They Say the Only Bad Publicity is No Publicity, But Worse Is Publicity Without Informed Consent

Over the last couple of days, friends have forwarded articles containing interviews with members of the ex-president’s impeachment trial team, asking if they really should be spilling the tea like that?

This is a question I do get generally, so let’s call this a FAQ: Aren’t these things supposed to be confidential? Are lawyers really supposed to talk to media other than to say “no comment”?

Lawyers working on cases that garner media attention can and do talk to the media, but what they can say depends on a variety of factors, one of which is confidentiality. Lawyers are not supposed to reveal information “relating to the representation of a client,” absent informed consent, implied authorization as necessary to effectuate representation, or other exceptions that generally don’t apply to a news interview. “Information relating to the representation of a client” is far broader than the attorney-client privilege, and includes just about everything—Wisconsin has construed this to mean that even the identity of the client is subject to the rule.

Now, working on a case of national importance, where the trial is televised live, means neither your client’s identity nor your involvement are going to be confidential. Sure, most of us will not be parsing out the meaning of Calvary versus cavalry on the floor of Congress for an audience of millions. On a more typical level, filing a notice of appearance, introducing yourself to opposing counsel, and showing up in court are activities that you need to do in order to represent someone in litigation that happen to reveal your client’s identity to others, and you don’t need informed consent of your client each time you do that. That would be absurd. Those activities are impliedly authorized by virtue of the engagement in the first place.

But what happens if you’re working on a routine matter and a reporter wants to talk to you? This isn’t limited to prominent cases involving public figures and many lawyers who never expect to talk to journalists end up doing so in one capacity or another. I do occasionally get calls from press—the Wisconsin Law Journal, for instance, often follows up on public attorney discipline, and local papers or web sites may call about licensing disputes or other everyday matters.

When I get those calls, I almost never take the call right away. Reporters don’t usually want to play “gotcha” with attorneys and will leave a detailed enough message: “Hi, Attorney Smith, this is Jane Jones from The Daily Trumpet. I understand you represent Small LLC in the case involving Beloved Behemoth Inc. and I would like to talk to you about the upcoming hearing.” Let that call go to voice mail.

Before calling the journalist back, I try to reach the client and discuss whether and how to respond, because disclosure to media is not impliedly authorized in most representation. Sometimes, the response is to decline comment; sometimes, it’s to talk freely. Often it’s in between, by submitting a prepared statement or answering a limited number of questions about specific topics. We will review the risks and alternatives—often, the risk of saying nothing is greater than the risk of saying something, because that leaves the story of what happened up to whatever the people on the other side have to say and the imagination of the reader. But this will depend on circumstances, as well as the comfort level of the client.

I do try to call every reporter back, even to tell them I have no comment or that I have not been authorized to speak with press, as a courtesy. It doesn’t do you or your clients any good to get on a reporter’s bad side by leaving them hanging, and you never know when your paths might cross again.

Sometimes, a reporter will approach you on the way out of a courtroom or other hearing site and you won’t have time to get your client’s consent to talk. In most of these cases, you can anticipate this in advance—if one of the parties is a public figure, the press will be interested. There is usually a local reporter at city council and village board meetings as a matter of course. While reporters probably won’t interview a citizen seeking a permit to build a new garage, if your client is controversial—a mink farm, a family planning clinic, a slaughterhouse—or the matter has been the subject of litigation, expect follow-up. A best practice would be to plan in advance, with your client, whether you will talk to reporters and if so, the scope of what you will say (perhaps in the event of both good and not-so-good outcomes).

Needless to say, I can’t imagine Donald Trump gave David Schoen informed consent to talk to the media about how much of a circus his impeachment team was. But I guess I’ll never know.

However, even if a client gives a lawyer informed consent and complete discretion to address the media as they see fit, there are some limits. Rule 3.6 (and Wisconsin SCR 3.6 which is slightly different) limit extrajudicial statements that have a “substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” That’s a convoluted phrase, but it means, more or less, lawyers can’t seek to influence judges, juries, or other decision-makers through the press. Statements made after a matter is concluded don’t fall under this category, because the decision is done and cannot be influenced through press statements, but while a matter is ongoing, lawyers do need to be careful.

They can, however, discuss matters of public record, the identities of those involved (unless subject to a protective order), the next steps. They can also ask the public for assistance in obtaining evidence, or warn the public of a danger of a person involved. Also, should there be recent unfavorable publicity not initiated by the lawyer or client, a lawyer can take steps reasonably necessary to correct the record and mitigate the publicity.

All of this is different from when a reporter wants to interview a lawyer as a subject matter expert. An example of this may be a reporter covering a case involving allegations of police brutality. The reporter may want to speak with an attorney who is not involved in the case but who litigates similar cases, perhaps to get information about qualified immunity or the notice of claims statute. If you’re asked to speak as a subject matter expert (perhaps by a reporter who you timely called back on a different case), you can do so more freely, though remember you still can’t talk about the specifics of your own cases. Confidentiality and informed consent still matter here, too.