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26 Fordham Intell. Prop. Media & Ent. L.J. 189
Article by A. Augustus LaSala*
hether it was O.J. Simpson, Casey Anthony, or Scott Peterson, history has shown that Americans love an exciting criminal trial.1 As a result, in the United States, the coverage and analysis of high-publicity criminal cases is ever-growing, creating many opportunities for attorneys to work in media as legal commentators.2 The term “legal commentator” has no precise definition, but generally entails attorneys making statements in the media that contain legal analysis.3 When attorneys speak in the media they simultaneously act in two roles: as a licensed attorney who has professional responsibilities and as a journalist who must meet viewership requirements. These two different roles can have countervailing interests and values. The legal profession may demand that an attorney’s speech educate the public and promote respect for the judicial system, while the media may demand easily digestible soundbites that boost ratings.4 In this media context, the legal profession must consider how to best ensure that attorneys provide ethical legal commentary regarding the criminal justice system.5
To better demonstrate how a legal commentator can face the temptation to provide style over substance at the expense of the legal system, consider the example of Wendy Murphy.6 Murphy, a former prosecutor and adjunct professor at New England School of Law, became a prolific presence on television talk shows during the prosecution of multiple Duke University lacrosse players for an alleged rape.7 Throughout the case, Murphy provided outrageous commentary that was strongly slanted toward the prosecution.8 For example, over the course of several different guest appearances, Murphy referred to the defendants as rapists; speculated, without evidence, that one or more of the defendants had been molested as a child; and dismissed evidence that the defendants had good disciplinary records at school by responding that “Hitler never beat his wife either . . . So what?”9 Furthermore, Murphy even questioned the presumption of innocence (one of the most important tenets of U.S. criminal law10) by stating, “I’m really tired of people suggesting that you’re somehow un-American if you don’t respect the presumption of innocence because you know what that sounds like to a victim? Presumption you’re a liar.”11 By providing headline-worthy but legally-deficient commentary, Murphy’s behavior epitomizes why the legal profession needs to confront the ethical issues that attorneys face when speaking in the media.
The American Bar Association (“ABA”) addressed the issue of legal commentary ethics in 2013 when it adopted its first-ever criminal justice ethical standards for legal commentators (the “2013 Standards”).12 The 2013 Standards provide ethical guidance to legal commentators by explaining how a commentator can become competent to provide commentary on a given case, what conflicts a commentator should disclose, and what types of comments a commentator should avoid making. However, the 2013 Standards do not go far enough and could benefit from certain clarifications. First, the 2013 Standards do not define “legal commentator,” leaving room for interpretation as to what types of attorneys qualify as commentators.13 Second, the 2013 Standards limit what statements qualify as commentary, excluding certain types of statements that could nevertheless cause harm to individuals, the public, and the legal system generally.14 Third, the 2013 Standards do not encourage commentators to avoid inflicting unnecessary reputational harm on individuals involved in criminal litigation (such as defendants or subjects of investigation), despite the great damage that such commentary can cause.15
Voluntary standards should broadly construe who qualifies as a legal commentator and what qualifies as legal commentary, and such standards should address the dangers of unnecessary reputational harm caused by legal commentary. Part I of this Note will explore the media’s impact on the criminal justice system, explain what makes legal commentators different from other journalists, and discuss the history of regulation of legal commentators. Part II will discuss how voluntary codes have, and have not, addressed who qualifies as legal commentators, what qualifies as legal commentary, and what should be done about the risks of causing unnecessary reputational harm. Part III will explain why expanding the reach of voluntary standards is important. It will propose that the ABA apply its new ethical standards for legal commentators more broadly by adding an inclusive definition of legal commentator and applying the standards to all legal analysis provided by a commentator. Part III will also suggest that voluntary standards should encourage commentators to avoid causing reputational harm when their commentary has no countervailing educational purpose, and that the ABA add such language to its standards. Part IV concludes.
* J.D. 2015, Fordham University School of Law; B.A., 2011, Boston University. I would like to thank Professor Bruce Green for his invaluable help and guidance while advising me on this Note, the IPLJ Editorial Board and staff for their hard work, and my family for their support.
See Sarah K. Fleisch, The Ethics of Legal Commentary: A Reconsideration of the Need for an Ethical Code in Light of the Duke Lacrosse Matter, 20 Geo. J. Legal Ethics 599, 599 (2007).↩
See infra Part II.A.↩
See ABA Standards for Criminal Justice, Fair Trial and Pub. Discourse § 8-2.4 (2013) [hereinafter 2013 Standards]; Erwin Chemerinsky & Laurie Levenson, The Ethics of Being A Commentator, 69 S. Calif. L. Rev. 1303, 1313 (1996) [hereinafter Ethics I].↩
This Note will only study the application of ethical standards to legal commentators providing analysis on criminal law issues and will not consider whether ethical standards should be adopted in a civil context as well.↩
See Stuart Taylor, Jr. & KC Johnson, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Case 144 (2007).↩
The Duke lacrosse rape case involved a criminal case brought in 2006 against three Duke lacrosse students that created a media frenzy until the charges were dismissed. See Fleisch, supra note 1; see also Taylor & Johnson, supra note 6.↩
See Taylor & Johnson, supra note 6, at 164–65.↩
Id. at 165–66.↩
See Kentucky v. Whorton, 441 U.S. 786, 789–90 (1979) (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”).↩
Taylor & Johnson, supra note 6, at 166.↩
See generally 2013 Standards, supra note 4, § 8-2.4.↩
See generally id.↩
See infra Part II.B.↩
See infra Part II.C.↩