EFTA00018028.pdf

Case 1:20-cr-00330-AJN Document 315 Filed 07/30/21 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

United States of America,
—v—
Ghislaine Maxwell,
Defendant.

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 7/30/21

20-CR-330 (AJN)

ORDER

ALISON J. NATHAN, District Judge:

The Government has moved for an order requiring David Markus to comply with Local
Criminal Rule 23.1 following an op-ed that he authored opining on the merits of this pending
case. Dkt. No. 309.

Mr. Markus is plainly a lawyer associated with the defense in this case. His formal
representation has involved handling at least one pre-trial issue for Ms. Maxwell—in particular,
appeals to the Second Circuit of this Court’s bail-denial determinations. Dkt. No. 173; see also
United States v. Maxwell, Nos. 21-58-cr(L), 21-770-cr (2d Cir.). Beyond that, he has held
himself out as Ms. Maxwell’s attorney in press related to the current trial stage, including in the
op-ed at issue in the Government’s letter application, which describes him as “Maxwell’s
appellate counsel.” He has also attended a proceeding in this matter and spoken on Ms.
Maxwell’s behalf to the press afterwards while identified as Ms. Maxwell’s attorney. See
Stephen Rex Brown, Ghislaine Maxwell Makes First In-Person NYC Court Appearance, N.Y.
Daily News (Apr. 23, 2021), https://www.nydailynews.com/new-york/ny-ghislaine-maxwell-
arraignment-20210423-b3aza5eh7bddna7r247px2yb7e-story.html.

Nevertheless Mr. Markus argues that he is not subject to Rule 23.1 because he does not
currently represent Ms. Maxwell in any proceedings and has not made an appearance in this

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Court. Dkt. No. 314. Rule 23.1 is not so superficial nor easily circumvented. Nothing in the
rule limits its application to lawyers who have formally noticed an appearance. To the contrary,
as the text throughout the rule makes clear, it applies to statements made by lawyers (and others)
“associated” with “pending or imminent criminal litigation.” S.D.N.Y. Local Criminal Rule
23.1(a) (last updated Oct. 29, 2018); see also Rule 23.1(b) (“a lawyer participating in or
associated with the investigation”); Rule 23.1(c) (“lawyer or law firm associated with the
prosecution or defense”). An attorney need not be of record in order to be sufficiently
“associated” with a case as to justify application of disciplinary rules regarding extrajudicial
statements. Lawyers who have not filed a formal notice of appearance may still possess
information that lends a perception by the public that their remarks on a pending case hold
greater authority. See In re Hinds, 449 A.2d 483, 496 (N.J. 1982); see also People v. Buttafuoco,
599 N.Y.S.2d 419 (Nassau Cty. Ct. 1993).

Such is the case with Mr. Markus’s role in the pending matter. As noted, Mr. Markus has
attended a proceeding in this Court, after which he spoke to the press on Ms. Maxwell’s behalf.
He has represented Ms. Maxwell on appeals of this Court’s pre-trial bail determinations.
Moreover, Mr. Markus has identified himself as Ms. Maxwell’s appellate lawyer in a published
op-ed discussing his opinion of the merits of this case. These facts mean that the public, which
includes potential jurors, may perceive Mr. Markus as an authoritative source of information
regarding the pending matter and may readily consider his remarks to be accurate and reliable.
Mr. Markus is therefore ORDERED to comply with Local Criminal Rule 23.1.

The Government does not ask the Court to discipline Mr. Markus based on his op-ed and
the Court declines to consider whether it violated Rule 23.1 given the potential lack of clarity
with respect to whether Mr. Markus was bound by the rule. The Court emphasizes that the rule

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provides illustrative examples of statements that “presumptively involve a substantial likelihood
that their public dissemination will interfere with a fair trial or otherwise prejudice the due
administration of justice within the meaning of the rule.” S.D.N.Y. Local Criminal Rule 23(d).

Going forward, Mr. Markus and all lawyers associated with the pending case are now
clearly on notice that their conduct falls under the purview of Local Criminal Rule 23.1. Indeed,
the above concerns do not apply only to Mr. Markus. This Court has previously noted that
“counsel[,] agents for the parties and counsel for potential witnesses” must take care to “protect
the Defendant’s right to a fair trial by an impartial jury.” Dkt. No. 28. This Court is cognizant
that criminal matters heading toward trial are especially sensitive to extrajudicial statements. All
those associated with this case must act to ensure the case is tried solely in court or else they risk
being deemed responsible for any trial delay or for undermining the integrity of the upcoming
trial. See S.D.N.Y. Local Criminal Rule 23.1(h). In addition to the impact it could have on this
matter, failure to comply could also result in attorney discipline. Id. Rule 23.1(i).

SO ORDERED.

Dated: July 30, 2021
New York, New York

ALISON J. NATHAN
United States District Judge

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