Judge Warns Third Party Lawyers in Zimmerman Case

By Jeralyn, Section Colorado News
Posted on Tue May 01, 2012 at 10:43:32 PM EST
Tags: George Zimmerman, Trayvon Martin (all tags)

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Judge Kenneth Lester has issued a written order on the motion brought last week by the state for a gag order. Judge Lester says the lawyers for the parties (the state and Mr. Zimmerman) have acted with the utmost professionalism and no gag order on them is warranted.

He then reminds lawyers "connected to" the case and "their agents" that they are also subject to Florida ethical rules for lawyers on extrajudicial comments and are subject to discipline if they violate the rules. [More...]

All attorneys are ethically obligatcd to follow the Rules Regulating the Florida Bar and may be subject to discipline for violating those rules. With regard to those attorneys connected to this case (or their agents) who choose to speak to the media must keep specifically in mind Rule 4-3.6, which states:

(a) Prejudicial Extrajudicial Statements Prohibited.

A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.

(b) Statements of Third Parties.

A lawyer shall not counsel or assist another person to make such a statement. Counsel shall exercise reasonable care to prevent investigators, employees, or other persons assisting in or associated with a case from making extrajudicial statements that are prohibited under this rule.

Hopefully, the lawyers "connected to the case" and "their agents" will now be more responsible in their public comments.

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Judge Warns Third Party Lawyers in Zimmerman Case | 32 comments (32 topical)

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Last comment ever (5.00 / 1) (#7)
by Big Tent Democrat on Wed May 02, 2012 at 06:59:22 AM EST

That is the most ridiculous rule EVER.

It does not even make sense.

What statement is "detrimental" to a proceeding?

As applied to nonlawyers or other parties not before the court, it violates the First Amendment for sure.

But this whole gag order thing is completely ridiculous period.

Cuz, you know, no one is going to talk about the case.

Just stupid.

Sorry for the intrusion.

he's only talking about lawyers (none / 0) (#9)
by Jeralyn on Wed May 02, 2012 at 07:30:08 AM EST

It's always been the rule. It's the rule in every state, as far as I know. He's not talking about lawyers who comment for the media, non-lawyers, activists, etc.

The rule doesn't restrict what third parties can say, it says "A lawyer shall not counsel or assist another person to make such a statement. "

Here is the ABA Model Rule (3.6).

As for what's "prejudicial" to the proceeding, see the commentary to the ABA Model Rule which spells it out and is the standard pretty much everywhere.

Also:

Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected. The Rule will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different depending on the type of proceeding.

I know (5.00 / 1) (#10)
by Big Tent Democrat on Wed May 02, 2012 at 07:51:48 AM EST

My comment was about the general rule, which I find ridiculous.

The reason I find it ridiculous is it really only matter in high profile cases which are already swamped with publicity.

My own view is that lawyers who try their case in public generally do a very poor job of it and are much better off not saying anything.

But as a policy matter, I think the rule is ridiculous.


I can't link (5.00 / 1) (#29)
by Doug1111 on Wed May 02, 2012 at 02:20:50 PM EST

of a whole lot that Ben Crump has said to the media or directed the PR firm he engaged to say, that hasn't been designed to be prejudical to potential jurors, particularly in the black community.

To pick one of many, many examples, right after the bail bond hearing he called Zimmerman's expressed regret for the loss of the Martin family's son to be self serving, and the said he'd lied on the stand about what rough age he though Trayvon was and mused what else he'd lied about.


: Sorry typo (none / 0) (#32)
by Doug1111 on Wed May 02, 2012 at 02:58:21 PM EST

The header for the above post was supposed to read:
"I can't think"

Sharpton is not a Lawyer (none / 0) (#2)
by TeresaInPa on Tue May 01, 2012 at 11:42:13 PM EST

is he? I am not sure what your example has to do with this case. Maybe you can clue me in, it's late here at my house.

: you are correct (5.00 / 1) (#5)
by Jeralyn on Wed May 02, 2012 at 12:46:08 AM EST

and I deleted that comment. It was inflammatory and Sharpton is not subject to the Florida rules of professional conduct for lawyers. He's also not "an agent" of the lawyers, so far as I know.

