Iwant to follow-up on my Mar. 2 post: Duke Motion a Stumble. If you’re not familiar with its contents, give it a look. Also take a look at U. of Maryland Law Professor and Duke alum Jason Trumpbour’s detailed examination of the motion in terms of ethics and law. ( "Law Prof on Duke's Motion")
First, I said in Duke Motion a Stumble :
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.I’m not a lawyer myself, but I’ve been in touch with five this past week who agree with what I just presented here.
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.(emapahsis added)
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 just file something saying softly that as Duke reads the relevant court rule, Cooper's press conference, www.dukelawsuit.com, and the press release seem counter to the court's intention, and 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?
Every attorney said in one way or another: There’s no basis for an ethics charge. Terms used to describe Duke’s actions included “nasty,” “typical of Duke. They’re always that way,” “Dumb. It will p.o. a federal judge. Duke isn’t going into Stephens' court,” and “Duke’s just trying to put some dirt on Cooper. Make him seem like he’s doing what Nifong was doing. Maybe they’ll fool some alumni, but a federal judge won't fall for it.”
Given what those attorneys said and given Trumpbour’s post, I’m even more confident than I was last week that truth and justice seekers can look forward with confidence to the hearing later this month on Duke’s motion.
On the matter of Duke wanting to, as one attorney said, “put some dirt on Cooper,” the Raleigh N&O's treatment of the story is revealing. Published Mar. 1 with the headline,
Duke University is accusing the lawyer representing 38 members of the 2006 Duke lacrosse team of violating the same professional rule of conduct that fallen prosecutor Mike Nifong did.The entire Blythe/N&O story's here.
J. Donald Cowan Jr. and Dan J, McLamb, lawyers for Duke and the Duke University Health System, filed a motion in federal court Thursday complaining about the Web site dukelawsuit.com, a news conference and other communications by Chuck Cooper, the Washington lawyer representing the players.
Thirty-eight members of the Duke 2006 lacrosse team filed suit last week, saying their reputations were damaged by their association to an escort service dancer's phony gang-rape allegations.
Cooper and Robert Bork Jr., the group's hired publicist and son of rejected Supreme Court nominee Robert Bork, announced the lawsuit at a news conference at the National Press Club in Washington. …
In its ethical rules, the State Bar orders lawyers to refrain from statements outside the courtroom that they know might have "a substantial likelihood of materially prejudicing" legal proceedings. But once one side talks to the media, ethics rules say, the other side can make statements "a reasonable lawyer" would believe are required to protect a client from bad publicity.
In their latest motion, the Duke lawyers complained that statements made by the players' attorney and his agents "appear calculated to 'influence the actual outcome of the trial' and prejudice a jury.
"In summary, the creation and aggressive promotion of a Web site purporting to be the 'the official source' of information about the lawsuit, the press conference at the National Press Club" and a news release issued Feb. 21 "make clear the plaintiffs' intention to 'use the techniques of modern communication ... to win litigation,' " the motion says.
Neither Cooper nor Bork could be reached for comment late Friday afternoon.
I’ve posted before concerning why I believe the N&O does not want this suit any of the suits to advance, and especially not this one which has the greatest potential to expose the self-serving myth the N&O and others have promoted.
The myth goes something like this: Sure the N&O got a few things wrong in those first stories, but that’s, as the editors say, because the players, their parents and attorneys weren’t giving the paper any help. But after those first few days the paper produced one great story after another. You can read all about it in Taylor & Johnson’s Until Proven Innocent.
If there’s discovery and trial involving this suit the public will learn a great deal about the N&O that can’t be fit into “the first few days” myth.
The N&O doesn’t want that to happen. That’s why Blythe’s story and its headlines played up Duke purposes rather than offering something more balanced and with substantial acknowledgment of what most attorneys are saying: Duke knows Charles Cooper didn’t violate ethics
Instead of doing that, Blythe and the N&O produced a story that was hit-piece journalism, pure and simple.