Neville L. Johnson
Partner
Johnson & Johnson LLP
439 N Canon Dr
Beverly Hills , CA 90210
Phone: 310-975-1080
Email: njohnson@jjllplaw.com
Southwestern Univ SOL; Los Angeles CA
Hillary Johns
Trial Lawyer and Managing Partner
Hillary Johns, Trial Lawyer
High profile matters are becoming increasingly common, with unprecedented access to information through media. The higher the stakes, arguably the more legal potholes. Legal fundamentals don't go away just because you're dealing with a high-profile client or matter. How you navigate a particular issue could not only affect your client's matter but you and your firm.
Who do you represent? First and foremost, you're a lawyer and your duty is to the client. You need to differentiate at the outset who your client is and make clear to the client whether you're representing the individual, an entity or the brand. For example, a celebrity may have an individual brand or persona but have several different business interests or outside influences such as an agent or production company. This could affect how a particular matter is handled. Consent and any conflict of interest waivers should be signed by all interested parties before representation begins.
Client consent is paramount during the course of any representation. Some issues come up on a daily basis, particularly if your client has diverse business interests or has caught the attention of the media. Regardless of how you feel about a case, you must get the client's consent before proceeding. If your client wants to pursue a course of action that is ill-advised, your duty is to advise the client of the risks involved and the limits of your representation if your client wants to push ethical boundaries. When you get your client's consent, make sure it is in writing, not by text or just verbally. You should never confer with the media without obtaining the client's consent.
Communications with clients are governed by, inter alia, Cal. Rules of Professional Conduct 1.2, 1.2.1 and 1.4.
"Rule 1.4 Communication with Clients (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which disclosure or the client's informed consent is required by these rules or the State Bar Act; 2) reasonably consult with the client about the means by which to accomplish the client's objectives in the representation; (3) keep the client reasonably informed about significant developments relating to the representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed; and (4) advise the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
Other considerations when obtaining your client's consent are:
A. Is your client able to give consent? There are situations such as substance abuse, mental health issues, and undue pressure (agent, spouse, employer) which may affect a client's judgment. It may be something that you have to take into consideration to meet the standard of care.
B. Has your client had time to think this through and been advised to do so? We've all seen situations when a client reacts emotionally, thinks about it and later is much more willing to be rational.
C. Does your client have to confer with other advisors? For example, if your client represents a brand, consider and discuss with them whether there are investors and other individuals or entities that your client needs to consult or should think about. Are there agreements that you have to review which may affect your client's rights? Your duty is to your client, but it's also the attorney's responsibility to ask these questions.
Discretion is the better part of valor. This applies to conferring with third parties, opposing counsel, and the media. The client may want to argue their case in the media or be unnecessarily pushy with opposing counsel. Don't give away your case or put your client or yourself in a compromising position. Discuss it with your client. You may have to tell them 'no' or set boundaries. A lawyer should always confer with their client before making any comment to the press or any third party.
There are limits to what you can say publicly, even during settlement negotiations. Threatening legal, administrative or criminal action in exchange for money can lead to extortion claims, criminal proceedings or a civil suit for fraud, or an award of legal fees. (Flatley v. Mauro (2006) 39 Cal.4th 299; Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799; Malin v. Singer (2013) 217 Cal. App. 4th 1283; Dickinson v. Cosby (2017) 17 Cal. App. 5th 655, 684; People v. Beggs (1918) 178 Cal. 79; Cohen v. Brown (2009) 173 Cal.App.4th 302, 317-18; Intermarketing Media, LLC v. Barlow 2021 WL 5990190 C.D. California).
Discussions about a particular client or even the fact that you represent a client should be kept confidential and are subject to the rules of confidentiality. Rule 1.6 and Business & Professions Code §6068. Maintain confidentiality when representing a client, not just to the media but within their own organization or entourage. Assistants, friends, other personnel or third parties that get involved in a particular matter are not bound by the duty of confidentiality and can be called as witnesses.
Get direct consent from the client privately. It's not enough to have an assistant call up or text you and say such and such wants to do this. The assistant isn't the client. You don't know if that assistant may part ways with your client, end up in a tabloid, then sue your client - or whether your client even made the statement. Make clear to your client that an employee signing a confidentiality agreement or an NDA doesn't mean everything they say to an employee or friend is confidential. You need to not only advise your client of that but take measures to protect your client against any breaches of confidentiality to the extent that you can, often repeatedly.
You do have a duty to ensure that your staff keeps things confidential. When you're dealing with high profile matters or clients, you have to realistically assess your staff and how these matters are going to be handled. You don't always have complete privacy in these situations, not just from your client and the matter, but the press, friends and colleagues.
A case should not be tried in the media.
Rule 3.6 Trial Publicity states, in part, that "(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 (i) be disseminated by means of public communication and (ii) have a substantial* likelihood of materially prejudicing an adjudicative proceeding in the matter." (subject Business and Professions Code section 6068, subdivision (e) and rule 1.6).
The press is not your friend. They're there to get a story. Lawyers would be well-advised to remember that they are always on camera and that anything they say may be used against them and their client. If you're pushed by the media, be polite but firm. Other considerations are whether your client wants that kind of media attention, whether to employ public relations services, and a plan for when pleadings are filed. Lawyers should make sure that statements made to the press or in public are functionally related to the matter and does not adversely affect your client, or subject you to a malpractice claim. There is the frontrunner, Rothman v. Jackson (1996) 49 Cal. App 4th 1134, and subsequent line of cases about making statements on the proverbial courthouse lawn. In Dickinson, the attorney for Cosby was named as a defendant and had to withdraw as counsel given the obvious conflict. Don't call the other party or lawyer a liar but rather state that the case has no merit. The lawyer could get sued for malpractice by the client for speaking out of turn.
A recent tactic is filing pleadings that are well in excess of pleading requirements but are created to advance the public position of the litigant. This is an understandable, but treacherous, tactic and can backfire when the result is "he doth protest too much," or becomes wearying to read, may antagonize the court, or provide ammunition to the opposing side.
The general rule is that the client should not talk to the press lest he or she say something that may hurt the case in the long run.
Getting into it with opposing counsel or third parties in public isn't a good idea. Save that for the courtroom. Civil Code section 47(b), or the litigation privilege, does not extend to the media. (See, e.g., Lerette v. Dean Witter Organization (1976) 60 Cal.App.3d 573, 575-577 "well established legal practice to communicate promptly with a potential adversary, setting out the claims made upon him, urging settlement, and warning of the alternative of judicial action"); Cole v. Meyer & Associates (2012) 206 Cal.App.4th 1095; GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 153-154; Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 785-787; Compare Dziubla v. Piazza (2020) 59 Cal.App.5th 140). This is also present in other jurisdictions. (eg., Giuffre v. Dershowitz, Case No. 1:19-CV-03377 (S.D.N.Y. Apr. 16, 2019). Moreover, you don't want to unnecessarily antagonize the opposing counsel or party, which might make settlement more difficult.
There is no question that our clients are often under immense pressure from the media and other sources. They often want you, as the lawyer, to fix the problem by playing the short game. When your client wants aggressive representation and prompt delivery, lawyers have a duty to adhere to applicable legal principles including learning from others' mistakes. It not only keeps you in compliance but can also yield more successful results for your clients.