Ohio Court Sanctions Lawyer For Sharing Publicly-Available Court Documents With Journalists

from the seems-kind-of-shady,-this-sharing-of-public-documents... dept

The sort of thing that happens all the time -- the sharing of public documents concerning public litigation -- has resulted in sanctions against the lawyer who shared them with a local journalist. An Ohio judge has issued a chilling decision [PDF] (currently being appealed) that basically says that any sharing of public information that could be viewed as adversely affecting the other party in litigation is not permitted. The ACLU's Jonathan Peters has more details.

A few times during the representation, [plaintiff's attorney Peter] Pattakos communicated with the editor of Cleveland Scene, the alternative newsweekly. He provided the editor, a friend of his, with public court documents related to the suit, including the complaint, the briefs opposing a summary judgment motion, and the affidavits supporting the motion. Pattakos also encouraged the editor to report on the case when it was set for trial. Notably, none of the documents was under seal, and no gag order had been issued to the parties or their counsel. The court proceedings, too, were open.

Scene published a story on the first day of jury selection that characterized the claims against the school, prompting the judge to question the jurors about the coverage. Two said they had seen the headline but would not be influenced by it. Soon thereafter, the judge declared a mistrial for unrelated reasons. Eventually, a new jury was selected, the trial was held, and Pattakos’s clients won their case.

A few months later, however, the school’s attorneys asked the judge to sanction Pattakos for his “involvement in the publication of an inflammatory article related to this case.” The judge complied and ordered Pattakos to pay nearly $11,000, covering the cost to the school of questioning the jurors after the article’s publication and of bringing a sanctions motion.

A look at the decision shows the judge making a lot of conclusory statements -- the sort of thing judges often chastise plaintiffs and defendants for making in their legal filings. In it, much is inferred about Pattakos' intent, even though there's little evidence supporting these assertions or their supposed effect on the outcome of the litigation.

Mr. Pattakos’s involvement in publication of the Scene article was a malicious attempt to injure and was intended to “harass “each of the defendants. Mr. Pattakos had a purpose to defame defendants when he instructed Mr. Grzegorek on January 20 "Get your reporting pants on. Or at least tell one of your reporters to get his reporting pants on " and on March 30, 2015 notifying Scene that the trial was about to begin. He had abandoned hope of settlement.

Mr. Pattakos had previously supplied to Scene all of the information that it ultimately published. Although Mr. Pattakos did not write the article, he knew that the thrust of any reporting was likely to be to discredit the defendants and that, if believed by members of the public, the reporting would “injure” them. Urging Scene to begin coverage constituted initiating harassment.

[...]

While the information communicated to Scene by Mr. Pattakos may well have been protected by Rule 3.6(b) [which allows the dissemination of publicly-available court documents and scheduling information], his urging that reporting begin once the jury was selected raised a substantial likelihood that the jury would read about his clients claims.

Although there is no evidence that Mr. Pattakos knew when an article would be published, what it would contain, or that particular adverse comments about the defendants would be generated, he did know what information he had already provided to Scene. Thus, he knowingly put in motion both the news media process and the information contained in the article. If one lights a fire in a forest that starts a forest fire, he is responsible for the forest fire even if he did not intend it.

Pattakos' mild urging that a Scene writer "get their reporting pants on" is akin to shouting "Fire!" in a crowded forest… and then walking away while it burns? Because the defendants claimed this single article adversely affected its settlement attempts, the court has decided this lawyer should be punished for doing something lawyers do every day -- and something that is apparently permitted by the rules governing attorney conduct.

But the opening of the same decision condemning Pattakos' behavior opens with a recitation of the events leading up to this decision, which includes a period of three years (February 2012-January 2015) where the defendants made zero effort to make counteroffers to the plaintiff's settlement demands. It appears the defendants truly believed the jury would side with it and allow it to escape litigation without having to pay a settlement and are now looking for someone to blame because it ended up paying out $400,000 to the plaintiff and opposing counsel.

