Legal Blog: #RHONJ “Teresa Checks In” Attorney Speech & Trial Publicity Hypocrisy Exposed

“If God forbid you had to go, do you see Teresa and the girls moving to Italy with you?” attorney James J. Leonard Jr. inquires of Joe Giudice during the trailer for The Real Housewives of New Jersey Teresa Checks In, which premieres Sunday, October 11 at 8:00pm on Bravo. That statement was likely meant to elicit a strong response from viewers against deportation. 

What’s a lawyer to say about the Giudice’s legal dramas, including an impending deportation proceeding and a legal malpractice lawsuit against bankruptcy attorney James Kridel? Pre-trial publicity has been blamed for prejudicing judicial proceedings throughout the history of the American judicial system. This blog examines the parameters of attorney speech and whether lawyers should (and can) permit cameras to film interactions with clients.

Lawyers in shiny glass offices shouldn’t throw stones. Carlos J. Ceuvas, the lawyer hired to litigate Teresa’s legal malpractice claim against her former bankruptcy attorney (James Kridel), chastised in the press and in court documents Mr. Kridel for appearing on TV.  “Defendant Kridel’s conduct in permitting his consultations to be aired on national television reflect that he was more interested in promoting himself than protecting plaintiff Giudice, his client,” the lawsuit charges.

Yet Mr. Leonard has engaged in similar conduct by emerging in the trailer for The Real Housewives of New Jersey Teresa Checks In while Mr. Ceuvas has spoken to the press on numerous occasions. Carlos Cuevas told the press that the complaint against bankruptcy attorney James Kridel, which alleges legal malpractice, breach of contract, and breach of fiduciary duty serves to “vindicate [Giudice’s] legal rights, her good name and reputation….The very lawyer retained to prepare accurate bankruptcy documents literally led his client into the cross-hairs of federal prosecutors, and a prison cell.”

Are lawyers media mad or is it the Giudices that want their lawyers to be aggressive in the press, especially when they are behind bars and cannot speak with impunity? For public figures like Joe and Teresa, the real concern from the legal actions may not be the legal result but the press coverage.

Legal spin has become massive with the advent and expansion of technology. The current explosion of media attention to reality TV legal news begs the question, what is the lawyer’s proper role as an advocate outside the courtroom?

The U.S. Constitution protects both the right of lawyers to speak in defense of their clients and the right of the public to learn about litigated matters. Yet, such rights have restrictions. For lawyers, the American Bar Association Model Rule 3.6 imposes limits on extrajudicial statements during civil and criminal investigations and litigation.

Model Rule 3.6 provides that a lawyer’s remarks are forbidden when they have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Legal spin specifically geared towards influencing a jury is forbidden. 

The Model Rules/Rules of Professional Conduct state that lawyers should generally avoid revealing information about a forthcoming or pending proceeding, including the character or credibility of a party, suspect or witness; the expected testimony of a party of a witness; the possibility of a plea in a criminal case; and an opinion regarding the guilt or innocence of a criminal defendant. An attorney under Rule 3.6(c)(2) will usually be permitted to discuss information contained in the public record.

N.J. Rule 3.6(b) provides that a lawyer may state the claim, offense, or defense involved; that an investigation of the matter is in progress; and the scheduling or result of any step in litigation.  However, there is no bright-line rule for determining when an extrajudicial statement is proper.  The question becomes whether the statement will materially prejudice an adjudicative proceeding.

The U.S. Supreme Court has upheld state ethical limitations on what lawyers can say publicly about a pending or anticipated proceeding. See, Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) in which SCOTUS held that states might sanction a defense lawyer for making extrajudicial remarks that include assertions at a press conference with regard to his client being innocent and being used as a scapegoat by a corrupt police force.

States have the ability to require adherence to ethical rules restricting speech in the role an attorney plays in pending litigation because attorneys, according to the purpose behind the rule, take on greater credibility, thereby increasing the threat to the fairness of an unresolved trial. Thus lawyers have more limitations to their speech than non-lawyers. 

Model Rule 3.6 explains that informed commentary from a nonparticipating lawyer presents only a small likelihood of prejudice and a great value for the public.  Model Rule 3.6 therefore does not prevent lawyers whose firms are not involved in a matter from speaking publicly on legal matters. A lawyer retained by the press to discuss a matter, but not otherwise involved in the matter, could make statements likely to prejudice the outcome of the matter without violating the current version of Model Rule 3.6. 

It would be a rarity for Dateline or 48 Hours to omit commentary from counsel.  Nevertheless, the dangers with regard to talking about an ongoing legal proceeding are obvious: Lawyers give away trial strategies. Although it is beneficial for lawyers to forge positive relationships with members of the press, taking media requests and agreeing to on-camera interviews to discuss a client’s case must be done with significant caution.

Accordingly, many lawyers maintain a strict policy of never discussing their cases outside the courtroom, let alone appear on a reality TV show in which their statements can be misconstrued and egregiously edited. Lawyers will typically respond to press requests by indicating, “Due to attorney-client privilege I am unable to discuss the facts of the case or anything related to the case out of court.”

In many states, it is improper for an attorney, either defense or prosecution, to solicit coverage for his or her cause by the news media with a view toward gaining some benefit or influencing public opinion.  However the rules allow a lawyer to comment on a case to rebut information given to the public by an adversary or third party.  The idea is for Model Rule 3.6 to prohibit prejudicial speech without chilling proper speech that an attorney might need to make in order to protect his/her client from erroneous reporting. 

It is important to note that Rule 3.6 does not impinge upon the constitutional right of clients to make extrajudicial statements concerning their case. Translation: Joe Giudice, Teresa Giudice, their family, and friends can all talk about the cases until they are blue in the face but Rule 3.6 restricts lawyers and the lawyer’s agents.

We must not forget an attorney is an officer of the court, and upon gaining admission to a state bar he/she agrees to abide by rules promulgated to maintain the ethical standards of the profession. When a violation of such integrity occurs, a lawyer may receive an official reprimand from the state bar for violating a rule prohibiting lawyers from making statements outside the courtroom that they know or should reasonably know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Keep in mind Model Rule 3.6 may be subject to disparate enforcement.

Is legal spinning a proper lawyers’ work? Attorneys have developed numerous tactics to bring about a favorable result for their clients, including using the press. Those tactics may be at odds with integrity, professionalism, and the ethics rules cited above. 

Grab your gavel, join the conversation, and tell us what you think about the statements made by the Giudices’ counsel.

 

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