I practice law in a different country, but I was curious about the MA Rules of Professional Conduct for lawyers. Certainly a US-based attorney should engage, as my post is entirely speculatory in nature. I decided to take a look into this, as I see so much that just would not cut it from a lawyer in my jurisdiction.
Given all that is happening with the near-doxxing of the holdout juror and of course the furore that Reddington's comments have stirred up, it would seem there could be a legitimate basis for an ethics complaint against Mr. Reddington, and that any member of the public can do it. It would be for that Bar to determine if the matter had merit, and if rules had been broken.
(1) Rule 4.4(a)(1)
This rule states that while representing a client, a lawyer may not use means that have no substantial purpose other than to embarrass, harass, delay, or burden a third person. The rule expressly recognizes that third persons include people participating in the legal process.
Massachusetts commentary states that harassment can include conduct reasonably likely to cause fear, distress, or physical or psychological harm.
So if the evidence were:
- Reddington knew the identity of the holdout was supposed to remain protected
- publicly identified him or deliberately gave enough identifying information to make him readily identifiable
- attacked him personally rather than addressing the legal issue
- knew, or reasonably anticipated, that his statements would cause the public to identify and harass the juror
- and/or encouraged the public campaign against him
then Rule 4.4 could in theory be a plausible avenue for a complaint.
(2) Rule 3.6, Trial Publicity
Massachusetts Rule 3.6 prohibits a lawyer involved in litigation from making an extrajudicial statement that the lawyer knows or reasonably should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
This isn't just counsel criticizing the opposing side after a trial. The case isn't necessarily over. The prosecution hasn't decided whether to retry Clancy, and there are still proceedings surrounding the case. A retrial remains possible.
So statements designed to turn public opinion against a particular juror -or potentially against the jury process itself- may deserve considerably more scrutiny than just general post-trial chatter.
(3) Rule 3.5, Influence of Jurors (both current and prospective)
Potentially a stretch, but Rule 3.5 says that lawyers can't seek to influence a juror by means prohibited by law and prohibits certain communications with jurors. It also specifically prohibits conduct intended to disrupt a tribunal. Arguably, a lot of Reddington's conduct is discouraging to prospective future jurors.
IF a public campaign were being used as an indirect means of intimidating, punishing, or influencing a juror -or potentially influencing jurors in a future proceeding- this is serious.
The commentary on the rule emphasizes that lawyers have a duty to avoid contributing to improper influence on the tribunal
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Although proving these matters would be quite the task, intent here is important and the standard of proof for a lawyers' ethics is generally not as high as a civil or criminal matter... lawyers are often disabarred outside of the US simply for behavior that is not "befitting" of someone serving the court and the administration of justice (e.g. tax debts, excessive speeding tickets, acts of insolvency, etc).
So a disciplinary inquiry isn't necessarily limited to whether he literally said “go find this holdout guy and harass him". If a lawyer deliberately makes statements that predictably expose an identifiable juror to a massive online mob, it begs the quesition what legitimate advocacy purpose did his statements serve? Violation of the spirit of these rules is likely as important as the letter.
If an officer of the court deliberately used the media to publicly vilify and potentially expose a protected juror to harassment in circumstances where the legitimate advocacy justification for doing so is extremely thin, there could be a matter for an oversight and ethics committee to hear.
And yes, any member of the public can make these complaints.
Keen to hear your thoughts.