I’ve posted twice concerning a motion filed Feb. 28 in federal court by the Duke defendants in the 38 suit. The issues the defendants raised and their requests to the court are outlined here where you'll also find a link to the motion. This post links to the plaintiff’s statement they’ll respond promptly to what they call an “utterly meritless” motion.
More information and commentary is at this Listoppers Forum thread as well as at Liestoppers here and here, KC Johnson here and here, and the thread of this JinC post.
A lot has already been covered by other bloggers and commenters. So I’ll try to keep my comments brief and concerned with selected matters I’ve not seen mentioned elsewhere.
But before getting to that, I want to say I agree with the following two comments I pulled off the LS Forum thread. This first one:
LAXMAN on 2/29 @ 4:50 PMand this second one:
Attorneys involved in case are subject to the Rules of Professional Conduct enacted by their Bar as well as the Court in which they may appear . Attorneys must abide by NC Rules of Professional Conduct even if the matter is in Federal Court.
Observer on 2/29 @ 5:39 PMI don't believe a federal court will move to shut down www.dukelawsuit.com completely. The Duke motion anticipates that when it says just before its Conclusion:
I concur with LAXMAN, and welcome LAXMAN. However, the rules prohibiting extrajudicial statements are much stronger and more likely to be enforced for prosecutors in criminal cases when the defendant faces the possibility of incarceration. It is understood that the rules cannot be used to forbid all communication about the case. For example, there is no prohibition on the dissemination of public documents, like the Complaint. So, the judge may restrict somewhat the material that may be posted on the website, but I will be very surprised if the judge chooses to close the website entirely.
Duke argues that because the Complaint uses "incendiary" language, the Plaintiffs should not be allowed to "hide" behind the fact it is a public document in posting such prejudicial material on the web. Further, Duke claims that because they cannot monitor the website 24/7 for inappropriate, prejudicial remarks, the website should be closed. My instincts, which could be wrong, is that these arguments will not prevail. To prohibit the website altogether is an undue burden on free speech.
And, yes, this is rich irony indeed.
If, as it appears, the pleadings, discovery and other facts and developments in this case are to be the topic of discussion on www.dukelawsuit.com, and the subject of scheduled press conferences, press releases and attorney-initiated or publicist-initiated media contacts, then the Duke Defendants need this Court’s direction and guidance as to whether there are any limits on such attorney-initiated media contact and the appropriate responses by the Duke Defendants to these contacts.On another matter, I think it's significant the motion was filed a week after Duke alleges the violations of ethics and court rules occurred. The motion is brief; it looks to be something a few attorneys could turn out in a matter of hours.
Why, then, did Duke wait a week before filing this motion, when it could easily have filed it by Feb. 25?
I'm guessing there was a good deal of discussion - possibly even intense disagreement - concerning this motion.
For example, I can easily see someone(s) urging Duke that if the motion was to be filed at all, that it not repeatedly make the harsh and very, very questionable claim that Charles Cooper was a principal in actions which violated NC's State Bar's code of ethics.
Why not file something saying that as Duke reads the relevant court rule, Cooper's press conference, www.dukelawsuit.com, and the press release go counter to the court's intention; and in clear, simple language ask the court to rule on the question?
What sense does it make to charge one of the nation's most respected attorneys with ethics violations when it's very likely he did not violate ethics?
How and why did Duke decide to do that?
This motion won't be heard before Judge Ron ("I'm Mike's friend.")Stephens.
A federal judge is very likely to recoil from Duke's sliming of Cooper.
IMO - The motion is a stumble.
It reads like something Nifong would’ve written, with help from Sgt. Gottlieb.