Conduct of Attorneys

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Part II. ConDuCt of attorneys

Standard 8-2.1. Conduct by Lawyers Participating

in a Criminal Matter

(a) Subject to any additional limitations imposed by local or pro-

fessional rules, during the pendency of a criminal matter, a lawyer

participating in that criminal matter should not make, cause to be

made, condone or authorize the making of a public extrajudicial

statement if the lawyer knows or reasonably should know that it

will have a substantial likelihood of:

(i) influencing the outcome of that or any related criminal

trial or prejudicing the jury venire, even if an untainted

panel ultimately can be found;

(ii) unnecessarily heightening public condemnation of a

defendant or a person or entity who has been publicly

identified in the context of a criminal investigation, or

of a witness or victim; or

(iii) undermining the public’s respect for the judicial

process.

As a general matter, lawyers participating in a criminal matter

should consult with their supervisors prior to making any public

extrajudicial statements.

(b) During the pendency of a criminal matter, a lawyer partici-

pating in that criminal matter should make reasonable efforts to

prevent investigators, law enforcement personnel, employees, or

other persons assisting or associated with the lawyer from making

a public extrajudicial statement that the lawyer would be prohib-

ited from making under these Standards or other applicable rules

of professional conduct, or engaging in conduct prohibited by these

Standards.

(c) This Standard should not be construed as prohibiting a lawyer

participating in a criminal matter from releasing or authorizing the

release of a record or document that the lawyer is required to release

under state open records laws or the federal Freedom of Informa-

tion Act, upon receipt of a proper request. A lawyer participating

in a criminal matter should not place statements or evidence into

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8-2.1 Fair Trial and Public Discourse

32

the court record or into a document that is deemed an open record

under applicable law solely for the purpose of circumventing this

Standard. If the lawyer has reason to believe that the public release

of a record or document would create a substantial probability of

harm to the fairness of a trial or other overriding interest, the lawyer

should consider seeking a sealing order pursuant to Standard 8-5.2.

(d) Nothing in these Standards is intended to preclude the for-

mulation or application of more restrictive rules relating to the

release of information about juvenile offenders or other protected

categories of offenders, victims or witnesses, to preclude the holding

of hearings or the lawful issuance of reports by legislative, adminis-

trative, or investigative bodies, or to preclude any lawyer from reply-

ing to charges of misconduct publicly made against him or her.

Related Standards

ABA Model Rules of Professional Conduct R. 3.6 and R. 3.8 (2014)

28 C.F.R. § 50.2 (2014)

National District Attorneys Association National Prosecution

Standards 2-14.2 and 2-14.6 (3d ed. 2009)

ABA Standards for Criminal Justice, Prosecution Function, 3-1.10,

3-1.13, 3-3.2, and Defense Function 4-1.10 (4th ed. 2014)

ABA Standards for Criminal Justice, Prosecutorial Investigations 1.3

and 1.5 (2008)

Restatement (Third) of the Law Governing Lawyers § 109(2) (2000)

Commentary

Paragraph (a)

This Standard, and in particular subsection (a), is the heart of this

set of Standards. The message is undeniably one of restraint. It cau-

tions lawyers participating in a criminal case not to make public extra-

judicial statements that they know or reasonably should know will

have a substantial likelihood of (i) influencing the outcome of that

or any related criminal trial or prejudicing the jury venire, even if an

untainted panel ultimately can be found; (ii) unnecessarily heighten-

ing public condemnation of a defendant or a person or entity who has

been publicly identified in the context of a criminal investigation, or

of a witness or victim; or (iii) undermining the public’s respect for the

judicial process. This Standard represents a significant departure from

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