Patrick J. Ducharme. June 2007 Law Society of Upper Canada 7th Annual Six-Minute Criminal Defence Lawyer CLE Toronto, Canada
Weighest thy words before thou givest them breath
Othello, Act III, sc 2
I am asked today to discuss with you strategies to be used by counsel in dealing with the media when involved in a high profile case. This is a topic I approach with trepidation, aware that anything I have happened to learn over 30 years of trial work has been accomplished mostly by trial and error. The errors, it goes without saying, have been many and sometimes embarrassing. I do not hold myself out as an authority on the subject, but as I embark upon it I am comforted somewhat by these words of Eric Hoffer: “It is to escape the responsibility for failure that the weak so eagerly throw themselves into grandiose undertakings”.
Any discussion of strategy concerning the media must be informed and shaped by counsel’s ethical duties to the court. The Law Society’s Rules of Professional Conduct are an essential starting point. They are designed to reduce public complaints about the profession, and to ensure that counsel’s comments to the media do not infringe counsel’s obligations to the client, the profession, the courts, or the administration of justice.
Most of the rules governing media relations focus on counsel’s conduct while the case in question is ongoing, although counsel’s obligations do not end the moment the case is over or the last appeal period has run its course.4 Referred to as the sub judice rule, statements by counsel during proceedings must not prejudice the proceedings. The most common transgressions of the sub judice rule relate to public expression by lawyers of their private or personal opinions, opinions on such matters as:
- the guilt or innocence of the accused;
- intended trial tactics;
- the outcome of the case;
- the conduct of a person involved in the case;
- the strength or weakness of the case for the Crown or the defence;
- the criminal record of a witness or an accused person;
- the existence or results of plea negotiations or resolution discussions;
- the correctness or significance of a ruling or judgment by the court; and
- the character, reputation or credibility of a witness.
<>Other dangerous areas of public comment for counsel are:
- providing information to the media prior to its presentation as evidence in court;
- engaging in unfair or misleading criticism or commentary about a case before the court;
- making public statements about the client, not for the client’s benefit but for some other purpose such as self-promotion;
- referring negatively to a decision of a jury or a judge.
This is not to suggest that all public comments by counsel in these areas necessarily constitute ethical infractions.
To continue reading this article, use the following link to download the PDF: