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


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Attorneys may have a variety of motivations for speaking to the press about a client or a case. Regardless of the motivation, utilization of the press is often a very effective means of zealously representing the interests of a client. Accordingly, attorneys may be compelled to seek out the press where doing so would benefit the client.

Advocacy in the court of public opinion is an important role for an attorney. In many types of cases, it is imperative to pursue a public relations strategy on behalf of the client. It is not only criminal defendants who need a lawyer to advocate in the court of public opinion. Public figures, corporations, public interest groups, civil rights litigants, and parties in high-profile cases often require such advocacy. One reason is that these kinds of clients often attract general attention in the media, and are often concerned with the judgments of institutions and the public, not just those of judges and juries.

Justice Kennedy recognized in Gentile that a legitimate goal of extrajudicial advocacy may be to maintain -- or restore -- a client's position in the community. See 501 U.S. at 1043. In Gentile, the client was a prominent businessman who wished to minimize the effects of his indictment on his business interests. Public interest lawyers can also use the press, and their lawsuits, to bring attention to problems faced by their clients and their causes. n6

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n6 In Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice, UCLA law professor Gerald P. Lopez offers advice on law practice aimed at improving social conditions. Lopez, like many public interest lawyers, contends that getting media attention for cases and the causes they represent is an important aspect of progressive lawyering. See also, Max D. Stern, The Right of the Accused to a Public Defense, 18 Harv. C.R.-C.L Rev. 53 (1983), which illustrates how a public defense was instrumental in protecting a minority defendant who had been falsely accused.

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Additionally, other ethical obligations would suggest that an attorney should use the press when advantageous to his or her client to do so. Canon 7 states that "a lawyer should represent a client zealously within the bounds of the law." Model Code of Professional Responsibility Canon 7. Further, EC 7-9 states that a "lawyer should always act in a manner consistent with the best interests of his client." Model Code of Professional Responsibility EC 7-9. Similarly, comment 1 to Model Rule of Professional Conduct 1.3 states that a lawyer "may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor." While these rules provide limited assistance in actual situations, they do stress that attorneys have a duty to push their clients' causes to the fullest of their abilities.

In recent years the press has become increasingly accessible to attorneys. There never seems to be a dearth of media outlets reporting on potential and pending litigation. By accessing these outlets, an attorney can bolster a client's reputation, position for settlement with the opposing party, or meet a variety of other possible goals. Because of the effectiveness of such tactics, it can be argued that the ethical requirement of zealous representation requires an attorney to communicate with the press on behalf of a client in situations in which it is in the best interest of the client to do so.

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