By Edward M. Ginsburg
The Daily Record Newswire
The relationship between the bench, the bar and the media traditionally has been an uneasy one. Even when all the parties have the best of intentions, their interests are not always reconcilable.
A good example is a high-profile divorce case involving a public figure. On the one hand, the press legitimately wants to report the personal details about elected officials; on the other hand, the lawyers want to protect the details of their clients’ private lives, particularly when innocent young children are involved.
When one of the parties chooses to use the media as leverage to obtain a more favorable settlement, the relationship between lawyers, the bench and the press becomes even more complicated.
Because the appellate courts have clearly indicated that the more public the individual involved, the more the public has a right to know, I often suggested to public officials who appeared before me that they consider settling their cases, even at the expense of giving away more than the average citizen would under the same circumstances. The exposure and possible exploitation of their private lives would be more detrimental than receiving the same justice as an average citizen.
Because of the inherent tension between the lawyer’s desire to protect his client and the media’s interest in getting the news, attorneys and judges have adapted different approaches toward the press.
Many of the most highly respected lawyers refuse to communicate with the media. They believe that the risk of being misquoted, or quoted out of context, is greater than any advantage speaking to the press may have for their clients.
There is also the fear that the case may be part of a larger agenda that may or may not be in the best interest of the client.
At the other extreme is the attorney who cultivates the press as a means of getting out his client’s side of the story, and in some instances as a vehicle of self-promotion. I have seen instances where the self-promotion did not serve the client.
Most lawyers fall somewhere in between. Because of the potential pitfalls, they are hesitant to actively seek out the media and believe, at times, it is best for the client not to respond to press inquiries in an effort to avoid a distorted or unfair account of what is going on.
Similarly, judges who are under constraints not to respond to media criticism or talk about pending cases experience deep frustration at not being able to set the record straight.
How individual lawyers and judges deal with the inherent tension is mainly a matter of personal preference. Although ongoing bench, bar and press committees have endlessly discussed the subject, the bottom line is always the same: No matter how hard all parties seek to understand each other and cooperate to promote both justice to the individual litigant and the public’s right to know, there will always be instances in which interests collide and the rules of engagement cannot be harmonized.
By way of illustration as to how one person, as a lawyer and as a judge, attempted to deal with the quandary of bench, bar and media relations, I offer the following examples. In each instance, I did not seek out the media, but rather responded to inquiries.
In or about 1988, I received a phone call from a reporter who had been commissioned by The Boston Globe to do a story on me and the Concord session of the Probate & Family Court. She said it would be helpful if I would cooperate with her, but she was going to do the story either way.
I had no idea who suggested the story to her or what her agenda was. She did, however, sound like a nice person. I suggested that she come to court for a week, see what happens, speak to whomever she wanted, and go out for lunch with me and court staff, all of which she did.
The result was a highly complimentary piece that helped educate the public on the complex and intractable issues faced by the court on a daily basis.
On another occasion, my clerk received an angry phone call from a Globe columnist who had been writing a series of unflattering articles on how the courts in general, and one judge in particular, were insensitive to domestic abuse. She demanded to speak to me. Although my judicial training suggested that I not talk to her, something told me to take the call.
The columnist demanded to know why I had continued the date of a divorce trial involving a woman who was the victim of serious domestic abuse. When I responded that the attorney for the husband had sought the continuance on the grounds that the scheduled trial date was the pregnant attorney’s due date, the anger in the reporter’s voice disappeared, as did what I assume was to be her next column.
Although I discussed only a procedural issue and not the merits of the case, which would clearly have been prohibited, I probably skated close to the line and might have been criticized for engaging with the reporter at all on a pending case. However, failure to respond would certainly have resulted in a negative story that fit into her preconceived agenda.
On another occasion, I agreed to talk to a young reporter from the Tab who had been taken in, I thought, by a very disturbed litigant and her supporters. The reporter was curt on the phone and said that he was going to expose me as a terrible judge unless I spoke with him.
Against my better judgment, I agreed to explain the court process to him. It did no good, and his story, which received front page coverage, was very unflattering, to put it mildly. In retrospect, I believe that he had his agenda before meeting with me, and whatever I said would be used only to reinforce his preconceived story.
In my final illustration, I was a lawyer dealing with an investigative reporter from The Globe. Under public pressure, generated primarily by the reporter, I was hired by the Massachusetts Turnpike
Authority, which was overseeing the Big Dig to strengthen what had been an anemic cost recovery program. Because of the popular misconception that Probate Court judges do not deal with serious financial issues involving all kinds of businesses, including construction, the investigative reporter had a cynical attitude about my appointment. He also did not know that, prior to becoming a judge, I had been involved for many years with construction and lawsuits over the Middlesex County Courthouse.
Initially, it felt like he was circling his prey, waiting to pounce. Over time, though, he came to realize the seriousness of our effort. Rather than attempting to feed him a long song and dance, I was very forthright. We both understood and respected the rules of engagement, honoring the distinction between background, on the record, not for attribution, etc.
When the Turnpike Authority and Attorney General’s Office sought to put a lid on cost recovery, the reporter became an ally in getting the story out.
I recognize that bench, bar and media relations are fraught with minefields. For that reason, I do not think that the extreme of refusing all contact with the press, or actively seeking out the media to promote your cause and/or, incidentally, yourself, makes sense in most cases. However, a failure to respond in a measured way to media initiatives can have serious adverse consequences.
Retired Probate & Family Court Judge Edward M. Ginsburg heads Senior Partners for Justice, a program that provides the indigent with lawyers. He can be contacted at SeniorLawyers@aol.com.