But for all the noise the judge makes during this sanctions award, the single article published by the Scene appears to have had zero effect on the outcome. And yet, the judge still felt sanctions were proper, and handed down a decision that turns journalists into misconduct accomplices should a lawyer happen to point them in the direction of publicly-available documents, especially if the opposing counsel doesn't like the outcome of the litigation. This isn't a trivial outcome, should the Ohio Appeals Court agree with the lower court's reasoning.

If upheld, the trial judge’s novel use of the frivolous-conduct statute will create a precedent that could make attorneys wary of any but the most trivial interactions with the press. That outcome would restrict the public’s practical ability to receive information about court proceedings—and undermine the principle that “free and robust reporting, criticism, and debate” about court proceedings, as Justice Brennan once wrote, “can contribute to public understanding of the rule of law” and improve the legal system’s quality “by subjecting it to the cleansing effects of exposure and public accountability.”

Short of a lawyers publishing self-interested takes on ongoing litigation, it's hard to see how just informing journalists of new documents or upcoming arguments/testimony violates guidelines for attorneys. Just because the outcome was unfavorable to one party doesn't mean the prevailing party somehow urged the press to push jurors towards a decision favoring the legal rep who gave reporters a head's up. There's a lot of implication being drawn from this harmless action by the judge in this case. Hopefully, the Appeals Court will overturn the sanctions and keep the public from being further separated from the judicial process.

Filed Under: court documents, journalism, lawyers, public records, reporters


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    That Anonymous Coward (profile), 7 Jul 2016 @ 12:12pm

    Oh yes because there is no public interest in a business that trains nannies and tells them not to report abuse of children they witness.

    Perhaps the Judge was grumpy because the newspaper didn't have to pay PACER fees.

    This is ludicrous and one should question the Judges ability to remain on the bench and any ties to the firm that brought these asinine complaints.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jul 2016 @ 12:16pm

    IANAL but this seems like a civil parallel to getting your newspaper buddy to write up articles about OJ's athletic accomplishments and his charity work and conveniently distribute that article in places where the jurors in his murder trial are likely to be present.

    Sanctions might seem a bit excessive, but this is definitely not ethical behavior.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jul 2016 @ 12:32pm

      Re:

      You are right, you are not a lawyer. The straw-man argument you make is meaningless in this case. This is a judge punishing someone for things that are perfectly legal. Think about him punishing others he doesn't like for legal things they do or attempt to do and then reconsider your thinking. Being forced to appeal a ridiculous sanction like this is going to be costly in both time and money for those affected. If it stands for whatever reason, say hello to malicious prosecutions for every release of information that a police chief or mayor makes to a press conference. The truth shall set you free... unless in Ohio.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jul 2016 @ 2:36pm

        Re: Re:

        jury tampering is not perfectly legal, though.

        e.g. precedent says there's a difference between generally distributing informed jury materials and going to the courthouse on the day that you/your friend/your mother has a case to distribute informed jury pamphlets.

        note that it isn't just a case of "distributing documents", the issue is that the attorney specifically requested that they not release the article regarding said documents until the case was going to court - then they allowed the publishing to go forward so it would coincide with the jury being selected for the case.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Jul 2016 @ 3:10pm

          Re: Re: Re:

          If that rises to the level of jury tampering then its just another sign that the court system is broken.

          Freedom of the Press in the Constitution does not contain an exception for courts or trials. It is unconstitutional to restrict anything with the press.

          An Ohio judge has issued a chilling decision [PDF] (currently being appealed) that basically says that any sharing of public information that could be viewed as adversely affecting the other party in litigation is not permitted.

          Under this test the terms "could be viewed" is not only overly broad, but just flat corrupt. It implies that a judge has power and authority they actually do not have!

          The judge should be disbarred, removed from the bench, and potentially prosecuted for abuse of authority.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Jul 2016 @ 5:19pm

          Re: Re: Re:

          Did you actually read the provided document though? Even the opposing side that proposed sanctions didn't allege jury tampering and the court acknowledged not only that the two jurors who read the headline didn't read the article and stated it wouldn't affect their judgment and then that jury wasn't even the one to decide the case in the end.

