Ethics and Trial Publicity

By Walter Saurack and Peggy Chen
Lawyers in any matter must be aware that they cannot just say whatever they want to the press.

It’s the case that sparked a cultural discussion on sexual harassment and the #MeToo movement—Harvey Weinstein, a powerful Hollywood mogul, accused of multiple instances of sexual harassment, assault, and rape. The accusations—first made in the media—eventually resulted in criminal charges against Weinstein, with trial starting earlier this week.

Naturally, the criminal case has garnered intense media interest, and recently the Manhattan District Attorney’s Office asked the judge presiding over the case for an order effectively preventing the defense attorneys from speaking to the media about the matter. The prosecution said that it made the request after it learned that one of Mr. Weinstein’s attorneys planned to make a claim to the media that one of the witnesses kept changing her story, and accused the defense of attempting to influence the jury pool before jury selection. The defense attorneys objected, asserting their right to make representations to the media and their need to counter the already existing negative press on Mr. Weinstein. The judge denied the request, but reminded the attorneys in the case of the New York Rule of Professional Conduct governing attorney statements to the media.

The judge’s statement is a timely reminder to all practicing attorneys in New York to be conscious of the rules governing attorneys’ extrajudicial statements, and is particularly apropos in this age of ubiquitous media coverage. While it’s infrequent that a lawyer’s case will garner the level of media interest of the Weinstein case, you should be prepared when reporters call you for comment and your client urges you to speak up because only one side of the story is coming out, and it’s not your client’s. What can you do? Should you get on the phone with reporters and tell your client’s story?

Lawyers in any matter must be aware that they cannot just say whatever they want to the press. In New York, the New York Rules of Professional Conduct govern what lawyers may say publicly about matters in which they are involved. While several rules might possibly pertain to lawyers’ extrajudicial speech (such as Rule 1.6 (confidentiality); Rule 4.1 (truthfulness in statements to others); and Rule 7.1 (attorney advertising)) and lawyers should be aware of their application, this article focuses mainly on Rule 3.6, which specifically considers speech in a trial publicity and public relations context.

The Key Provision: Rule 3.6(a)

The central rule on communicating with the press is Rule 3.6: Trial Publicity. The cornerstone of that rule is paragraph (a):

"(a) A lawyer who is participating in or has participated in a criminal or civil 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."

The purpose of the rule is to prevent lawyers from making statements that are likely to affect a party’s right to a fair trial by polluting the jury pool.

What determines whether a statement is considered prejudicial? That determination requires a case-by-case analysis, but when a lawyer is speaking directly to the media, certain factors deserve great weight:

Criminal Matter or Civil Matter? Comment 6 to Rule 3.6 notes that criminal cases are more susceptible to prejudice by extrajudicial statements than civil cases: “Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected.”

This goes back to Rule 3.6’s primary purpose of providing a party the right to a fair trial. Rule 3.6(b) outlines several categories of common statements that are likely to be prejudicial and many of them deal with issues implicated in criminal matters, such as the character or credibility of a party or witness, confessions, admissions or guilty pleas, and opinions as to guilt or innocence. Take care to avoid commenting on these matters, especially in a criminal case. In civil cases, by analogy, lawyers should avoid commenting on character, admissions, settlement offers, and liability or lack of liability.

Jury or Bench Trial? As Comment 6 to Rule 3.6 states, jury trials likely are more susceptible to prejudice than non-jury trials. There is no risk of polluting a jury pool in a non-jury hearing or trial. We generally assume that judges and arbitrators are less susceptible to undue influence than are jurors, who usually are laypersons.

Central Issue or Peripheral Issue? In New York State Ethics Opinion 977 (2013), the NYSBA ethics committee commented that “statements on peripheral issues may carry little risk of prejudice.” On the other hand, “[s]tatements may be more likely to be prejudicial if they address crucial issues committed to the finder of fact or are expressed in an inflammatory way.” Thus, a lawyer may usually give the media information that is not central to a client’s legal matter. However, a lawyer should not comment on a central fact issue that is to be determined by a judge or a jury.

