OBA Ethics Counsel
Ethics Opinion No. 235
Adopted February 16, 1966
This Committee has been asked whether or not a lawyer can participate in publicity with respect to "pending or anticipated litigation" without violating Canon 20 of professional ethics of the Oklahoma Bar Association.
Canon 20 reads:
"Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the court; but even in extreme cases it is better to avoid any ex parte statement."
Interference with a fair trial and prejudice to the due administration of justice are the unwelcome aspects of publicity to avoid which this canon patently is directed.
Its language forbids lawyer participation in publicity with respect to "pending or anticipated litigation" except, "in extreme cases," where circumstances justify a statement to the public in which event the statement, if made, "should not go beyond quotation from the records and papers on file in the court."
Its language is plain and unambiguous.
With the advent of electronic media, news coverage, particularly in criminal matters, has become highly repetitive, extremely intense and very extensive. Improprieties against which Canon 20 was intended to protect have become more tempting, the potential for prejudice more likely.
The Supreme Court of New Jersey, recently took cognizance of the fact that:
"Unfair and prejudicial newspaper stories and comment both before and during trial of criminal cases are becoming more and more prevalent throughout the country." (State v. Van Duyne, 43 N.J. 369, 204 A.2d 841, 851, decided November 16, 1964.)
These aggravated conditions of the "contemporary scene" the court recognized, have given rise, time and time again, to the contention that a fair trial is denied an accused by reason of potentially prejudicial publicity. And so, despite the fact that in the case before it, the court did not deem the record to call for reversal of the conviction below, it took the occasion to say:
"We interpret these canons, particularly Canon 20, to ban statements to news media by prosecutors, assistant prosecutors and their lawyer staff members, as to alleged confessions or inculpatory admissions by the accused, or to the effect that the case is 'open and shut' against the defendant, and the like, or with reference to the defendant's prior criminal record, either of convictions or arrests. Such statements have the capacity to interfere with a fair trial and cannot be countenanced. ...
"The ban on statements by the prosecutor and his aides applies as well to defense counsel. The right of the State to a fair trial cannot be impeded or diluted by out-of-court assertions by him to news media on the subject of his client's innocence. The courtroom is the place to settle the issue and comments before or during the trial which have the capacity to influence potential or actual jurors to the possible prejudice of the State are impermissible." (43 N.J. 369, 204 A.2d 841, 852.)
The court also had noted Canon 5 dealing with the duty of a prosecutor to promote justice.
We find the views expressed in Van Duyne sound and compelling. We are of the opinion that no warrant for any less stringent interpretation exists because no such clear pronouncements as were made in Van Duyne, had been made theretofore. Nor does the fact that in Van Duyne the court did not there reverse, render its pronouncements less persuasive or its conclusions incorrect.
Opinion 199 by the American Bar Association Committee on Professional Ethics and Grievances reads as follows:
"This Canon does not prohibit the issuance of statements by public officials. Attorney General's statements relating to prospective or pending criminal or civil proceedings should avoid any statement of fact likely to create an adverse public attitude respecting the alleged actions of the defendants to such proceedings."
Nothing in Opinion 199 militates against the interpretation here made.
Canon 20, though it refers specifically to "newspaper publications," clearly would also include, by implication, radio and television broadcasts. See Drinker, Legal Ethics, p. 70.
The view has been expressed by some that Canon 20 should be made clearer by specifically enumerating the things concerned with publicity which a lawyer should not do. This view derives, in no small measure, from the fact that Canon 20 to date has been more "honour'd in the breach than the observance" and that Bar Associations have not sought to enforce it.
John Charles Daly, television personality and reporter, in an article which appeared in the American Bar Association Journal for November, 1964, titled "Ensuring Fair Trials and a Free Press: A Task For The Press and The Bar Alike," taken from an address he delivered before the California District Attorneys Association, making the point that lawyers "are not blameless" for the existence of the problem of potential prejudice to fair trial occasioned by publicity, stated:
"Second, let us consider Canon 20 of the Canons of Professional Ethics of the American Bar Association. With your permission--some may have forgotten a phrase or two in it--I shall read the text of Canon 20."
Mr. Daly then recited the text and added immediately:
"At this juncture may I say, piously, AMEN."
