The shadowy figure that used to stand behind a client in court is slowly coming forward, garnering media attention and blurring the line between legal advocate and spin doctor.
“The pursuit of personal celebrity can affect lawyers just as it does everyone else. It’s very tempting to see your face in the evening news,” Michael Bradley, managing partner of Marque Lawyers said. “But it is quite a dangerous thing to do.”
In a string of recent high-profile cases solicitors have faced the media as public advocates for their clients, dealing with public relations avalanches, hitting back at spurious claims and even allegedly using the media for their own devises. In some cases lawyers have seen their status as experts in their fields skyrocket. Others have been left smarting. The rest of the profession, meanwhile, has raised its collective eyebrow.
Celebrated human rights lawyer Julian Burnside QC put it bluntly to Crikey: “I don’t like seeing litigation played out in media. I don’t approve at all of barristers speaking to the press about the merits of the case they’re working on at the time.”
This month the man at the centre of an AFL drugs scandal, Stephen Dank, had his solicitor Greg Stanton speak to media, and his words teetered on the line between legal facts and emotional rallying. He claimed his client was the victim of “spurious, tenuous and unsubstantiated” allegations, and that he stood “as a sacrificial lamb on the altar of sport which this country worships”. He labelled his client a “scapegoat”. The media lapped it up.
Lawyers appearing in the media is not a new construct; names like Chris Murphy and Stuart Littlemore are regularly in news copy. Burnside says it’s solicitors rather than barristers doing the spruiking: “I haven’t noticed any barristers running their cases through the media, although there seems to be an increasing tendency for solicitors to [do it]. And I think that’s regrettable.”
The distinction is important, he said: “The ethical principle is that since barristers have the privilege of standing before the court and trying to persuade the court about a case, if they start advocating in the media about the same case then it looks like they’re having a second bite. That’s why it’s wrong.” Solicitors don’t argue their case in court, “and so there is nothing ethically wrong with them advocating for their client in the public sphere. But I just think it’s regrettable.”
Having a lawyer present to speak to media “adds a little more credibility”, said Bradley. “But that is outweighed by the harm it does to the profession. The more it happens the less credible lawyers become … It undermines our professional integrity. There are rules around bringing the profession into disrepute,” he added, citing the recent case involving James Ashby and the former speaker Peter Slipper.
Michael Harmer, the high-profile litigator from Harmers Workplace Lawyers known for seeking out the media and aggressively pursuing claims against high-profile defendants, was slammed by Justice Steven Rares for his role in that case. He criticised Harmer for including damaging and irrelevant allegations in the originating process, which could subsequently be accessed by media, calling the case an abuse of process designed to inflict “significant public, reputational and political damage to Mr Slipper”.
“Judges ignore what’s in the media about the issues in a case. I don’t think they’re the least bit affected.”
It’s a precarious position to be in, Bradley says, and lawyers need to be careful when they stand between their clients and the flashing cameras. Involving the media, allowing them to weigh in on a case, to deliberately nurture public debate with the view to influencing the outcome, has ethical implications.
“Most lawyers look at the few who do these kinds of things and say ‘wow, I wouldn’t do that’. But it’s a trend that will continue to build,” said Bradley. “But there is always interest in the law and lawyers are in the position where they can say something interesting about it. It’s easy for the media to turn them into celebrities.”
In a third case, New South Wales police arrested MP Craig Thomson on fraud charges. His lawyer Chris McArdle and the police entered the spotlight after the arrest, with a battle of words that saw both get enormous amounts of media attention. Speaking on television and radio, McArdle slammed the media circus around the arrest, and worked hard to focus on legal facts when being interviewed.
Pressed to confirm Thomson’s political intentions, the lawyer told Sky News: “I am not his political adviser… nor is it my brief to have anything to do with that. I am his lawyer.” He criticised the police’s handling of the arrest, and said the media was being told more than his client.
“Judges ignore what’s in the media about the issues in a case,” Burnside said. “I don’t think they’re the least bit affected.”
But the public’s view can impact the matter more seriously, as occurred in the Slipper case. The lesson there: lawyers are advocates of the court not spin doctors. If they confuse their role, they will face intense scrutiny from the profession and potentially the Legal Services Commission and the state law society.
Burnside draws the ethical line under solicitors advocating to the media, as distinguishable from just reporting facts on the case. “I actually think it’s fairly important that members of the public who read media reports on a case should get an accurate and understandable account of what’s been going on. Facts sometimes need a bit of explanation from the lawyers involve. And that is good.
“As you know we use weird words and concepts that aren’t part of the ordinary furniture of people’s minds, and so naturally the reporters may not have understood what’s been going on.”
The chair of the Victorian Bar, Fiona McLeod, told Crikey barristers are free to speak publicly on matters of law and justice, just as any citizen is. “Barristers do not however, as a rule, speak to the media about current cases except to correct a mistake, ensure accuracy or provide background. This is consistent with our rules of conduct and ensures their focus is on the advocacy in the court room in the best interests of the client,” she said.
Once the conversation stretches past objectivity, Burnside agrees, it can seriously threaten ethical practice.
“If [lawyers] put just their side of the case rather than an objective account of the issues, then the public who reads these things are likely to form a view about what should be the outcome,” said Burnside. “When the court, on consideration of all the facts and all the arguments come to a different view, it’s possible the public’s confidence in the justice system will be weakened. And that would be very bad.”