          There was no allegation of jury tampering. The allegation that led to sanctions was the contribution of the opposing counsel towards a newspaper article that didn't include both sides of the story and the publication of the story itself that forced the hand of the defendants not to settle but to seek a jury verdict that it ultimately lost. They're not saying that jury tampering was the issue, but rather that the opposing counsel used the press in order to force them into a weaker position since he knew that they were afraid of press coverage.

          And that ultimately shows why there shouldn't be sanctions. The defendants sought to limit the press from knowing allegations that were not only public record but arguably of newsworthy interest to the public. The opposing counsel made an intelligent and legal negotiating move that has been done without sanction thousands of times before.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jul 2016 @ 5:08pm

        Re: Re:

        Things like this could get him disbarred.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jul 2016 @ 12:42pm

      Re:

      IANAL but this seems like a civil parallel to getting your newspaper buddy to write up articles about OJ's athletic accomplishments and his charity work and conveniently distribute that article in places where the jurors in his murder trial are likely to be present.

      That should be a moot point.

      I'm sure the juror instructions were explicit enough that they were to only consider what was stated during the proceedings.

      There was plenty of coverage before, during, and after the OJ trial.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jul 2016 @ 1:35pm

    Remember Kent State.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 7 Jul 2016 @ 6:08pm

    "If one lights a fire in a forest that starts a forest fire, he is responsible for the forest fire even if he did not intend it."

    Wow, a judge putting forth a big, fat straw-man. I guess the road to hell is paved with well intentioned judges.

    reply to this | link to this | view in chronology ]

  • identicon
    Tin-Foil-Hat, 7 Jul 2016 @ 6:25pm

    Not During The Trial

    I'm not sure anybody involved in the trial should disseminate information early in the trial process. Jurors can be asked not to do things that might provide information that could compromise their ability to be impartial. The risk is that the friend may disseminate the information which may circulate rapidly and widely rather than a more organic circulation over time. Jury trials are important. It's bad for everybody if the process has to be repeated or the case drags on, you have to replace jurors or they end up being sequestered because the story goes viral.

    reply to this | link to this | view in chronology ]

  • identicon
    al baker, 7 Jul 2016 @ 11:36pm

    IANAL

    -IANAL-

    "and conveniently distribute that article in places where the jurors in his murder trial are likely to be present."

    I might have had some agreement - up until this. Absolutely no parallel to the story.

    Hint - similes only work if they are not strawman

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 8 Jul 2016 @ 4:48am

    That judge was ordered to make up his mind long before the trial started and is trying suppress people opposing him.

    Probably going to work since laws are mostly ignored by those running things when they get in their way.

    Complete anarchy when laws are suppressed solely because those in charge want to spite someone

    reply to this | link to this | view in chronology ]

  • icon
    Monday (profile), 8 Jul 2016 @ 10:34am

    Punishing the Winner

    This sounds like, reads just like a Courtroom equivalent of a "Takedown - something not unlike a DMCA.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jul 2016 @ 12:20pm

      Re: Ethical rules - trial publicity. There ARE rules.

      TLDR version:

      (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.

      (b) Notwithstanding paragraph (a), a lawyer may state:

      (2) information contained in a public record;


      Translation: Basically anything in public record is fair game.

      reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 9 Jul 2016 @ 11:07am

      Re: Ethical rules - trial publicity. There ARE rules.

      Ethical rules - trial publicity. There ARE rules.

      Yes, there are rules. And the judge acknowledges that the rules were not violated. None the less, an outrageous sanction is imposed for expressly not violating the rules.

      My personal impression from reading the order is that the judge was not impressed with the plaintiffs' cases. To the extent there was judicial discretion it would be exercised in favor of the defendants. The court even reduced the judgment to only twice the belated offer from the defendants, plus fees.

      The judicial conduct in question appears to me likely to increase disrespect for the courts and the judiciary. However, it is in Ohio, and so it is possible either that the general regard for the courts is low, or they do not require judges to act in such a way as to encourage public confidence in their courts. I am not familiar with the law of Ohio, though I have spelled the name of the state on multiple occasions.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jul 2016 @ 6:36pm

    Lawyer: Information wants to be free.
    Court: Fuck you!

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.