The defense attorney in the role of legal commentator raises important questions about our ethical duties. When broadcasting, are we members of the press or members of the bar? Do we have an obligation to be even-handed, presenting both sides as dispassionate observers? Or is our role unlike the neutral, "objective" observer?
Veteran athletes are called upon to add "color" to telecast sports events. The rapid growth of legal commentary has invited the public to view trials as games where performance can be graded and where there are clear winners and losers. Following in the footsteps of Monday Night Football is not the best way to enhance the reputation of our profession nor the public's understanding of the critical role of defense counsel.
NACDL believes that while fairness and honesty are hallmarks of ethical legal commentary, defense counsel has a unique function to serve. That function is to educate the public about the importance of our role in society. We have a responsibility to assist the public in viewing proceedings through the lens of the Constitution.
It is our duty to ensure adherence to the presumption of innocence, to insist that the government's burden of proof be met in seeking a conviction, to foster respect for the system of trial by jury, and generally to seek to improve the public's understanding of constitutional guarantees that protect persons accused of crime.
When asked to provide an opinion on the performance of other defense lawyers during litigation, we must exercise extreme caution. As a rule, we will rarely be privy to the same discovery, investigation, and legal research that framed the decisions of the lawyers guiding the litigation. We should scrupulously decline to engage in predictions or speculation about the outcome of jury trials. Not only is this type of prognostication inherently unreliable, it fosters disrespect for the jury process.
NACDL is considering ethical guidelines to assist members who provide legal commentary. The guidelines will not be mandatory, and we do not believe an enforcement committee is necessary.
Many of our ideas have come from the excellent work of two law professors who have proposed that the legal profession adopt a voluntary code of ethics to govern television appearances by lawyers. In their articles, "The Ethics of Being a Commentator," 69 So. Cal. L. Rev. 1303 (May 1996) and "The Ethics of Being a Commentator II," 37 Santa Clara L. Rev. 913 (1997), professors Erwin Chemerinsky and Laurie Levenson suggest that trial commentators be particularly vigilant in complying with all laws and applicable rules.
As described by Chemerinsky and Levenson, some ethical duties include:
- Duty of competence. Commentators must state the law and facts accurately, and refuse to answer questions outside their areas of knowledge.
- Duty of disclosure. The commentator must disclose any potential bias or appearance of bias.
- Duty of loyalty. Absent the written consent of the client, commentators should not be allowed to make observations about the civil trial of a client whom they represented in a criminal trial.
- Duty to support the right to a fair trial. Commentators should exercise restraint when an observation may collide with the overwhelming societal interest in providing both sides with a fair trial.
- Duty to maintain confidences. If information is obtained that is clearly confidential, it should stay that way.
- Duty not to act as investigator or reporter. Legal commentators should steer away from news-gathering and stick to analysis.
- Duty to avoid conflicts. A commentator needs to remain neutral, even if he or she knows the lawyers for one side of the case or sympathizes with one party.
While we are indebted to the conscientious work of Professors Chemerinsky and Levenson, and heartily endorse most of their recommendations, we do not believe the role of a defense lawyer who serves as a commentator is limited to explaining the law for the public in an "objective" way. We are not journalists; rather, we are defense lawyers who take a leading role in upholding constitutional rights. We should never abandon that role when we enter a broadcast studio.