The Ethics Of Fighting An Expired Case In The Press

One of the points I stressed when writing about the Sandusky child abuse scandal at Penn State was the role of the statute of limitations: due to the timing of the last change in Pennsylvania’s childhood sexual abuse statute, some of Sandusky’s victims may be outside the time in which they can file a claim, while others can still file. Putting aside the efforts to extend the statute of limitations in Pennsylvania — long stalled thanks to the efforts of the Catholic Conference — there’s the simple question for lawyers representing those victims: how do you advocate for a client whose case has expired?

The issue has come back into the press with the recent accusation by two former batboys for the Orioles, both now in their 30s, who allege they were victimized by Red Sox clubhouse manager, Donald Fitzpatrick, who died in 2005 and has been accused of molesting nearly two dozen former batboys. The lawyer representing most of the victims has openly conceded many their claims are outside the statute of limitations, but the Baltimore Sun reports he’s demanding $5 million for each nonetheless.

The idea of “trying cases in the press” has a storied history of severing the legal community into two camps, the first believing the tactic to be at best jury tampering and at worst extortion by public relations, the second seeing the tactic as yet another tool in the lawyer’s toolbox that has to be used by the zealous advocate when circumstances demand it.

The United States Supreme Court weighed in on the issue in Gentile v. State Bar of Nev., 501 U.S. 1030 (1991), holding that “in some circumstances press comment is necessary to protect the rights of the client and prevent abuse of the courts,” and so overturned a state bar’s discipline against a lawyer who held a press conference hours after his client was indicted. Based on Gentile — even though it didn’t squarely answer the question — most lawyers assume that the rule on “trying your case in the press” is set by ABA Model Rule of Professional Conduct 3.6, which prohibits lawyers from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Of course, that rule means nothing at all when there’s no “matter” that could be prejudiced. If there’s no “adjudicative proceeding” that could be “materially prejudiced,” a lawyer can ethically fight a public relations battle on behalf of a client using whatever means available. But should they? Just because someone can do something doesn’t mean they should.

But to me, raising that issue for the victims’ lawyers just raises the same question for the Boston Red Sox: just because they can dismiss these claims by raising the statute of limitations doesn’t mean they should. The law sets a floor on human conduct, not a ceiling. The Boston Red Sox could waive any objection on the statute of limitations and then defend the cases on their merits; if it were truly confident in its own defense, it would do so.

“Extortion” is often the accusation levied against lawyers who are advocating their cases in public, but extortion involves the threat of doing something wrong. There’s nothing “wrong” about a victim making their allegations public (a step that itself can empower other victims, as Gloria Allred, no stranger to trying her cases in the press, comments), and when a victim takes their case to the public, the threat is gone, because the public relations damage is done. The question is if the institution wants to join with the victim in investigating and understanding what happened, and helping the victim — and itself — move on.

It reminds me of what happened a month ago when Jeff Anderson dismissed one of his two suits specifically naming top Vatican offices and officers, including the Holy See, Pope Benedict XVI (for his actions back when he was Cardinal Ratzinger), and the two preceding Vatican secretaries of state. The Vatican’s lawyers crowed that they had defeated the claim by locking Anderson in a procedural bind — “by forcing Anderson to respond to both at the same time, Lena said, Anderson was put in a box: forced to use facts one way to support the jurisdiction issue, another way to keep the underlying claims alive” — while blithely disregarding any sense or moral or ethical obligation to account for their involvement in the “widespread” sexual abuse by clergy.

Which brings me back to the batboys. As I told the Baltimore Sun two days ago,

“The organization ends up negotiating from a public relations standpoint,” Kennerly said. But while critics may think plaintiffs are “making a fuss to get some money out of it,” Kennerly added, “that’s also what causes organizations to rethink what they’re doing.”

“Social change doesn’t happen in silence,” he said.

“Money talks” is a blunt way of describing the world, but it’s also the foundation of our civil justice system and of our capitalist society in general. If anyone knows of a better way to make universities, large corporations (like sports teams), and religious institutions take rape and child abuse seriously than to make them financially accountable, I’m all ears.

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  • Guest

    Interesting. It angers me when defendants get away with sex abuse simply because of a SOL that is too short. I would have a better perception of some of these defendants, such as the Catholic Church, if they waived the SOL and actually fought the cases on the merits (maybe then I wouldn’t believe that one of their major purposes is to facilitate sex abuse of children, second only to their goal of keeping women at home, barefoot and pregnant). But I can understand why the Catholic Church and others don’t fight these “expired” cases. It costs money to defend cases and even more money if they lose. I guess the issue is whether the risk of financial accountability outweighs the risk of damage to their public image when they cowardly hide behind the SOL.

  • Guest

    Yeah, money talks. If you smear your opponent in the public sphere in a time barred claim, why would he ever pay you? You’ve blown your only leverage.

    • http://www.litigationandtrial.com/ Max Kennerly

      That’s what makes these claims interesting: they already have gone public, so the most obvious leverage is gone.

      —– Reply message —–

      • Guest

        Sounds like we agree. Perhaps if the time barred cases are packaged together with a group of other similar claims that are not time barred, the defendant would pay. Otherwise, I can’t see it ever happening. I have no experience in the area though, and I’m curious what kind of success plaintiffs have in time barred claims like this one.

        • http://www.litigationandtrial.com/ Max Kennerly

          I think that’s indeed part of the plan. It’s my understanding that the lawyer involved here did something similar with the Catholic Church in Boston a few years ago, successfully resolving some expired claims.
          Now, if there’s every a time an organization will cave under the PR pressure, it’s the Catholic Church in Boston in the 1990s, where they were under daily reports in the press about the cases. No idea if the same will work in instances that aren’t so high profile.