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Opinion

Should a Lawyer Publicly Defend His Client on Facts He Doesn’t Actually ‘Know’?

Reading the title of this piece, the reader would likely conclude that this article deals with the current Battle Royale between President Donald Trump’s “television lawyer”, Rudy Giuliani, and Michael Cohen’s, Lanny Davis – each accusing the other’s client of being a liar. But it’s not. Let’s face it, no one involved is going to be suing Rudy or Lanny for defamation any time soon!

This article is about another case. Although he hasn’t been sentenced yet, Bill Cosby is pretty much dead in the water in the public eye (while Trump is far from that). Even if he hadn’t been convicted, the avalanche of allegations against Cosby by more than 60 women would have made even his truest supporters (excepting, I suppose, his wife) conclude that he was an out and out liar who had victimized many, many women over decades. The pure public reputation he seemed to have earned before the onslaught, couldn’t possibly survive.

But that’s looking at it now, with the full benefit of hindsight. When allegations began to spill out, Cosby did indeed have true believers. Maybe even including his lawyers. True, many people were skeptical; many vacillated – Cosby was certainly the topic of dinner party debate. Nonetheless, as professionals, his lawyers had a job to do – to zealously defend their client, even if serious questions began to emerge in their own minds over the client’s conduct.

But Cosby needed to be defended not only in the courtroom, but also in the court of public opinion. So, as counsel, how does one protect the client when the array of the client’s conduct becomes increasingly indefensible, and the lawyer himself can no longer accept his client’s denials?

Indeed, I have recently been sent a LinkedIn invite from a (prominent) lawyer who labels himself : “attorney in the court of public opinion.” Imagine that appellation as your calling card! It used to be that lawyers acted for their clients almost exclusively in the courtroom. No longer; and the Supreme Court of the United States itself, Justice Kennedy writing for a plurality, has basically blessed the change, specifically stating in a 1991 decision, Gentile v State Bar of Nevada, that:

An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. . . . [A]n attorney may take reasonable steps to defend a client’s reputation . . . including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.

But Gentile doesn’t provide a complete answer. Would it be proper, for example, for an attorney to attack his client’s alleged (or supposed) victim by calling her “a liar”, particularly if he doesn’t have proof, except his client’s word or maybe not even his client’s word, that the victimization did not occur? And even if the client told the attorney: “she’s a liar”, does that let the lawyer off the hook in terms of exposure he may suffer if the alleged victim claims defamation?

While we don’t, and probably never will, know the precise conversation that occurred between Cosby and his entertainment lawyer, Martin D. Singer, who here seems to have acted as “a lawyer in the court of public opinion” following Janice Dickerson’s public accusations of rape against Cosby, one might wonder whether Singer indeed crossed the line.

In a press release, Singer said that “Dickerson’s story accusing Bill Cosby of rape is a lie. There is a glaring contradiction between what she is claiming now for the first time and what she wrote in her own book and what she told the media back in 2002. . . . Documentary proof and Ms. Dickerson’s own words show that her new story about something she now claims happened back in 1982 is a fabricated lie.” Pretty strong statements. Now, Singer may have had back up for those statements. And Gentile makes clear that a lawyer can/should go to bat for his client in the public arena. But it never addresses whether a lawyer can announce that the victim is a flat out liar, when she may indeed be telling the precise and inescapable truth.

And so, Dickerson sued Cosby and Singer for defamation. Although there were procedural issues, two weeks ago the California trial court dismissed the suit as it relates to Singer. Simply put, Singer’s comments about Dickerson were deemed to be “opinion”, which is historically not subject to a claim of defamation. Without going into the legal niceties, Dickerson’s suit was complicated by the fact that she is a “public figure”, greatly raising the bar of what she had to prove. So, happily for Singer, he is out of the lawsuit.

But what lessons does this litigation yield for the average lawyer who, among other things, wants to defend his client in the public square? For example, “I’ve thoroughly investigated this allegation. And I have direct information about the incident in question. Let me be clear, the accuser has lied repeatedly about my client’s actions.” It would be sort of like Giuliani, hypothetically, saying publicly that he personally interviewed a (non-public figure) accuser of the President, and she lied straight up in having contradictorily said to me such and such. Would he be able to escape liability by claiming it was just an opinion? A tougher proposition for him in that fact scenario.

It used to be, before the 24/7 news cycle , that lawyers were more careful, and prided themselves on that. Judges trusted them more, and lawyers tended to trust each other. But now, a lawyer, for example, Michael Avenatti, might literally withdraw from a court proceeding as Avenatti did rather than give up his soapbox, in order to allow himself the ability to try his case in the press.

It’s perfectly alright for a lawyer to say “my client will be vindicated at the end of the day,” or point to the extreme vulnerabilities of the accusing witness as a witness, particularly based on major inconsistencies in their prior (maybe even sworn) statements about the incident, as long as the public statements by the lawyer don’t threaten to “materially prejudice” the integrity of the judicial process or a jury to be empaneled. Yes, lawyers should, and often do, go to the line. But calling the accusing witness a flat-out liar with absolutely no specifics to back you up other than perhaps your client’s denials? Who wants to risk the consequences of that – the personal consequences to the lawyer, and even the potential consequences to the client?

Yes, Singer won the defamation case against him. But it is one case, in one jurisdiction. For sure, one should go to the line for the client! What lawyer, however, wants to defend the potential claim that he went too far?

Joel Cohen is a former state and federal prosecutor, and practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is an adjunct professor at Fordham Law School, regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of Broken Scales: Reflections on Injustice (ABA Publ. 2017). 

[Image via Mark Makela/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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