The dust has settled. Harvey Weinstein was convicted of two counts that resulted in a sentence of 23 years. His principal lawyer, Donna Rotunno, actually put on a good show. She ably demonstrated that most of the victims oddly continued their relationships with Weinstein—sometimes with caring phrases after, as they testified, he had attacked them. She tried to show that those communications were dramatically inconsistent with their claims that he abused or raped them. But the evidence was too powerful.

The NY Times Podcast

Interestingly, the courtroom wasn't the only venue (or "show") where Rotunno tried to make her case to the jury. Rotunno, quite remarkably, appeared on a podcast for The Daily for The New York Times which was published during the trial (Feb. 7, 2020) and even wrote a Newsweek opinion about the trial which was published just as the jury was deliberating (Feb. 20, 2020).

Now, when confronted about it by the trial judge, she claimed that the podcast was recorded before the trial started: "I got called this morning when a friend of mine heard it," Rotunno said. "I have not spoken to anyone [for interviews] since we started this case." The Times itself, however, reported that she not only gave the interview while the trial was already underway, but also that she was specifically told the date that the podcast would air (shortly before the defense would rest).

In other words, Rotunno, through the podcast, was able to tell—unhampered by a challenging prosecutor—the best story she could, both directly and indirectly about the case:• "I think quite often we look to the accusers, and we talk about the effects that these things have on their lives. But we do not look at the effects that these types of allegations and accusations have on the person being accused."

• "Look at Harvey physically…it is so apparently obvious what this has done, and the toll this has taken on him."

• "… if we automatically have this notion that we're supposed to believe all women, … we are taking out a very large portion of the steps that we should be taking before we get to that notion—that just because someone says something they should be believed."

• "What someone says does not mean that that's what happened. There's always more than one side to a story. And there's something in our Constitution, the Sixth Amendment right to confront witnesses."

• "I'm sure I could sit here with you and look at all the things that have come from #MeToo and agree that there's positive things that come from #MeToo. But if as part of that, that strips your right to due process—if we're going to convict people before they have a trial, I find that to be damaging and detrimental."

And perhaps most pointedly: "I think, you know, these are consensual encounters. We have communications at the time that I believe prove that they were consensual encounters. I believe the actions of women after the fact prove that they were consensual encounters… . And maybe the story being told today or in a courtroom is different. And I guess at the end of the day, it's going to be for the 12 people on the jury to decide based on the evidence, if they can shut out everything else that they've heard."

To boot, when asked whether she had been sexually assaulted, she now famously replied that she had not, "because I would never put myself in that position." The Daily. The implication of course of that piercing comment was that the trial victim witnesses were themselves to blame! And, other than the reporter, and the social media frenzy that followed, there was no one to challenge that brazen, controversial, and perhaps by-design statement.

The prosecutors strongly complained about the podcast interview at the time it was aired, basically arguing that Rotunno was effectively "working the jury" with her out-of-court broadside against the case. Why else, one supposes, would she have given that interview during the trial? All for naught, however. The judge was surprisingly blasé—he simply ordered her not to talk about the witnesses. Importantly, the judge didn't issue a specific gag order against Rotunno until the Newsweek article appeared.

The Newsweek Essay

And so, when the jury was about to begin deliberations with Weinstein not having testified, Rotunno took it up a notch. This time, apparently fully aware that in high profile cases jurors often don't follow a judge's instructions to ignore the media—my opinion, and seemingly hers—she published an essay in Newsweek (which one had to assume would be picked up more broadly), called "Jurors in My Client Harvey Weinstein's Case Must Look Past the Headlines." The Times headline captured the judge's reaction: "Weinstein's Lawyer Wrote an Article Addressing Jurors. The Judge Is Unhappy." The New York Times, Feb. 18, 2020.

So, it appears—opinion, again—Rotunno was actually counting on the non-sequestered jurors to ignore the judge's instructions to avoid any publicity about the case, and thus made her case directly to them. ("I implore the members of this jury to do what they know is right and was expected of them from the moment they were called upon to serve their civic duty in a court of law.")

A gag order was granted this time based on the forceful application of the district attorney, but it was too little too late. I must admit, I've never heard of a trial lawyer, particularly one appearing pro hac vice, essentially counting on a jury to violate a judge's instructions to stay away from media accounts, and actually employing that anticipated violation to communicate with a jury. Joel Cohen, Jennifer Rodgers, Bloomberg Law, "INSIGHT: Jury Contamination in High Stakes Cases—A Conversation and Remedy," April 3, 2020.

Put aside whether the Grievance Committee will have received or initiated a complaint sua sponte. This column is absolutely not encouraging one but is, rather, employing this episode as a cautionary tale for trial lawyers in light of a lawyer's ethical obligations during trial. NY Rule of Professional Conduct 3.6 is entitled "Trial Publicity." Simply, with a limited exception, a lawyer participating in a civil or criminal matter "shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

And so that there is no mistake, the NY Rule explains that prejudice includes statements related to the "character, credibility or reputation" of a party; an opinion about the guilt or innocence of a criminal defendant; and "information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial." Cf., ABA Model Rule of Professional Conduct 3.6., which omits a NY Rule-type description of what "will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

The Cutler Case

Did Rotunno's statements go so far as to violate the Rule? Let's look at two notable cases. Some may remember powerhouse lawyer Bruce Cutler. From 1990-1991, 30 years ago, while representing Gambino Crime Family boss John Gotti, Cutler—indeed, considerably before the trial was to begin—was quoted in New York's four major newspapers of the day, emphatically denying that Gotti (charged with racketeering) was a mob boss.

