Attorneys Will Need to Defend Themselves
if a Client Draws Public Scrutiny
Attorneys are used to going to bat for their clients outside of court regarding those clients’ cases.
But increasingly, attorneys need to be prepared to go to bat for themselves outside of court regarding their clients’ cases.
More and more, attorneys are drawing scrutiny from the media, the general public and each other for the work they do for their clients. It has become clear that anything an attorney says or does for a client can be used against both the attorney and the client in the court of public opinion. (Consider this entire column to be a Miranda-like warning for attorneys involved in high-profile client matters.)
Attorneys Under Attack for Their Advocacy
Sometimes, this scrutiny is directed at attorneys who are representing clients accused of wrongdoing in high-profile cases.
Boies Schiller Flexner has taken heat over the past few years for its work for Theranos. As for its representation of Harvey Weinstein, there was no shortage of media coverage of the tactics the firm employed in the course of defending him—and the pushback it received from clients and the public for those tactics.
We’ve seen attorneys and their clients be accused of “victim blaming” when they’ve asserted boilerplate affirmative defenses when answering a complaint alleging that those clients sexually harassed someone.
More recently, former and current Kirkland & Ellis attorneys were thrust into the spotlight when Jeffrey Epstein’s criminal case was filed in New York federal court due to those attorneys’ involvement in his earlier criminal case. Former Kirkland attorney Alexander Acosta is now a former U.S. secretary of labor because of the public outcry at his perceived lack of prosecution of someone accused of wrongdoing.
In hindsight, the beginning of this new era might have come in early 2007 when, during the George W. Bush administration, Pentagon officials attacked the law firms that were providing pro bono representation to Guantanamo Bay detainees.
Attorneys Under Attack From Other Attorneys
Recently, attorneys also seem to be drawing scrutiny from each other on a more frequent basis.
We’ve seen plaintiffs attorneys in the pelvic mesh MDL out of the Southern District of West Virginia battle over their fees, with some attorneys in the case publicly accusing their co-counsel of fee padding and self-dealing.
In the NFL concussion MDL out of the Eastern District of Pennsylvania, we’ve seen plaintiffs attorneys publicly suggest that the attorney serving as co-lead counsel was being too deferential to the NFL on account of his own self-interests.
And, just recently, the criminal defense attorney for Amtrak engineer Brandon Bostian called out the plaintiffs attorneys involved in filing the private criminal complaint against Bostian that set in motion the current criminal case against him. Those attorneys responded in kind, calling out the defense attorney by name in a joint statement.
An Increasing Trend
Unfortunately for those attorneys uncomfortable with the glare of the public spotlight, I don’t see any signs of this trend slowing down.
In society, it has been a while since attorneys occupied a pedestal that looked down upon the huddled masses. Attorneys are no longer above scrutiny when it comes to the work they do for their clients.
Even when attorneys are engaging in ethical, moral and best-of-class legal strategies and tactics, they will be open to attack from any number of sources when those attorneys are perceived to be helping a wrongdoer avoid punishment, or are perceived as acting solely in their own self-interests.
The perception that an attorney is doing something wrong by ethically representing an unpopular client or by advocating for the attorney’s own interests will have ramifications for that attorney’s reputation and his prosperity.
How could it not? Referral sources and prospective clients come to an attorney because of his track record and what he has done previously. The inverse is true. Prospective clients and referral sources will steer clear from attorneys based on what those prospective clients and referral sources view—thanks to media coverage, social media chatter or word of mouth from trusted friends and peers—as those attorneys’ previous representations of unsavory clients or previous actions that are perceived as self-serving.
As I said in my last column, negative opinions toward attorneys and their law firms sometimes speak softly but they often carry a big stick. Reputational damage can easily turn into lost revenue for a law firm when a prospective client or a prospective rainmaking lateral partner has a negative perception of an attorney or law firm.
The New Normal: Staying On-Guard
Given this new state of play, when attorneys are involved in high-profile matters for their clients, they must be cognizant that anything they do for a client, no matter how ethical and mundane it might seem to them and most attorneys, could be interpreted by the media and the public as suspect and worthy of condemnation. Yes, even the asserting of boilerplate affirmative defenses or the filing of a motion for attorney fees.
In this new environment, attorneys should of course not let the tail wag the dog by refraining from legal strategies and tactics out of fear that they could come back to haunt them and their clients in the form of negative publicity or outrage from the public.
Instead, attorneys involved in high-profile matters—or matters that could become high-profile—must always consider, at least for a moment, how a particular action they are contemplating taking for a client inside of court could be interpreted by audiences outside of court.
If after consulting with colleagues, including an in-house or outside communications team, an attorney determines that audiences outside of court might shine an unfavorable spotlight on those actions, he should come up with a plan for responding to that spotlight.
That plan could range from simply formulating a response to potential negative publicity should any clients, referral sources or peers ask about it, all the way to reaching out to the media outlet or social media account responsible for the negative attention and providing that response directly to it. At least one law firm was so proactive when faced with negative publicity that it established a page on its website responding to what it perceived to be errors in a newspaper’s report on a business venture owned by some of the firm’s partners.
We are now in an era where, in high-profile cases, we are seeing attorneys as vulnerable to attacks on their reputations as their clients are. While most attorneys and law firms can survive a day’s worth of bad publicity, ongoing bad publicity can do permanent damage to an attorney’s or firm’s reputation and business interests by altering key audiences’ perceptions of that attorney or firm.
Moving forward, the attorneys and law firms who do not anticipate these attacks and make plans for dealing with them are going to be the ones whose reputations and business interests suffer the most when they are attacked publicly for the work they do for their clients.
Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a national legal services and communications firm. Attorneys and law firms enlist Copo Strategies to engage the media and the public regarding their clients’ cases (to help resolve those cases favorably), and to engage the media, referral sources, and prospective clients regarding their firms (to help bring new client matters in the door). Contact him at firstname.lastname@example.org or 215.454.2180.
Reprinted with permission from the September 3, 2019, edition of The Legal Intelligencer © 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.