1. WORKING WITH THE MEDIA IN HIGH-PROFILE CASES
One of the most interesting aspects of the DMWW litigation was that there were really TWO cases going on side-by-side. One in the courtroom, and one in the court of public opinion. We were dealing with a situation where our adversary had basically a direct line to the Des Moines Register and could get favorably articles and editorials published on a weekly or almost-daily basis. There were literally dozens and dozens of front-page stories about the case (and the underlying water issues). So what do you do as an attorney when you get involved in a case that is so high profile? And particularly when your client(s) are taking the brunt of the publicity?

2. I cannot comment on a matter while litigation is pending.

3. IOWA R. PROF. CONDUCT 32:3.6(a)
“A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

4. JUDGE OR JURY?
Iowa R. Prof. Conduct 32:3.6, Comment 1: “…Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved.”
Comment 5: “There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:
(1) the character, credibility, reputation, or criminal record of a party…
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial…”

5. PRETTY SAFE… “My clients look forward to having their day in court.”
“My clients deny the allegations made against them.”
“My clients made the decision to file this lawsuit only after careful reflection and deliberation.”
“My client takes this matter very seriously and is carefully reviewing the recent filings.”

6. GOING TOO FAR (IF YOU’RE A LAWYER)…
“They’ve poisoned the air We’re making sure the corporation doesn’t get away with it. They knew what they were doing and they kept doing it, putting filth and poison into the air in Iowa.”
“This is a very sad day for Illinois government This was a political corruption crime spree This conduct would make Lincoln roll over in his grave.”
“I will not allow this county to become known as a place where a bunch of hooligans can assault an innocent victim.”
“The plaintiff is a liar. You cannot trust a single word that comes out of his mouth.”

7. THE EXCEPTION THAT SWALLOWS THE RULE?
Iowa R. Prof. Conduct 32:3.6(c):
“Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.”
Remember: subpara. (a) says you, as a lawyer, cannot make an extrajudicial statement that you know or reasonably should know “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
Good, recent example of this here in Iowa. Many of you have probably heard of Chris Soules, a farmer in eastern Iowa who was the “Bachelor” on the ABC TV show a few years ago. He was involved in a tragic accident last month when he rear-ended a farmer’s tractor, ultimately resulting in the man’s death. Mr. Soules was no longer at the scene when police arrived, and so the media ran with the story as, “Former Bachelor under arrest after fleeing scene of tragic accident.” Now, as it turns out, the truth was a little bit more complicated than that because Mr. Soules did actually call ‘911’ shortly after the accident and may even have tried to resuscitate the man. So his lawyers came out with a public statement saying just those things and essentially rebutting the story the media had been running. Under the circumstances, that’s almost certainly a fair application of Rule 32:3.6(c).

8. CLIENTS CAN ALWAYS TALK…BUT RARELY SHOULD
The Rules of Professional Conduct don’t apply to our clients (unless they happen to be lawyers). So unless there is a gag order or something, our clients generally will be free to talk to the media. But letting them do that is rarely a good idea because (1) clients don’t always have the best instincts about what is going to help or hurt their case; (2) even YOU may not know what will help or hurt the case until you’ve researched the matter further; (workers’ comp/exclusive remedy defense – you actually WANT your client to have controlled the scene of the injury; but if you or your client comes out on Day 1 to say “we had no control over the scene of the accident, you’ve undermined that defense.” (3) Your clients may not be the most trustworthy.