Pre-trial Publicity Addressed in Negligence Suit Before Georgia Federal Court

Although lawsuits can spur public interest based simply on the parties or issues involved, attorneys can – and in some instances, do – play a role in stoking public curiosity. The permissible bounds of attorney-instigated publicity were addressed in a recent decision from the U.S. District Court for the Northern District of Georgia, Adams v. Laboratory Corporation of America, which deals with the alleged negligent misinterpretation of several Pap smear tests by a diagnostic testing facility. The plaintiff asserts that the defendant’s negligence in interpreting her Pap Smear tests and reporting the results to her physician resulted in injurious delay in her cervical cancer diagnosis.

While the negligence claims at issue in Adams are interesting, the court decision, as noted above, deals not with these claims but with the conduct of the plaintiff’s attorney. On November 25, 2014, counsel for the defendant brought a motion for a court order that would prevent the parties, their attorneys, and agents of both from “discussing this case with the media or making statements to the media or on the internet, including social media, other than matters of public record.” The defendant argues this order is necessary because these communications could prejudice one or more of the parties and interfere with the court’s ability to conduct a fair trial. The defendant sought this order because the plaintiff’s attorneys, who are members of the Florida Bar, had released statements and other prejudicial information with respect to a similar lawsuit involving the same defendant before a federal court in Florida.

In Florida, the plaintiff’s attorneys and the plaintiff in the Florida case, the widower of a woman whose Pap smear results were also allegedly misread, had made prejudicial statements during several local news broadcasts and in interviews with print news media. These prejudicial statements, including references to evidence deemed inadmissible by the Florida federal court, were made shortly before jury selection in the Florida case. In response, the plaintiff’s attorneys argued that they are subject to Rule 3.6 of the Georgia Rules of Professional Conduct, which prohibits conduct more broadly than the analogous Florida Rules of Professional Conduct, and asserted that the defendant’s motion was made simply to prejudice the Court against them. In response, the defendants argued that, although the plaintiff’s attorneys are subject to the Georgia Professional Conduct Rules, they are not subject to discipline procedures, and thus the order was still required.

Considering the rights implicated by the potential order, the court’s decision is quite short. As noted by the parties, attorneys admitted to practice in Georgia, including those admitted from other states pro hac vice, must comply with the Georgia Rules of Professional Conduct. Rule 3.6(a) of the Rules of Professional Conduct provides that “[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement […] if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” By comparison, the analogous provision of the Florida Rules of Professional Conduct, Rule 4-3.6, is narrower and only prohibits such statements when they have an “imminent and substantial detrimental effect on that proceeding.”

The comments of the Georgia Rules provides examples of subject matter that is more likely than not to have a material prejudicial effect, especially in reference to a civil matter triable by jury, including the identity of a witness, the performance or results of any examination or test, the identity or nature of physical evidence expected to be presented, and information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial jury. In addition to the Professional Conduct Rules, the court noted its inherent power to proscribe “extrajudicial statements by any lawyer […] which divulged prejudicial matters.” See Sheppard v. Maxwell, 384 U.S. 333, 361 (1966).

The court acknowledged that statements made by the plaintiff’s attorney in Florida may very well be prohibited by the Georgia Rules of Professional Conduct. However, after the court acknowledged the undisputed position that the pro hac vice Florida attorneys were required to comply with Rule 3.6 and that prior statements by the Florida attorneys would violate this Rule, it declined to impose an order to the full scope desired by the defendant, who demanded proscription of particular types of statements. Instead, the court simply ordered that the Florida attorneys comply with Rule 3.6, which would assure the federal court’s authority to respond to any claimed violations.

As the court often does, it split the difference. Notwithstanding the court’s even-handed response, pre-trial publicity is a topic of importance. Often, a case’s “publicity” can have both advantageous and detrimental effects on the litigants. Indeed, although some may seek to use the court of public opinion to yield an advantage with a jury, others, including many plaintiffs, are averse to the harms that may arise from public inquiry and interest. Accordingly, a potential litigant should always be cautious and find an attorney who understands his or her interests regarding publicity and, moreover, understands the Professional Conduct Rules to which they are bound. The Atlanta car accident attorneys at Christopher Simon Attorney at Law have many years of experience representing plaintiffs with diverse interests in both state and federal court, and they are prepared to offer the attentive and individualized representation your potential case requires. If you are interested in discussing a legal issue, feel free to contact us for a free case consultation.

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