Wednesday, July 28, 2021

Gag Order Violations Constitute Civil Contempt

The Delaware Supreme Court affirmed a civil contempt for an attorney's out-of-court comments to media

This appeal regards a civil contempt order. Appellant Joseph A. Hurley represents Clay Conaway, a former college athlete charged with raping six women. After the case attracted media attention, the Superior Court entered an order prohibiting counsel from making public comments except to the extent permitted under Rule 3.6 of the Delaware Lawyers Rules of Professional Conduct (“DLRPC”). Hurley twice spoke to reporters while the order was in force. The court held that both sets of comments violated the order and found Hurley in civil contempt of court.

On appeal, Hurley argues that the Superior Court erred by holding that there was a substantial likelihood his comments would materially prejudice pending proceedings. For the reasons that follow, this Court affirms the Superior Court’s contempt order and denies Hurley’s motion for judicial notice.

When the statements were made

In July 2019, the Superior Court granted a motion to sever the charges against Conaway, resulting in six separate proceedings. The first trial was held in September 2019. Conaway was convicted of Rape in the Fourth Degree. After the conviction but before sentencing, the Superior Court entered an order(the “Gag Order”) in each of the six criminal cases...

The gag order limited out-of-court statements to those permitted by RPC 3.6

After the sentencing hearing, Hurley gave an interview with a reporter from the News Journal. As reported by the News Journal, Hurley said he was “horrified” by the prosecutor’s statements:

After the hearing, Conaway’s attorney Joe Hurley strongly criticized arguments made by [the] state prosecutor. . . in which she pointed to comments made by Conaway and his parents. . . to demonstrate what the state saw as a lack of remorse and possibly learned attitudes.

“Arguing that the defendant is so attractive that girls flock to him and he can’t help it . . . This is not a defense to rape. It’s an excuse,” [the prosecutor] said.

Hurley said he was “horrified” that [the prosecutor] implicitly blamed Conaway’s parents for his actions. “There’s no excuse for that,” Hurley said. “Why would you do that to a parent?


In February 2020, the jury in the second criminal case found Conaway guilty of Unlawful Sexual Contact. Shortly afterwards, Hurley gave a videotaped interview with a reporter from the News Journal. During the interview, the reporter asked Hurley how he felt about Conaway being convicted of a misdemeanor charge. Hurley responded, “There was a reasonable basis for it, even though she put herself there.”

The prosecution alleged that both statements violated the gag order.


The court held that both of Hurley’s statements violated the Gag Order. Regarding the first interview, the court found that Hurley knew or should have known that disparaging the prosecutor weeks before the second trial was scheduled to begin had a substantial likelihood of prejudicing that proceeding:

[T]his is something that was done close in time to the trial of December 2nd . . . . [T]his would have a substantial likelihood of material[ly] prejudicing a judicial proceeding by creating the impression publicly that the state prosecutor was off the rails and was doing something so horrific to make the prosecutor look really in a terribly demeaning way.

Regarding the second interview, the court found that Hurley knew or should have known that attacking the victim’s credibility had a substantial likelihood of prejudicing the four remaining cases...

The court here affirmed the contempts, concluding that the statements were not protected by the "Self Help Safe Harbor."

Hurley argues that his ["horrified"] comment qualified for the Self-Help Safe Harbor. This argument also fails. It was not reasonably necessary for Hurley to express “horror” to set the record straight. Hurley could have given a narrower denial focusing on the facts the prosecutor supposedly got wrong. Further, Hurley did not make his comment in response to adverse “publicity.” Rather, he made his comment in response to the prosecutor’s statements in the courtroom. The Self-Help Safe Harbor is not designed to give lawyers an alternative to making timely objections. It is designed to allow lawyers to exercise self-help in response to comments made outside the courtroom. Hurley also places undue emphasis on protecting the parents’ reputation. Setting aside whether the prosecutor’s statements were advisable, the Self-Help Safe Harbor allows a lawyer to make public comments to protect their client, not third-parties. Thus, much of Hurley’s argument misses the mark.

The trial court had ordered a $5,000 payment.

Delaware Online had a lengthy story about the attorney in 2018

Joseph A. Hurley, a prominent Wilmington defense attorney known for his bravado and courtroom theatrics, was disciplined by the Delaware Supreme Court on Wednesday for making sexually explicit remarks to state prosecutors and for disparaging a former client who had lodged a complaint against him.

Hurley, 75, was ordered by the court to enroll in and pay for a professional training program within six months dealing with "respectful treatment of colleagues and opposing counsel" and "the need to refrain generally from inappropriate discussions of a sexual or religious nature" in his law practice. He also must pay the costs associated with an Office of Disciplinary Counsel investigation against him, which led to the public reprimand.

(Mike Frisch)

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