M-1:PUBLIC DEFENDER MEDIA POLICY

INTRODUCTION

The Department of the Public Defender is a governmental agency the operation of which is subject to public scrutiny. However, most of the work of the Department consists of representation of clients whose legal privileges, expectations of privacy, and rights to confidentiality are coextensive with those enjoyed by individuals who have retained counsel. This policy statement is written to explain the Department's approach to accommodating the public's right to information (as exercised through the media) without compromise of clients' rights and interests, and to assist the media obtain reliable information to which it is entitled.

In this statement the term "media" includes the press, newspapers, magazines, professional and academic journals, radio, television, cable television, book publishers and authors, the Internet, and the movie industry. For purposes of this statement, no distinction is drawn between the use of information for news, editorial, feature, documentary, or entertainment purposes. "Comment" means the providing of information to any representative of the media. Such comment includes both written and oral expression, both through interview and providing of materials.

For purposes of this policy "comment" is divided into two types, case-specific, and non-case-specific. "Case-specific" comment is that which relates to a specific incident or accused, regardless of the status of the case, i.e., prefiling, pending, or closed. "Non-case-specific" comment encompasses all other inquiry, including comment on legislation, comment on appellate cases, comment on justice system personnel, general comment on criminal justice issues, and comment upon the operations and policies of the Department.

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CASE-SPECIFIC COMMENT

The policies regarding case-specific comment are based upon the following philosophy:

It is the policy of this Department that the rendition of legal services requires that the attorney assigned to a case bear the primary responsibility for representing the client. To be able to properly meet that responsibility the assigned attorney is vested with the authority to make all decisions necessary for proper representation. Formulation of defense strategy includes recognizing and dealing with the public's interest in open cases in a manner which benefits the client's cause.

Prohibited Comment:

Since it is the assigned attorney who has the responsibility for the case, case-specific inquiry should be directed to the assigned attorney. Our staff are directed not to provide such comment unless the staff person is the assigned attorney, or has been expressly authorized by such attorney to provide comment. Thus, no attorney will comment on a colleague's case, and no support staff member is to make comment on a case, even if that support staff member is assigned to the case. In those cases where more than one attorney is assigned to a case, the lead attorney has the authority and responsibility for making decisions regarding media comment. The prohibitions contained in this policy statement do not apply to the Department Head.

Our staff will not provide case-specific comment in cases where the Public Defender has been relieved because of a conflict of interest, or because of counsel substitution. The media should instead seek comment from the new defense counsel. The media should not expect to receive comment from Public Defender staff in any case in which a court order has been issued prohibiting comment.

Responding to case-specific media inquiry:

Since attorneys are duty bound to keep clients' confidences, secrets, and privacy inviolate, the press should not expect attorneys to provide any information coming from a client. Nor will any information be provided which tends to disclose any confidences of the client by way of inference derived from that information. Information in the possession of the attorney need not have been obtained in confidence from the client to be of the type from which an inference regarding confidential client information may be drawn. Protection of a client's privacy interest may prevent an attorney from disclosing information which has been gleaned from public records.

Impact of State Bar Rules

Members of the State Bar are subject to the limitations presented in Rule 5-120 of the Rules of Professional Conduct. That rule prohibits an attorney who is participating, or has participated, in the investigation or litigation of a matter, from making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. The exceptions to this prohibition are stated in the Rule, including the suspension of the prohibition when the member reasonably believes a statement is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the member or the member's client. Attorneys are expected to be conversant with, and abide by, the State Bar Rules.

 

NON- CASE-SPECIFIC COMMENT

Because of the high public interest in crime and the criminal justice system, the media seeks information from our Department not only on specific cases but also on more general issues unrelated to any specific case, such as legislation, appellate court cases, justice system personnel, criminal court procedures, and the internal operations and policies of the Department. The policies regarding these types of other than case-specific comment are based upon the following philosophy:

The attorney staff of this Department collectively represent over 7,000 attorney-years of experience. This vast pool of expertise is a resource which has been developed and financed through public expenditure. The unique perspective and insight into the practice of criminal law in general, and public defense in particular, possessed by our staff is to be used primarily for the benefit of our clientele. There is no reason why that expertise should not be made available to the broader public through the media in its exposition and assessment of how our society deals with criminal justice issues. As with any other aspect of practice, however, an attorney should not undertake a service, including comment, which requires a degree of knowledge or skill not possessed. (See Rules of Professional Conduct, Rule 3-110.)

