Wednesday, August 10, 2005
The American Bar Association issued a news release here supporting a journalist's shield statute. Interestingly it did not take a hard line approach of protecting all sources, but rather provided for some exceptions. The essence of the news release provides that:
"To overcome the reporters’ shield, the new association policy would require a showing that the information sought from a journalist is essential to a critical issue, that all reasonable alternative sources for the information have been exhausted, and that the need for the reporter’s information clearly outweighs the public interest in free flow of information."
In reading this, I am reminded of Rule 3.8(e) of the ABA Model Rules of Professional Conduct that precludes prosecutors from subpoenaing a lawyer to a "grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonable believes" that the information is not protected by the privilege, the information is essential to an ongoing investigation and the prosecutor has no other way of obtaining the information. Here, however, the privilege reigns as a priority above the public's need to know.
Are lawyers more entitled to a privilege than journalists? On the other hand it is nice to see some restraint being suggested so that prosecutors cannot try to use the media as a shortcut for doing the hard work in their investigation.