Issue: August, 2007
Author: John B. Burman
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Ethically Speaking - Trial Publicity: Lawyers and Extrajudicial Statements
The last two columns addressed issues surrounding lawyers’ “commercial” speech. Speech, that is, that generally takes the form of advertising or soliciting for new clients. While commercial speech gets most of the attention (in the Rules of Professional Conduct, from the courts, and from the public, in general), it is not the only kind of speech in which lawyers are involved. Rather, lawyers make lots of “extrajudicial statements” (any statement made outside a court is “extrajudicial”) that do not involve commercial speech. This column is devoted to non-commercial, extrajudicial speech. And while it is subject to regulation, the standards that apply to it are very different than those which apply to commercial speech.
Americans don’t like lawyers; or at least that’s what they tell pollsters. Lawyers consistently rank near the bottom of all professions, according to public opinion polls. Yet Americans have a fascination with lawyers, a fascination which leads to movies, television shows, newspaper and magazine articles, and intense media scrutiny in which lawyers are often highly sought after for interviews and information.
Publicity is both a natural outgrowth of the public’s fascination with crime, accused criminals, and criminal trials, and an important bulwark of our freedoms. In the words of the United States Supreme Court, “[w]ithout publicity, all other checks are insufficient: in comparison of publicity, all other checks [on government power] are of small account.” Publicity is especially important in a society premised on individual rights. In fact, “[i]t would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.”
Publicity, of course, depends on access--access to courts, the participants in the process, and access to the information they have. Some information comes directly from public court documents, some comes from public court proceedings, and some comes from the participants themselves. More often than not, the participants with the most information are the lawyers for the participants. They are, therefore, frequently asked to provide information to supplement that contained in the public record or presented publicly in judicial proceedings. While their responses may be worthy of considerable public interest, it may also undermine their ethical and legal obligations to their clients and the legal system. How to respond to requests for information, when it is permissible to provide information, or both, can be tricky questions. This column is entitled “Trial Publicity: Lawyers and Extrajudicial Statements” because any statement a lawyer makes outside of court is an extrajudicial statement, regardless of whether the lawyer is seeking publicity.
The Ethical Background
Three doctrines combine to protect from disclosure virtually everything a lawyer knows about a case or client. First, outside of court, the Rules of Professional Conduct impose an obligation of confidentiality on lawyers. Second, inside a courtroom, the statutory attorney-client privilege protects communications to or from a lawyer and the lawyer’s client from being introduced into evidence. Third, the work-product doctrine protects certain materials prepared in anticipation of trial and a lawyer’s impressions and opinions.
Rule 1.6 imposes an ethical obligation of confidentiality on lawyers:
A lawyer shall not reveal confidential information relating to the representation of a client unless the client makes an informed decision, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”
The rule is very broad, though it has been narrowed somewhat by the adoption of the new rules in July of 2006. The doctrine applies “to all information relating to the representation, whatever its source.” By adding the word “confidential,” however, the new rules narrow the rule’s reach. “Confidential” is now a defined term. It means: “information provided by the client or relating to the client which is not otherwise available to the public.” The most common kind of information to which this will apply is information contained in court documents. Such documents are “available to the public,” and so the information contained in them is not “confidential.” (There are, of course, certain court documents that are confidential, such as juvenile files, that are not open to the public.”)
Further, when it comes to “confidential information,” the timing of when a lawyer learns information is irrelevant. Information which a lawyer learns before or after representation falls under the broad protection of Rule 1.6 if the information relates to the representation of a client. Finally, the obligation never ends. It “continues after the client-lawyer relationship has terminated.”
Assuming information in a lawyer’s possession is “confidential” and relates to the representation of a client, the lawyer may not ethically disclose it unless: (1) the client makes an informed decision to allow disclosure; (2) disclosure is implied in order to carry out the representation; (3) disclosure is permitted by one of the exceptions contained in Rule 1.6(b) (those exceptions relate primarily to a client’s intent to commit a future crime or information necessary to resolve a dispute between the lawyer and the client); or (4) disclosure is otherwise required by law (the three general disclosure requirements are child-abuse reporting, reporting of abuse of a vulnerable adult, and a tort duty to warn a potential victim).
The attorney-client privilege, by contrast, is much narrower. Part of the law of evidence, the privilege prevents an attorney from testifying “concerning a communication made to him by his client . . . in that relation, or his advice to his client . . . . Since the privilege is designed to protect the client, it belongs to the client, who may, therefore, waive it, either expressly or impliedly.
The “work product” doctrine or doctrine prevents the compelled disclosure of materials prepared in anticipation of litigation, as well as a lawyer’s impressions and opinions about a client and/or a case. Although the information is often generated exclusively by the lawyer, the better view is that privilege belongs to a client and the lawyer, not just to the lawyer, so both the lawyer and the client must consent to its disclosure.
