Many a lawyer has found himself in deep trouble after the klieg lights are turned off in a high profile case, realizing that the words emitting from his mouth have just backed a defendant into a corner from which there is no escape. That’s foolish. But even the wealthy defendant, say former Brocade CEO Gregory Reyes, who has the wherewithal to hire a PR firm to handle damage control, can find himself just as foolishly cornered.
Via Law.com :
Reyes now has a new lawyer and a new trial about to start. He also has a new defense. He did it but there was nothing illegal about it. Everybody knew about it, so there was no intent to defraud. The only problem, now, is that the two positions are contradictory, and the government is taking the position that the original press release, where Marmaro attributed to Reyes the position that it never happened, constitutes a waiver of privilege. The judge, while not yet agreeing, isn’t yet disagreeing either. Oops.
To his credit, Richard Marmaro used a public relations guy to handle the media/crisis management aspect of the case. Not to his credit, the public relations guy, Michael Sitrick, committed to a defense that now returns to bite Reyes, and his new attorneys, in the butt.
There seems to be a significant possibility that the outcome of the government’s effort may show that the press release, revealing the defense, came not from the defendant but from the lawyer and/or PR guy, and therefore is a reflection of what they thought would be a really good approach rather than an admission by the defendant himself. That won’t bode well for Marmaro or Sitrick, though Marmaro will bear the brunt of the problem if it turns out that way. After all, he has a duty as an officer of the court not to manufacture a false affirmative position that’s attributed to his client and spewed out publicly. The PR guy has no duty to be honest about anything.
Whether this falls under the outsourcing PR = outsourcing ethics rubric has yet to be seen, but one very simple question arises from the current mess. Why can’t lawyers learn to just keep their mouths shut when there’s a camera or microphone shoved in their face if they have nothing good to say?
Via Law.com :
The quotes came from Skadden, Arps, Slate, Meagher & Flom partner Richard Marmaro, who represented Reyes during his first backdating trial. Jury selection in the retrial begins Thursday in San Francisco.The problem is that Marmaro’s press release, handled by pugnacious PR guy Sitrick, claimed that Reyes did not backdate options. It was the old, “I’m innocent; I didn’t do it; It never happened,” defense. No doubt it seemed like a good idea at the time, to deny everything. Mind you, it didn’t help, since Reyes was convicted at his first trial, though the conviction was reversed for prosecutorial impropriety in the summation.
Even though Marmaro is no longer representing Reyes at trial, prosecutors will seek to introduce Marmaro’s press release statements by calling to the stand one of the most well-known — and pugnacious — public relations men in the country: Michael Sitrick. Reyes employed Sitrick before his first trial, and prosecutors have subpoenaed documents from Sitrick’s PR shop, Assistant U.S. Attorney David Anderson said in court Tuesday.
U.S. District Judge Charles Breyer indicated that Marmaro’s quotes may very well come into evidence, though he hasn’t decided yet. Had Reyes made statements to Marmaro with the knowledge his lawyer would broadcast them, attorney-client privilege might be waived.
Reyes now has a new lawyer and a new trial about to start. He also has a new defense. He did it but there was nothing illegal about it. Everybody knew about it, so there was no intent to defraud. The only problem, now, is that the two positions are contradictory, and the government is taking the position that the original press release, where Marmaro attributed to Reyes the position that it never happened, constitutes a waiver of privilege. The judge, while not yet agreeing, isn’t yet disagreeing either. Oops.
To his credit, Richard Marmaro used a public relations guy to handle the media/crisis management aspect of the case. Not to his credit, the public relations guy, Michael Sitrick, committed to a defense that now returns to bite Reyes, and his new attorneys, in the butt.
There seems to be a significant possibility that the outcome of the government’s effort may show that the press release, revealing the defense, came not from the defendant but from the lawyer and/or PR guy, and therefore is a reflection of what they thought would be a really good approach rather than an admission by the defendant himself. That won’t bode well for Marmaro or Sitrick, though Marmaro will bear the brunt of the problem if it turns out that way. After all, he has a duty as an officer of the court not to manufacture a false affirmative position that’s attributed to his client and spewed out publicly. The PR guy has no duty to be honest about anything.
Whether this falls under the outsourcing PR = outsourcing ethics rubric has yet to be seen, but one very simple question arises from the current mess. Why can’t lawyers learn to just keep their mouths shut when there’s a camera or microphone shoved in their face if they have nothing good to say?
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This is an interesting predicament for the former attorney. Generally, however, “He’s innocent” is considered safe; it is the trial strategy of many defenses. Is there some magic language that an attorney could use that does not rudely ignore the press, but still manages to say nothing?
While my preference is to deal with the media on a sui generis basis, there are always safe responses (i.e., “the defendant vigorously challenges the accusation against him and we expect to be fully vindicated by a jury”), not to mention the old safety valve, “it’s really not appropriate to comment at this time.”
But to announce a fact specific defense to the media carries enormous consequences. Yet many lawyers will call a press conference, tell the world about how the never did it, and later have to eat his words. It’s all about finesse, since we can never be sure where the evidence will lead and what the best defense will ultimately turn out to be. How many times has a lawyer gone into trial thinking one defense when another, better defense comes to light because of a prosecution error or surprise witness testimony. The media isn’t the place to try the case.
Addendum: I just remembered a funny story. Back in the 80’s, my partner was walking out client into the courtroom when he was ambushed by the media, asking a million questions about whether he did it, what he did, what he was trying to do/ He just kept walking the defendant down the hall toward the courtroom. Finally, someone asked how he felt. And my partner turned, gave a charming smile, and said, “Well, it’s not the best day he’s ever had,” and they walked into the courtroom. That quip made all the broadcasts.
The point was to give them something to air (which is all they really want) that said nothing and did nothing even remotely harmful. It was a great line, a great performance, and satisfied everybody.
Look. A PR guy is not a lawyer. If misstatements to the press are going to be used as a measuring stick to use in court then all the statements that the US Attorneys made need to be added in the record as well. And use all the statements from all the backdating trials. From their track record on prosecutorial misconduct, it seems only fair to present the facts that the US Government has lost almost every one of the cases and has had prosecutorial misconduct in each of them. One screw up being that they leaked info to the press.
I agree completely about US Attorney press releases/conferences, which I find outrageous and wholly unethical. Of course, it’s entirely different when it’s the government, in this as in everything else related to misconduct.