With consummate effectiveness doth Mr. Daly thus dispose of any question of clarity in Canon 20 even while piercing our most vulnerable hide with a well deserved thrust. None of us should have any more difficulty in interpreting Canon 20 than does Mr. Daly.
There is more than a modicum of truth in Mr. Daly's assertion. Inaction by bar associations has permitted rampant violation of Canon 20. It has enabled news media, in no small measure, to obtain for publication matter potentially prejudicial to the presumption of innocence and the constitutional right of a fair trial by an impartial jury. It has played a major role in stymying [sic] resolution of the highly important "fair trial-free press" issue.
In editorials and in law journals, in seminars and in debates, our profession is reminded continually that it must put its own house in order before it asks the press to adopt principles and standards which will protect against impairment of the right to fair trial.
The Wall Street Journal on August 15, 1964, editorializing on a speech delivered at an American Bar Association meeting by Dean Erwin Griswold of Harvard Law School, observed:
"The rights at issue are, on the one hand, the right to a fair trial and, on the other, the public's right to know ... Dean Griswold addressing an American Bar Association meeting the other day, sought to defuse the sometimes highly charged issue of freedom of the press. That is not the heart of the problem, in his view; rather, it is the conduct and standards of lawyers and others engaged in court proceedings."
The editorial goes on to point out that if, as recommended by Dean Griswold, court officers are restricted in what they can say, newsmen, in Dean Griswold's words,:
"will not be presented with problems of interfering with a fair trial. It is as easy as that. If the lawyers will simply put their own house in order, much of the problem can be eliminated."
Editor and Publisher, on November 21, 1964, editorialized on Van Duyne thusly:
"For many years the press in this country has been criticized by lawyers, judges and laymen for publishing information about criminal cases and accused persons in advance of and during trial. Newspapermen have protested, and rightly, that they should not be blamed for printing information released to them by the police, prosecutors and defense attorneys. They have said, and so has Editor and Publisher, that correction lies with the courts and with the American Bar Association which could tighten the rules against pretrial disclosure of evidence. In fact, a committee of the New York County Lawyers Association proposed that very remedy early this year.
This week the New Jersey Supreme Court took the bold step of ordering a ban on potentially prejudicial statements to the press by prosecutors, policemen and defense attorneys before and during criminal trial ... both press and bar will watch the New Jersey experience to see if it is adequate for the protection of both defendants and the public, whether it should be copied elsewhere, whether it goes too far or not far enough."
Toledo Blade, on November 26, 1964, under the title "Buttoning Their Lips," reacted to Van Duyne in this language:
"This is a proper restraint at the very source of injurious publicity. Sensational--or simply aggressively concientious [sic]--news media may seek comment on pending cases, but there will be substantially less harm done if policemen will refrain from public statements that tend to convict an accused before he is tried and if prosecutors and defense lawyers quit trying to build up their cases and themselves by statements outside the courtroom."
A. Michigan Law Review case note, Volume 63, pp. 174, 178 observed:
"A responsible press that is sensitive to the protection of the right to a fair trial would, of course alleviate much of the probblem [sic]. Similarly, the legal profession can do much to eliminate trial by newspaper. The prosecution, whose primary duty is to see that justice is done, is often chargeable with collaboration in the publication of inflammatory material or with exploiting it at the trial."
The Houston Lawyer, the official monthly publication of the Houston Bar Association, for March, 1965, presents the problem of "a free press versus a fair trial" from several perspectives. Views of the press, there set forth, are quoted as follows:
"It would not only be naive but unjust to assume that all sin is on the side of the press. Perceptive editors have noted time and again how contesting lawyers, especially prosecutors, skillfully manipulate press publicity to advance their ex parte causes, in direct defiance of their own Canon of Professional Ethics."
"Another editor has said; 'In other words, if lawyers would keep their lips buttoned instead of trying their cases in print, most of "trial by newspaper" would disappear."'
At a Bar-Press symposium held in Boston, Mass. on May 5, 1964, on the subject "Do the People Have the Right to Know?", speaker after speaker commented on the inglorious role of the lawyer in the publicizing of prejudicial material.
