Watch out for these ethical constraints and pitfalls when speaking with the media

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A criminal defense lawyer’s client faces a barrage of negative pretrial publicity. The attorney, wanting to counteract the negativity, speaks to the press and offers a very different version of events than what’s been in the media. The attorney then goes further and makes comments about the conduct of the prosecutor and the judge in the case. Can the lawyer engage the media in this manner, speaking out about a pending case? Or do ethics rules prohibit such conduct?

On one hand, attorney comments outside of the courtroom certainly could have an impact on court proceedings. But attorney speech often contributes to the public’s understanding of the judicial system and serves other values. Furthermore, as constitutional law guru Erwin Chemerinsky wrote, an attorney’s duty to zealously represent clients “often is best served by the attorney speaking to the press.”

Most attorney speech about cases and the judicial system qualifies as political speech, which represents the core values behind the First Amendment. But attorneys are officers of the court, and their speech rights are limited in comparison with those of others.

The starting point is Rule 3.6 of the ABA Model Rules of Professional Conduct, which deals with trial publicity. Subsection (a) provides:

A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Subsection (b) of the rule identifies statements that lawyers may make, and subsection (c) offers a safe harbor provision that allows a lawyer to make statements to counteract negative pretrial publicity.

SCOTUS-approved standard

The U.S. Supreme Court approved the standard identified in Rule 3.6(a)—the substantial likelihood standard—in Gentile v. State Bar of Nevada (1991). In that case, criminal defense attorney Dominic Gentile held a press conference after his client had been indicted on charges of stealing drugs and traveler’s checks from a safe deposit vault.

At the press conference, Gentile said his client, who owned the business that rented the safe deposit vault, was innocent and that a certain police detective was the likely culprit. Gentile said his client was a “scapegoat.”

Gentile made these statements six months before a scheduled trial date. After the trial, in which his client was acquitted, the State Bar of Nevada charged Gentile with violating a state ethics rule based on ABA Model Rule 3.6. The rule provided:

A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

However, a provision in the Nevada rule stated, “A lawyer involved in the investigation or litigation of a matter may state without elaboration: the general nature of the claim or defense.”

Gentile argued in his brief that he could not be sanctioned for his speech unless there was a finding of “actual prejudice or a substantial and imminent threat to a fair trial.” In effect, Gentile was advocating for a clear and present danger standard.

The Supreme Court, however, rejected the clear and present danger standard for this type of attorney speech and upheld the substantial likelihood standard. The court offered two primary reasons for adopting the lower standard: (1) the identity of the speaker; and (2) the timing of the speech. With respect to the identity of the speaker, the court in Gentile noted that lawyers in pending cases have “special access to information through discovery and client communication.” According to the court, their statements are likely to be viewed as highly authoritative.

The court also reasoned that the timing of the speech noted that restricting attorney speech during the trial will only postpone the attorney’s comments until after the trial. The court also noted that the rule was neutral as to all points of view.

However, a bare majority of the court agreed with Gentile that the Nevada pretrial publicity rule was void for vagueness because Gentile reasonably believed that the safe harbor provision of the rule (allowing statements about the general nature of the defense) protected him in making his statements at the press conference.

The court wrote,”The fact that Gentile was found in violation of the rules after studying them and making a conclusion demonstrates that Rule 177 [the Nevada rule] creates a trap for the wary as well as the unwary.”

Gentile himself supports the general balance set by Rule 3.6. “The rule after my case allows for rebuttal of what has been placed in the public mix by one’s adversary,” he told the ABA Journal in an interview. “Studying it and developing both a strategy and an explanation as to what it rebuts is a must if one seeks its protection.”

He does not believe his speech at the press conference had an impact on the case. “On the other hand, it was immensely important for my client’s emotional stability and self-image,” Gentile said. “It made him able to walk with his head higher than it otherwise would have. He was harmed in the court of public opinion until I spoke out, and then he felt his reputation was improved. His resolve had been diminished and then was restored. Any trial lawyer will tell you how important that is.”

The gag order problem

A related problem arises from both the limited nature of Rule 3.6 and judges’ desire to maintain control over the cases in their courtrooms. The media’s increased interest in—or at least greater coverage of—high-profile cases has led some judges to impose gag orders and other measures designed to prevent carnival-like atmospheres, such as during the Sam Sheppard or O.J. Simpson criminal trial, in which the perception was that the case was being tried in the press rather than the courtroom.

“We have a big gag order problem in certain parts of the country,” says Margaret Tarkington, a law professor at Indiana University Robert H. McKinney School of Law and a leading expert on attorney speech. “There are too many judges who issue overly broad gag orders on attorneys. These are mostly unconstitutional because they prohibit too much speech. They not only violate attorneys’ free-speech rights but also negatively impact the public’s right to access about court proceedings and open courts. Because Rule 3.6 has proven to not be a very workable standard, courts have turned to gag and sealing orders to keep things under wraps. This is concerning, because attorneys can serve as an important check on the judiciary and the court system.”

A need for balance

Tarkington believes Rule 3.6 should be rewritten. It “sets a bizarre standard because it is keyed to prejudice the jury pool or the actual proceeding,” she says. In addition, she notes that many of the most problematic attorney statements concerning cases are made well before the actual court proceedings.

Prosecutors and defense attorneys have very different clients and also very different obligations, Tarkington says. Rule 3.8 of the Model Rules explicitly allows prosecutors to make extrajudicial statements “that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose.” Criminal defense attorneys, on the other hand, often would prefer to avoid any pretrial publicity at all for their clients unless they are “trying to do damage control,” she notes.

“Rule 3.6 is not protective enough of lawyers’ First Amendment rights because attorneys have a First Amendment right to speak about the judiciary and the court system,” says Tarkington, author of Voice of Justice: Reclaiming the First Amendment Rights of Lawyers. “Lawyers have the training and experience to provide to the public a valid critique about the judicial system and the judiciary.”

Even though she has serious critiques of Rule 3.6, Tarkington believes there should be some regulation of lawyers who make outrageous statements in the media that have no basis in law or fact. She also believes “the First Amendment does not prohibit a state from preventing lawyers from lying to the public.” She points to the example of lawyers who consistently made statements about a stolen election and massive voter fraud without providing a basis for such statements. Overall, considering their potential ethics exposure, Tarkington says lawyers should use caution before making unsubstantiated comments to the media.

This story was originally published in the October/November 2022 issue of the ABA Journal under the headline: “Speaking to the Press: Ethical constraints and pitfalls when engaging with the media.”

David L. Hudson Jr. teaches at Belmont University College of Law. He is the author, co-author or co-editor of more than 40 books. For much of his career, he has focused on the First Amendment and professional responsibility.

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