Listened to Episode 2 on this morning’s walk. I just have two thoughts to share:
1.) As a guy who has done a fair amount of copyright litigation, it was interesting to hear so much content taken from videos I posted in the past. Not that anyone cares, but I own the copyright to all the videos I created, and no one asked me for permission to use any of that content.
But that’s completely OK — this was textbook fair use. They didn’t replay an entire hour-long video without permission. They used small parts taken from longer videos for news reporting/commentary. That’s well within the fair use rules.
If anyone had asked me for permission, I would probably have given it (the only reason permission may have been withheld is due to Issue #2 below). Fair use is, by definition, NOT infringement, so when you engage in fair use, you do NOT need to ask permission in advance.
Fair use aside, to be honest, I was glad to hear some of that content included, because I really did not want this to be completely one-sided, so I appreciated Stephani taking the time to offer additional content from our side. It made the episode better.
2.) As the story progresses, it’s clear to me that any desire I have to comment or respond about the story and the facts is going to be outweighed by ER 1.6. Hence, I probably can’t and won’t say much.
I’ve already talked about this many, many times, but ER 1.6 says a lawyer can’t “reveal” information about a client without consent. I take the word “reveal” to have the plain English meaning; i.e., you can only reveal something that is NOT already known. If I tell you “water is wet” or “2 + 2 = 4”, that is NOT revealing anything you didn’t already know.
Still, the AZ Bar insists ANY mention of a client, even just saying the client’s NAME, requires informed consent in every instance. I think that view is dead wrong, but I have enough battles going on at the moment.
So, I’m probably not going to be commenting or responding to any stuff that is mentioned in Love Trapped. It’s not because I don’t want to. It’s just me trying to stay on the right side of the ethical rules.
But I will say this — Stephani made a comment about how it was “unusual” for a lawyer to make public videos/comments about (or with) a client. It felt like she was implying this was improper. That implication (intended or not) warrants a brief response —
I agree a lawyer posting YouTube videos is not something that is always done in every case. On the contrary, in a majority of cases lawyers don’t make public statements, and they don’t allow their clients to either. But what’s normal doesn’t define what’s correct.
LO v. CE was not a typical case. That’s why unusual steps were needed. Our videos may have been uncommon, but they were not improper. This form of PR is a technique many, many lawyers have used over the years, and there’s nothing wrong with it.
I’ll just cite one — Trump’s lawyers, Alina Habba (among others), frequently held press conferences during his criminal and civil cases in New York. During those mid-trial press conferences, they talked about the evidence (often making false statements), and they attacked judges using language way worse than anything I’ve said.
So yeah, I agree it might be a little unusual for lawyers to make public comments in the way I did, but that is something fully allowed by the rules (with some limited restrictions, of course).
