is this a case of “a few bad apples” or a disturbing trend in the legal profession? Who knows, but I can’t ever remember a time when so many lawyers were on public news giving their opinions about everything under the sun. Are they simply giving their opinion or sacrificing ethical standards for fame and profit? It may be a byproduct of so many reporters desperately seeking something to report that attorneys are now the “go-to” sources of news.
I believe that bar associations around the country are going to be forced to re-examine their public comment rules. Either the djinn (genie) has escaped the bottle or bar associations are overwhelmed with the explosion of lawyers running amok in the public forum. Either way, clients are suffering.