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Wednesday, June 09, 2010

Ind. Courts - How free are we to write and talk about issues before the courts?

The teaser to an article in the 6/9/10 issue of an Indiana legal tabloid-sized newspaper reads:

"Articles about pending cases raise concerns: At least two attorneys are questioning how some legal publications have included articles, columns, or other types of coverage on pending cases, and they worry that these articles may influence the judges on the cases."
In today's article itself, several respected Indiana appellate attorneys dismiss the concerns, citing court rules prohibiting judges from ex parte communications. That these rules extend to legal and procedural issues, as well as factual issues, is made clear by in The Rules of Judicial Conduct Comment 8 to Rule 2.9, Ex Parte Communications, which reads:
[8] A judge is permitted by Rule 2.9(A)(3) to consult about legal and procedural issues with the Indiana Judicial Center or Indiana Supreme Court Division of State Court Administration.
Reading today's article, the concern seems to be about public discussion of a case pending decision by an appellate court, in case a judge might read it.

Should discussion be prohibited in legal publications? What about newspapers and blogs? What about TV? Who should be restricted. Lawyers in the case? The parties? Other lawyers? Anyone with legal background? Writers and reporters?

Perhaps the most prominent example at the moment would seem to be Governor Daniels' statements re the blackjack counting case, which has been argued and is now pending decision by the Supreme Court. See this ILB entry from May 24, 2010, quoting from a LCJ article headed "Gov. Daniels rooting for card counter in lawsuit against casino." A quote:

Daniels told graduating seniors at Franklin College on Saturday that he hopes Donovan wins.

"Donovan's sin in the casino's eyes is not that he is inordinately lucky, it's that he's inordinately smart," Daniels said. "He has taught himself to count the cards as they are played, then constantly and quickly to calculate the odds on his winning the next hand. In a game where luck still plays a large part, Donovan has through hard work learned to improve his chances."

The ILB last wrote about this ex parte issue in a May 7, 2009 entry headed "Blogging about cases pending before the Supreme Court," quoting from a Stanford Law Review article headed "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era." The article is aimed at the SCOTUS, and it suggests that the U.S. Supreme Court might adopt a rule that the Justices not read ex parte blog posts, concluding:
Such self-imposed discipline would also have the advantage that it could also extend more broadly to cover material from law reviews and newspapers as necessary, without triggering concerns about unconstitutional restrictions on speech.
In other words, the justices should restrain themselves from taking outside materials into account. One expects that they already do.

Posted by Marcia Oddi on June 9, 2010 10:39 AM
Posted to Indiana Courts