SPIN CONTROL AND THE ETHICAL RULES
When the Press Comes Knocking, Should
You Be Talking?
by Arnold R. Rosenfeld, Bar Counsel
Among the wide variety of interesting
legal issues raised in the Clinton-Lewinsky scandal is the question of what
a lawyer legitimately can say to the media about pending legal matters. This
is a complex topic because it involves balancing a wide spectrum of rights and
restrictions: the right to a fair trial, the right of free speech, the secrecy
of the grand jury, the confidentiality of some proceedings such as juvenile
or mental health cases, or bar disciplinary investigations, and the ethical
responsibilities of lawyers pursuant to rules governing confidentiality, truthfulness,
and trial publicity. Since publicity issues unexpectedly may arise at any time,
in this column we will try to familiarize you with some of the factors you should
consider before you hold a press conference or respond to questions from reporters.
The principal ethical rule governing trial
publicity is Mass. R. Prof. C. 3.6. There
are several major points to remember about this rule. First, the restrictions
of the rule only applies to a lawyer "who is participating or has participated
in the investigation or litigation of a matter" (Rule 3.6(a)), or a member of
the same firm or office (Rule 3.6(d)). Second, the rule prohibits extrajudicial
statements only if a reasonable person should know that it will have
a substantial likelihood of materially prejudicing an adjudicative proceeding
in the matter (3.6(a)). Third, there are certain topics that may be discussed
even if the first two restrictions apply. They are: the claim, offense, or defense
involved; the information contained in the public record; that an investigation
of the matter is in progress; the scheduling or result of any step in litigation;
a request for assistance in obtaining evidence and information necessary thereto;
and a warning of danger concerning the behavior of the person involved if there
is reason to believe there is a likelihood of substantial harm (Rule 3.6(b)(1)-(6)).
In addition, in criminal cases, a lawyer may state the identity, residence,
occupation, and family status of the accused, whether or not the accused has
been apprehended; the fact, time, and place of arrest; and the identity of the
arresting officers and length of investigation (Rule 3.6(b)(7)).
The most common situation which arises, in
both criminal and civil cases, is where one of the parties- the prosecutor in
a criminal case or the plaintiff in a civil case- holds a press conference announcing
an indictment, arrest, or the filing of a complaint or civil action. When that
occurs, Mass. R. Prof. C. 3.6 (c) provides
that a lawyer may make a statement in response that is necessary to protect
the client from the undue prejudicial effect of recent publicity. However, the
response must be limited to such information as is necessary to mitigate the
adverse publicity.
In the case of Gentile v. State Bar of
Nevada, 501 U.S. 1030 (1991), the United States Supreme Court provided some
guidance in interpreting this rule. In that case, Gentile, a criminal defense
counsel, was charged with a violation of the state ethics rules after he held
a press conference asserting the innocence of his client, who was charged with
stealing drugs, and suggesting that the police were the real culprits in the
crime. In overturning Gentile's public reprimand, the Court upheld the constitutionality
of the key elements of the current Massachusetts rule which limits the prohibition
on a lawyer to making extrajudicial statements that the lawyer reasonably should
know will materially prejudice an adjudicative proceeding in the matter.
There is no specific standard for determining
whether or not an extrajudicial statement is proper. For example, proactive
use of trial publicity may be proper in many situations: such as when in furtherance
of the public's right to know; when a lawyer is looking for information relative
to his or her case, or in response to the actions of an opponent. Lawyers should
be particularly careful in making extrajudicial statements when the matter is
in litigation, when there is a jury involved, and when the matter is close to
trial. In fact, the closer in time to a jury trial, the more careful a lawyer
should be. The intent of the lawyer is the key. The question asked is whether
the extrajudicial statement is made to materially prejudice the proceeding or
has it a more benign purpose such as countering adverse publicity. In Gentile,
for example, the Court found that Gentile attempted to comply with the rule's
requirements and refused to answer certain questions. There does not have to
be actual prejudice to violate the rule, only the substantial likelihood of
material prejudice.
In addition to the restrictions imposed by
Mass. R. Prof. C. 3.6, lawyers also must be
concerned with rules of court governing certain types of proceedings. For example,
juvenile trials and some mental health matters are, by statute, private. See,
e.g., G.L. c. 119 § 56, requiring that juvenile cases appealed to a jury
be separate from other matters; G.L. c. 123 § 36A, requiring all reports
of examinations in commitment proceedings shall be private. Judges also may
impound certain documents or issue a gag order. Mass.
R. Prof. C. 3.4(c) requires a lawyer that a lawyer shall not knowingly disobey
an obligation under the rules of a tribunal except for an open refusal based
on an assertion that no valid obligation exists. Thus, if a judge impounds a
matter or issues a gag order, there is a duty on the part of the lawyer to challenge
the order through the appellate process as an unconstitutional prior restraint
on free speech before speaking out. Bar disciplinary investigations and proceedings
also are confidential, but Supreme Judicial Court Rule 4:01 § 20 applies
only to the Board of Bar Overseers and Bar Counsel and, unless a matter is impounded,
the confidentiality of the matter ends twenty days after formal charges are
filed. Furthermore, Mass. R. Prof. C. 3.6(e)
explicitly states that the rule does not prohibit a lawyer from replying to
charges of misconduct made against him or her or from participating in the proceedings
of a legislative, administrative, or other investigative body.
Finally, before commenting to the media on
a matter, lawyers should consider their duties of confidentiality (Mass.
R. Prof. C. 1.6) and truthfulness (Mass. R.
Prof. C. 4.1 and 8.4(c),(d), and (h).
It is easy to get caught up in the glare of publicity and forget one's obligation
to the client not to reveal confidential information relating to representation
without the client's consent or unless the information falls within one of the
other exceptions to the rule. Furthermore, lawyers must be careful to be precise
in their language and not make misstatements or misrepresentations about their
cases or clients. The thrill of seeing your name in the newspaper or watching
yourself be interviewed on television will quickly fade when you realize you
have violated one of these rules in the process of speaking out.
Media interest in a case can be of great
benefit to a lawyer's practice if it is handled properly. Some lawyers are very
adept at presenting their client's case to, and enhancing their own image with,
the public. Others, who are not as experienced, may cause themselves and their
clients embarrassment. It is important to keep in mind that it is not easy to
reconcile the competing legal, ethical, and constitutional values that are at
stake in these situations. Lawyers who make extrajudicial statements about their
cases should not only be familiar with the various ethical rules, but also should
be very careful to carefully craft what they plan to say.
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