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'Duby-ous News'?

Web video featuring lawyers, TV reporter fuels ethics debate

By THOMAS B. SCHEFFEY

Duby McDowell has been a television reporter in Connecticut for 20 years, covering politics and hosting a political talk show. But little of her work has been scrutinized more than a video she made last year as a public relations consultant for a Hartford law firm.

The video, a sort of infomercial, is done in the form of an interview program about a divisive eminent domain case in Branford. The guests are attorneys James W. Bergenn and Timothy Hollister of Shipman & Goodwin, who discuss why their client, a developer, deserved to win its lawsuit against Branford officials.

The fallout has been anything but the positive PR that McDowell's consulting firm and Shipman & Goodwin hoped for when they made the video for a special web site dedicated to the case and for local cable access stations.

Media critics have chastised McDowell for misleading viewers by making the video look like a news program on her longtime station, WFSB. And Branford officials have filed grievance complaints against the two lawyers.

"To me, this looks like a classic example of fake news, one that is sure to mislead at least some of the people who watch it," wrote Robert J. Ambrogi, a Massachusetts lawyer and journalist who is a blogger at LegalBlogWatch.

The debate is one that would not have occurred a decade ago, in the era before streaming video, ubiquitous blogs and aggressive use of new media by law firms. Certainly, the episode provides a striking example of how technology is changing the nature of advocacy.

Even some of the primary players in the drama are shaking their heads. Who ever heard of a law firm creating a web page and producing a web cast to explain a court victory? "I've never seen anything like it before," said Branford town attorney William H. Clendenen, a seasoned trial and municipal lawyer.

Landfill Issues

The underlying case is a long-running dispute between Branford and a developer, New England Estates, which wants to build housing on 77 acres in Branford known as the Tabor parcel.

Town officials say the site is inappropriate for residential construction because it's next to a landfill, and they took the 77 acres by eminent domain in 2003. In turn, the developer sued. After Bergenn, the Shipman & Goodwin lawyer, finished putting on his case in September, a Waterbury jury found that Branford had violated the developers' constitutional rights and awarded close to $20 million in damages and interest.

In an earlier case, Waterbury Superior Court Judge William T. Cremins held the town's $1.1 million eminent domain payment was $3.5 million too low. Branford has retained the Hartford firm of Horton, Shields & Knox to appeal that matter.

Despite the big wins, Bergenn was unhappy with how the story was playing in Branford, where a pro-eminent domain candidate was making a strong run for first selectman. Shipman & Goodwin, which wanted to negotiate a timely settlement to the long-running dispute, looked for a way to get Branford residents to better understand New England Estates' position.

Bergenn and his co-counsel, land use partner Timothy Hollister, created a web site, www.branfordtaborrecord.com, filled with key legal documents and other information that carried the day for them in court. In addition, Shipman & Goodwin hired McDowell and her Hartford-based public relations firm to make the interview video.

To their shock, Bergenn, Hollister and McDowell were hit with stinging criticisms from Internet viewers, bloggers, columnists and online newspapers. Their efforts were criticized as an attempt to influence a local election.

Despite the web site and video, the eminent domain proponent, Anthony "Unk" DaRos, was elected Branford's first selectman by a wide margin.

Last month, he wrote a letter of complaint to the Statewide Grievance Commission. He accused Bergenn and Hollister of trying "to influence the outcome" of the Tabor case by false statements and misrepresentations and through misleading advertising. He asked that "all appropriate action" be taken.

The New News

The streaming video is not the only new media phenomenon in play here. There's also The Branford Eagle, an Internet column featuring stories, photos and opinion from Branford resident Marcia Chambers. The Eagle is a feature in the online newspaper, the New Haven Independent, which in turn is republished on the web site of the free alternative weekly, the New Haven Advocate.

Chambers, a former New York Times and Associated Press reporter, said her Branford Eagle work is only a part-time job. Still, like a minnow swallowed by a fish swallowed by a whale, her local stories rapidly found an outlet on a few national web pages.

In a Jan. 18 Chambers piece entitled "Duby-ous News," Chambers wrote that McDowell "portrays herself as a WFSB representative in a televised video she put together for one of the state's most prominent law firms, Shipman & Goodwin."

Chambers notes that McDowell identifies herself in the video as a WFSB political analyst, a part-time position she continues to hold. The Chambers article is illustrated with a two-year-old stock WFSB screen shot of McDowell from her "Face The State" interview program, emblazoned with the Channel 3 logo. It's not a shot from the New England Estates PR video, which was filmed in a rented public TV studio.

The Independent piece was republished by the Advocate, which in turn caught the eye of legal media critic Robert Ambrogi, who produces LegalBlogWatch.com. Ambrogi has been a top editor of Lawyers Weekly and the National Law Journal and is a former publisher of the Connecticut Law Tribune. He critiqued Chambers's article in his blog.

Ambrogi notes that neither McDowell nor her co-host on the interview show, Tanya Meck, identify themselves as public relations professionals working for the law firm.

"The only reason to do that would be to mislead the public; to mislead viewers into thinking this was something other than what it was," Ambrogi said in an interview. "Yes, at the end of the video, if you read the credits as they roll up the screen, it's clear that this was produced by the law firm."

His piece triggered a brief item on the ABA Journal web page on Jan. 29 that summarized Ambrogi's reaction to the Chambers piece, with no comment from Hollister, Bergenn or McDowell.

Hollister posted Shipman & Goodwin's six-point response on the ABA and the LegalBlogWatch sites. He noted the video referenced the special Shipman & Goodwin web site 37 times in 29 minutes and concluded that "no reasonable person could have thought the video was a WFSB news program."

McDowell is identified as a TV political analyst "because that is an accurate statement of her professional identity," he wrote. Without naming Chambers, he refers to her writing as "a personal blog" which contains "significant inaccuracies."

McDowell, in her own defense, said that the video "is so obviously not a news broadcast that it's laughable to think that I was trying to make it appear to be anything else."

Moving Forward

After he was elected first selectman, DaRos retained William Clendenen, of New

Haven's Clendenen & Shay, as the latest in a string of lawyers who have represented the town on this matter. On March 6, the Shipman lawyers and Clendenen met with New Haven Superior Court Judge Jonathan Silbert for a second day of mediation talks to attempt to resolve the land condemnation dispute.

Meanwhile, Statewide Grievance Committee officials said the letter from DaRos was forwarded to a local grievance committee, which may or may not find probable cause for further proceedings.

Shipman managing partner Scott Murphy said his attorneys did nothing wrong, that the information on the web site was accurate.

"As permitted by the applicable ethics rules, it was posted to counter misleading public statements made by or on behalf of the defendant Town," he stated, "which was found by a jury to have violated the constitutional rights of our clients." •