In sum, virtually everything a lawyer learns or knows about a case and/or a client is confidential and may not be disclosed without the client’s consent. The ethical duty of confidentiality imposed by Rule 1.6 always applies, precluding a lawyer from disclosing anything which relates to the representation. In addition, the attorney-client privilege and the work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or asked to produce information about a client or case.
In addition to the ethical duty not to reveal confidential client information, a lawyer has the duties to: (1) take reasonable steps to prevent the disclosure of such information; and (2) to assert any applicable evidentiary privilege before complying with a court order to reveal information.
Client consent to permit a lawyer to disclose confidential information will satisfy a lawyer’s ethical obligations under Rule 1.6, the attorney-client privilege, and/or the work product doctrine, assuming the client’s decision to allow disclosure is an informed one. Client consent may not, however, be sufficient to permit a lawyer to make an extrajudicial statement and/or disclose information.
The Constitutional Framework for Extrajudicial Statements
Dominick Gentile was a lawyer living and practicing in Las Vegas, Nevada. Within hours after one of his clients was indicted on charges of stealing drugs and drug money, Gentile held a press conference at which he read a prepared statement accusing a Las Vegas police detective of being the actual culprit, and suggesting that his client had been indicted because the authorities should “have been honest enough to indict the people who did it; the police department, crooked cops.” He then answered questions.
Six months later, Gentile’s client was tried before a jury and acquitted on all counts. The Nevada State Bar then filed a complaint against Gentile, alleging he had violated Nevada’s rule against pretrial publicity (the rule, Nevada Supreme Court Rule 177, was almost identical to then ABA Model Rule 3.6 and former Wyoming Rule 3.6). The licensing board recommended a private reprimand. On appeal, the Nevada Supreme Court affirmed that recommendation.
The United States Supreme Court granted certiorari and reversed. A shifting majority provided two basic rulings. First, a five-person majority, speaking through Justice Kennedy, held that as interpreted and applied by the Nevada Supreme Court, the rule was void for vagueness. A different five-person majority, speaking through Chief Justice Rehnquist, said that the “substantial likelihood of material prejudice” test contained in the rule satisfied First Amendment concerns. The Court’s opinions explicate the principles at issue in regulating lawyer speech.
The Court began its analysis by observing that lawyer speech about pending matters is not commercial speech, such as that involved in advertising or solicitation. Rather, Gentile involved “classic political speech . . . . [and] the constitutionality of a ban on political speech critical of the government and its officials.” The Court then emphasized the importance of public scrutiny of the judicial system. “The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations.” “It would be difficult,” said the Court, “to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.”
The Court found it unnecessary to rule on the constitutionality of ABA Model Rule of Professional Conduct 3.6; it ruled only on Nevada’s interpretation and application of its virtually identical rule. First, the Court said that the rule’s standard of “substantial likelihood of material prejudice” was constitutional. “Properly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State’s interests should also be weighed.”
Applying the “substantial likelihood” test, the Court concluded that “[i]t cannot be said that [Gentile’s] conduct demonstrated any real or specific threat to the legal process, and his statements have the full protection of the First Amendment.” Reversal, therefore, was appropriate.
After Gentile, the ABA substantially revised Model Rule 3.6. The changes include the following. First, the applicability of the rule was significantly narrowed by changing the rule’s introductory language. The introductory phrase “[a] lawyer shall not make an extrajudicial statement” was replaced with “[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement. . . .” The significance of the change is apparent. The old Model Rule (and the old Wyoming rule) applied to all lawyers, not just those involved in a matter. The new Model Rule (and the new Wyoming Rule) does not.
Second, subdivision (b) provided a new safe harbor by listing the information a lawyer “may state,” as well as authority for a lawyer to disclose dangerous behaviors. Finally, the new Model Rule (and the new Wyoming Rule) allows a lawyer to make a public statements to protect a client from “the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”
The changes are consistent with the Gentile opinion’s focus on balancing clients’ rights to a fair trial with lawyers’ rights of free expression. Those changes have now been adopted in Wyoming.
Indirect Extrajudicial Statements
Since the rule on direct extrajudicial statements is now reasonably clear, the question has arisen of whether a lawyer may ethically be involved in indirect statements. May a client, for example, make an extrajudicial statement, or may a lawyer provide documents or other physical evidence without comment, when the statement or disclosure “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter,” a violation of Rule 3.6(a) if done by a lawyer directly?
As a general rule, a lawyer may not do indirectly what he or she may not do directly. The Rules of Professional Conduct, however, apply to lawyers, not to clients. The Pennsylvania Bar Association’s Committee on Legal Ethics and Professional Responsibility has issued an informal opinion about clients’ contacts with the media and whether a lawyer may provide documents to the media.
