Loose Lips Sink Ships
We should all be so lucky as to have a client whose case garners the attention of the news media. However, such cases present opportunities for running afoul of the Rules of Professional Conduct and caution should be the watchword. One need look no further than the infamous “Duke Lacrosse case” to see the danger of making extrajudicial statements to the Press. In its Order of Discipline, the State Bar chronicled 29 separate instances where Mike Nifong made extra-judicial statements to representatives of the news media in violation of Rule 3.6 of the North Carolina Rules of Professional Conduct.
Rule 3.6 governs what one can and cannot say to the Press about a case in which he or she is involved. Generally speaking, the Rule prohibits a lawyer from making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. (Rule 3.6(a)). And if the Rule applies to one, it applies to all. That is, no lawyer associated in a firm or governmental agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). Nonlawyer assistants must be cautioned as well. Any lawyer subject to Rule 3.6 must take reasonable measures to insure compliance of nonlawyer assistants (Comment ), and is himself subject to professional discipline under Rule 5.3 (RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS) for a violation of Rule 3.6 by a nonlawyer assistant. It should go without saying that a lawyer subject to Rule 3.6 may not employ agents to make statements that the lawyer is prohibited from making.
Paragraph (b) of Rule 3.6 identifies at least seven specific matters about which a lawyer’s statements would not be considered in violation of Rule 3.6. Such matters as the claim or offense involved, the identity of the person involved (except when prohibited by law), information contained in a public record, and other subjects that would not ordinarily be considered to present a “substantial likelihood of material prejudice.”
At the other end of the spectrum, Comment  identifies certain subjects that are more likely than not to have a material prejudicial effect on a proceeding. For example, subjects relating to the character, credibility, reputation, or criminal record of a party, suspect or witness; any opinion on the guilt or innocence of a defendant or suspect; or information that the lawyers know or should know would be inadmissible at trial and that would, if disclosed, likely prejudice the right to a fair trial. One will find a number of the subjects identified in Comment  among the subjects about which Mr. Nifong commented to the news media, as recorded in the State Bar’s Order of Discipline.
Importantly, Rule 3.6(c) creates a “safe-harbor” provision: A lawyer may make a statement otherwise prohibited by Rule 3.6(a) if a reasonable lawyer would believe the statement is required to protect the client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.
Rule 3.6 embodies the tension between the First Amendment’s right of free speech and the lawyer’s obligations to the courts, the profession and to the administration of justice. The United States Supreme Court has noted that a State may regulate speech by lawyers representing clients in pending cases more readily than it may regulate the press. See e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). This does not mean, of course, that a lawyer forfeits all free speech rights about a case in which he or she is involved. Trained in the complexities of the law, and generally considered credible in regard to pending litigation in which they are involved, lawyers are a crucial source of information and opinion. However, for the same reason, the lawyer’s right of free speech is proscribed to a greater degree than the general public because of the countervailing right to a fair and impartial trial.
If you have a client whose case is of public interest and you receive inquiries from the press, follow these rules:
- Resist the temptation to become “The Story.” The Duke Lacrosse case is an example of a prosecutor getting caught up in the sensationalism and fervor of a “national” story. Don’t let your 15 minutes of fame become the seemingly never-ending, nightmare of an ethics inquiry.
2. “Just say ‘no.’” The best advice is to make no comment about a case in which you are involved. If you cannot manage that, review Rule 3.6 before you make any comment, write out your comment tailoring it what is allowed under the Rule, and then read it. “Off the cuff” comments are almost guaranteed to get you in trouble.
3. If a statement is required to protect your client from the substantial undue prejudicial effect of recent publicity not caused by you or your client, remember to limit your statement to such information as is reasonably necessary to mitigate the recent adverse publicity. The safe-harbor provision of Rule 3.6(c) is not a license to say anything. Again, avoid “off the cuff” statements. Write out your comments and stick to your script.