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.