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Commonwealth of Massachusetts

December 1998



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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