Remember ethical obligations when talking to the media

It is not unusual for attorneys to have contact with the media covering their matters. This is certainly true for attorneys handling high-profile criminal cases but, in the civil context, even a run-of-the-mill business dispute may get picked up by a legal industry publication. Federal courts and many state courts provide easy online access to court filings. Thus, almost immediately after the filing of a new complaint or a decision on a dispositive motion, attorneys may receive a call from the press asking for comment.

And after a big victory, attorneys may want to say more than a simple "no comment." This is particularly true on social media, where attorneys may feel tempted to brag about their victory, or even resort to trash-talking their client's opponent (or the opposing attorney).

Such communications are not without risk. Litigation may be subject to gag orders or other limitations that impact what an attorney can tell the public about one of their cases. In addition, the client may have views on what should and should not be shared with the press. Lawyers can consider the below tips before taking that call from a reporter.

Consider Potential Prejudice

Rule 3.6(a) of the California Rules of Professional Conduct prohibits an attorney involved in a litigation matter from making "an extrajudicial statement that the lawyer knows or reasonably should know will ... be disseminated by means of public communication and ... have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

This rule can be tricky to apply in practice. The comment to the rule sets forth several factors to be considered in determining whether the rule has been violated. These include "whether the extrajudicial statement presents information clearly inadmissible as evidence in the matter for the purpose of proving or disproving a material fact in issue" and whether the statement "violates a lawful 'gag' order, or protective order, statute, rule of court, or special rule of confidentiality." The "timing of the statement" is also a consideration.

Lawyers can find themselves getting in trouble for going too far when talking with the media, particularly during trial. There are other arenas that the comments to the rule recognize are generally considered more fair game, such as information contained within a public record, or a statement that an investigation is ongoing. The takeaway is that the context and content of the public statement matters.

Responding to Statements

Although it is reminiscent of schoolyard squabbles, it matters in these instances "who started it." Indeed, even if an attorney is generally prohibited from making certain statements to the press, Rule 3.6(c) permits the lawyer to make a statement that "a reasonable lawyer would believe 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."

In those circumstances, if someone other than the client or the attorney initiated recent publicity, that attorney may then make a statement in an effort to correct the record. It can be a judgment call regarding what is "required to protect a client," and the publicity, if unrebutted, must potentially result in "substantial" and "undue" prejudice. But the rule is helpful in permitting a client to defend itself where an opponent tries to unfairly use the media as a weapon.

Consider Local Rules

Each court or judge may have a standing order addressing public statements to the media. Thus, attorneys would be well-served by making sure that they are not at risk of being called to chambers over their extrajudicial statements. Further, if a course of action violates a gag or other order, the attorney may be sanctioned by the court or the bar for making public statements, even if the attorney's statements otherwise comply with the rules of professional conduct in the absence of a gag order.

Consult with the Client

As with many strategic decisions impacting the representation, most attorneys working on high-profile matters will consult with their clients regarding a media strategy. Under Rule 1.4(a)(2) of the California Rules of Professional Conduct, an attorney is required to "reasonably consult with the client about the means by which to accomplish the client's objectives in the representation."

Clients can provide permission or limits on how much they want their lawyers to do. Some corporate clients will have official guidelines that expressly preclude public statements to the media without prior consent. Other clients may even have in-house public relations teams that are solely tasked with media communication.

No matter the size of the client, however, the client's wishes are often paramount. This is true in light of the above ethical rule and for the purpose of maintaining a strong relationship with the client.

Review Firm Policies

In addition to checking with the client, many attorneys facing media inquiries for their matters will review their options internally before making a comment. Some law firms have media policies in place or even an internal media department to help attorneys navigate the media. Separately, attorneys may find that they benefit from additional minds weighing in on the strategy and approach to media discussions to help ensure both ethical compliance and that the firm is best serving the client's needs.

Even if asked for general comment on an unrelated case, an attorney may want to discuss internally to avoid inadvertently commenting on issues that could damage or embarrass other firm clients.

Speaking with the media is rarely something to be done without any prior consideration or discussion with the client. For attorneys and their clients, there is such a thing as bad publicity. 