Topic category: Other/General
Duke Has Nerve, No Shame
Duke Memorandum: “Given the high-profile nature of the underlying allegations in the above-captioned lawsuit, and given the unusual level of attorney-initiated and attorney-sanctioned communication regarding the filing of this lawsuit, the Duke Defendants respectfully request that this Court enter an order declaring that the existing website, the press conference on 21 February 2008, and the press release issued on 21 February 2008, violate Rule 3.6 and giving such other relief as the Court deems appropriate.”
The Duke Defendants in the lawsuit by terribly wronged members of the 2005-2006 Duke University Men’s Lacrosse Team and some of their parents are posing as victims of unethical behavior!
Hero of the Hoax Bill Anderson:
”From what I remember of the press conference, the attorneys simply restated what was in the complaint....
”Of course, Duke sees nothing wrong with its having hosted hate-filled rallies, the infamous Chronicle add, harassment of students in the class and canceling the season of one of the best teams in the country.”
Duke actually hopes a court will kill or control a website covering a federal case of great public interest and importance to our criminal justice system, our higher education system and our political system!
Duke Memorandum: "[T]he creation and aggressive promotion of a website purporting to be the ‘official source’ of information about the lawsuit, the press conference at the National Press Club, and the…press release, make clear the Plaintiffs’ intention to ‘use the techniques of modern communication . . . to win litigation,’ as presaged by comments on Mr. Bork’s website…. If, as it appears, the pleadings, discovery and other facts and developments in this case are to be the topic of discussion on www.dukelawsuit.com, and the subject of scheduled press conferences, press releases and attorney-initiated or publicist-initiated media contacts, then the Duke Defendants need this Court’s direction and guidance as to whether there are any limits on such attorney-initiated media contact and the appropriate responses by the Duke Defendants to these contacts.”
Duke is even requesting expedited review of its motion complaining about “attorney-initiated and attorney-sanctioned contact with the media.”
Its motion is expressly “limited to attorney-initiated statements, whether made by the attorney or through a third-party, that will likely be disseminated by means of public communication and statements” and “not addressed toward any other media coverage or website discussion of this case or the underlying events of this case.”
After what Duke did to those team members, and especially after Duke failed to let the court know in the now dismissed state court proceeding that it had turned over subpoenaed materials to the prosecution before they had been subpoenaed, however, Duke's challenge to the ethics of the team members and their attorneys is not only without merit, but perfect fodder for Saturday Night Live if it would dare to take on the political correctness extremists.
Rule 3.6 of the North Carolina Rules of Professional Conduct prohibits an attorney who is participating in a case from making “an extrajudicial statement that the lawyer knows . . . will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
Duke explained that “[t]he ‘substantial likelihood’ test is aimed at ‘two principal evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found,” quoting from a 1991 United States Supreme Court case.
Duke’s charge: “In this case, in which a jury trial has been demanded, statements have been made by the Plaintiffs’ attorney and his agents that appear calculated to ‘influence the actual outcome of the trial’ and ‘prejudice the jury venire.’ Specifically, Plaintiffs’ counsel, one of the Plaintiffs, and the Plaintiffs’ publicist conducted a press conference at the National Press Club in Washington, DC, on 21 February 2008, which lasted for almost an hour. Plaintiffs’ counsel directed those listening to the press conference to a website developed by the Plaintiffs and described as ‘the official source of information” about the lawsuit. Plaintiff also issued a press release on 21 February 2008 regarding the lawsuit and again directing readers to the website. The website, the press conference and statements, and the press release violate the letter and spirit of Local Rule 83.lOe(b) and Rule 3.6 of the North Carolina Rules of Professional Conduct and have a substantial likelihood of prejudicing the Duke Defendants.”
Saying something is so does not make it so, of course, and, like The New York Times savaging Senator John McCain, there’s no there there.
What IS there is evidence that Duke is averse to the spotlight being put on it and unsuccessfully tried to stop the team members and their counsel from having a media event announcing the lawsuit.
Duke Memorandum: “When the Plaintiffs and their counsel announced the press conference, counsel for the Duke Defendants, Jamie Gorelick, emailed Charles J. Cooper, of Cooper & Kirk, notifying him that ‘according to our local counsel, the judges of the Middle District of North Carolina have a very strict practice forbidding lawyers from discussing their litigation with the press.’”
