Law: Me, myself, my client

Are lawyers too media conscious, or is being their clients' public face just part of the job?
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The Independent Culture
White-collar crime lawyers are used to feeling the heat, but Michael Caplan of City law firm Kingsley Napley had a particularly uncomfortable time of it last week following his recent trip to Chile.

Mr Caplan acts for one of the most hated men in the world, General Augusto Pinochet.The former dictator of Chile is accused of human rights abuses and is the subject of emotive extradition proceedings.

When Mr Caplan travelled to Chile recently to research the case, he returned to a barrage of abuse in England. A group called the Relatives of the Disappeared in Chile led the charge, accusing Mr Caplan of crossing over the line that separates straight-forward legal advice from outright campaigning.

In a letter to Mr Caplan, a member of the group, Nicole Drouilly, said: "In Chile you undertook a schedule of meetings and contacts more related to a political and propaganda campaign than that of the work of a professional adviser." The group was especially critical of what it said was widespread coverage in Chile of Mr Caplan's visit which it said represented a public relations victory for General Pinochet.

Ms Drouilly represents people who clearly have been through great pain and torment. But is she right to criticise Mr Caplan? Is there a line that lawyers should not cross in the public defence of their unpopular clients? Successive Lords Chief Justice are on the record as having misgivings about the growing trend of lawyers dealing with the press.

However, the stipendiary magistrate in the Pinochet extradition hearing last Friday was adamant in his view, stated in open court. At Bow Street in London, Geoffrey Parkinson referred to protesters outside who displayed a banner labelling Mr Caplan a Pinochet "accomplice". He stated firmly that "the legal representatives of both sides are doing their jobs. Obviously, it should not be taken personally against the members of the legal team."

Comforting words for Mr Caplan, but there remains the question of when does legal advice end and campaigning begin? As far as professional guidelines in England are concerned, a clear line has been drawn. According to the Law Society, the solicitors' professional body, solicitors may speak publicly for their clients as long as they are not in contempt of court by saying or publishing something that would interfere with the fair trial of a case which had not yet been concluded.

Law Society ethics' officials indicated last week that it was unlikely that anything Mr Caplan said in Chile would have caused the proceedings in this country to have been prejudiced. Those close to the legal profession have observed a trend over the last decade of lawyers gradually adapting to the demands of the media-dominated world. "In the media age, the smart lawyer has a duty to the client to advocate the case to the widest possible audience, not just the judicial one," says Sue Stapely, a director of London-based public relations consultancy Fishburn Hedges, the former head of communications at the Law Society and a qualified solicitor.

And indeed there are plenty of solicitors keen to perform the type of public advocacy Ms Stapley recommends. Mr Caplan is far from the only lawyer to have felt the recent glare of media attention. Andrew Morris, who represents the former England rugby union captain Lawrence Dallaglio, found himself having to conduct a media scrum around his client following tabloid allegations that Mr Dallaglio had used and dealt in drugs.

Mr Morris, who runs the sports management group In Touch Management, is unequivocal in his belief that lawyers must act in many different capacities for their clients. "It is an affront to describe a lawyer as someone who is in a box and only capable of providing one type of service. Lawyers are multi-talented, multi-disciplined professionals," says Mr Morris. "That is something the culture will have to get used to. Especially the English," comments the New Zealand-born solicitor, "as they like to box everyone into corners."

His view is supported by Eversheds partner Frank Presland, who has expanded his role as legal adviser to Elton John to a position where he provides business management. Mr Presland maintains that "the power of public opinion is much more apparent to people than it was 10 or 20 years ago and lawyers are aware of that power and use it on behalf of clients".

Mr Presland is confident that there is a line over which lawyers should not step when presenting their client's case to the press, but he says it is more intuitive than obvious. He also points to a problem of public perception and the public's occasional inability to separate the lawyer from the client, believing that what is said by the lawyer on behalf of the client is also the lawyer's own view.

While for Mr Presland the line in the sand is difficult to define, one of the UK's most quoted lawyers has his own rule of thumb. Mark Stephens, the senior partner of Stephens Innocent who has acted for a string of high-profile clients involved in a bit of media bother including Paula Yates and Anthea Turner, says: "Solicitors should remember not to use the first person - to say "my client" and not "I'".

Sue Stapley, too, sees clear problems. She maintains there are three main constraints on lawyers when they deal with the press: professional rules, contempt of court legislation and unofficial rules of competence. It is the last that trips up most. "Lawyers enter into the media forum without a full appreciation of how it operates," says Ms Stapely.

Her main fear is for the well being of clients. "Occasionally, clients are in danger of being used by a small number of solicitors to enhance the solicitor's own profile," she warns. "Matters that might not have a public interest value are advanced as though they did have. That can put people into the spotlight when they might not have wanted to be there."

One solution, recommends Mark Stephens, would be for the Bar Council to lift its ban on barristers speaking to the press during a case. "Then you would have a trained advocate doing the media relations and also one that might be slightly more objective which would therefore get round the problem of overly-personalising statements," he says.

In their defence, mediawise lawyers point out that many clients caught in the headlights of publicity do not want to face the media themselves. They actively seek out law firms experienced in dealing with aggressive press coverage. And in cases where there is no visible defendant - such as Pinochet, hidden in a suburban bolt-hole - the lawyer can be the only focus of attention for the media.

Ultimately, says Keith Oliver, senior partner at the London firm Peters & Peters and the lawyer to Kevin Maxwell, lawyers must always be mindful that they are answerable to the court. Mr Oliver agrees that it is perfectly reasonable and proper to take one's professional skills and put them to use acting as the client's mouthpiece. But from a client's point of view there is nothing worse or more damaging to a case than having a judge haul his lawyer over the coals for going beyond his professional remit. That is a view supported by the current head of press relations at the Law Society, David McNeill. "Lawyers must remember that they are not PR agents," he says. "If the case is to be decided by the court then it should be fought there and not in the papers. If a solicitor is more worried about what is being printed in the press than what is going on in the courtroom then he has got the balance wrong."

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