Ethical pitfalls to avoid when lawyers 'meet the press'

The media play an important role in the public's fair access to justice. Often, press conferences or news interviews regarding high-profile litigation on the national or local stage are intended to provide transparency into and information about the legal system. The opportunity for a news reporter or a member of the public to attend a trial or hearing, or for the public to watch a high-profile case being streamed live on television, shows how the justice system is watched by the public eye.

Lawyers also play an important role in engaging with the media. Prosecutors and defense attorneys may be interviewed for their heavily publicized criminal cases. Civil and criminal attorneys alike may hold press conferences to discuss aspects of a client's legal dispute. Indeed, lawyers may even feel pressure to engage with the media to help shape public perception regarding contentious cases or in pursuit of advocating on behalf of their client's interests. Lawyers may find it hard to resist the temptation to engage in public "mudslinging" to provide a good sound bite.

Lawyers should be aware, however, that their statements to the public could negatively impact their client's case or could otherwise run afoul of a lawyer's ethical obligations to the tribunal and to the client. The below provides some tips lawyers should consider when addressing the public through the press or social media.

Informed consent

Rule 1.6 of the California Rules of Professional Conduct states that a member of the Bar "shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1)" without the client's "informed consent[.]" Additionally, Rule 1.2 demands that a lawyer "reasonably consult with the client as to the means by which [the client's objectives] are to be pursued." As part of the requirement to confer with the client regarding case objectives, lawyers can also discuss media strategy and management with the client, where applicable.

On a high-profile matter, a well thought out media plan can be part of the strategic decisions that are made in an effort to obtain a certain outcome in a case. It also can impact the scope of the lawyer's legal representation. The client's wishes are generally paramount (unless they are asking their lawyers to violate their ethical or legal obligations) and can guide any proposed media strategy.

For example, clients may be in favor of their attorneys generating public support for their case by speaking to a news reporter or by issuing a press release. In corporate settings, some organizational 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 monitoring media communication. Having discussions about this issue early on in a high-profile matter can help avoid any future misunderstandings.

Are the statements materially prejudicial?

Rule 3.6 specifically addresses trial publicity. Rule 3.6 states that a lawyer "shall not make an extrajudicial statement that the lawyer knows or reasonably should know will (i) be disseminated by means of public communication and (ii) have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."  

Lawyers should exercise caution with what they discuss in the public spotlight -- there is a risk that a client unhappy with the outcome of its case could use the lawyer's statements in a legal malpractice or prosecutorial misconduct case against the lawyer or his or her firm.

What a lawyer knew or should have known is important in weighing whether statements would materially prejudice a lawsuit. As such, context and content matter. The Comments to Rule 3.6 note that determining whether a statement poses a substantial likelihood of materially prejudicing a proceeding is a multi-factored analysis. For example, if making a statement would violate a protective order or "gag" order, such a statement is more likely to have a likelihood of materially prejudicing a matter, which could weigh against making the statement. Further, comments that are inadmissible as evidence to prove a material fact, that counsel knows to be false, or that attack the character of a party may create risk under this rule.

California's Rule 3.6 is based on the ABA's Model Rule 3.6. The Comments to the ABA Model Rule 3.6 also provide that the nature of the proceeding matters. Public commentary can have a more material impact in a criminal trial than in a civil trial and striking the balance between the First Amendment's right to free expression and a party's right to a fair trial is complicated. While the public may have a right to know, and a client may have a right to address public concern, lawyers can find themselves in trouble for going too far.

The right of reply

Notably, Rule 3.6 of the California Rules of Professional Conduct provides a lawyer the right to reply -- to speak to the press in response to adverse comments already made, when "a reasonable lawyer would believe [a statement] is required to protect a client from the substantial undue prejudicial effect of recent publicity[.]" Rule 3.6(c).

The rule states that to apply Rule 3.6(c)'s right of reply, the lawyer cannot be the one that first initiated the publicity. Nor can the client. As a result, lawyers may be able to make statements that would otherwise not be permitted by Rule 3.6(a), if those statements are narrowly tailored to issue a rebuttal.

Review rules and firm policies

A court's standing orders may address media publicity and public statements, so lawyers should review any such orders that are in place for guidance. It is possible that a specific judge could set even stronger restrictions than Rule 3.6.  

Additionally, lawyers may find it beneficial to receive input from fellow lawyers or professionals, or to consult their firm's internal procedures, before issuing a public statement. Some law firms have media policies in place or an internal media department to help lawyers navigate the media landscape. Even a brief internal discussion with firm colleagues could obviate an issue that otherwise might potentially embarrass or harm other firm clients.

Media interactions can be another way for an attorney to zealously advocate for a client. However, lawyers should make efforts to carefully consider their ethical obligations, and the potential consequences of a statement, before addressing the public.