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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  March 3, 2008
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Topic category:  Other/General

Despicable Duke Defaming Charles J. Cooper, Esq.

The Duke Defendants are trying to shut down the www.dukelawsuit.com website by claiming that Mr. Cooper violated the rules of professional conduct applicable to attorneys in a press release, at a press conference and by promoting that website focused on the plaintiffs' claims against the Duke Defendants and other defendants in the lawsuit, as thought prior restraint on free expression is available on request, a website can be shut down if parties to a lawsuit say it's too burdensome for them to mmonitor it and Mr. Cooper had done much more than restate in general terms what was part of the public record.

The powers that be at Duke University disgraced themselves with respect to what is commonly referred to as the Duke Lacrosse Rape Case, by public acceptance of baseless allegations by an ex convict stripper, abandonment of the members of the Duke University 2005-2006 men's lacrosse team and slavish adherence to political correctness extremism instead of the principles of due process and the presumption of innocence and they are terrified of the possibility of public scrutiny of what they did.

Proof of that includes the multimillion dollar confidential settlements Duke made with each of the Duke Three--Reade Seligmann, Collin Finnerty and David Evans, even before the filing in federal court of what would have been a very embarrassing complaint (for Duke), as well as Duke's prior confidential settlement with the family of a teammate who had been the victim of punitive grading (because he was a member of the team), after the filing in federal court of a very embarrassing complaint but before discovery had been undertaken in that case.

Duke's plan was to move on quietly, but more than 40 team members brought two federal suits against Duke and others.

In rataliation, the Duke Defendants in the lawsuit by 38 members of the 2005-2006 Duke University Men's Lacrosse Team and several parents of team members (together, the plaintiffs in the suit) are accusing the plaintiffs' lead counsel, the highly esteemed Charles J. Cooper, of unethical behavior!

Amazing!Did Duke accuse former Durham County, North Carolina District Attorney Michael B. Nifong with unethical conduct when he was trying to frame the Duke Three on bogus rape, sexual offense and kidnapping charged and making outrageous and highly prejudicial public statements designed to help him win a Democrat primary?

No.

Now, however, with Duke being sued, the Duke Defendants are trying to shut down the www.dukelawsuit.com website by claiming that Mr. Cooper violated the rules of professional conduct applicable to attorneys in a press release, at a press conference and by promoting that website focused on the plaintiffs' claims against the Duke Defendants and other defendants in the lawsuit, as thought prior restraint on free expression is available on request, a website can be shut down if parties to a lawsuit say it's too burdensome for them to mmonitor it and Mr. Cooper had done much more than restate in general terms what was part of the public record.

Who is this person targeted by the Duke Defendants?

Wikipedia:

"Charles J. 'Chuck' Cooper is an appellate attorney and litigator in Washington, D.C. and a founding member and chairman of the law firm Cooper & Kirk, PLLC. He was named by The National Law Journal as one of the 10 best civil litigators in Washington, he has over 25 years of legal experience in government and private practice, with numerous cases in trial and appellate court as well as several appearances before the United States Supreme Court.

"Cooper graduated in 1977 from the University of Alabama Law School. Shortly after serving as law clerk to Judge Paul Roney of the Fifth (now Eleventh) Circuit Court of Appeals, and to Justice (later Chief Justice) William H. Rehnquist, Mr. Cooper joined the Civil Rights Division of the U.S. Department of Justice in 1981. In 1985 President Ronald Reagan appointed Mr. Cooper to the position of Assistant Attorney General for the Office of Legal Counsel. In that capacity, he worked with Chief Justice John Roberts and Associate Justice Samuel Alito.

"Mr. Cooper reentered private practice in 1988, as a partner in the Washington, D.C. office of McGuire Woods. From 1990 until the founding of Cooper & Kirk in 1996, he was a partner at Shaw, Pittman, Potts & Trowbridge where he headed the firm's Constitutional and Government Litigation Group.

