Rule 3.6.Trial Publicity
(a)A lawyer who is participating or has participated in the
investigation or litigation of a matter 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 in the matter.
(b)Notwithstanding paragraph (a), a lawyer may state:
(1)The claim, offense or defense involved and, except when prohibited
by law, the identity of the persons involved;
(2)Information contained in a public record;
(3)That an investigation of a matter is in progress;
(4)The scheduling or result of any step in litigation;
(5)A request for assistance in obtaining evidence and information necessary thereto;
(6)A warning of danger concerning the behavior of a person involved,
when there is reason to believe that there exists the likelihood of substantial
harm to an individual or to the public interest; and
(7)In a criminal case, in addition to subparagraphs (1) through (6):
(i)The identity, residence, occupation and family status of the accused;
(ii)If the accused has not been apprehended, information necessary to
aid in apprehension of that person;
(iii)The fact, time and place of arrest; and
(iv)The identity of investigating and arresting officers or agencies
and the length of the investigation.
(c)Notwithstanding paragraph (a), a lawyer may make a statement that a
reasonable lawyer would believe is required to protect a client from the
substantial undue 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.
(d)No lawyer associated in a firm or government agency with a lawyer
subject to paragraph (a) shall make a statement prohibited by paragraph (a).
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ANNOTATIONSSource:
Entire rule and comment replaced and adopted June 12, 1997,
effective January 1, 1998.
COMMENT
It is difficult to strike a balance between protecting the right to a fair
trial and safeguarding the right of free expression. Preserving the right to
a
fair trial necessarily entails some curtailment of the information that may
be
disseminated about a party prior to trial, particularly where trial by jury
is involved. If there were no such limits, the result would be
the practical nullification of the protective effect of the rules of forensic
decorum and the exclusionary rules of evidence. On the other hand, there are
vital social interests served by the free dissemination of information about
events having legal consequences and about legal proceedings themselves. The
public has a right to know about threats to its safety and measures aimed at
assuring its security. It also has a legitimate interest in the conduct of
judicial proceedings, particularly in matters of general public concern.
Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.
Special rules of confidentiality may validly govern proceedings in juvenile,
domestic relations and mental disability proceedings, and perhaps other types
of litigation. Rule 3.4(c) requires compliance with such rules.
The rule sets forth a basic general prohibition against a lawyer's making
statements that the lawyer knows or should know will have a substantial
likelihood of materially prejudicing an adjudicative proceeding. Recognizing
that the public value of informed commentary is great and the likelihood of
prejudice to a proceeding by the commentary of a lawyer who is not involved in
the proceeding is small, the rule applies only to lawyers who are, or who
have been involved in the investigation or litigation of a case, and their
associates.
Paragraph (b) identifies specific matters about which a lawyer's statements
would not ordinarily be considered to present a substantial likelihood of
material prejudice, and should not in any event be considered prohibited by
the
general prohibition of paragraph (a). Paragraph (b) is not intended to be an
exhaustive listing of the subjects upon which a lawyer may make a statement,
but statements on other matters may be subject to paragraph (a).
There are, on the other hand, certain subjects which are more likely than
not to have a material prejudicial effect on a proceeding, particularly when
they refer to a civil matter triable to a jury, a criminal matter, or any
other
proceeding that could result in incarceration. These subjects relate to:
(1)The character, credibility, reputation or criminal record of a
party, suspect in a criminal investigation or witness or the identity of a
witness, or the expected testimony of a party or witness;
(2)In a criminal case or proceeding that could result in
incarceration, the possibility of a plea of guilty to the offense or the
existence or contents of any confession, admission, or statement given by a
defendant or suspect or that person's refusal or failure to make a
statement;
(3)The performance or results of any examination or test or the
refusal or failure of a person to submit to an examination or test, or the
identity or nature of physical evidence expected to be presented;
(4)Any opinion as to the guilt or innocence of a defendant or suspect
in a criminal case or proceeding that could result in incarceration;
(5)Information that the lawyer knows or reasonably should know is
likely to be inadmissible as evidence in a trial and that would, if
disclosed,
create a substantial risk of prejudicing an impartial trial; or
(6)The fact that a defendant has been charged with a crime, unless
there is included therein a statement explaining that the charge is merely an
accusation and that the defendant is presumed innocent until and unless
proven guilty.
Another relevant factor in determining prejudice is the nature of the
proceeding involved. Criminal jury trials will be most sensitive to
extrajudicial speech. Civil trials may be less sensitive. Nonjury hearings
and arbitration proceedings may be even less affected. The rule will still
place limitations on prejudicial comments in these cases, but the likelihood
of prejudice may be different depending on the type of proceeding.
Finally, extrajudicial statements that might otherwise raise a question
under this rule may be permissible when they are made in response to
statements
made publicly by another party, another party's lawyer, or third persons,
where
a reasonable lawyer would believe a public response is required in order to
avoid prejudice to the lawyer's client. When prejudicial
statements have been publicly made by others, responsive statements may have
the salutary effect of lessening any resulting adverse impact on the
adjudicative proceeding. Such responsive statements should be limited to
contain only such information as is necessary to mitigate undue prejudice
created by the statements made by others.
Model Code Comparison
Rule 3.6 is similar to DR 7-107 except as follows: First, Rule 3.6 adopts
the general criterion of "substantial likelihood of materially prejudicing an
adjudicative proceeding" to
describe impermissible conduct. Second, Rule 3.6 makes clear that only
attorneys who are, or have been involved in a proceeding, or their
associates,
are subject to the rule. Third, Rule 3.6 omits the particulars in
DR7-107(b), transforming them instead into an illustrative
compilation as part of the rule's commentary that is intended to give fair
notice of the kinds of statements that are generally thought to be more
likely
than other kinds of statements to pose unacceptable dangers to the fair
administration of justice. Whether any statement will have a substantial
likelihood of materially prejudicing an adjudicatory proceeding will depend
upon the facts of each case. The particulars of DR 7-107(c) are retained in
Rule 3.6(b), except DR 7-107(c)(7), which provided that a lawyer may
reveal "[a]t the time of seizure, a description
of the physical evidence seized, other than a confession, admission or
statement." Such
revelations may be substantially prejudicial and are frequently the subject
of pretrial suppression motions whose success would be undermined by
disclosure of the suppressed evidence to the press. Finally, Rule 3.6
authorizes a
lawyer to protect a client by making a limited reply to adverse publicity
substantially prejudicial to the client.
ANNOTATION
Annotator's note.
Rule 3.6 is similar to DR 7-107 as it
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing DR 7-107 have been included under Rule 3.3.
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