Finding common ground-- WCBA panel looks at media and the law

By Jo Mathis

Legal News

The meeting of lawyer and journalist can be a win-win, a panel of lawyers told a small group in Ann Arbor Monday.

The Washtenaw County Bar Association Labor and Employment Law Section sponsored the panel discussion, which was titled "So your case is in the media? Practical, legal, and ethical advice from those who have been there."

Lawyers should assume that journalists know as much about the law as their mothers-in-law, said Dawn Phillips Hertz, counsel to Butzel Long, and former longtime general counsel to the Michigan Press Association.

She said there are fewer dedicated court reporters these days, so journalists are grateful when lawyers take time to explain the law pertinent to their case. Hertz said both journalists and lawyers are in the profession of wanting all the facts, knowing who the best witnesses are, and eager to protect their sources (clients).

Hertz suggested that lawyers think carefully about asking a judge for a closed court hearing.

"It's a good way to attract attention to your case," she said. "If you tell me I can't see it, I want to see it."

She also warned against "muzzling reporters," or using "prior restraint" in an attempt to restrict freedom of the press.

"You don't have to wear your heart on your sleeve, but don't subpoena my reporters, and don't close hearings and court records, and we'll get along fine," she said.

Jim Carty, former Ann Arbor News sports reporter who is now a complex commercial litigator at Bodman's Ann Arbor office, agreed with Hertz that journalists could use some help understanding the law.

"You cannot go wrong by underestimating how little a journalist knows about the law," he said, knowing that the exceptions are rarer and rarer these days.

"As a former reporter, I'd like to encourage attorneys to deal with the press," said Carty.

But he said he'd do so only if there's a clear reason for doing so.

An unhappy media experience is usually due to the fact that the attorney didn't consider in advance why they would have a conversation, and what he or she hoped to get out of it, he said.

Carty said very few working journalists today know about Rule 3.6, which deals with trial publicity. The rule was amended by the Supreme Court last year to add many more details and now includes a list of six specific things lawyers must not do to prejudice the judicial process, and a list of seven things they're permitted to say.

Charles Borgsdorf of Hooper Hathaway, who has taught legal ethics at the University of Michigan Law School, said he is always amazed in his work as an expert witness in legal malpractice cases how ignorant lawyers are of the rule.

He referred to what he calls the "Greta Van Susteren phenomenon," or lawyers as commentators.

"Lawyers are often asked by people in the media for a comment on pending litigations," he said.

"There is no restriction on what a lawyer not involved in the case can say about pending lawsuits. There is no prohibition on giving your editorial comment about why you think the charges were brought, or what you think of the lawyers or judges. That's all permitted."

Borgsdorf said that as a lawyer for 41 years, he's found one thing especially troubling about the press and the way they deal with legal matters. They have a tendency to report on a complaint filed, whether or not its valid, but not the other end of the case when it's dismissed.

"The press is much more likely to write allegations at the onset than results at the end," he said.

Attorney Nick Roumel of NachtLaw in Ann Arbor spoke about his experience dealing with the meda.

Roumel, who has represented several University of Michigan athletes through the years, said he once represented a football player -- "the nicest guy in the world" -- who had been accused of exposing himself. Trying to put his theory into a soundbite, Roumel called it "an accidental exposure," and took a lot of ribbing as a result.

The lesson, he said, is to really think about what you're saying before you say it. Still, he said, "No comment" is the worst thing you can say to a reporter because it sounds like you're hiding something.

Communicating with your client is important, he said. Roumel said he once represented an Ann Arbor teacher in a tenure case. He showed his client a letter he'd written to the school board, and the client showed it to his supporters, who sent a copy of it to the Ann Arbor News.

It wasn't a case he wanted in the press, Roumel said.

He reminded the audience that reporters are not necessarily their friends.

"They're doing a job that's different from yours," he said. "Think of it like a deposition. When an attorney takes your client's deposition, they're looking for statements to support the job that they're doing.

"It might not be in your client's interest, but it's going to help them in doing their job. If you think about the job (reporters) are doing, and respect what they're trying to do, it will help you in that regard."

Published: Thu, Nov 10, 2011