Said Creed C. Black, Executive Editor of the Wilmington (Del.) News-Journal and the then Chairman of the Freedom of Information Committee of the American Society of Newspaper Editors:
"..., the effectiveness of any new code is called into question by the inability or unwillingness of the American bar to enforce a key provision of a code already in existence which theoretically deals with the problem we are discussing today. I refer, of course, to Canon 20 ... At a bar-press conference at Northwestern University last year, one prosecutor acknowledged that 80 per cent of the situations involving information that might prejudice a fair trial could be laid at the door of defense or prosecuting attorneys. ... We have yet, however, to see the bar association take steps to curb such pre-trial utterances in imposing Canon 20 .... The fact is, of course, that much of the newspaper material which some lawyers and judges deplore could never be published if other members of the bar did not make it available. And, contrary to some apologists for loquacious members of the bar, it is not true that such information is made available only under great pressure from the press and even then reluctantly. Edmund N. Otterburg, a former president of the New York County Lawyers' Association, has stated bluntly that 'lawyers, both for the prosecution and for the defense, have used our free press in their own way to secure a trial by newspaper and for self-advertising, or in complete disregard of professional propriety and ethics."'
Warned Donald H. McGammon, President, Westinghouse Broadcasting Company:
"I would note, in this context, that a program of voluntary restraints cannot be viewed as a series of restrictions on the broadcast media and journalists alone. It must, for effectiveness, also foresee stricter adherence by attorneys to Canon 20 and closer supervision of statements from police officers. Realistically, it must be conceded that such steps would immediately remove the majority of sources for information concerning criminal matters."
The symposium's keynoter, Honorable Frank J. Murray, Justice, Superior Court of Massachusetts, in his opening remarks, acknowledged that:
"There is the minority of vocal trial lawyers, who, for various reasons, favor a completely unfettered press. There are also some police officials and prosecutors, whose numbers are small, fortunately, who appear to support pretrial publicity. And there are also the infrequent but always troublesome instances of judges giving the appearance, to say the least, of a greater interest in publicity than in the administration of justice."
And Prof. Mark D. Wolfe Howe, Harvard Law School, resignedly pointed out:
"The fact, of course, is that the press is too often degraded by the irresponsibility of its shabbier representatives and the legal profession is too often dishonored by the misconduct of its judges and its lawyers. Until the press will acknowledge a few of its sins and the lawyers will acknowledge, quite frankly, some grave deficiencies in their administration of justice, the time of understanding cannot even begin."
The remarks quoted above, made in Boston, were typical of the reactions of all who participated in the symposium.
At the Conference held at Northwestern University to which Mr. Black referred, supra, among many expressions of a similar vein, Herbert Brucker, Editor, "The Hartford Courant," later President of The American Society of Newspaper Editors, said:
"The second thing I would like to clear out of the way is that much of what we do that is wrong could be avoided if the members of the bar would live up to their own Professional Canon 20."
John Stanton, Managing Editor, "The Chicago Daily News," added:
"I think it is a most encouraging thing to hear from Mr. Thompson, (Assistant State's Attorney, Cook County, Illinois) that most of the sins attributed to the press are the responsibility of the legal profession. This is certainly realizing the legal problem as I have seen it throughout this Conference. I have noted that there seems to be an acceptance of the premise that the newspapers are not where this problem begins. I think that Mr. Thompson said the problem begins with the legal profession.
"If the lawyers and judges would deport themselves ethically, the newspapers would accept almost any arrangement, and I do mean that sincerely. Journalism is more ethical than the legal profession. And that doesn't imply that I don't have the highest respect for lawyers. I have just about the same esteem they have for journalists."
Bernard S. Meyer, Justice, Supreme Court of the State of New York conceded:
"What we must determine is where the individual rights are being impinged upon and the extent to which the rights of society are hurt by the impingement. I would be the first to confess that the problem is not only with the press. It rests most assuredly with lawyers also, and that includes prosecutors and governmental officials as well as other lawyers."
To say that society's respect for the integrity of our profession in this area has been undermined by our inaction is to indulge in understatement. Small wonder, then, that the New York Times described the opinion in Van Duyne as a "bold and constructive action to combat a long standing evil."
If we covet the role of guardian of the right to a fair trial under our adversary system of justice, does not society have a right to demand of us that we not sabotage our responsibility? Can good faith call for less? Inertia here is tantamount to hypocrisy.
