Prosecutors have filed a motion requesting that Attorney Brian Claypool of Pasadena, California be removed from Ms. Dalia Dippolito’s case. Marc Freeman of the Sun Sentinel broke this story. At issue is a press release that was put out by Ms. Dippolito’s attorneys. The press release announces that the defense is seeking to learn through Florida Open Records requests, how much taxpayer money is being used to prosecute Dalia Dippolito. The release goes further and states that this is a, “politically motivated prosecution.” In the release, Attorney Claypool is quoted as saying, “The taxpayers of Palm Beach County Should not have to bear the price tag associated with state prosecutors trying to save face and make a personal example out of Ms. Dippolito.”
Claypool is a California lawyer hired by Ms. Dippolito. Claypool is not a member of the Florida Bar. Nonetheless, he was given permission to practice here in Florida under the Pro Hac Vice Rule. In other words, Claypool was given special permission by the Judge to practice in Florida for the specific purpose of handling Ms. Dippolito’s case.
Prosecutors are pointing to Rule 4.3(6)(a) of the Florida Rules of Professional Conduct that governs lawyers in Florida. This rule specifically addresses the issue of Trial Publicity. The Rule states,
“A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.”
Prosecutors are alleging that these statements are statements meant to materially influence an adjudicative proceeding. In other words, the statements are being made to sway a potential jury pool. Prosecutors believe that the statements are only being made to try and affect the outcome of a verdict by pointing to facts that have no bearing in the trial.
Claypool has defended the statements by saying, “Nothing that I’ve said has remotely been close to compromising the integrity of the judicial process or the criminal proceeding involving Dalia.” Claypool has also defended his statements under the First Amendment of Freedom of Speech.
While it is correct that citizens, including lawyers, have First Amendment rights, those rights can be curtailed. For example, a lawyer has a First Amendment right to write a book about all of his clients and publish everything his clients told him. However, even though a lawyer has a First Amendment right to do this, a lawyer who does this will violate the attorney-client privilege given to him by his clients. Violating the attorney-client privilege will get the lawyer disciplined by the Florida Bar.
Because Mr. Claypool is not a member of the Florida Bar, the Judge has the power to remove him from the case. In deciding how to rule, the Judge is going to have to weigh the statements that were made by Mr. Claypool along with the issue of removing Mr. Claypool.
The Judge could find that no violation occurred. The Judge could determine that the statements did not rise to the level that they one could reasonably believe that they would have an effect on the trial.
If the Judge chooses believes otherwise, the Judge could remove Mr. Claypool from the case. However, in doing so, the Judge will in essence, keep Ms. Dippolito from having counsel of her choice. All Defendants have a right to hire counsel of their choice. If Mr. Claypool is removed, Ms. Dippolito would have a right to take an appeal and thereby the case could be continued once again. The Judge may want to avoid any problems of this type.
Nonetheless, the prosecutor’s claims are not to be taken lightly. The Judge could make a determination that the only reason the statements were made were for the purpose of getting information out to the public to curry favor with a potential jury pool.