Attorneys for the University claimed in a U.S. District Court memorandum filed Friday that attorneys for plaintiffs including 38 current and former members of the men's lacrosse team violated state and federal ethics rules in publicizing their suit against Duke.
The filing states that the plaintiffs disregarded professional conduct standards by announcing the case via a news conference, press release and Web site statement.
"When a complaint contains such incendiary language, an attorney should not be permitted to hide behind the language of the complaint and make a statement to the press that strings together paragraphs that are highly prejudicial," it reads.
The filing points to the involvement of Bob Bork, head of the Bork Communication Group and a media consultant for the case, as evidence of the plaintiff's intention to publicize the lawsuit.
"What Duke is saying is, 'Look, this publicity firm is really the alter ego working with the lawyers, so they shouldn't be able to say things that the lawyers aren't allowed to say,'" Professor of Law Thomas Metzloff said. "They are making sure that the lawyers aren't speaking through someone else."
He added that the motion is "future-oriented" and was filed to inform the judge of the publicity that the lawsuit might attract rather than to reprimand the plaintiffs.
The filing claims that the public means by which the plaintiffs announced the case may distort court proceedings. The plaintiffs have asked for a jury trial.
Bork responded to the filing on the suit's Web site. "Duke's motion to keep information about this case out of the media is utterly meritless," he wrote. "We will file our response promptly."
The plaintiffs accuse Duke, Durham and several individuals of fraud in supporting the prosecution of three accused lacrosse team members in March 2006.
No specific actions are requested of Judge James Beaty in the Duke attorneys' filing, but it does ask the court to recognize the ethics violation. The rule in question prohibits lawyers from making statements outside the courtroom that are intended to attract publicity and "have a substantial likelihood of materially prejudicing a court proceeding."
The same rule factored into former Durham District Attorney Mike Nifong's disbarment in Summer 2007. Metzloff, however, distinguished the claim from the process that led to Nifong's disbarment. "It's much more about future control of the media in this case-it's nothing like what happened [with Nifong]," he said. "I doubt it will be a very significant moment in this case."
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