Raise Level of Discussion, Better Inform the Public, Avoid Conflicts

Washington, DC (April 28, 1998) -- Noting that "unprecedented coverage of criminal and other legal proceedings has resulted in an explosion of attorneys serving as legal commentators," the Board of the National Association of Criminal Defense Lawyers (NACDL) today released its long-awaited Ethical Considerations for Criminal Defense Attorneys Serving as Legal Commentators. The recommendations were approved Saturday at a meeting of the Association's Board of Directors in Santa Monica, CA. An effort will be made to get other leading national bar associations to likewise raise the consciousness of their member attorneys.

NACDL Board member Barry Scheck took on the task of redrafting the ethical considerations after heated debate at a meeting last November made it clear that some of the Association's members had strong reservations about suggesting any limitations on public comment by attorneys.

"NACDL adopts the position that fairness, honest disclosure of conflicts or bias, and, above all, professional competence are the indispensable hallmarks of ethical legal commentary," Scheck said in his report. "All members of the bar have unique responsibilities when offering 'expert' legal commentary . . . that arise from the ethical norms of our profession. Electronic and print journalists who request our expert opinions and observations may not always encourage or facilitate our best efforts to advance fully informed and professional commentary; nonetheless, it is our responsibility to maintain high standards, and these Ethical Considerations are intended to serve as a bulwark in that endeavor."

NACDL's ethical considerations for legal commentators are clear and concise: 

1. Criminal defense lawyers have a duty to provide competent commentary.
Unless the commentator is fully informed as to the legal and factual issue(s) under discussion, he or she cannot provide fair, knowledgeable commentary. To this end, the media outlet requesting a comment must be encouraged to gather, and provide the commentator, as much reliable background information as the commentator requests and the issue requires. 

2. Criminal defense lawyers who serve as legal commentators have a special obligation to educate the public about what it means to be "liberty's last champions" -- our constitutional and ethical responsibilities as advocates for the accused.
The criminal defense lawyer's task as commentator is an extension of his or her legal and professional obligations to citizens accused of crime or other misconduct. This involves, among other things, adherence to the presumption of innocence, insistence on proof of guilt beyond a reasonable doubt, respect for the jury system and improvement of the public's understanding of our cherished federal and state constitutional rights and protections. 

3. Criminal defense lawyers have a duty to avoid conflicts of interest with clients and former clients whenever serving as legal commentators.
Criminal defense attorneys serving as media legal analysts remain bound by their obligations as members of the bar to act in a matter consistent with their duty of loyalty and confidentiality to present and former clients. There is always a substantial risk that the lawyer will be asked to answer a question which, for example, could reveal privileged information. The attorney-commentator must be vigilant to recognize and avoid potential conflicts.

Summing up, critics have said that good legal commentators do not need ethical guidance and bad ones will ignore it. "However," notes NACDL President Gerald B. Lefcourt, "NACDL believes that professionally-responsible legal analysts will use these guidelines to demand more responsible coverage and more complete information from the media when it seeks analysis or opinion. The result can be expected to be better, more complete, more accurate reporting. The chief beneficiary will be the American public. "

Over the last year, an NACDL Task Force composed of Neal Sonnett (Miami, FL), Elisabeth Semel (Washington, DC), Kathryn Kase (Albany, NY), Gail Shifman (San Francisco, CA), Ellen Zucker (Boston, MA), and Barry Scheck (New York, NY) prepared the working papers on this topic for the Board's deliberation and approval this past weekend. 

[Click Here] for the text of NACDL's Ethical Considerations for Criminal Defense Attorneys Serving as Legal Commentators.

Contacts

NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.