Public or Non-Public? Rule 3.6(c)(2) expressly permits a lawyer to provide information contained in the public record, such as papers filed on a public docket, without elaboration. If the information is already in the public record, a lawyer’s comment will likely not be viewed as prejudicial. See Restatement (Third) of The Law Governing Lawyers §109, cmt. c (2000) (“If the same information is available to the media from other sources, the lawyer’s out-of-court statement alone ordinarily will not cause prejudice.”); In re Sullivan, 185 A.D.2d 440, 445 (3d Dept. 1992) (lawyer’s television interview on criminal matter “was a mere drop in the ocean of publicity surrounding this trial, and indeed, all of the matters remarked upon by respondent had been otherwise publicized prior to the interview.”)

Admissible Evidence or Inadmissible Evidence? Rule 3.6(b) prohibits an attorney from disclosing “information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial.” (emphasis added). Accordingly, avoid providing inadmissible evidence to the press, especially inflammatory evidence that could contaminate a jury pool. See, e.g, Sheppard v. Maxwell, 384 U.S. 333, 360-61 (1966) (holding that defendant accused of murdering wife was deprived of right to fair trial when prosecution disclosed inadmissible evidence to news media, such as defendant’s refusal to take lie detector test or existence of witnesses who would testify as to defendant’s volatile temper).

Eve of Trial or Long Before Trial? A statement made long before a trial will not have as prejudicial effect as, say, one made on the eve of jury selection, when prospective jurors are much more likely to remember a statement. See Restatement (Third) of the Law Governing Lawyers § 109, cmt. c (2000) (“statement made long before a jury is to be selected presents less risk than the same statement made in the heat of intense media publicity about an imminent or ongoing proceeding”); United States v. Bingham, 769 F. Supp. 1039 (N.D. Ill. 1991) (lawyers representing members of Chicago street gang violated local rule regarding public discussion of criminal litigation by making statements on eve of jury selection criticizing judge’s decision to impanel anonymous jury). Accordingly, avoid making statements to the press on the eve of trial.

Who Is Your Audience? New York State Ethics Opinion 977, paragraph 17, notes that the likelihood of prejudice depends in part on whether the extrajudicial statements will come to the attention of the finder of fact. Providing comments to the media is not the only way of disseminating a client’s story. These days a lawyer has many direct outlets available to disseminate a statement via the Internet or social media. Note that Rule 3.6 applies to statements made in blogs, tweets and other social media, likely even if privacy settings limiting the audience are in place. See N.Y. State Ethics Op. 977 (2013) (Rule 3.6 applies to social media posts); ABA Formal Ethics Op. 480 (2018). A lawyer may choose to target statements to a limited audience (for example, a client’s customers or investors). A statement made to a narrower audience is less likely to come to the attention of the factfinder.

Mitigating Adverse Publicity

Rule 3.6(d) permits extrajudicial statements that run afoul of Rule 3.6(a) if those statements are made to defend a client against statements or allegations already made in the media:

"Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity."

Accordingly, a lawyer may make statements as long as they are limited to information as necessary to mitigate the publicity and as long as the statements are unlikely to materially prejudice an adjudicative proceeding. For example, a lawyer might point to evidence in the public record that counters the negative publicity.

Returning to the original question of whether to respond to a media inquiry, Rule 3.6 certainly gives a lawyer leeway to respond. The lawyer may choose to respond in a traditional media outlet, on social media, or via a direct public statement, but the same rules on extrajudicial statements apply to all types of statements. The lawyer may defend his client against negative media attention and may deny allegations and correct factual inaccuracies, but whether a lawyer may or should provide additional information will vary by case. In all cases, a lawyer should carefully consider the above factors in crafting extrajudicial statements.

Walter A. Saurack is a partner and Peggy S. Chen is an associate at Satterlee Stephens.

Reprinted with permission from the January 9, 2020 issue of The New York Law Journal2020 ALM Media Properties, LLC.  Further duplication without permission is prohibited.  All rights reserved.