CHAPTER 2 - 2-8 TRIAL PUBLICITY

• Jurisdiction: United States

2-8 Trial Publicity

A lawyer shall not make any statements to the media which the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.¹³⁴ Notwithstanding this prohibition, a lawyer may make statements designed to counter already existing adverse publicity.¹³⁵ The commentary to the rule contains some "safe harbor" areas of allowable speech.

The rule has its origins in Canon 20 of the 1908 ABA Canons of Ethics.¹³⁶ The condemnation of any ex parte speech contained in Canon 20 has been replaced by the modern rule which, in its commentary, acknowledges the necessity of striking a balance between the right to a fair trial and safeguarding the right of free expression and the "vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves." Indeed, the commentary to the rule acknowledges the "legitimate interest [of the public] in the conduct of judicial proceedings, particularly in matters of public concern."

"Courts and bar associations have struggled for decades over the extent to which lawyers' extrajudicial speech should be regulated, and over the proper formulation of these regulations. Part of the difficulty is that so many competing legal, ethical, and constitutional values are at stake, including the lawyer's right to free speech and the client's right to a fair trial."¹³⁷ Some commentators question the virtue of the rule as it conflicts with a lawyer's First Amendment rights of free expression.¹³⁸ Orders limiting lawyer speech are classic instances of prior restraint.¹³⁹

The signal case addressing the propriety of extra-judicial lawyer speech regarding pending litigation matters is Gentile v. Nevada State Bar.¹⁴⁰ In Gentile, a lawyer involved in a criminal trial held a press conference where he commented on the evidence (or lack of it) against his client, the likelihood that he would be acquitted, that the state's witnesses were compromised and the probability that someone else has perpetrated the crime. The U.S. Supreme Court reversed an order which upheld an ethics sanction. A divided court, while finding that some restriction on lawyers' speech in such contexts did not violate the First Amendment, found the rule, as applied by the Nevada Supreme Court, insufficiently precise so that a person such as Mr. Gentile would have difficulty finding the bright line between acceptable and sanctionable speech. Of note, however, is that the Supreme Court did not allow the complete muzzling of trial advocates. Rather, both the majority opinion as well as both the concurrences and dissents recognized that a blanket prohibition on speech, especially speech questioning the conduct of the state, would run afoul of First Amendment protection.

The present rule represents an attempt by the ABA and the states to adapt their rules on lawyer speech to the requirements of Gentile. Following Gentile, courts have striven to balance the competing interests in the fair administration of justice with the necessity to avoid over-broad impositions on otherwise protected speech. For instance, in Maryland Attorneys Grievance Comm'n v. Gansler the Maryland Supreme Court found that a prosecutor could not be sanctioned for remarks regarding a pending case where the information contained in the remarks was either in the public domain or had already been reported.¹⁴¹ In In re Sullivan a New York appeals court, citing Gentile, held that a lawyer's comments on a TV interview during a sensational criminal trial would not be sanctionable where they were "a mere drop in the ocean or publicity" surrounding the case.¹⁴²

In Hirschkop v. Snead, the application of Virginia Disciplinary Rule 7-107(G), a rule which preceded Model Rule 3.6 but which contained similar limitations on pretrial speech as does the modern rule, was found constitutionally infirm when the rule was...