Pennsylvania’s Rule 3.6 is based on the old ABA Model Rule 3.6 (which was identical to Wyoming’s old rule). When asked about Rule 3.6's applicability to non-lawyers and to a lawyer providing documents, the Pennsylvania committee began by commenting that “the rules are very vague as they apply to your [the lawyer who asked the question] factual situation.” Nevertheless, the committee sensibly interpreted Rule 3.6 to “cover the [lawyer’s] direct dissemination of documents and other evidence to the media.”
The committee then interpreted Rule 3.6 not to apply “to statements made to the media by . . . clients. If the client consents to an interview by the media, the only restriction on the client's comments are those which stem from the client's own conscience.” While the conclusion that the rules do not apply to clients may seem self-evident, the opinion contains important guidance for lawyers.
Before a client agrees to an interview with the media, a lawyer has certain obligations. Most importantly, the lawyer must make sure that the client understands what he or she is doing and any possible consequences involved. This duty arises out of Rule 1.4. That Rule contains informative and consultative obligations which go to the heart of the lawyer-client relationship. First, a lawyer must keep every client “reasonably informed about the status” of a matter. Second, a lawyer must “explain a matter to the extent reasonably necessary to permit the client to make informed decisions” about the representation. Taken together, these duties mean that a lawyer needs to advise his or her client about the pros and cons of the client speaking to the media. Even if those considerations are not strictly legal, the lawyer may, and sometimes must, refer to them: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” So, while the client may speak to the media without running afoul of the Rules of Professional Conduct, the client’s lawyer has an ethical obligation to ensure that the client speaks only after having made an informed decision to do so.
The Ethical Restrictions on Extrajudicial Statements
Even assuming a client makes an informed decision to allow disclosure, the Rules of Professional Conduct restrict a lawyer’s ability to disclose information about a client and/or a case. The reason is the need to strike a balance between two competing considerations. On the one hand, clients, especially criminal defendants, have the right to a fair trial. On the other, lawyers have a First Amendment right to freedom of expression. Striking that balance “necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved.” Rule 3.6 attempts to achieve a balance by limiting lawyers’ extrajudicial statements. And some restriction is important. For without restriction, lawyer speech could result in “the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence.” The recent amendments to the Wyoming Rules contain important changes for Wyoming lawyers.
The relevant Rule is Rule 3.6, “Trial publicity.” It is based on the ABA Model Rule, which, as discussed above, was substantially revised several years ago after the Gentile decision. The Wyoming Rule begins with a general restriction:
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
The rule contains four important concepts, each of which is in bold. First, it applies to a lawyer “who is participating or has participated in the investigation or litigation of a matter.” This is a significant change from the previous rule, which applied to all lawyers, regardless of whether they were involved in the matter.
Second, a lawyer to whom the rule applies, may not make an extrajudicial statement when the lawyer “knows or reasonably should know” something. Both “knows” and “reasonably should know” are defined terms. The former refers to actual knowledge, though a lawyer’s knowledge may be inferred from the circumstances. The latter refers to the standard of what a reasonable lawyer should know, even if the lawyer doesn’t. Taken together, the rule applies when a lawyer knows or should know something.
Third, the rule applies if the lawyer knows or should know that the disclosure “will be disseminated by means of public communication . . .” This requirement obviously implicates a lawyer who talks to or releases a statement to the media.
Finally, if the statement will be disseminated, the inquiry becomes whether its dissemination “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” That is the ultimate standard. What effect will dissemination have? That standard has been upheld by the United States Supreme Court, and its application will be case-by-case.
In , the Supreme Court addressed the issue of how far a state may go in restricting a lawyer’s speech about a case. It began with the principle that lawyer speech in this context, unlike lawyer advertising or solicitation, is not commercial speech and entitled to limited First Amendment protection. Rather, it is political speech, entitled to much greater protection. Such speech, said the Court, which is “critical of the exercise of the State's power lies at the very center of the First Amendment.” Furthermore, the criminal justice system plays “a vital part in a democratic state, and the public has a legitimate interest in their operations.” Accordingly, lawyers have the right to speak out, and a state may curtail that right only if there is a “‘serious and imminent threat to the fair administration of justice.’”
While the Court held that the State of Nevada had gone too far in applying the rule, it upheld the standard that a lawyer may not make an extrajudicial statement if it “will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”
Determining whether a statement “will have a substantial likelihood . . .” is no easy matter, as no bright-line test exists. A key factor will be the nature of the proceeding. “Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected.” Timing is also critical. In Gentile, for example, the press conference that led to the lawyer being sanctioned was held “hours after [the] client was indicted on criminal charges,” and six months before the trial. The passage of time greatly reduced the possibility of the statements having a “substantial likelihood” of adversely affecting the subsequent trial. The three most important factors, therefore, are the nature of the proceeding, the time of the statement, and the degree of interest (that will, of course, dictate the extent of dissemination of the statement).
