EXTRAJUDICIAL STATEMENTS AND PREJUDICE IN THE DIGITAL AGE: CREATING FACTORS TO PRESERVE THE BALANCE BETWEEN ATTORNEY AND STATE INTERESTS IN TRIAL LITIGATION.

• Author: O'Hara, Emily R.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND: COMPETING INTERESTS, SPEECH RESTRICTIONS, AND THE TRIAL PUBLICITY RULE A. Purposes and Balancing of Conflicting Rights 1. State Interests 2. Attorney Interests 3. Balancing Conflicting Interests B. Rule 3.6 and Extrajudicial Statements C. The Substantial Likelihood of Prejudice Formulation in Gentile D. Factors Considered in Gentile and Other State Proceedings E. Modern Application in Traditional Media 1. Graham v. Weber 2. United States v. McGregor II. APPLICATION OF THE TRADITIONAL RULE ON SOCIAL MEDIA A. Is a Retweet a Statement? 1. Retweets as Statements--Modern Examples 2. Expressive Conduct as Speech--Retweeting on Twitter B. Substantial Likelihood of Prejudice Analysis in the Online World 1. Modern Examples of Rule 3.6 Applied to Online Statements 2. Different Outcomes Based on the Perceptions of Access to Information Online 3. Limiting Lawyer Speech Online Because of Perceptions About the Spread of Information Across the Internet 4. The Reality of Online Access and Distribution III. ANALYZING NEW TECHNOLOGICAL FACTORS A. The Old Factors Are Still Relevant B. Perceptions of Intensity and Frequency of Statements Must Change 1. Frequency and Intensity in Old Media 2. Frequency and Intensity in New Media C. New Factors in a New Comment 1. Privacy Mode 2. Number of Followers 3. Unsolicited Inundation 4. A Lawyer's Use of Technology in an Attempt to Inundate Nonfollowers D. How the New Factors Help IV. ADDRESSING COUNTERARGUMENTS A. A Juror May Still See a Lawyer's Online Statement B. A Lawyer's Bad Speech May Not Be Sanctioned C. This Rule May Limit a Judge's Discretion CONCLUSION INTRODUCTION

As social media's prevalence and usage grows within the United States, people and organizations capitalize on new media to send news to users. (1) In 2017, 67 percent of people consumed their news from social media websites, and the rate continues to grow. (2) Local and national news sources bring newsworthy stories to active users on social media sites such as Twitter, where users can communicate and interact with one another to promote ideas and spread information. (3) These online accounts cover not only mundane, day-to-day news, but also salacious stories relating to civil and criminal lawsuits. (4)

In April 2018, attorney Neal Katyal used his Twitter account to advocate for his client leading up to oral argument before the Supreme Court in Trump v. Hawaii. (5) Katyal posted personal statements voicing his opinion about the case and retweeted posts linking to news articles and amicus briefs that supported his argument. (6) With nearly 284,000 followers, (7) many people could view and perceive the arguments Katyal would make at oral argument. Katyal's persistent tweeting enabled him to have "extra" argument time in the court of public opinion, as advocates are allowed only a specific number of minutes to argue before the Supreme Court. (8)

Attorneys also post statements on Twitter referring to criminal cases when an alleged offender stands trial for a crime in a local venue. (9) Scholars and practitioners voice additional concerns about an attorney's extrajudicial statements made during criminal trials in local venues because laypeople serve on juries. (10) The media's publishing of a lawyer's out-of-court comment could prejudice jurors before and during a trial. (11) Because of this concern, the American Bar Association (ABA) enacted Model Rule of Professional Conduct 3.6 (Rule 3.6), which attempts to limit the types of speech attorneys can make while involved in litigation. (12)

Although a state seeks to protect a criminal defendant's right to a fair trial and its own interest in the fair administration of justice, (13) courts and disciplinary boards must balance these interests against an attorney's First Amendment free speech right when determining whether an attorney has violated Rule 3.6. (14) Comment 1 to Rule 3.6 notes that a lawyer's statements have value, as a lawyer is often in the best position to disseminate pertinent case-related information to the public. (15) Attorneys may need to release this information to expose government abuse, ensure that citizens remain safe, or promote discussions about changing public policy. (16) To effectively balance these rights, the standard described in Rule 3.6 requires courts and disciplinary boards (17) to consider various factors in determining whether an attorney's statement results in a "substantial likelihood of prejudice" to the proceeding. (18) By requiring courts to consider the factors, the ABA and the adopting states ensure that the rule is narrowly tailored to protect as much attorney speech as possible while still promoting state and defendant interests. (19)

For over thirty years, these factors have enabled decision makers to balance these rights effectively when faced with attorney statements published in traditional media outlets. (20) Yet in a new age of Internet communication and social media, the original factors noted in the ABA rule and comments do not sufficiently protect attorney speech posted on online forums. (21) This Note argues that a new technological-focused comment to Rule 3.6 will remedy this problem.

