Litigation specialists generally agree that many cases are decided not only in courts, but also in the court of public opinion. This is especially true when high-profile clients or salacious subject matters are involved. A New York court has noted that the media, prosecutors, and law enforcement may engage in activities that color public opinion to the detriment of the subject’s reputation and even to the detriment of the subject’s ability to obtain a fair trial, such that advocacy in the public forum is necessary.1 Not only can media coverage lead to a biased jury, but it can create such negative publicity that affected companies have a financial incentive to settle cases to avoid further reputational damage even where they are confident in the merits of their case. Companies often fear that by the time the case is concluded, the press will no longer be interested in the story, and the negative publicity will have already taken its toll.

Several courts have recognized that efforts to control media messages are part of an attorney’s duties. Justice Kennedy (writing for himself and Justices Marshall, Blackmun and Stevens) in Gentile v. State Bar of Nevada stated that...