Vol. 30, No. 4, #1. Ethically Speaking - Trial Publicity: Lawyers and Extrajudicial Statements.

• Author: Author: John B. Burman

Wyoming Bar Journal

2007.

Vol. 30, No. 4, #1.

Ethically Speaking - Trial Publicity: Lawyers and Extrajudicial Statements

Issue: August, 2007 Author: John B. BurmanEthically Speaking - Trial Publicity: Lawyers and Extrajudicial StatementsThe last two columns addressed issues surrounding lawyers' "commercial" speech. Speech, that is, that generally takes the form of advertising or soliciting for new clients. While commercial speech gets most of the attention (in the Rules of Professional Conduct, from the courts, and from the public, in general), it is not the only kind of speech in which lawyers are involved. Rather, lawyers make lots of "extrajudicial statements" (any statement made outside a court is "extrajudicial") that do not involve commercial speech. This column is devoted to non-commercial, extrajudicial speech. And while it is subject to regulation, the standards that apply to it are very different than those which apply to commercial speech.

Americans don't like lawyers; or at least that's what they tell pollsters. Lawyers consistently rank near the bottom of all professions, according to public opinion polls. Yet Americans have a fascination with lawyers, a fascination which leads to movies, television shows, newspaper and magazine articles, and intense media scrutiny in which lawyers are often highly sought after for interviews and information.

Publicity is both a natural outgrowth of the public's fascination with crime, accused criminals, and criminal trials, and an important bulwark of our freedoms. In the words of the United States Supreme Court, "[w]ithout publicity, all other checks are insufficient: in comparison of publicity, all other checks [on government power] are of small account." Publicity is especially important in a society premised on individual rights. In fact, "[i]t would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted."

Publicity, of course, depends on access--access to courts, the participants in the process, and access to the information they have. Some information comes directly from public court documents, some comes from public court proceedings, and some comes from the participants themselves. More often than not, the participants with the most information are the lawyers for the participants. They are, therefore, frequently asked to provide information to supplement that contained in the public record or presented publicly in judicial proceedings. While their responses may be worthy of considerable public interest, it may also undermine their ethical and legal obligations to their clients and the legal system. How to respond to requests for information, when it is permissible to provide information, or both, can be tricky questions. This column is entitled "Trial Publicity: Lawyers and Extrajudicial Statements" because any statement a lawyer makes outside of court is an extrajudicial statement, regardless of whether the lawyer is seeking publicity.

The Ethical Background

Three doctrines combine to protect from disclosure virtually everything a lawyer knows about a case or client. First, outside of court, the Rules of Professional Conduct impose an obligation of confidentiality on lawyers. Second, inside a courtroom, the statutory attorney-client privilege protects communications to or from a lawyer and the lawyer's client from being introduced into evidence. Third, the work-product doctrine protects certain materials prepared in anticipation of trial and a lawyer's impressions and opinions.

Rule 1.6 imposes an ethical obligation of confidentiality on lawyers:

A lawyer shall not reveal confidential information relating to the representation of a client unless the client makes an informed decision, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)."

The rule is very broad, though it has been narrowed somewhat by the adoption of the new rules in July of 2006. The doctrine applies "to all information relating to the representation, whatever its source." By adding the word "confidential," however, the new rules narrow the rule's reach. "Confidential" is now a defined term. It means: "information provided by the client or relating to the client which is not otherwise available to the public." The most common kind of information to which this will apply is information contained in court documents. Such documents are "available to the public," and so the information contained in them is not "confidential." (There are, of course, certain court documents that are confidential, such as juvenile files, that are not open to the public.")

Further, when it comes to "confidential information," the timing of when a lawyer learns information is irrelevant. Information which a lawyer learns before or after representation falls under the broad protection of Rule 1.6 if the information relates to the representation of a client. Finally, the obligation never ends. It "continues after the client-lawyer relationship has terminated."

Assuming information in a lawyer's possession is "confidential" and relates to the representation of a client, the lawyer may not ethically disclose it unless: (1) the client makes an informed decision to allow disclosure; (2) disclosure is implied in order to carry out the representation; (3) disclosure is permitted by one of the exceptions contained in Rule 1.6(b) (those exceptions relate primarily to a client's intent to commit a future crime or information necessary to resolve a dispute between the lawyer and the client); or (4) disclosure is otherwise required by law (the three general disclosure requirements are child-abuse reporting, reporting of abuse of a vulnerable adult, and a tort duty to warn a potential victim).

The attorney-client privilege, by contrast, is much narrower. Part of the law of evidence, the privilege prevents an attorney from testifying "concerning a communication made to him by his client . . . in...