Comments upon any of these general issues must not be presented as the position of the Department. As advocates it is our duty to be aware of issues which affect our specific clients and our practice. However, a position which helps one client might harm another. Hence, it is rare for the Department, as a governmental unit, to hold any particular position. As individual attorneys we may have diverse viewpoints, perspectives, and preferences. It is appropriate to share with the public, through the media, our individual views of the general impact of cases, legislation, justice system practices and procedures. It is inappropriate to represent them to be the position of the Department. No staff person is authorized to express a "departmental position" without first being expressly given such authority by the Public Defender.

Comment on legislation

The media frequently solicits comment from our staff on the anticipated effect of pending legislation or our experience under existing legislation. When such comment is sought, an attorney is authorized to respond in accordance with this policy if the attorney possesses sufficient learning and skill to do so competently. It is not absolutely necessary that the attorney have been faced in practice with the precise issue presented by the inquiry, in order to hold the necessary expertise to respond. The determination of the level of expertise required to respond competently itself requires a degree of sophistication. In the final analysis, however, the person who has been solicited for comment must make that

Comment on appellate cases

The media routinely solicits the Appellate Branch for comment regarding appellate court case developments. The appellate attorneys are not the only ones qualified to provide such comment. In accordance with the controlling philosophy, any attorney who possesses sufficient skill, learning, and knowledge in the particular topic may respond to such inquiry. Though the usual response might be a referral of the inquiry to the Appellate Branch, this is not required, particularly when the inquiry relates to the impact of an appellate case on the trial environment.

Comment on justice system personnel

Our staff interacts with other members of the criminal justice system, including judges, and prosecutors, regarding whom the media makes frequent inquiry. When solicited by the media, comment regarding any such person is made by our attorneys as individuals, not as spokespersons of the Department.

General comment on criminal justice issues

With increasing frequency the media, particularly television and the entertainment industry, seeks information regarding the criminal justice process. Staff may provide information of a general nature so long as they have the requisite degree of expertise. In providing information, however, no case-specific information will be provided. Case-specific materials generated, or collected, by the Department are confidential, belong to the Department and the respective clients, and will not be provided to anyone without permission of the Department and the client. It is permissible to provide anecdotes of experiences encountered in practice, but it is not acceptable to identify such cases, or to provide written materials from them.

Comment upon the operations of the Department

Most of this policy statement has dealt with media comment regarding legal matters. This section deals with comment regarding the business aspects of the Department. It is recognized that the media has a legitimate interest in the operations of the Department. It is important that the media be provided accurate information, based upon reliable data with appropriate interpretation. The Department is widespread, and comprehensive information regarding matters of statistics, staffing, budgets, and costs, tend to be concentrated only in headquarters. Accordingly, media inquiries regarding these topics should be redirected to the Executive Offices of the Public Defender.

Letters to the Editor

Employees are entitled to exercise their First Amendment rights of expression. Letters to the Editor are a time-honored means of stating one's opinion. Employees of this office owe a duty of loyalty to our clients. This duty goes beyond preservation of confidences; it includes an obligation not to act in a manner which lessens the effectiveness of the client-centered functions of this office and its attorneys. These duties may sometimes be in conflict with the individual's right of free expression. Employees should resolve such conflicts in favor of the clients, including future clients of the office. Furthermore, in advancing one's own opinion, care must be taken so as not to leave the reader with the impression that the position adopted by the writer is that of the office (unless the employee has received explicit approval to write on behalf of the office). Though it is permissible to identify one's employment as a member of the office in the body of the letter, the signature line should not include such identification.

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