Representing Clients to the Press

A. Context

Lawyers have a personal interest in public appearances. Some may see it as cheap advertising of their capability and eminence. Others adopt a wider role as ‘men of affairs’, promoting the business or other interests of their clients.¹⁴⁴ This work may include lobbying, presentational and educational work.

As far as clients are concerned, statements to the press may serve several purposes. They may be intended to reassure family and friends of their innocence, to mobilise public opinion in their favour, to correct adverse publicity generated by the press and police or even to begin the process of rehabilitating their reputation. No one expects a lawyer to give a statement to the press saying their client is guilty of an offence. The lawyer is expected to put their client’s view on the matter. The proper administration of justice requires that such statements are controlled. It is obviously undesirable that proceedings are invaded by a media circus or that lawyers transfer the arguments of the courtroom to the steps of the court.

Anybody, including lawyers, may be in contempt of court when commenting about a case or defendant in a way that could prejudice a trial. Conduct may be treated as

¹⁴² M Ridley, The Origin of Virtue (Harmondsworth, England, Penguin, 1997) esp ch 1.

¹⁴³ JR Ravetz, ‘Ethics in Scientific Activity’ in Flores (n 24) 147, at 152.

¹⁴⁴ As is illustrated in the case of BCCI ([2004] 3 All ER 168 (CA) and [2005] 1 AC 610 (HL)). contempt of court as tending to interfere with the course of justice in particular legal proceedings.^[1523] The offence is strict liability, in that it can be committed regardless of intent.

Generally, a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, pub­lished contemporaneously and in good faith.^[1524] The court can, however, prevent any comment.^[1525] It is therefore possible to be in contempt of court despite accurate com­ment and without apparently prejudicing a trail. In 2012, for example, nine people were prosecuted for contempt of court having tweeted the name of a rape victim.^[1526]

Subject to the rules on contempt, the courts have been fairly relaxed about law­yers exercising the right to make statements. Lord Woolf said in Hodgson v Imperial Tobacco Ltd, that

[t]he professionalism and the sense of duty of lawyers who conduct litigation of this nature should mean that the courts are able to rely on the legal advisers to exercise great self­restraint when making comments to the press, while at the same time recognising the need for the media to be properly informed of what is happening in the proceedings.^[1527]

Lord Woolf did not recommend any greater restrictions than were already contained in the law on contempt of court.

Professions have a clear interest in controlling their members’ appearances or communication with press. Inappropriate appearances or handling could result in damage to the reputation of the profession as a whole or compromise the impression of independence. Restraints might also be imposed in recognition of the substantial difference between what must be done for clients under the cloak of professionalism and the image of lawyers that should be presented to the public.

B. A Brief History of Controls

As with advertising, the legal profession viewed lawyers’ relations with the media with suspicion. The Law Society’s old guidance on press statements, contained in the 1999 Guide, was sparse. It provided that

[a] solicitor who on the client’s instructions gives a statement to the press must not become in contempt of court by publishing any statement which is calculated to interfere with the fair trial of a case which has not been concluded.^[1528]

The guidance to the 2007 Code, Rule 11 added little. It recommended that solicitors exercise their ‘professional judgement’ in deciding whether it is appropriate to make statements to the media, doing so in the client’s best interests with his or her consent and with regard for the law of contempt.^[1529]

Solicitors were also subject to an overarching duty not to damage the reputation or integrity of the profession.^[1530] They are also subject to the tort of defamation when making press statements. In Regan v Taylor,^[1531] the complainant was the editor of a ‘scurrilous’ journal called Scallywag. The defendant was a solicitor who replied to a defamatory attack on his client in Scallywag with a response that was also defamatory. It was held that a solicitor was covered by qualified privilege in making statements on his client’s behalf to the press provided the reply was relevant and proportionate.

The issue of press comment by lawyers in criminal cases was the subject of a report by the Lord Chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC) in 1997.^[1532] ACLEC considered that it was not adequate for the Law Society to rely solely on the law of contempt as a guide. This was because contempt of court required proof of intention and was subject to the criminal standard of proof. This was considered to be too high a standard against which to judge solicitors’ comments to the press.

In criminal cases ACLEC considered that solicitors should not say anything that might prejudice the outcome of the proceedings.

ACLEC sought to eliminate the risk that personal comments from lawyers ‘detract from public recognition of the principle that these are matters to be decided by the courts and the courts alone’. They were also concerned that ‘lawyers may come under pressure to express views [to the press] that they do not genuinely hold on the merits of their clients’ cases’. ACLEC did not consider civil cases, but recommended that the profession adopt similar rules for all litigation. The report was not well received by either the professions or commentators.

As a result of ACLEC’s report, the old Bar Code was amended to advise barristers that they must not express a personal opinion to the press or in any public statement on any ‘anticipated or current proceedings or mediation’ in which they are or expect to be briefed.^[1533] They could therefore represent their client’s opinion or offer an explana­tion of the legal or factual issues involved in the case which did not include a personal opinion. This represented a relaxation of a prohibition on any comment on cases on which barristers were currently briefed. Moreover, the prohibition did not apply to educational or academic comment.

C. The New Codes

The SRA Handbook 2011 does not mention speaking to the press in the chapter on publicity. One outcome does, however, require that ‘your publicity in relation to your firm or in-house practice or for any other business is accurate and not misleading, and is not likely to diminish the trust the public places in you and in the provision of legal services’.¹⁵⁶

The new Bar Code of Conduct does not include the former prohibition on practising barristers expressing a personal opinion in the media in relation to any future or cur­rent proceedings in which they are briefed.¹⁵⁷ The new code refers to the guidance given under the old code¹⁵⁸ which has been retained on the BSB website. Therefore, barristers must still not express an opinion on ‘anticipated or current proceedings or mediation in which he is briefed or expects to appear’.¹⁵⁹ They must ensure that such comments do not undermine, and are not reasonably seen as undermining, their independence. Neither must they bring the profession or any other barrister into disrepute.

XI.