During the mid-year ISBA meeting in December 2015, the ISBA had a CLE program titled “Media Talk: How and Why Judges and Lawyers Should Speak on Legal Topics.” This event entailed a panel discussion in which judges and one lawyer who regularly appear in the media spoke about their experiences and why they believe it is good for the profession overall if judges and lawyers speak to the media. They gave helpful suggestions as to how to address questions in the media, and also some hints on how to become a guest speaker if one were interested.

Karen Conti was one of the panelists. She is a successful attorney who has become a very coveted media commentator, having appeared as a guest on everything from Court TV to Nancy Grace and CNN. Ms. Conti had a very interesting start to her media career in that she was on the team of lawyers who was representing John Wayne Gacy during his appeal. The media was of course interested in the case and Ms. Conti, a fervent anti-death penalty advocate, felt that speaking to the media could aid her client and perhaps further her cause. Ms. Conti did consent to speak to the media, and made sure to always be prepared and have specific and concise answers. She also went on to explain how important it is not to use “legalese” when speaking to the media since you want to use language that viewers understand. Due to her stellar performance during the Gacy case, Ms. Conti was asked to comment on other media worthy cases, and from there a whole side career as a media personality evolved.

Ms. Conti discussed the Illinois Supreme Court rules which govern attorneys who wish to speak to the media, and stated that when speaking to the media what you say cannot be dishonest and you cannot say anything which could bring the profession into disrepute. The pertinent rule is Supreme Court Rule 3.6 of Article VIII. Illinois Rules of Professional Conduct. That rule reads as follows:

Rule 3.6: Trial Publicity1

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

When speaking to the media you must always keep these rules in mind. Be aware that prosecutors have additional rules which cover what they are allowed to say to the media. It is also very important that your client give you consent to go speak to the media about any case is which you represent a party. Under the rules, a lawyer can never make false statements and cannot bring the profession into disrepute, such as by name-calling of opposing counsel.

The panel also included several judges. Judge Michael McCuskey, from the 10th Judicial Circuit, and Justice Robert Steigmann, of the Illinois Appellate Court, do regular guest appearances on radio shows in their home jurisdictions. James Turpin, who hosts a radio show which highlights legal issues in the Champaign, Illinois area was also on the panel. Mr. Turpin explained how the public is very interested in legal topics, and that he enjoys having judges and lawyers appear as guests on his show because those garner the highest ratings. Justice Steigmann explained that he believes that judges speaking to the media and answering general questions thrown out by listeners to the radio show on which he appears helps the system as a whole. His concern is to insure that the general public not believe that judges are out of touch with the needs of regular citizens and “live in an Ivory tower.” He believes that his media appearances demonstrate that judges do understand the concerns of everyday citizens. Judge McCuskey pointed out that his media appearances help people to understand the system and the law.

Retired Lake County Judge Raymond McKoski was the final panelist. Judge McKoski is an international expert in judicial ethics, who explained that the ethical rules for judges when speaking to the media are in the Illinois Judicial Code, and do not allow judges to speak about any case which is pending before them. While speaking about court procedures and the law is acceptable, judges must use a hypothetical scenario and not address any specific case which is pending before them. Judges must also insure that nothing which they say reflects adversely on their impartiality. When giving a personal opinion on an issue, a judge must explain that that is merely a personal opinion and explain that as a judge they will put aside that opinion and follow the law. It is important for the public to know that the judge will put aside their personal opinions when ruling on a legal matter.

There can be tremendous benefits from speaking to the media, and all panelists felt that having attorneys and the judiciary speak to the media can benefit the legal system as a whole. Karen Conti, who represents clients and does commentary on pending cases in which she is not involved, explained that there are many benefits to attorneys appearing in the media. She explained that the primary benefit is to her clients, who may want her to speak to the media on their behalf in order to gain an advantage in their case. The second benefit is to the lawyer. Having the general public view an attorney as a persuasive and articulate advocate on someone else’s behalf is a wonderful way to reach potential clients. Finally, the system as a whole benefits when lawyers appear in the media. Ms. Conti uses her position as a media personality to advocate for injustices in the system, and was able to use her platform to speak out against the death penalty when her client John Wayne Gacy was facing that ultimate punishment. It is a way to reach the public and make them understand something they may not otherwise understand.

All the panelists believe that they do a service to the legal system overall by speaking in the media about legal issues. Explaining legal issues and court proceedings to the public and having a public who is educated about the legal issues which the courts face every day can only lead to a better court system overall and more trust in the system as a whole. Judges and lawyers who wish to pursue the role of media commentator should contact their local TV and radio stations via letter. You should explain your area of expertise and how it relates to the current hot topics in the media. Who knows, you may have a whole side career as a media celebrity awaiting you! 

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Judge Geraldine A. D’Souza is a Municipal Department judge who is assigned to the Sixth Municipal District in Cook County, Illinois.

1. Adopted July 1, 2009, effective January 1, 2010.