One of the best features of our legal system is that the courts are open to the public. Case materials become public record so that society as a whole can stay informed of developments that have an impact on their daily lives. A result of this is that high-profile litigation may reach the front pages of newspapers and in some cases create a whole media firestorm.
Even though the public pleadings may offer the press significant fodder, it is common for reporters to ask attorneys to give comments on their cases or the people involved in them. There are, however, some cases where litigation is subject to gag orders or other limitations, and this directly affects what attorneys can and can’t tell the public about their cases.
We’re going to talk about a few tips for attorneys who may be trying to balance their obligations of confidentiality with the risks of speaking with the press.
What Does the Client Say?
As is the case with many strategic decisions that have an impact on the representation, most lawyers consult with their clients about their media strategy. Clients can provide limits for how much they want their lawyers to divulge. Although the Model Rules of Professional Conduct offer some guidance on how lawyers should proceed and what the limitations are, the client’s wishes are also very important.
In some cases, corporate clients may even have official guidelines that do not permit any public statements without prior consent, or they may even have an in-house PR team which is specifically tasked with handling media communications.
Regardless of the client’s size, many lawyers who work on matters which involve media requests typically consider their obligations under rule 1.4(a)(2) of the Model Rules of Professional Conduct, which requires them to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”
Are There Risks of Material Prejudice?
Lawyers are prohibited under Rule 3.6(a) of the Model Rules of Professional Conduct from making “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.”
However, it can be tricky to interpret this rule in practice. Even the comments to the rule mention that “[i]t is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression.” The public may have the right to know the details of the case, and the client may have the right to address public concern, but as a lawyer you can get in trouble if you go too far.
The rule’s comments also mention specific circumstances in which public statements may be at an increased risk of leading to prejudice. These circumstances include comments regarding the character of a party to the litigation, an opinion expressed as to a defendant’s guilt or innocence, or disclosing certain information that is unlikely to be admissible as evidence in a trial.
The comments recognize that other situations may be fair game, such as in the case of information which is contained within the public record, warning the public of danger where there is a likelihood of harm, or a simple statement that an investigation is ongoing.
How Did It Start?
In this kind of instances, who started it actually matters. Even if lawyers aren’t allowed to make certain statements to the press, they may make a statement that, per Rule 3.6(c), “a reasonable lawyer would believe is required to protect a client” from the harm of publicity initiated by someone else.
In these situations, if someone else initiated recent publicity, the lawyer may make a statement “limited to such information as is necessary to mitigate the recent adverse publicity.” Thus, lawyers can make statements that would otherwise be prohibited by Rule 3.6(a) as long as those statements are aimed at rebuttal. The comments to rule 3.6 recognize that “responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.”
Do You Have a Policy in Place?
In addition to consulting with the client, many lawyers who are facing media inquiries will also discuss matters within their firm before making any comments. There are some law firms which have specific media policies in place or even internal media departments which help their lawyers in such matters. Lawyers may also find that it would be in everyone’s best interest to discuss their strategies with other people to ensure ethical compliance.
Even when lawyers are asked for general comment on other cases, they may want to have an internal discussion first to avoid inadvertently commenting on issues that might damage other clients.
Know the Rules
Each court or judge may have a standing order regarding public statements to the press, so lawyers should make sure that they are not at risk of being called to chambers over any extrajudicial statements. What’s more, if a certain course of action violates a gag or other order, the lawyer in question may be sanctioned by the court or even the bar for making public statements, even if those statements comply with the rules of professional conduct in the absence of a gag order.
Dealing with media interactions and social media statements regarding a representation can be a real minefield. Lawyers would do well to consider the relevant ethical rules and take the necessary steps to best serve their clients while also navigating the public interest.