Subsection (b)58 is a “safe harbor,” a list of statements which a lawyer may ethically make, regardless of their potential effect on an adjudicative proceeding. A lawyer may properly disclose information about:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest.
Additional information may be disclosed in a “criminal case:”
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
Subsection (c) permits a lawyer to disclose information to counteract the effect of adverse publicity by the other party to a matter. Therefore, even if a statement would otherwise be prohibited by Rule 3.6(a) because of the effect it would have on an adjudicative proceeding, making the statement will be ethical if it is “required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.” The question which must be answered before a responsive statement is made is whether “a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client.” If so, such a statement is ethical, though the need for a response does not open the door completely. Rather, the statement “should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.”
Certain lawyers have special responsibilities regarding extrajudicial statements. First, prosecutors must control their staffs, both lawyers and non-lawyers. A prosecutor is to “exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.”
Second, lawyers with “managerial authority,” (partners in a law firm, solo practitioners, and certain supervisors in a corporate or government law office) have similar responsibilities. A lawyer with managerial authority shall “ensure that the firm [a “firm” may be a private or government law office] has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” Similarly, such lawyers must “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that [a non-lawyer’s] conduct is compatible with the professional obligations of the lawyer.” “Reasonable efforts,” with respect to both lawyers and non-lawyers, include policies and procedures to ensure that any extrajudicial statements satisfy the restrictions of Rule 3.6.
Third, a lawyer with “direct supervisory authority” over another lawyer “shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.” Such lawyers have the same responsibility with respect to non-lawyer assistants over whom they have “direct supervisory authority.” Once again, “reasonable efforts” include ensuring that either a supervised lawyer or non-lawyer not make statements in violation of Rule 3.6.
In addition to ethical restrictions on an attorney’s speech, attorneys and their clients may be subject to the orders of a court not to comment on a pending matter. Some such “gag orders” apply to the media; some apply to the parties and/or their lawyers. As prior restraints on speech, gag orders create significant First Amendment issues, especially when they apply to persons or parties not directly involved in a trial.
In Nebraska Press Ass’n v. Stuart, the United States Supreme Court considered the constitutionality of a gag order on the media. The case involved the trial of an accused mass murderer. The trial judge was concerned that pretrial publicity would impair the defendant’s ability to receive a fair trial. To avoid publicity, he issued an order which prevented the news media from disseminating stories about the confessions the defendant had made and/or stories which disclosed facts that implicated the defendant. The gag order was affirmed on appeal to the Nebraska Supreme Court. The United States Supreme Court reversed, holding that the gag order on the media was an unconstitutional prior restraint on free speech.
Gag orders on parties and their lawyers fare much better. Although such orders are a prior restraint on speech and, accordingly, are subject to strict scrutiny on appeal, courts may impose greater restraints on trial participants, especially lawyers, than on third parties. Accordingly, gag orders which restrain only trial participants are usually upheld.
Trail publicity, often referred to as “extrajudicial statements,” is not simply “commercial speech,” subject to state regulation to prevent false or misleading statements, as are lawyer advertising and solicitation. Rather, it is “political speech,” which falls squarely within the protection of the First Amendment, and any state regulation of it is subject to strict scrutiny.
While lawyers enjoy a First Amendment right to make extrajudicial statements, that right is not unfettered; it is limited by the right of litigants, especially in criminal trials to receive fair trials. Rule 3.6 attempts to balance those sometimes competing rights by limiting the rights of lawyers who were or are involved in a matter to make extrajudicial statements that the lawyers know, or reasonably should know, will be disseminated by public media, and have a substantial likelihood of materially prejudicing an adjudicative proceeding.
In determining whether lawyers’ statements may have an impermissible effect, courts look at three things. First, the nature of the proceeding. Is it civil or criminal, and is it a jury or bench trial? Criminal jury trials are the most likely to be adversely affected. Second, the timing of the statement is critical. The closer to the trial the statement is made, the more likely it will be to have a negative effect on the proceeding. Finally, the degree of dissemination is important. The more coverage the statement receives, especially in a small market, such as Wyoming, the more likely the statement will be to be found impermissible.
Finally, the rules that apply to lawyers do not apply to clients. Clients are, therefore, free to make statements to the media, but only after having been fully informed by their lawyers of the potential consequences of making such statements. A lawyer has a duty, in short, to explain the consequences of making a statement to the media “to the extent reasonably necessary to permit the client to make [an] informed decision” about whether to make the statement.
John M. Burman teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at firstname.lastname@example.org.
The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.
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