I am glad the Judge (none / 0) (#3)
by TeresaInPa on Tue May 01, 2012 at 11:53:22 PM EST

finally did something. The Lawyers for TM's family have been swinging on my last nerve since this first happened. I really do not believe that in the long run they have done their clients any favor either.

They are hangers-on (5.00 / 1) (#14)
by rickroberts on Wed May 02, 2012 at 08:35:52 AM EST

There are quite a number of vultures hanging about the Martins hoping for a piece (publicity, money, future opportunity, whatever). It's sickening to behold.


Hold on now (5.00 / 1) (#17)
by AngryBlackGuy on Wed May 02, 2012 at 09:44:05 AM EST

The lawyers for Martin's family are the primary reason we even know the kid's name in the first place. Without them, Zimmerman would likely never have been arrested.

The Martin's hired Crump specifically to (1) bring media coverage to the investigation and (2)possibly file a civil case depending on how things played out.

Crump and the rest of the Martin lawyers did exactly what they were paid to do in terms of (1), but it seems like many were angry at them even for that.

Now that Zimmerman has been charged, I understand that some believe the Martin family should shut up and say nothing. That is fair.

But if I were that family and it were my son and I believed what they seem to believe, I would be talking as much as legally allowed and I would want my lawyers doing the same to the furthest extent that they could.

You may no agree with the Martin family or their representatives, but I think all of us can understand the emotions behind what they are doing, legal issues aside.

I see no problem with them directing their lawyers to advocate for their position publicly as far as the law and ethical constraints will allow, even if it means bumping up against the edges of the rules at times to test the breaking point.


this is about the conduct (none / 0) (#19)
by Jeralyn on Wed May 02, 2012 at 10:08:45 AM EST

of lawyers. All lawyers are subject to the professional rules. They can speak on behalf of their client so long as their comments are not prejudicial to a proceeding and do not prejudice the potential jury pool.

They should not be making statements attacking the credibility of the defendant or impugning his character. One blatant example: After ABC published the photo of Zimmerman's injuries, Martin Lawyer Benjamin Crump said:

"If this is any indication of what's to come, then the lying has already begun," attorney Ben Crump told reporters on Sunday, while promoting a documentary at the Florida Film Festival on another case.

This thread is not intended to rehash the actions of Crump, et.al. but to point out they are now on notice from the Court they can be held accountable through lawyer disciplinary proceedings if they make prejudicial comments in the future.


Do you think that O'Mara saying that (5.00 / 1) (#21)
by Anne on Wed May 02, 2012 at 11:07:33 AM EST

they - the defense - would not be impugning Trayvon's character may have helped put out some of the fire attached to this case?

I know O'Mara can't control what the public, in general, is putting out there, but it seems to me that making the clear distinction that this case is not about character, but the law, would at least go a long way to establishing some boundaries that representatives of the Martin family would now find it easier to stay within.

At least I would hope they would. And while I think getting this case out of the dark and into the light was a good thing - most especially because of the issues surrounding the Sanford PD - I also think there was a point at which the Martins' lawyers needed to exercise some restraint and some discretion.

I think all lawyers need to be able to assess how far is too far, and at what point they're hurting more than helping.

Here's hoping the judge's warning is taken to heart.


Before and after (none / 0) (#22)
by ks on Wed May 02, 2012 at 12:04:00 PM EST

I think it's more a question of timing. Before Zimmerman was charged nothing much could really be done and both sides could be wild and woolly in their statements culminating, imo, with Zimmerman's former attorneys ditching him and holding a bizzare press conference about it. Talk about potentially prejudicial. Once he got a new lawyer, and more importantly, was charged, things have clamed down considerably and now a judge can try and exercise some control though in a high profile case like this, as BTD indicated, that's a difficult effort.


it's not just timing (5.00 / 1) (#24)
by Jeralyn on Wed May 02, 2012 at 12:50:32 PM EST

"the lies have begun" statement was made April 22, after a court appearance and well after the charges were brought. They also continued to insist the evidence of Zimmerman's injuries was minimal or non-existent.