"Mr. Cooper's practice is national in scope and is concentrated in the areas of constitutional, commercial, and civil rights litigation. He is currently representing private clients in a variety of commercial cases, including antitrust, intellectual property, and contract disputes. Mr. Cooper also represents a number of state and local government bodies, as well as private clients, in a wide range of constitutional and federal statutory cases.

"In 1998 Mr. Cooper was appointed by Chief Justice William H. Rehnquist to serve as a member of the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. Mr. Cooper is a member of the American Law Institute and the American Academy of Appellate Lawyers, and he has spoken and published extensively on a variety of constitutional and legal policy topics."

Apparently NOT a person who conducts himself unethically OR intimidates OR fits in at Duke.

What's the legal basis for the Duke Defendants' accusation against Mr. Cooper?

Rule 3.6(a), which concerns trial publicity and states: "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."

Rule 3.6 also has a (b), a (c), a (d) and an (e), however.

Rule 3.6(b) states in pertinent part:

"(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;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest...."

Nothing in the release or at the press conference or at the website (www.dukelawsuit.com) falls outside the scope of the protection of Rule 3.6(b)...and the public, especially Duke students and prospective Duke students and their families, should be warned about the behavior of the Duke Defendants, there being "reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest...."

Rule 3.6(c) states: "Notwithstanding paragraph (a), 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. A statement made pursuant to this paragraph shall be limited to such information as is reasonably necessary to mitigate the recent adverse publicity."

Aren't the statements made by some of the Duke Defendants, especially Duke President Richard Brodhead, in 2006 recent enough to afford Mr. Cooper additional protection for just about anything he would care to state in a subsequent press release or press conference or posting at the website?

Rule 3.6(d) states: "(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a)."

Doesn't that mean that the plaintiffs are entitled to have the services of BOTH Mr. Cooper's firm and the public relations firm Bork Communications Group and that, unless Mr. Cooper actually were to misuse them as conduits, non-lawyers like Robert H. Bork, Jr. are free to act without having their actions attributed to Mr. Cooper?

Rule 3.6(e) states: "(e) The foregoing provisions of Rule 3.6 do not preclude a lawyer from replying to charges of misconduct publicly made against the lawyer or from participating in the proceedings of legislative, administrative, or other investigative bodies."

So Mr. Cooper is free to publicly respond to the Duke Defendants' motion and the Duke Defendants' handed him the opportunity by making their unjustified motion!

The Comment to Rule 3.6 states in part that (1) "certain subjects...are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury," including subjects relating to "the character, credibility, reputation or criminal record of a party" and "information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial"; (2) "[c]ivil trials may be less sensitive" to extrajudicial speech than criminal trials and "the likelihood of prejudice may be different depending on the type of proceeding" and (3) "extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client," since '[w]hen prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding" and "[s]uch responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others."

The North Carolina State Bar website cites 98 Formal Ethics Opinion 4, pertaining to the restrictions on a lawyer's public comments about a pending civil proceeding in which the lawyer is participating.

That Opinion states in part: "...Rule 3.6 does not impinge upon the constitutional right of clients to make extrajudicial statements concerning their case. The rule, however, does place restrictions on attorneys' extrajudicial speech and that of their agents. If the above press release had a reasonable likelihood of materially prejudicing an adjudicative proceeding, and the Board was merely used as conduit by the attorney to make prejudicial statements the attorney could not, then the attorney violated Revised Rule 3.6."

At most, this Opinion requires Mr. Cooper and his firm not to use the website as a conduit for extrajudicial speech with "a reasonable likelihood of materially prejudicing" the case against the Duke Defendants and others. It does NOT prohibit the plaintiffs themselves from making extrajudicial statements or retaining a public relations firm to do so for them.

If you're an attorney representing a client in a case, however, your right to freedom of expression is not as broad as that of non-lawyers. The Supreme Court held that the "substantial likelihood of material prejudice" test applied by most states satisfies the First Amendment.