Judge I. Leo Glasser, sitting in the Eastern District of New York, admonished counsel to try the case in the courtroom, not the press, and cited to SDNY/EDNY Local Criminal Rule 7, which makes it the duty of the lawyer to not release information if there is a "reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice… ." In response, Cutler held a press conference outside the courthouse where he claimed that the government had "thrown the Constitution out the window" and mocked the government's witnesses as "bums." Not surprisingly, it made the evening news and the morning papers.

Judge Glasser issued several orders. And Cutler continued to talk to the press, even appearing in a lengthy—pro-Gotti—interview on 60 Minutes. Cutler was ultimately disqualified as trial counsel (largely because he could be a witness). Even so, one month before the trial was to begin, he appeared on a live one-hour television show called 9 Broadcast Plaza where he touted Gotti's "admirable qualities" and opined that the Government is "creating cases against individuals they target" by "giving freedom to drug dealers and murderers if they will sing the government's tune against the likes of John Gotti"; and … jurors realize that "the witnesses lie" and that "even the federal investigators lie" and that is why they vote "not guilty unabashedly."

Judge Glasser, having had enough, issued an order to show cause why Cutler should not be held in contempt for his conduct. After a five day hearing before Judge Thomas C. Platt, to whom the contempt trial was referred, Cutler was held in criminal contempt and sentenced to three years' probation, coupled with: (1) a 90-day period of house arrest; (2) a 180-day concurrent period of suspension from practicing within the Eastern District of New York; and (3) 600 hours of "non-legal" community service. The conviction and sentence were affirmed ("… we sympathize with the plight of a defense lawyer torn between his duties to act as an officer of the court and to zealously defend his client. Nonetheless, a lawyer, of all people, should know that in the face of a perceived injustice, one may not take the law into his own hands. Defendant did, and now he must pay the price.") 58 F.3d 825 (2d Cir. 1995).

The Gentile Case

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), decided before Cutler, is the leading case on the subject. Promptly after his client was charged, Dominic Gentile, a Nevada lawyer, held a press conference at which he said that his client was an innocent 'scapegoat' because the person in the best position to have committed the crime was a Las Vegas police detective. Some six months later, the case was tried and his client was acquitted on all counts. The State Bar of Nevada, however, filed a complaint against Gentile, alleging a violation of a Nevada disciplinary rule almost identical to ABA Rule 3.6. The Supreme Court's majority opinion by Justice Kennedy which said that "an attorney's duties do not begin inside the courtroom door" (at 1043), found Gentile's comments to be "innocuous" and insufficient to form a basis to limit a lawyer's first amendment rights:

A profession which takes just pride in these traditions [of vigorous advocacy] may consider them disserved if lawyers use their skills and insight to make untested allegations in the press, instead of in the courtroom. But constraints of professional responsibility and societal disapproval will act as sufficient safeguards in most cases. And, in some circumstances, press comment is necessary to protect the rights of the client and prevent abuse of the courts. It cannot be said that petitioner's conduct demonstrated any real or specific threat to the legal process, and his statements have the full protection of the First Amendment. (at 1058).

Remember, though, Gentile's press remarks took place immediately after his client was charged and a trial date had not even been set, as opposed to the conduct in Weinstein.

Analysis

Returning to Donna Rotunno, I turned to my friend and guru, Professor Roy D. Simon, author of Simon's New York Rules of Professional Conduct, Annotated, now in its 20th edition. When I asked what he thought about Rotunno's comments, Professor Simon responded:

"Did the Newsweek opinion piece violate Rule 3.6(a) by having a 'substantial likelihood' of 'materially prejudicing' the trial? You bet. Ms. Rotunno's piece expressly says: 'Harvey Weinstein is innocent.' Bullseye—in my opinion, she hit the prohibition at its heart.

"When Weinstein's prosecutor objected to Ms. Rotunno's piece, Ms. Rotunno said her piece was 'not improper' and implied that it was a response to 'a large media attack on Mr. Weinstein every single day.' That justification might have some merit. Rule 3.6(d) creates an exception for 'a statement that a reasonable lawyer would believe is required to protect a client from the substantial prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.' But paragraph (d) also says that a protective statement 'shall be limited to such information as is necessary to mitigate the recent adverse publicity.' The drafters had in mind specific rejoinders to specific attacks, not an opinion piece intended to sway jurors to acquit—a piece that ends by saying, 'The facts are the facts. Harvey Weinstein is innocent. His fate hangs in the balance, and the world is watching.'

"The jurors heard the facts, and Harvey Weinstein's fate is twenty-three years in prison. What will Ms. Rotunno's fate be?"

Afterthought

To conclude, this column is not intended as a complaint or accusation against Ms. Rotunno who was dealing with an unprecedented avalanche of adverse publicity against as unpopular a defendant as exists in recent history. And it's not a criticism of the trial judge who likewise had to deal with the same reality—and maybe wanted to somehow level the playing field. One wonders, though, why he didn't issue a gag order at the outset of the proceedings, let alone when the Times/Rotunno podcast surfaced gaining considerable publicity. The absence of a gag order until after the Newsweek piece certainly doesn't excuse what happened, but I myself would certainly be pointing to that if push were to come to shove.

Joel Cohen, a former prosecutor, is senior counsel at Stroock & Stroock & Lavan. He is an adjunct professor at both Fordham and of Cardozo Law Schools. Dale J. Degenshein, a partner at Armstrong Teasdale, assisted in the preparation this article. They have recently published 'I Swear: The Meaning of an Oath' (Vandeplas Pub., 2019). The views expressed herein are the authors and not those of their firms or clients.