On CNN after last week's hearing, he said:

"If his testimony at the bond hearing is any indication of what is to come, then the lying has already begun," Crump said.
"This is going to say a lot about whether Trayvon Martin can get a fair trial," he told Burnett. "If he (Lester) doesn't revoke his bond, the court should severely sanction him so George Zimmerman understands you cannot lie to the court."

I agree they seem to have toned it down in recent days -- but that doesn't mean they should get a pass for their prior comments, which continued well after Zimmerman's arrest.

I do expect now that they are notice that the Court is taking notice, they will stay in line.


: That wasn't really my point (none / 0) (#26)
by ks on Wed May 02, 2012 at 01:08:36 PM EST

I sort of agree with you but I was mostly referring to that there wasn't much that could be done about any of the sides statement before Zimmerman was charged and there was actually a case. Once he was charged, that's a different story as indicated by the new warning.
Also, it seems unlikey that anybody will be sanctioned for statements which occured before the judge's warning. So while you might not give them a pass and continue to parse those statements, I think that's water under the bridge for the court. Of course, going forward will be another matter.

Zimmerman's former attorneys ditching him? (none / 0) (#34)
by michele on Wed May 02, 2012 at 03:24:14 PM EST

who ditched who is a more accurate question.


Available information (none / 0) (#35)
by ks on Wed May 02, 2012 at 04:35:46 PM EST

If you have any information to counter what the ex-lawyers said during their press conference, feel free to provide it. In any event, I'd say it's more of an irrelevant question at this point than an accurate one.


Ditched (none / 0) (#36)
by nomatter0nevermind on Wed May 02, 2012 at 05:00:16 PM EST

Zimmerman seems to have traded up.


: Ha! (none / 0) (#37)
by ks on Wed May 02, 2012 at 05:07:55 PM EST

Well that's certainly looks to be true. It was probably a blessing in disguise.

Let's talk lawyers then (none / 0) (#23)
by AngryBlackGuy on Wed May 02, 2012 at 12:47:35 PM EST

O'Mara just tweeted the following:

"ONLY in court. NOT publicly .RT @roblesherald: O'Mara hints that if Crump criticizes #Zimmerman's Myspace, Trayvon's tweets will be fair..."

Isn't O'Mara's mention of Trayvon's tweets prejudicial by suggesting that there are negative implications in the tweets and pointing possible jurors to look at those tweets?

I think it is clear that that is exactly the kind of thing that you have been pointing out with respect to Martin's lawyers. Can we agree that the way O'Mara should have handled that point was to contact Martin's lawyers directly or make his point to the judge?

O'Mara seems to be doing the same thing but in a more subtle way. He didn't say "go look up Martin's tweets" but that is the effect of his statement for many I'd think.


I have warned repeatedly (none / 0) (#25)
by Jeralyn on Wed May 02, 2012 at 12:51:46 PM EST

this site will not discuss Trayvon's tweets or the My Space account. You will be banned if you keep bringing it up.


Wow (5.00 / 1) (#27)
by AngryBlackGuy on Wed May 02, 2012 at 01:09:57 PM EST

I referenced a statement that was made by Zimmerman's defense attorney directly relevant to our discussion. Does this mean that if the lawyers make additional mentions of those subjects, we just pretend that it is not happening?

I understand that you have rules and I am trying to play by them, but wow.

I think I'm off TL's Martin/Zimmerman discussions for a while until there is a clearer interpretation of the rules.

I am interested in discussing this case here, but I am more interested in discussing politics. No need to mess that up because of confusion over the line Jeralyn is drawing.

I am honestly completely confused by what standards you are applying.


That's fine, because (5.00 / 1) (#31)
by Jeralyn on Wed May 02, 2012 at 02:29:08 PM EST

all of your comments either try and justify the Martin lawyers or redirect the topic to racial issues that as of now are not part of the state's case or its theory of prosecution, despite the efforts by those lawyers to have people view the case that way. The state clearly says in its affidavit, in which the word race is never mentioned, that its theory is that Zimmerman profiled Martin as a criminal.

Your comment omits that the reporter was asking O'Mara for a response to what Crump tweeted about the My Space page. Not surprisingly, Crump's comment was prejudicial and inappropriate. Crump had tweeted to the reporter that the my space page was evidence of Zimmerman's history of profiling.