A majority of the Justices of the United States Supreme Court so ruled in Gentile v. State of Nevada, 501 U.S. 1030 (1991), even though a differently constituted majority concluded that the Nevada Disciplinary Board has wrongly reprimanded an attorney (Gentile) because the disciplinary rules were imprecise and failed to give him fair warning.

Incidentally, then Chief Justice William Rehnquist, for whom Mr. Cooper had clerked in 1978 and 1979 when the late Chief Justice was Associate Justice Rehnquist, wrote for the majority in recognizing a power to prohibit certain extrajudicial statements.

The State Bar of Nevada had reprimanded Gentile for his assertion, supported by a brief sketch of his client's defense, that the State had sought the indictment and conviction of an innocent man as a "scapegoat" and had not "been honest enough to indict the people who did it; the police department, crooked cops."

The Supreme Court: "Nevada's application of Rule 177 in this case violates the First Amendment. Petitioner spoke at a time and in a manner that neither in law nor in fact created any threat of real prejudice to his client's right to a fair trial or to the State's interest in the enforcement of its criminal laws. Furthermore, the Rule's safe harbor provision, Rule 177 (3), appears to permit the speech in question, and Nevada's decision to discipline petitioner in spite of that provision raises concerns of vagueness and selective enforcement."

Gentile had held a press conference the day after his client, Sanders, had been indicted. After a jury acquitted Sanders, the State Bar of Nevada had filed a complaint against Gentile, alleging that statements he had made during that press conference had violated Nevada Supreme Court Rule 177, which prohibited a lawyer from making extrajudicial statements to the press that he knows or reasonably should know will have a "substantial likelihood of materially prejudicing" an adjudicative proceeding, The Disciplinary Board had ruled that Gentile had violated the Rule and had recommended that he be privately reprimanded. The State Supreme Court had affirmed, rejecting Gentile's argument that Rule 177 violated his free speech right.

The United States Supreme Court reversed, concluding not only that, as interpreted by the Nevada Supreme Court, Rule 177 is void for vagueness, but that its safe harbor provision, Rule 177 (3), misled Gentile into thinking that he could give his press conference without fear of discipline.

The Supreme Court noted that a trap for the wary as well as the unwary had been created and refused to condone it.

The Supreme Court:

"As interpreted by the Nevada Supreme Court, the Rule is void for vagueness, in any event, for its safe harbor provision, Rule 177(3), misled petitioner into thinking that he could give his press conference without fear of discipline. Rule 177(3)(a) provides that a lawyer 'may state without elaboration . . . the general nature of the . . . defense.' Statements under this provision are protected '[n]otwithstanding subsection 1 and 2 (a-f).' By necessary operation of the word 'notwithstanding,' the Rule contemplates that a lawyer describing the 'general nature of the . . . defense' 'without elaboration' need fear no discipline, even if he comments on '[t]he character, credibility, reputation or criminal record of a . . . witness,' and even if he 'knows or reasonably should know that [the statement] will have a substantial likelihood of materially prejudicing an adjudicative proceeding.'

"Given this grammatical structure, and absent any clarifying interpretation by the state court, the Rule fails to provide 'fair notice to those to whom [it] is directed.''...A lawyer seeking to avail himself of Rule 177(3)'s protection must guess at its contours. The right to explain the 'general' nature of the defense without 'elaboration' provides insufficient guidance because 'general' and 'elaboration' are both classic terms of degree. In the context before us, these terms have no settled usage or tradition of interpretation in law. The lawyer has no principle for determining when his remarks pass from the safe harbor of the general to the forbidden sea of the elaborated.

"Petitioner testified he thought his statements were protected by Rule 177 (3).... A review of the press conference supports that claim...."

A review of Mr. Cooper's press release and press conference and the website does NOT support the Duke Defendants' galling accusation against Mr. Cooper. -

Michael J. Gaynor

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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 gaynormike@aol.com.


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