Troubling Question: How Do Bill Cosby’s Attorneys Get Away With It?

Posted in: Injury Law

If you had not noticed, the legal profession is protecting a serial rapist. (I am delighted to learn as I am submitting this column that my co-columnist Marci Hamilton has noticed.)

The ongoing reports about not-so-funny-comedian Bill Cosby are horrifying. He has been accused by some forty women of being a rapist. More specifically, the recurring charge has been that the women were drugged and then sexually assaulted by Cosby while unconscious or semi-conscious. These charges are not new, rather they go back at least a decade, and probably more. And now we have him under oath acknowledging it. But nothing much is happening about it.

To fight the rape charges, Cosby has relied for years on Los Angeles entertainment lawyer Martin Singer, who is well known for his aggressive tactics. The American Bar Association has called Singer a “pit bull for celebrities.” A New York Times profile of Singer broadly headlined him as a “Guard Dog to the Stars (Legally Speaking),” noting that clients like Sylvester Stallone (a.k.a. “Rocky”) says, “He’s ferocious and fearless, he really is.” In representing Cosby, Singer has certainly lived up to his reputation.

As rape charge after rape charge against Cosby surfaced, Martin Singer began attacking the women who were making the charges. He has called their claims ridiculous, raising the question of why so many women had waited so long to make their charges, all of which he denied in blanket fashion. Forty delusional women just happened to believe they had all been raped by Cosby in a similar fashion, according to Cosby’s counsel. Whenever possible, Singer found ways to trash these women, finding something in their past they would rather not read about in the newspapers.

The reason the women had not come forward was patently obvious. Cosby’s defense was the reason. Singer is not the only pit bull in Cosby’s corner. As the New York Times reported, none of these women wanted a powerful public figure like Cosby calling them a liar, for that is what he has done from the beginning. Because many of the women had professional careers, they only stood to ruin their lives by coming forward. Others were intimidated, as the Times noted, by “the aggressive legal and media strategy mounted by Mr. Cosby and his team.” Cosby has been able for the longest time to “hush” his victims, and his lawyers had been facilitating his defense, using and abusing the system.

Singer claimed, most recently for example, that “[t]he new, never-before-heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago have escalated far past the point of absurdity.” He called the it “illogical” for so many women to have remained silent so long. Yet Singer knew rape claims against Cosby were anything but new. Singer was well aware that Cosby had earlier made a confidential settlement when sued for rape, sealing the lips of one victim by contract, for that woman also sued Singer over his false statements claiming she and her mother were extortionists. He apparently was included in the settlement, and she dropped her case against Singer.

Late last year, after Singer issued his blanket statement denying Cosby’s actions against over dozen women, Tamara Green, who had accused Cosby of drugging and sexually assaulting her in the early 1970s, filed a defamation lawsuit in federal court for “claiming that his public denials—and those of his lawyers and publicists—have unfairly painted her as a liar.” Green did not name Singer, rather Cosby’s earlier lawyer, Walter M. Phillips Jr., and his longtime publicist and spokesman, David Brokaw, who “publicly branded Defendant Green a liar.” Other women soon joined the action as well.

This defamation action by Green and other others, filed in the U.S. District Court in Springfield, MA, is currently before Judge Mark Mastroianni—an Obama appointee who has been on the bench a little over a year—who is considering motions filed by Cosby’s attorneys to dismiss the defamation actions, which were argued on June 22, 2015. Cosby’s attorney Martin Singer has filed a number of affidavits in this action for his client, which is being handled by lawyers with expertise in this area of law. Cosby is constantly adding new attorneys to his defense team, and pays for the best money can buy. Defamation lawsuits are just a little bit more difficult for plaintiffs (like the women offended by Cosby’s team for being called liars after being raped) than scaling glaciers, so it is a real long shot for the cases to go forward. Defamation law, as a way to protect one’s reputation in the United States, is all but dead.

Meanwhile, there has been the well-publicized and successful action by the Associated Press to open the record in an earlier suit against Cosby by Andrea Constand, another of his rape victims. The information, which Cosby’s attorneys tried to keep sealed, is devastating. They are records from a proceeding to sanction an earlier lawyer of Cosby’s, who purportedly improperly blocked and disrupted the taking of Cosby’s deposition—a deposition in which Cosby admitted to obtaining Quaaludes with the intent of giving them to a woman with whom he wanted to have sex! The documents reveal not only Cosby’s attorneys’ pit bull modus operandi, but also confirm Cosby’s all-but-admitted modus operandi to rape women.

I understand the rights of all Americans to have a zealous defense by an attorney, but what baffles me—and I do not raise this to point a finger but to understand—is how can these very public and abusive tactics by attorneys, who are operating under various rules of professional conduct, justify their actions. Martin Singer is a California attorney subject to the California Code of Professional Conduct (CPC). Where in that code is the provision that authorizes assuming forty women are delusional in claiming rape by Cosby, and publicly attacking them? Or where does that code enable him to openly write a letter to CNN that was correctly noted by CNN as “remarkably dishonest?” How can the California CPC’s Rule 5-120 restricting pretrial publicity be ignored to issue an outrageous statement denying the statements of women who finally had the courage to call Cosby a rapist? When does the crime/fraud exception to the attorney–client privilege come into play in a situation like Cosby’s?

Do the American Bar Association’s Model Rules of Professional Conduct, which appear to advise lawyers against the very type of activity by attorneys who have been protecting Cosby for so long, not trouble the conscience of team after team of attorneys who play pit bull to keep this man out of jail? Do any of these lawyers go home at night—they have been both male and female—concerned that they are facilitating a serial rapist? Is the new silence of his legal team following the latest public revelation about Cosby using Quaaludes to knockout his victims merely the latest strategy—time to hunker down to let this pass?

I wish I could answer these questions. I would feel better, for I am stunned that the legal profession can use the media to defame one woman after the next, when they were raped by Cosby. It is horrifying that money is all it takes for a rich sexual predator to beat the system. The only encouraging news is that the Los Angeles Police Department has finally awakened from its inattention to Cosby’s serial bad behavior.