If you bothered to read O'Mara's full statement posted on his website, you would see his comments were about his client's my space page, which he acknowledged belonged to his client and was hacked, and that he is addressing Crump's (in my view) inappropriate and baseless tweet to that reporter.

Crump's allegations about the my space page have not been endorsed by the prosecution, which is the only entity that decides what evidence will be introduced against George Zimmerman. Crump does not decide the prosecution theory or evidence.

This post is about appropriate and inappropriate comments by lawyers involved and connected to the case.

O'Mara's tweeted response to a reporter's question that says he will not publicly discuss specific evidence that could come up at trial, and will only discuss such potential evidence in court, is not prejudicial -- it is the correct and appropriate response.

On his website O'Mara says:

bq. We believe that inviting public scrutiny of the contents of this social media account invites scrutiny of the social media accounts of all parties involved. While these social media accounts may be public, we will not comment on them publicly, as they may be part of the evidence produced at trial.

You want to cast O'Mara's response as a threat to introduce Martin's tweets into evidence so you can get into a discussion of them and the my space page. You will have to do it somewhere else. This thread is not about the evidence, but the court order about permissible comments.

I have repeatedly said I will not allow commenters here to make character attacks on Martin based on his Twitter account, and the same goes for Zimmerman's my space account. That's the discussion you are trying to have and it's not going to happen here.

If the state moves to admit the my space account, it will be a fair topic of discussion. Today, it is not.

Since you obviously want to discuss matters beyond the clearly stated guidelines I have laid out, you are better off not commenting here on the case. My rules are clear, you just don't like them.

: I disagree (none / 0) (#33)
by AngryBlackGuy on Wed May 02, 2012 at 03:16:14 PM EST

with all of this and your characterizations.
But off to discuss politics I go for the time being.

I gather the judge is ok w/ (none / 0) (#4)
by oculus on Wed May 02, 2012 at 12:15:28 AM EST

Mr. O'Mara's frequent statements ee the pending case to nationamedia. Surprises me.

: yes the order says (none / 0) (#6)
by Jeralyn on Wed May 02, 2012 at 12:47:49 AM EST

The attorneys representing the State and the Defendant have exhibited, in this Court's eyes, the utmost in professionalism in their public statements.

I wish the judge didn't take so long (none / 0) (#12)
by Darby on Wed May 02, 2012 at 07:56:33 AM EST

Hopefully it will stop now or the judge will cite the offenders with whatever power he has to do so.

I deleted 2 of my comments (none / 0) (#13)
by Big Tent Democrat on Wed May 02, 2012 at 08:25:10 AM EST

Not for violating site rules but because I was not comfortable with what I wrote.

Sorry.

: no problem (none / 0) (#15)
by Jeralyn on Wed May 02, 2012 at 08:42:04 AM EST

I had no issue with them, but I can understand.

Attorneys to which the order applies (none / 0) (#16)
by vicndabx on Wed May 02, 2012 at 09:36:52 AM EST

Are they listed at the bottom of the order? Are any of those listed tied to TM? Unless I'm missing something the lawyers listed represent the state, the defendant, and the media.

Other than the admonition about FL Bar Rules; which I assume would apply generally to any lawyer, does the order apply to anyone representing TM if he/she or a representive any firm they are employed by is not listed on the order?

the listing of (none / 0) (#18)
by Jeralyn on Wed May 02, 2012 at 09:56:51 AM EST

attorneys on the order means those lawyers are counsel of record. They include lawyers for the two parties and the media lawyers who filed a motion to intervene regarding access to records which was also addressed in the order.

Again, the judge's order reads:

With regard to those attorneys connected to this case (or their agents) who choose to speak to the media must keep specifically in mind Rule 4-3.6, which states:

It is not just directed only to lawyers in the case but those connected to the case. The only lawyers who are speaking publicly who are not in the case but are connected to it are those representing the Martin Family. Zimmerman's family and friends don't have lawyers speaking for them. There are no lawyers other than those in the State's Attorney's office who are connected to the case speaking out.

Lawyers providing commentary for the media are not "connected to the case."


: Thanks for the clarity (none / 0) (#20)
by vicndabx on Wed May 02, 2012 at 10:13:13 AM EST

Appreciated.