Tuesday, March 04, 2008

Duke's Motion

It has been a while since I updated the front page. Between the holidays and my other commitments, I have had to take some time to get caught up with my other affairs. However, FODU is still very much in business. I hope you have noticed that our Moderator has been continuing to keep the media links page updated everyday. I also hope you have been reading the excellent DSED blog, which has done more than fill any gap left by my absence. I will try to update more frequently and I want to do a larger post to get caught up. In the meantime, I just wanted to share my thoughts about Duke’s motion to shut down the informational site http://www.dukelawsuit.com/, which is maintained by a publicist for the players and their lawyers. Duke's caim is that it violates North Carolina Rule of Professional Conduct 3.6, the same rule that was among those Mike Nifong was disbarred for violating.

Well, I must say that I am glad that, after two years, Duke has finally discovered Rule 3.6. When Mike Nifong was out in front of the cameras violating it hourly, they did not want to know one thing about it. As late as September 2006, Bob Steel tried to argue with me about whether Nifong was actually doing anything wrong. Now, if they could only understand it . . .

First, Rule 3.6 only applies to lawyers. It does not apply to parties such as the players and their families. Although not unqualified, parties have a First Amendment right to say whatever they want about a case that is much broader than what is allowed to lawyers. Rule 3.6 certainly does not apply to the heartfelt statement lacrosse parent Steven Henkelman gave at the press conference.

Second, Rule 3.6 allows lawyers to comment on matters in the public record, which includes court filings.

Here are the relevant portions of Rule 3.6:

(a) A lawyer who is participating or has participated in the investigation or
litigation of a matter shall not make an extrajudicial statement that the lawyer
knows or reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially prejudicing
an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and,
except when prohibited by law, the identity of the persons involved;

(2) the information contained in a public record;

* * *

At the press conference linked on the site, attorney Charles Cooper did nothing more than summarize the contents of the complaint, which was being filed as he spoke. He appeared careful to so limit his remarks. The memorandum of law in support of Duke’s motion conceded this point. It tried to make a “spirit of the law” argument that the complaint itself was inflammatory and thus no public reference should be allowed to be made to it. Here is the crux of Duke’s argument from the memorandum of law accompanying the motion:

Plaintiffs will almost certainly argue that these statements are fully permitted by Rule 3.6(b)(2), which allows an attorney to comment about “information contained in a public record.” Many of these statements are direct quotes from the Complaint, while others are slight paraphrasings of the Complaint. (See, e.g., Compl. ¶¶ 3, 11(a), 11(b), 11(c).) When a complaint contains such incendiary language, an attorney should not be permitted to hide behind the language of the complaint and make a statement to the press that strings together paragraphs that are highly prejudicial. Such an action is contrary to the very intent of Rule 3.6, “materially prejudices an adjudicative proceeding,” and should not be allowed.

This is not a legal argument. Indeed, the fact that it is not a legal argument is also why they cannot offer one shred of legal authority to support it.

Mike Nifong violated Rule 3.6 by commenting on the evidence, lying about the evidence and inviting antipathy toward the accused. This was conduct squarely prohibited by the rule and manifestly prejudicial. Comments 5 and 6 accompanying the rules give a fuller explanation.

Others have noticed the hypocrisy of Duke criticizing dukelawsuit.com while at the same time maintaining its own informational site about the case which contains dishonest and self serving accounts of the administration’s handling of the Lacrosse Hoax. It is worse than that. Duke was anticipating lawsuits from the very beginning. Remember Mark Simeon, Nifong’s political ally, was lining up the Mangum family for a suit and brought Willie Gary to town in furtherance of that goal. If you will recall, Duke’s site initially linked media accounts that were mostly negative toward the players and ignored accounts critical of the investigation. As the tide started to turn, and Duke’s own misconduct became apparent, Duke began to anticipate suits from the players, instead.

In fall of 2006, Bob Steel made an offer to at least one of the families to pay their legal expenses in exchange for singing an agreement not to sue. Despite the desperation of their situation, they refused. Bob Steel and Richard Brodhead also had a meeting with the families to try and sort out their differences that went nowhere. Duke has known that the present suits were coming for a long time and the twisted apologetics contained on its own informational site were created with that prospect in mind. This strategy reminds me of the famous advice a rugby manager gave to his players before a game: “Be sure and get your retaliation in first!”

What is particularly telling to me is that, while Duke’s motion complains about prejudice caused by dukelawsuit .com, it does not ask for a specific remedy other than asking that the website and its contents be declared violations of Rule 3.6. It does not ask for a gag order. Motions for gag orders to avoid pretrial publicity are not uncommon and Duke could have made a much stronger argument for one by simply pointing to the harm pretrial publicity might cause. It would not be an availing argument, mind you, given its own attempt to take its case to the public, but a better one. By misframing the issue as a legal ethics and Rule 3.6 issue, it decided to forgo a stronger argument in order to try and score a rhetorical point. Duke is falsely attempting to create the appearance of similarity between the conduct of the plaintiffs and their nemesis Mike Nifong. In other words, Duke is attempting to try the case in the media while at the same time purporting to uphold the opposite principle. But then again, Duke signaled how it intended to fight this suit when it hired a lawyer, Jamie Gorelick, whose principal skill set is not federal civil rights litigation, but political infighting.