Wednesday, March 05, 2008

Law Prof on Duke’s Motion

University of Maryland Law Professor and Duke alum Jason Trumpbour is spokesperson for Friends of Duke University. At FODU’s Web site he assesses Duke’s recent motion to shut down

Here’s some of what Trumpbour says:

… Duke’s motion [is] to shut down the informational site, which is maintained by a publicist for the players and their lawyers.

Duke's claim is that it violates North Carolina Rule of Professional Conduct 3.6, the same rule that was among those Mike Nifong was disbarred for violating.

Well, I must say that I am glad that, after two years, Duke has finally discovered Rule 3.6. When Mike Nifong was out in front of the cameras violating it hourly, they did not want to know one thing about it.

As late as September 2006, Bob Steel tried to argue with me about whether Nifong was actually doing anything wrong.

Now, if [Duke] could only understand it . . .

First, Rule 3.6 only applies to lawyers. …

Second, Rule 3.6 allows lawyers to comment on matters in the public record, which includes court filings.

Here are the relevant portions of Rule 3.6:
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make 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.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

(2) the information contained in a public record.
At the press conference linked on the site, attorney Charles Cooper did nothing more than summarize the contents of the complaint, which was being filed as he spoke. He appeared careful to so limit his remarks.

The memorandum of law in support of Duke’s motion conceded this point. It tried to make a “spirit of the law” argument that the complaint itself was inflammatory and thus no public reference should be allowed to be made to it.

Here is the crux of Duke’s argument from the memorandum of law accompanying the motion:
Plaintiffs will almost certainly argue that these statements are fully permitted by Rule 3.6(b)(2), which allows an attorney to comment about “information contained in a public record.”

Many of these statements are direct quotes from the Complaint, while others are slight paraphrasings of the Complaint. (See, e.g., Compl. ¶¶ 3, 11(a), 11(b), 11(c).) When a complaint contains such incendiary language, an attorney should not be permitted to hide behind the language of the complaint and make a statement to the press that strings together paragraphs that are highly prejudicial.

Such an action is contrary to the very intent of Rule 3.6, “materially prejudices an adjudicative proceeding,” and should not be allowed.
This is not a legal argument. Indeed, the fact that it is not a legal argument is also why they cannot offer one shred of legal authority to support it.

Mike Nifong violated Rule 3.6 by commenting on the evidence, lying about the evidence and inviting antipathy toward the accused. This was conduct squarely prohibited by the rule and manifestly prejudicial. …

Others have noticed the hypocrisy of Duke criticizing while at the same time maintaining its own informational site about the case which contains dishonest and self serving accounts of the administration’s handling of the Lacrosse Hoax. …

Duke was anticipating lawsuits from the very beginning. Remember Mark Simeon, Nifong’s political ally, was lining up the Mangum family for a suit and brought Willie Gary to town in furtherance of that goal.

If you will recall, Duke’s site initially linked media accounts that were mostly negative toward the players and ignored accounts critical of the investigation. As the tide started to turn, and Duke’s own misconduct became apparent, Duke began to anticipate suits from the players, instead. …

Duke has known that the present suits were coming for a long time and the twisted apologetics contained on its own informational site were created with that prospect in mind. This strategy reminds me of the famous advice a rugby manager gave to his players before a game: “Be sure and get your retaliation in first!”

What is particularly telling to me is that, while Duke’s motion complains about prejudice caused by, it does not ask for a specific remedy other than asking that the website and its contents be declared violations of Rule 3.6. …

Duke is falsely attempting to create the appearance of similarity between the conduct of the plaintiffs and their nemesis Mike Nifong. In other words, Duke is attempting to try the case in the media while at the same time purporting to uphold the opposite principle.

But then again, Duke signaled how it intended to fight this suit when it hired a lawyer, Jamie Gorelick, whose principal skill set is not federal civil rights litigation, but political infighting.
Trumpbour’s entire post is here.

Trumpbour’s assessment is extremely well-reasoned and based on knowledge of the NC State Bar’s code of professional conduct, the law and Duke as operated by BOT Chair Robert Steel and President Richard Brodhead.

That’s just what you’d expect from someone with Trumpbour's impressive professional training and experience which you can read about here.


Anonymous said...


A very insightful analysis.

Although I am not a lawyer, this request struck me as absurd.

If the defendants continue put up this type of defense, they better get their checkbooks ready


Norm said...

Excellent analysis!
I too am not a lawyer but I understand the futility of the Duke motion. Or should that read "stupidity of the Duke motion."
They have absolutely no ground to stand on, especially when one considers their actions during the scandal and the fact that they have their own website on the lawsuit!
Totally unethical, no legal basis, terrible PR - I could go on. But I won't.
Is it Schadenfreude to hope that the lawsuit goes ahed and Brodhead et al are cross examined? No, it's just me wanting the truth to emerge.
There, that's got that off my chest. I feel better already.