Extrajudicial Statements: Lawyers' Ethical Obligations in Communicating with the Press


II. CIVIL AND CRIMINAL TRIAL DISTINCTIONS



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II. CIVIL AND CRIMINAL TRIAL DISTINCTIONS

The high-profile cases discussed above all dealt with press contact during criminal trials. However, ethics rules and case law concerning extrajudicial statements recognize that crucial distinctions exist between civil and criminal adjudicative proceedings when determining attorneys' ethical obligations. Comment 6 to Rule 3.6 states that the nature of the proceeding involved is a relevant factor to determining prejudice and that "civil trials may be less sensitive" than criminal jury trials to extrajudicial speech.

Courts are far less likely to impose restrictions on extrajudicial speech in the civil arena for a number of reasons. First of all, civil trials typically are more drawn out than criminal trials and speech restrictions could potentially last for many years. See Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 258 (7th Cir. 1975). Secondly, it is recognized that civil trials often involve important social issues that require some degree of public knowledge and discussion. See id. Finally, although impartial justice is valued in all legal proceedings, it is generally believed that criminal trials "require even a greater insularity ... [and that] the mere invocation of the phrase "fair trial" does not as readily justify a restriction on speech when we are referring to civil trials." Id. at 257-58.

Although it is clear that lawyers involved in civil trials are afforded more latitude in their contacts with the press, there is surprisingly little guidance within the rule concerning the types of comments that are materially prejudicial in civil trials. Comment 5 to Rule 3.6 lists six examples of statements that would likely prejudice a criminal trial, including statements relating to witness character and credibility and opinions as to the guilt or innocence of the accused. Model Rules Rule 3.6 cmt. 5. No similar examples are provided for civil adjudication. Therefore civil attorneys often lack a clear understanding of their obligations when speaking to the press.






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