A Response to Reports of an Ethics Complaint Regarding My Handling of the Zimmerman Case

Written by Mark O'Mara.

There were a number of extraordinary and controversial aspects to the Zimmerman Case, not the least of which included the existence of an online fundraising website for the defense fund -- and the establishment of a website and social media to affirmatively handle the intense press coverage. Both of these efforts were virtually unprecedented, therefore The Florida Bar had no rules on how to handle such things. I know because I contacted The Florida Bar before launching these initiatives and gathered whatever guidance I could. One thing was clear: if we moved forward with our plans for the defense fund and our online presence, we would be breaking new ground, and that meant taking an extraordinary risk.

I concluded that it was worth the risk.

I knew mounting George’s defense would be a costly endeavor. If there were people from around the country willing to contribute to a defense fund -- and there were -- I felt those donations would afford George a much more aggressive defense than he would have received had we declared indigency, and I was right. Taking the risk of coordinating and promoting an independent defense fund proved crucial to providing George with a fair trial, and I feel doing so was part of my obligation to zealously represent my client.

Likewise, the intense media scrutiny and negative press that descended on my office when I took the Zimmerman case threatened to interfere, not only with my ability to properly conduct George’s defense, but also my ability to maintain my regular practice. In the first weeks, the volume of inquiries overloaded the technical infrastructure of my office, and managing the public interest became an overwhelming on-going task. Ignoring the press would have invited one media crisis after another. In a high profile case like the Zimmerman case, the press has to be managed in an organized, affirmative matter, and in the information age, that includes the use of a website and social media. We crafted a media policy and launched our web properties, and I can say unequivocally that they proved essential to our ability to conduct the legal case in the crucible of the media spotlight.

In response to my request for information regarding the proper way to manage a defense fund and an online presence, The Florida Bar opened an inquiry, which included very specific questions regarding our policies for each and how we were conducting ourselves. We responded promptly and to The Florida Bar’s satisfaction, and the entire matter was deferred until after the trial. Although no further action has been taken since the verdict, the file has remained open. Yesterday, in response to a very specific question from the press, The Florida Bar followed their policy and confirmed that there was an "open matter" regarding me and the Zimmerman case.

Generally, The Florida Bar discourages public comment on pending matters, but in this instance, and since the matter was reported in a completely incomplete manner, and in a way that opened opportunity for inaccurate speculation, I’ve decided to respond. I am certain that matter will be closed shortly, and that the conclusion will suggest that we handled these new and novel approaches in an appropriate and ethical way. Not only have I done nothing wrong in regards to how we managed the defense fund and the online presence for the Zimmerman case, but I think we also set the standard for how these matters should be handled in future high-profile cases that warrant such measures.

In conversation with the Ethics division of The Florida Bar, when I first discussed this with them late April of 2012, they forwarded an article from Slate.com that they reviewed which addressed these issues, including a discussion with New York University law professor Stephen Gillers. Gillers said, “Before the Web, defense lawyers played whack a mole trying to counter not only the adverse publicity leaked by law enforcement (not necessarily the prosecutor), but the stories reporters find on their own.” We live in a new world. An industry has developed around the coverage of justice issues, and social media is a huge part of how the press covers these stories. The Florida Bar has an opportunity to provide some leadership by crafting official policies on how social media can and should be used in legal cases, and I hope to be a part of that process. Very soon another case will erupt onto the national stage, and I hope the lawyer in that case can look at how we managed the press in our case as an example of how to do it right.