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Dan Rather in June 2007 when he filed a $70-million law suit against CBS and three of his former bosses. (AP)

Can the media and the bar get too close for ethical comfort?

COMMENTARY | October 30, 2007

Dan Rather’s suit against CBS is unusual in that his law firm is one of more than 200 that have agreed not to sue news media groups or individuals for libel. Such a policy, write Randall Bezanson and Gilbert Cranberg, is highly questionable. Rather’s lawyers got around it by not couching the suit in terms of libel. But what about the policy itself?

By Randall Bezanson and Gilbert Cranberg

For all of Dan Rather's celebrity and resources, he might have had a hard time finding a law firm to represent him in his recent multi-million dollar suit against CBS. Many firms, especially those with a First Amendment practice, have an aversion to suing media organizations. In fact, more than 200 of the biggest, most prominent and highly-regarded law firms have vowed, in writing, not to "represent plaintiffs in libel or privacy or related actions against media defendants and/or journalists." That's the pledge required to join the Media Law Resource Center, the influential non-profit organization of media members, libel insurers and the media defense bar.

The well-regarded firm that took Rather's case, Sonnenschein Nath & Rosenthal, is a member of MLRC. The complaint the firm's lawyers filed against CBS is not couched in terms of libel, and on its face is about a contract dispute, but it also alleges, multiple times, damage to Rather's reputation, which is what libel suits attempt to vindicate. So is this the kind of "related action" against the media MLRC wants its members to avoid? It will be interesting to see if the Sonnenschein firm finds itself in hot water for its representation of Rather.

The possibility of running afoul of the organization isn't hypothetical, and the consequences are not pretty. In 1994, Martin Garbus, the high-profile First Amendment lawyer, brought a $12 million libel action against a New York Daily News columnist for attacks in his column on a woman who reported to police she had been raped. Garbus, in a subsequent memoir, wrote that "the response from the community of First Amendment defenders was, to paraphrase Thomas Hobbes, quick, nasty and brutish. I was accused of being an apostate and betraying my professional trust. I was summarily suspended from the nation's most important organization of libel defense attorneys [MLRC], and I felt obliged to offer my resignation to the partners in my firm, whose future I had placed in jeopardy."

Garbus explained that membership in MLRC is by firm, and that libel insurers generally won't pay legal defense costs unless lawyers representing media defendants are in good standing with MLRC. Thus, Garbus put at risk income to other members of his firm by taking the plaintiff's case. Garbus's experience illustrates the pressure defense lawyers can be under not to switch to "the other side."

The MLRC's Web site says the organization exists "to monitor developments and promote First Amendment rights in the libel, privacy and related legal fields." Sandra Baron, executive director of the organization, said the no-suits-against-the-media policy is intended to keep the many litigation resources produced by MLRC from being used against its own members. Fair enough, perhaps, but still an odd rationale for legal defenders of outfits whose rallying cries are "right to know" and "freedom of information."       

Are MLRC and its many media supporters and First Amendment advocates being hypocritical by squelching skilled advocacy against the press, and in the process restricting access to information of clear public significance? Litigation is not technically speech by lawyers but by their clients. Still, the MLRC policy comes uncomfortably close to preventing certain issues from being aired. By encouraging lawyers to pledge allegiance to a cause, not a client, and by limiting membership in order to restrict access to MLRC's materials, the organization would appear to pit lawyers against clients and the media against access to knowledge.

We are no fans of libel litigation, and have collaborated on a study highly critical of the state of libel law. We favor re-fashioning the system so that allegations of reputational harm are dealt with by non-litigation methods. But that is not the state of the law today. Libel actions, as flawed and unsatisfactory as they are, remain the chief constitutionally-sanctioned means for vindicating reputation.

Attempts to deal with the shortcomings of libel law by denying access to First Amendment lawyers by people with legitimate claims of damage by the press seem to us antithetical to the spirit of the amendment. They also exacerbate shortcomings of the libel system. Equally troubling is the way the policy seeks to have lawyers turn their backs on a core ethical obligation of their profession under Canon 1:

"A basic tenet of the professional responsibility of lawyers is that every person in our society have ready access to the independent professional services of a lawyer of integrity and competence."

That sounds to us like a more attractive principle than the loyalty-oath-like one that the press endorses by its tacit approval via financial support of MLRC's don't-sue-the-press-or-else policy. 

Posted by A reporter
11/06/2010, 11:13 PM

I just found this post, never saw it before even though it is three years old. Thank you for writing this. I tend to follow media law issues and was completely unaware of the MLRC policy. The reliance on this membership by insurers is amazing as well.

I have had other concerns about the relationship between the media and media lawyers. I often see a tendency for the media to defer to the decisions of media lawyers without question.

Like journalists, lawyers have their pressures, and they are not the same. Too often media act as if their media law colleagues are just that, colleagues, with interests and pressures that are practically identical.

The fact is that journalists often will go, with the law on their side, where a media lawyer wouldn't dare go, even when the law is on the reporter's side, because certain situations present a risk to lawyers' practices but not to a reporter's.

The press has to become more aware of often competing interests. There are some traditionally journalistic groups that have become loaded with lawyer members these days. Some open government groups are.

Some advocacy groups that used to be run by reporters with a lawyer on staff are now often entirely left to lawyers with the reporters barely rolling up their shirt sleeves to bother checking anything done in their names. RCFP appears to be this way.

The upshot is, reporters just don't do anything that a lawyer would be uncomfortable with unless they work with an outfit that takes what would now be considered extraordinary responsibility or journalistic decisions.

That means to a certain extent, lawyers are running the show.

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