It is high time then that we acknowledge the plain import of Canon 20. We deem it to mean what it says--that no lawyer should be party to publication of matter which, even in extreme cases where circumstances justify a statement to the public, goes beyond quotation from the records and papers on file in the court.
Canon 20, for too long, has remained unimplemented. It is not enough therefore, that we merely announce the interpretation herein set forth. That interpretation should be widely disseminated. It should be made crystal clear that enforcement henceforth will be vigorous and meaningful whether violation is by Prosecution or Defense. Insistence upon adherence is a sine qua non of redemption.
Though a goodly part of this opinion is devoted to Canon 20 in the context of criminal matters, its rationale and its language ought to be no less apposite on the civil side where even as on the criminal side, interference with a fair trial and prejudice to the due administration of justice are also unwelcome aspects of publicity to protect against which this canon is directed.
The Supreme Court of Nevada, in re: Marshall, No. 4972, in a landmark opinion handed down in September, 1965, used the following language and we quote the following excerpts:
"It is indeed an unpleasant task for a court to discipline a member of the legal profession. One who is not a lawyer may tend to view Mr. Marshall's statements as an exercise of his right of free speech, and not subject to sanction. However, this is not true. As Mr. Justice Frankfurter once wrote: The Bill of Rights is not self-destructive. Freedom of expression can hardly carry implications that nullify the guarantees of impartial trials. And since courts are the ultimate resorts for vindicating the Bill of Rights, a state may surely authorize appropriate historic means to assure that the process for such vindication be not wrenched from its rational tracks into the more primitive melee of passion and prejudice. The need is great that courts be criticized, but just as great that they be allowed to do their duty.
"A lawyer knows to the depths of his soul that he belongs to a profession with inherited standards of propriety and honor, which experience has shown necessary in a calling dedicated to the accomplishment of justice. He who would follow that calling must conform to those standards.
"The government of the legal profession is a judicial function. Authority to admit to practice and to discipline is inherent and exclusive in the courts.
"Our obligation and duty, however unpopular and unpleasant it may be, is to act upon the record before us. We make the following findings: The conduct of Edward Marshall, as District Attorney of Clark County, Nevada, in preparing and issuing the press release of August 20, 1965, is in violation of: First: The attorney's Oath which he solemnly took when admitted to practice law in this state, wherein he swore to maintain the respect due to the courts of justice and judicial officers and to employ only such means as are consistent with truth.
"Second: Canon I of the Code of Professional Conduct relating to the duty of the lawyer to the courts.
"Third: Canon 26 of the Code of Professional Conduct relating to professional advocacy other than before the courts.
"Fourth: Canon 29 of the Code of Professional Conduct relating to the duty of a lawyer to uphold the honor of the legal profession.
"Fifth: Canon 32 of the Code of Professional Conduct relating to the lawyer's duty in the last analysis.
"Sixth: Canon 20 of the Code of Professional Conduct relating to newspaper discussion of pending litigation which tends to interfere with a fair trial in the courts and otherwise prejudice the due administration of justice.
"Seventh: Canon 5 of the Code of Professional Conduct relating to the prosecution of those accused of crime and pointing out that the primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done.
"Eighth: We find that certain statements of the press release purporting to be recitals of fact, are false.
"Accordingly: It is the unanimous judgment and order of this court that Edward Marshall be, and he hereby is, suspended from the practice of law in the State of Nevada for a period of one year from this date. This order of suspension shall not apply to the official duties of Edward Marshall as the District Attorney of Clark County, Nevada. In this case we prefer not to use our authority over an errant member of the legal profession in such manner as to deprive the people of Clark County, Nevada, of the services of their elected district attorney. In all other respects, however, the order of suspension is effective."
This Committee has relied heavily upon Opinion 20 of the Legal Ethics and Professional Conduct Committee of the Ohio Bar Association. It has, in fact, adopted most of the text, as well as the entire concept of said opinion. The opinion is more lengthy than we ordinarily would like, but because of its importance to the Bar and to the current interest in the topic concerned, both in Oklahoma and in the nation, to render the opinion more brief would take from its import.
It is the recommendation of this Committee that immediate firm action be taken by the Oklahoma Bar Association against all those who violate the text and spirit of the language herein.