In today's online world, scholars and practitioners constantly remind attorneys to take caution when posting statements online, because confidential and inappropriate information will spread across the web and reach large numbers of people at accelerated speeds. (22) With this perception prevalent within the legal community, a judge--ruling on a case involving attorney statements made on social media--could find that there is a substantial likelihood that the online statements will prejudice a trial. (23)

Although Internet communications and social media outlets give users the opportunity to spread information to more people at faster rates, (24) it does not necessarily follow that all attorney statements posted online about litigation will be seen by potential jurors within the court's jurisdiction. Numerous factors make it less likely that a potential juror will see an online statement, including the attorney's social media account privacy settings, the attorney's number of followers, the functions the attorney uses on a specific medium to make a statement more searchable, and the ability of a potential juror to be inundated with statements from nonfollowers. (25)

This Note argues that by creating a new, additional comment to Rule 3.6 that lists the factors to consider when faced with an attorney's social media statement, judges will be in a better position to determine if an attorney's statement reaches and prejudices a jury. The inclusion of such factors can aid decision makers who may be unfamiliar with how attorneys can protect information on social media. (26) The new considerations, designed for a new age of social media use, can help shift back into place the balancing of rights that judges have achieved when applying the rule to statements presented in traditional media.

In applying Rule 3.6 to social media statements, a judge must first understand how courts have applied Rule 3.6 to traditional media statements and the factors that make traditional media statements different from social media statements. (27) Part I discusses Rule 3.6 and explains how courts apply the rule to statements that lawyers make in traditional-media outlets. Part II describes the problems that derive from a judge's application of Rule 3.6 to statements lawyers make online. Part III lists and describes new factors for a judge to consider when ruling on a case that involves an attorney's social media statements. Using these factors, a judge achieves a better balance between an attorney's speech interests and a state's interest in obtaining fair and just proceedings. (28) Lastly, Part IV analyzes counterarguments and assures readers that new factors will not unjustly promote lawyer speech interests at the expense of state interests.

1. BACKGROUND: COMPETING INTERESTS, SPEECH RESTRICTIONS, AND THE TRIAL PUBLICITY RULE

   Before reviewing the history and legal standards of Rule 3.6, one must understand the purpose of the rule.

   1. Purposes and Balancing of Conflicting Rights

      Rule 3.6 seeks to balance conflicting interests: an attorney's right to free speech, a state's interest in the fair administration of justice, and a defendant's right to a fair trial in a criminal proceeding. (29) Each interest and right serves an important function for democracy and the American justice system.

      1. State Interests

         When applying Rule 3.6, judges must consider state interests, such as the fair administration of justice and a defendant's right to a fair trial. (30) A court must ensure that a judicial proceeding is fair. (31) Additionally, a defendant's Sixth Amendment right requires that a defendant be given a fair trial. (32) A fair trial is "the most fundamental of all freedoms," (33) and is "particularly acute in the criminal context" in which a defendant's physical liberty is at stake. (34) Because of the high stakes, a jury must ascertain the truth and reach the correct determination based solely on admissible evidence presented at trial. (35)

         Jurors should be impartial and know little about a case before a trial begins. (36) For these reasons, professional rules limit the amount of influence out-of-court statements have on trial participants to prevent frustrating the functions of the jury and the adversarial system. (37) An attorney's extrajudicial statements may potentially influence jurors and other participants who actively contribute to ongoing litigation. (38) By acquiring knowledge about a case that is not in a public record or presented in the courtroom, the public could be misled by the statements, a juror could become biased, or the jury could find the defendant guilty based on grounds that were not presented at trial. (39) The information could impair the jury's ultimate factfinding mission and "wreck...