Duke attorneys lower bar and stumble

Attorney, Claremont Institute fellow and blogger Paul Mirengoff posts on Duke’s motion to suppress. I add a few comments below the star line.

Mirengoff begins - - -

Many of you probably know that 38 members of the 2006 Duke lacrosse team have filed a civil suit against Duke University, its president Richard Brodhead (yes, he's still Duke's president), the city of Durham, and others associated with the outrageous behavior directed at team members in connection with the bogus rape allegations.

The plaintiffs have established a web site that presents information about the case. It posts pleadings in the case and provides links to a press release about the case, certain media reports, and certain blogs operated by third parties.

Setting up this kind of website, and indeed ones that are much more aggressive, is a common thing for plaintiffs to do these days. It's been done in cases where I've represented the defendant. The more aggressive of these sites can be fairly amusing (if you're involved in the case) and occasionally provide material that can be turned against the plaintiffs.

I confess that it has never occurred to me to ask a court to shut such a site down. Lawyers should zealously represent their clients, but it rarely serves a client's interest to become a laughingstock.

Duke's lawyers, among whom are Clinton administration stalwarts Jamie Gorelick and Seth Waxman, apparently have no such qualms. They seek an order declaring, among other things, that the plaintiffs' website violates local rules against extrajudicial attorney statements.

Duke acknowledges that the material on the website either quotes or closely paraphrases the allegations contained in the plaintiffs' complaint. Duke also concedes that the material thus falls within the safe harbor provided by the local rules for attorney comments that convey information in a public record. However, Duke takes the position that the statements nonetheless violate the local rules because they are "incendiary."

Duke has no basis for reading into the local rule an exception for incendiary statements (or, in this case, statements it simply doesn't like). Moreover, such an exception likely would be unconstitutionally vague.

At one time, it might have been surprising for a higly-rated university to push for unconstitutional restrictions on free expression. But not anymore and certainly not in the case of an institution like Duke.

You can find the briefs filed by Duke in support of its motion here and here. The plaintiffs' response is here. The underlying complaint is here.

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Comments:

I’m not an attorney so most of the legal citations in the briefs are not items I can comment on.

But I can respond to Mirengoff’s statement: “Setting up this kind of website, and indeed ones that are much more aggressive, is a common thing for plaintiffs to do these days. It's been done in cases where I've represented the defendant.”

All the attorneys I’ve talked to agree with Mirengoff that setting up “this kind of website” is common practice today.

They also agree that the website Duke’s objecting to - www.dukelawsuit.com – is not “aggressive.”

“Pretty tame, really more a kind of service because it mostly hosts case documents that are part of the public record,” is how one attorney viewed it.

After reading Mirangoff’s post and considering everything other attorneys have told me up through today regarding Duke’s request, I feel more strongly then ever that Duke’s motion is a stumble. ( Duke's Motion a Stumble, 3/2/08 )

I especially think Duke has stumbled because it claims the plaintiff’s lead attorney, Charles Cooper, violated the NC State Bar’s code of professional conduct.

That’s quite a charge for responsible attorneys to level against another attorney in a brief filed in federal court.

In the case of Cooper, Duke’s attorneys are leveling the charge against one of America’s best known and most respected attorneys.

What could have led Duke’s attorneys to do such a thing?

If their intent was only to get www.dukelawsuit.com shut down, every attorney I’ve talked to says there were a number of other ways open to Duke to ask the court to do that without accusing Cooper of an ethics violation.

So why’d Duke do it?

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For more on Duke's motion:

University of Maryland law professor and Duke alum Jason Trumpbour recently provided an extensive and highly critical assessment of Duke's motion. I quote from it and link to it here.

Hat tip: Ken in Dallas