The debate over the proper regulation of statements by attorneys to the press implicates legal, ethical and constitutional values, including the attorney's First Amendment right to free speech, the parties' right to a fair trial and zealous representation, and the state interest in the administration of justice. The issue has arisen periodically throughout American jurisprudence, but peaked in Sheppard v. Maxwell, 384 U.S. 333 (1966). In that decision, the Supreme Court overturned the murder conviction of Sam Sheppard and held that the publicity the case generated unfairly prejudiced the trial. The decision led to searching consideration of the propriety of extrajudicial statements by attorneys and eventually the adoption of ethical rules constraining attorney speech, such as ABA Model Rule of Professional Responsibility 3.6, which states:
(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) the information contained in a public record;
(3) that an investigation of the matter is in progress;
(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 paragraphs (1) through (6):
(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). n3
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n3 By its terms, Rule 3.6 prohibits only comments likely to prejudice "an adjudicative proceeding." Thus, it would not appear to prohibit comments likely to influence settlement negotiations, so long as those comments are not also likely to influence an eventual trial or other adjudicative proceeding.
When an attorney in Nevada challenged a disciplinary ruling against him under a Nevada Bar rule patterned after a previous version of Model Rule 3.6, n4 the Supreme Court was again faced with the issue of extrajudicial speech by attorneys. In Gentile v. State Bar, 501 U.S. 1030 (1991), the Court addressed the case of a Nevada attorney who had been disciplined for holding a post-indictment press conference in which he declared his client's innocence and identified a Las Vegas police officer as the likely guilty party. The client was ultimately acquitted, although the attorney's comments were not found to have actually prejudiced the outcome of the trial. Id. at 1064-65.
n4 The Nevada Rule did not contain a provision analogous to section (c) of the current version of Model Rule 3.6, which allows an attorney to make extrajudicial statements required to mitigate the prejudicial effect of prior statements not initiated by the attorney or the attorney's client. The comments for which Nevada attempted to discipline Gentile appear to have been the kind of comments envisioned by section (c) of the current version of Model Rule 3.6.
The Nevada rule at issue prohibited a lawyer from making "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." Gentile, 501 U.S. at 1033. The rule provided a safe harbor, however, for, among other things, statements of "the general nature of the claim or defense" made "without elaboration." Id. at 1061-62.
The holding of a splintered Supreme Court was controlled by Justice O'Connor, who, along with Justices White, Scalia, and Souter, joined Chief Justice Rehnquist's opinion upholding the application of the "substantial likelihood of material prejudice" standard to extrajudicial comments by attorneys. However, Justice O'Connor, along with Justices Marshall, Blackmun and Stevens, joined Justice Kennedy's opinion holding the Nevada rule void for vagueness, because the safe harbor provision failed to provide sufficient guidance to inform an attorney "when his remarks pass from the safe harbor of the general to the forbidden sea of the elaborated." Id. at 1048-49. n5
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n5 Justice Kennedy's opinion noted that extrajudicial comments by attorneys can be useful to mitigate prejudice caused by prior comments made by others -- as Model Rule 3.6(c) specifically allows -- and "to protect the rights of the client and prevent abuse of the courts." Id. at 1042-43, 1058.
In response to the Supreme Court's decision in Gentile, the ABA House of Delegates amended Model Rule 3.6 in 1994. Model Rules of Professional Conduct Rule 3.6. The amendment specified certain types of information that a lawyer may disclose in an effort to provide more guidance for lawyers. Most significantly, the amendment allows for greater access to the press by allowing attorneys to respond on behalf of a client to negative publicity. However, most states that have adopted the Model Rules still follow the pre-1994 version of Rule 3.6. See ABA/BNA Lawyer's Manual on Professional Conduct, "Trial Publicity", LMPC 61:1001 (1998). Therefore, in practice, the Rules continue to provide only limited guidance as to an attorney's ethical obligations in communicating with the press.
Although Gentile appeared to clearly endorse the "substantial" likelihood of prejudice standard, the decision failed to explicitly foreclose lesser protection for extrajudicial speech. In fact, the opinion mentioned that eleven states at that time continued to follow the Disciplinary Code provisions, using a "reasonable" likelihood of prejudice standard. Yet the court was silent on the constitutionality of that standard. See id. at 2741. While it is not entirely clear whether the Supreme Court would uphold the constitutionality of the "reasonable likelihood" standard, at least two circuits have applied that standard in the criminal context since Gentile. But see Atlanta Journal-Constitution v. State, 596 S.E.2d 694, 696-97 (Ga. App. 2004) (holding that the "reasonable likelihood" standard was insufficient to overcome First Amendment protections); Attorney Grievance Com'n of Maryland v. Gansler, 835 A.2d 548, 563 (Md. 2003) (noting that the ABA's 1983 proposal for a new model code was "in an effort to address concerns that the 'reasonable likelihood' standard . . . might not meet the requirements of the First Amendment.") The Second Circuit, using the reasonably likely standard, upheld a contempt conviction of a lawyer in New York who ignored a gag order imposed in a criminal trial and told a television audience that his client, mob boss John Gotti, was being persecuted and framed by the government. See U.S. v. Cutler, 58 F.3d 825 (1995).
The Fourth Circuit, in In re Morrissey, 168 F.3d 134 (4th Cir. 1999), went even further and determined that the "reasonable likelihood" standard could be reconciled with the holding in Gentile since the Supreme Court did not explicitly foreclose its use. In Morrissey, an attorney in a high profile drug case, after being warned by opposing counsel about court rules on extrajudicial speech, held a press conference at which he played a videotape of a witness recanting previously given testimony. The Fourth Circuit upheld the attorney's contempt conviction, specifically endorsing the "reasonable likelihood" standard. It is clear that the attorneys' behavior in both of these cases was fairly notable and would possibly rise to the level of violating a "substantial likelihood" standard. However, in less clear-cut cases, the subjective nature of the standard creates a potential risk for discriminatory enforcement. See Gentile, 501 U.S. at 1050-51) (noting that the imprecise language of Rule 3.6 and Nevada's Rule 177 creates a risk of discriminatory enforcement.) Attorneys in districts employing the "reasonable likelihood" standard should be aware that extrajudicial speech is likely afforded less protection than in other jurisdictions. Furthermore, in a few cases, lower courts from various other jurisdictions addressed the constitutionality of the "reasonable likelihood" standard at arms length, seeking guidance from circuit courts. See U.S. v. Koubriti, 305 F. Supp. 2d 723, 743 n. 18 (E.D. Mich. 2003) (noting that "[t]he Sixth Circuit has not yet decided whether the "reasonable likelihood of prejudice" standard survives First Amendment scrutiny."); Devine v. Robinson, 131 F. Supp. 2d 963, 972 (N.D. Ill. 2001) (avoiding the question of Rule 3.6's constitutionality "where "possibility" of a constitutional reading exists" given that the rule were revised to meet constitutional concerns in Gentile).