Updated on 10/31/12: The ABA Journal reports that the judge refused to issue a gag order to bar comments and blogging by George Zimmerman’s defense lawyer, finding no “overriding pattern of prejudicial commentary” and that an impartial jury could still be seated.
In an admittedly unusual move, the defense team for George Zimmerman, the man charged with murdering Trayvon Martin, has launched a new website, Facebook, and Twitter account to “disput[e] misinformation,” “discourag[e] speculation,” and provide “a voice for Mr. Zimmerman.” The website also seeks donations for Zimmerman’s defense fund. Is this new route for defense counsel a risky maneuver? How would California’s legal ethics rules weigh in?
In many cases, particularly high-profile ones, defense counsel often choose to make an extrajudicial statement to the media, issue a press release, or maintain contact with members of the press in an effort to educate the public, or to try to ensure balance in the coverage. These media contacts are regulated by Cal Rules of Prof Cond 5-120. See also ABA Model Rules of Prof Cond 3.6.
The question in this new age of social media is: What effect does Rule 5-120 have on counsel’s extrajudicial statements to the public through social media channels?
A lawyer investigating or litigating a matter is prohibited from making a public, extrajudicial statement if the lawyer knows or reasonably should know that the statement will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Cal Rules of Prof Cond 5-120(A). This rule applies equally to prosecutors and criminal defense counsel. Comment to Rule 5-120.
Several categories of information are exempt from Rule 5-120. A lawyer may disclose the following (Rule 5-120(B)):
- The claim, offense, or defense involved, and, except when prohibited by law, the identity of the persons involved;
- Information in a public record;
- The fact that an investigation of the matter is in progress;
- The scheduling or result of any step in the litigation;
- A request for assistance in obtaining evidence and information necessary to the litigation;
- A warning of danger concerning the behavior of a person involved, when there is reason to believe there is a likelihood of substantial harm to an individual or the public interest;
- The identity, residence, occupation, and family status of the accused;
- Information necessary to aid in apprehending the accused;
- The fact, time, and place of arrest; and
- The identity of the investigating and arresting officers or agencies and the length of the investigation.
Rule 5-120(C) contains a “safe harbor” provision allowing statements to be made to protect a client against (presumably adverse) publicity by someone else. The following factors may be taken into account in determining whether the rule has been violated:
- Whether the extrajudicial statement contains clearly inadmissible evidence and is made for the purpose of proving or disproving a material fact in issue;
- Whether the statement is false, deceptive, or in violation of Bus & P C §6068(d) (prohibiting lawyers from deviating from the truthor misleading a court or judicial officer);
- Whether the statement violates a lawful gag order or other protective rule; and
- The timing of the statement.
This safe harbor would seem to protect Zimmerman’s lawyers in their social media efforts to correct misinformation put out there by others. But has the website gone to far?
Rule 5-120, and particularly the safe harbor provision, is controversial and, until further litigation clarifies aspects of the rule, there may be legitimate questions about its true breadth. Before launching your own social media campaign for a client, do careful legal research under Rule 5-120 and maybe turn to The California State Bar’s ethics hotline with questions.
The ethical parameters on the use of social media may be murky for a while, as the law catches up with the technology, but to get a handle on the law and ethical requirements relating to pretrial publicity generally, turn to CEB’s California Criminal Law Procedure and Practice, chap 14.
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