Response to Duke Motion Concerning Rule 3.6

Charles Cooper, attorney for the 38 lacrosse players, has filed a response to Duke's motion claiming a violation of Rule 3.6 by the plaintiffs' attorneys. Dukelawsuit.com has posted the response pointing out both the legal and logical absurdities of Duke's motion and much more credibly claiming ethical violations by Duke's lawyer Pam Bernard:

Duke’s motion is extraordinary. Duke not only acknowledges that the specific extrajudicial attorney statements it challenges either directly quote or closely paraphrase the allegations of Plaintiffs’ Complaint, it concedes that such statements are expressly authorized by Rule 3.6(b)(2)’s so-called “safe harbor” for attorney comments that relate “information in a public record.”

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But Duke’s motion is even more remarkable for what it does not say. Nowhere does Duke cite a single case in which a court, state or federal, has imposed sanctions or otherwise enforced the attorney speech restrictions of Rule 3.6 in civil litigation, and our research has turned up no such case. Duke’s motion thus seeks a ruling from this Court that appears to be without precedent in American jurisprudence.

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Nor does Duke, finally, even refer to, let alone cite any evidence for, this Court’s supposed “very strict practice forbidding lawyers from discussing their litigation with the press” in civil cases such as this. We assume that Duke’s counsel had a good faith basis for making this representation to Plaintiff’s counsel, notwithstanding their failure to provide any.

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We note initially our disagreement with Duke’s claim that the passages from the press release excerpted in Duke’s brief are framed in “incendiary language”... indeed, even now we are hard pressed to see how we might edit the statements to make them less embarrassing to Duke. [emphasis added]

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If Duke had not so callously and deliberately violated its contractual and legal duties to its innocent students, it would not now be facing these historically unprecedented legal actions by what effectively amounts to its entire 2006 lacrosse team.

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Duke accuses Mr. Henkelman of speaking “in a manner calculated to engender sympathy,” Duke Br. 12, but no calculation or artifice is necessary to render sympathetic the prolonged anguish of a parent who has been forced to watch helplessly as his innocent child was falsely condemned by officials, professors, and students of the very institution that agreed to educate and care for him. Yes, Mr. Henkelman’s words were indeed poignant and moving, and it is not surprising that Duke cringes with embarrassment to hear them. But that is hardly a reason to silence him. [emphasis added]

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Duke itself, of course, also has a very sophisticated website on which it provides links to news stories and posts its own frequent press releases, including those about the lacrosse incident. Duke includes one such press release as an exhibit to its submission here, in which Duke’s General Counsel, Pamela Bernard, openly violates the confidentiality of settlement negotiations by revealing what purport to be details of a settlement offer made by Duke to the Plaintiffs...In contrast, when asked about Ms. Bernard’s press statement during the Plaintiffs’ February 21 press conference, Mr. Cooper declined to discuss the substance of the parties’ confidential settlement discussions. [emphasis added]

Duke’s counsel represent to this Court that Ms. Bernard’s press release was issued only “[i]n the face of [plaintiffs’] publicity,” and out of Duke’s “belie[f] that a statement was required to protect the Duke Defendants from the substantial undue prejudicial effect of this publicity which was initiated by the Plaintiffs . . . .” Duke Br. 6. But Duke issued a materially indistinguishable press release on December 18, 2007, in response to the filing of a similar civil action in this Court by three other lacrosse players, a filing which was not accompanied by any press release or press conference. (link) And Ms. Bernard also issued a press release in response to the state court action filed against Duke by former lacrosse team coach Mike Pressler, although the filing of his suit was not accompanied by a press release or a press conference. (link) Perhaps Duke’s counsel will be able to explain the purpose of these unprovoked press releases in their reply brief. [emphasis added]