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5th Circuit Ruling in Lawyer Speech Case Is a Teachable Moment

By Jonathan R. Tung, Esq. on April 21, 2016 | Last updated on March 21, 2019

A recent Fifth Circuit ruling can be regarded as a teachable moment to attorneys who do not strictly adhere to local court rules governing attorney interactions with previous clients. In general, an attorney cannot make out of court statements that could reasonably be foreseen to have a material prejudicial effect on the administration of justice.

Although this sounds like a restraint on speech, lawyers would do well to heed this general rule lest they risk angering the ethics board.

Talking to Journalists Before Mistrial Is Official

Louisiana lawyer William Goode was briefly the lawyer for defendant Espinoza during the initial appearance and arraignment. He subbed out and new counsel was subbed in. New defendants were named in the case and the new lawyers told the district court that Goode would be "assisting" them and the clients. The government moved to clarify but withdrew its motion when Goode made it perfectly clear that he had no intention of representing defendants in any way.

Despite what he said, Goode sat behind the bar in trial and passed notes to the defendants. While trial was underway (but not while court was in session) one of the lawyers committed suicide. Attorneys moved for a mistrial and the district court granted that motion.

Goode went off to make statements to two local news outlets about the attorney's death and mistrial but asked them to hold the story until the district court publicly announced the mistrial. The journalists did not honor this request and sanctions eventually landed at Goode's door.

Louisiana's Crim. Rule 53.5

At issue was whether or not Goode had violated Louisiana's local rule L. Crim. Rule 53.5. which is the embodiment of the general "material statements prejudicing justice" doctrine. But the local rule is limited to "trial participants." Good pushed the court to read this to mean named attorneys of record. But the district court refused to take such a narrow reading of this statute and instead applied a more broad definition encompassing all attorneys who might assist in prosecution or defense.

Bad Faith Claims

Goode also contended that he did not act in bad faith and that the court could not sanction him without this crucial element. Bad faith is also incorporated in Louisiana's local rules and Goode argued that such rules trumped the court's inherent powers to sanction attorney's based on conduct. The circuit refused to be persuaded.

First Amendment Claims

Goode only persuaded the circuit court with an invocation that Louisiana's attorney sanctioning rule was an unconstitutional restriction of free speech. The relevant language in Louisiana's Crim. Rule 53.5 restricts any attorney from making extrajudicial statements outside of court "relat[ed] to the trial or the parties or issues in the trial."

Since content-related restrictions must usually be overwhelmingly compelling to be constitutionally justified, the court took the view that Louisiana's rule was plainly unconstitutional because it did not even impose any standard: nothing could be said.

Thus, since the rule was deemed unconstitutional, Goode's prima facie claims did not need to be addressed. Still, he had to go through a lot of trouble to be vindicated. It would have been much easier for him to keep his mouth closed.

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