Of course, the very capable and courteous Mr. Cooper replied “[w]e will, of course, comply with all court rules and procedures.”
Duke whined that “Plaintiff Steven Henkelman, the father of one of the unindicted lacrosse player-plaintiffs….accused the Duke Defendants of, among other things, ‘coldly turn[ing] away and abandon[ing]’ the lacrosse players and their families and a ‘willing[ness] to sacrifice’ them ‘for the good of the institution.’”
If you doubt that was true, pray for a trial.
Duke also whined that the website created for the suit “links to other websites and blogs that contain messages that are critical of the Duke Defendants and misrepresent the relevant facts.”
What’s wrong with that?
Duke responded to the announcement of the lawsuit by trying to deflect attention to former Durham County, North Carolina District Attorney Michael B. Nifong, asserting that the suit was “without merit,” noting that its offer to reimburse expenses “to help these families move on” had been rejected and deeming further statements not “appropriate.”
Now Duke is asking the court to rule that (1) “the website, www.dukelawsuit.com, has a substantial likelihood of materially prejudicing an adjudicative proceeding of this matter such that it fails to comply with the Local Rules of this Court regarding statements that a lawyer knows or should know will be disseminated by means of public communication”; “the 21 February 2008 press conference…had a substantial likelihood of materially prejudicing an adjudicative proceeding of this matter such that it failed to comply with the Local Rules of this Court regarding statements that a lawyer knows or should know will be disseminated by means of public communication”; and (3) “the press release issued by the Plaintiffs has a substantial likelihood of materially prejudicing an adjudicative proceeding of this matter such that it fails to comply with the Local Rules of this Court regarding statements that a lawyer knows or should know will be disseminated by means of public communication.”
In a footnote, Duke concedes that “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”
Apparently Duke thinks what happened in 2006 should not be considered recent.
Duke claims that “attorney-initiated and attorney-sanctioned statements such as the existing www.dukelawsuit.com, the press conference held on 21 February 2008, and the press release issued on 21 February 2008 are improper, because they have “a substantial likelihood of materially prejudicing an adjudicative proceeding of this matter”; the “character, credibility, and reputation of the Duke Defendants” must not be “attack[ed]” at the website; “it is not practical for the Duke Defendants to monitor the www.dukelawsuit.com website on a constant basis to see what comments are being posted on behalf of the Plaintiffs’ attorney at any given time”; “even though Rule 3.6(c) allows a lawyer ‘to make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client,’ a retort in the press cannot meaningfully rebut a website that continually changes and offers new and inappropriate information to the public”; and “[b]ecause this website has a substantial likelihood of materially prejudicing potential jurors in this case, it should not be allowed.”
In essence, the Duke Defendants’ position is this: their desire to shut down the www.dukelawsuit.com website and to prohibit press conferences and press releases by the attorneys for the team members or agents of their attorneys that might bring their actions to public attention trump both the public interest in pursuing the truth and the free speech interest of those attorneys and agents and the law against defamation is not enough for them.
This is Duke trying to go on offense of ethics and it is patently…offensive.
In 1931, the United States Supreme Court, in Near v. Minnesota, held that issuance of an injunction under a state statute, commonly known as the Minnesota Gag Law, against future publication of “malicious, scandalous and defamatory” matter was inconsistent with freedom of the press as made applicable regarding state action under the Fourteenth Amendment and therefore an unconstitutional prior restraint.
The same antipathy toward prior restraint should lead the court to deny the Duke Defendants’ motion to interfere with the website.
Further, Duke acknowledged in its memorandum: “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.”
But, Duke argued: “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.”
What is really problematic for the Duke Defendants is the truth, not the language of the complaint.
UNsurprisingly, the Duke Defendants did not cite any authority for its position.
The less attention paid to the case, the happier the Duke Defendants will be.
But, like presidential hopefuls, white or black, that case should be subjected to the closest public scrutiny instead of concealed from the public.
Michael J. Gaynor
Biography - Michael J. Gaynor
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.
Gaynor's email address is email@example.com.