FanPost

Ethical and Strategic Considerations for Counsel for Johnny Manziel

USA TODAY Sports

As an attorney, your stock-in- trade is your ability to process and refine the delivery of information for your client's benefit. This is true regardless of whether you are civil, criminal, or family lawyer. When you make a decision to deal with the media on a high-exposure case, your ability to control the message is disrupted by two variables: (1) the media's interpretation of what you said and (2) the public's reaction to the information as interpreted. In dealing with the media on a high-profile case (but certainly not one of this size), I can remember an interview I gave on a remote from the dining room at my house, and the editing of the interview certainly told a different story than the one that was communicated face-to-face. The film gets chopped and reorganized, and--all of a sudden--the message is out of your control.

In this fanpost, I'm going to make an argument for why the Manziel's attorney, Jim Darnell, and the media blitz in which he's engaged are imprudent and come at very inopportune time.

Ethical Considerations

One of the things that really surprised me about the opening remarks from Mr. Darnell were his disclosure of the period in which he was retained. To come out and say that you were hired by the Manziel's "two weeks ago," at least in my mind, is a disclosure of a client confidence in violation of the disciplinary rules. On top of that, it 's just plain a bad idea for reasons discussed below. Whether you were hired two hours ago, two weeks ago, or two months ago, is between you and your clients, and that information should not be disclosed without the Manziels' permission.

The second ethical consideration that you have to consider as an attorney is, "Am I doing this for my client or myself, and whose objectives does it further?" At first blush, I cannot possibly imagine how an open, nationwide discussion between Johnny's attorney and the general public could further the client's objectives at this point. Jim Darnell, not an hour ago, got on ESPN's The Herd and refused to answer questions about whether Johnny took money, stating only that he had "seen no evidence" that Johnny took money. While you can plead the Fifth in criminal court, it's not so easy before the NCAA. When an investigator comes up to Johnny and asks him, "Did you take money?", it is not acceptable to answer, "There's no evidence of that."

When you represent an individual of this level of exposure and you decide to engage the media, you have to pick a horse and ride it hard. "He didn't do it. We'll see you at the hearing." The Zimmerman defense team's handling of the media is a perfect example of how to use conclusive statements about your client. Coming out and saying, "I haven't seen any evidence" is not only inconclusive, but it's also incomplete, as most everyone in America understands that this means, "You can't prove it."

Is Johnny assisted by the factual statement that there is no investigation by the NCAA? No, and combined with Darnell's negative statements about the venue in this case (the NCAA), he's probably painted an even bigger bullseye on Johnny's back.

Strategic Considerations

Having represented public figures before, as a general rule, it is best to be invisible. When you insert yourself into their folklore, you may have raised your profile, but you may also have diminished your client's profile. That is not your job as an attorney. Usually, when public figures hire attorneys, they want to avoid the ignominy of a public legal battle, not enhance its effects.

This is particularly true in Johnny's case. The objective should be to take the matter OUT of the news cycle, not deeper in. After ESPN ran out of steam, Johnny's attorney picked the ball right up and ran with it. The question is: Would Johnny have been better off if no one knew he had hired a lawyer? The answer, in my mind, is unquestionably "Yes."

I have also dealt with large, sophisticated, multiparty investigations from regulatory authorities. The first thing that you want to do in an investigation of this significance is find out with whose interests you are aligned and make sure that you coordinate your efforts to achieve the desired result. Here, Manziel and A&M should be aligned. The first instruction should have been, "Don't tell anyone you hired me. I will call Lightfoot and check on the status of their efforts and make sure that we assist A&M's response and address the NCAA accordingly."

Instead, now both A&M and Lightfoot have to own and wear the fact that Johnny had hired a lawyer weeks (?) before the ESPN report ran on Sunday, and neither Manziel nor his counsel informed A&M about the impending problem. They also have to own his "there's no evidence" statements rather than a simple, "My client says he didn't take money." In Ghostbusters parlance, you never "cross the streams." You should be presenting a unified front to the regulatory body, not going rogue.

What I Think is Going On

I would expect A&M to investigate this matter all the way right up until the Rice game before making a conclusive statement. You have to remember that the strength of the NCAA's response is going to be inversely proportional to the amount of time A&M spent investigating the matter. A quick, "He's innocent; case closed" is going to draw some serious ire. Instead, I expect A&M will use every resource (day, hour, and minute) at its disposal to investigate the matter fully before reporting on the subject to the NCAA.

That's what a seasoned professional does. That's what A&M and its counsel are undoubtedly doing as I write.

FanPosts are user-submitted, and are not always representative of GBH editorial/staff or any of our opinions. Please don't post spam or self-promotion, because that's not very good bull. Thanks!

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