Kennedy: Attorneys may advocate in the court of public opinion
Steve Boyer
In deciding how to deal with media regarding litigation, consider Rule 2.1 and Supreme Court Justice Anthony Kennedy’s interpretation of it.
Rule 2.1 of the ABA and the Washington Rules of Professional Conduct provides a clear path for attorneys to consider a client’s issues beyond the law itself and into the public arena. The rule states:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
Justice Anthony Kennedy elaborated on the ABA rule’s interpretation in the U.S. Supreme Court’s ruling in Gentile v. State Bar of Arizona, 501 U.S. 1030 (1991). His opinion clearly recognized that at times advocacy in the court of public opinion is appropriate:
Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.
