IV. CONSTRAINING FORCES ON ATTORNEYS COMMUNICATIONS WITH THE PRESS.
While zealous representation of a client might compel an attorney to speak to the press, an attorney faces ethical constraints on what the attorney may say. These constraints come from a myriad of rules of professional conduct, which work to limit attorneys in various ways.
A. Duty Not to Prejudice Adjudicative Proceedings through Statements to the Press.
The Model Rules and Model Code both expressly place ethical limitations on attorneys in communicating with the press. The guiding principle of these rules is the protection of the jury from unfair prejudice. As noted above, Model Rule 3.6 prohibits statements that have a "substantial likelihood of materially prejudicing an adjudicative proceeding." Model Rules of Professional Conduct Rule 3.6(a). n7
One significant addition to the rule in the 1994 amendment allows an attorney to "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," to the extent necessary to "mitigate the recent adverse publicity." Model Rule 3.6(c). This provision, which follows the reasoning of Justice Kennedy's opinion in Gentile, provides attorneys with significant latitude in communicating with the press, at least in cases where the issue has already received press coverage from other sources.
Another significant exception to Rule 3.6 is for information contained in a public record. Model Rule Rule 3.6(b)(2). Most public speech is made under this exception and lawyers can take advantage of the exception by influencing what is in the public record. See ABA/BNA, supra. For example, lawyers can strategically tailor pleadings and motions to make information public that otherwise would be subject to trial publicity rules.
While prejudice is determined on a case by case basis, published opinions that have dealt with the application of Rule 3.6 provide some guidance in understanding the limits of an attorney's ethical obligations under the rule. In an advisory opinion on pre-trial publicity issued by the Maryland Bar, an attorney requested guidance as to whether a pre-trial press release and dissemination of the complaint in a products liability suit would violate Maryland Rules of Professional Conduct 3.6. Nat'l Rptr. on Legal Ethics, Md:Opinions:9 (1997). The committee responded that there is no per se prohibition against press releases before trial, but that without seeing the actual wording, it could not determine if other ethical rules might be violated. The committee also concluded that the release of the complaint, already filed with the court and therefore a public record, would not be an ethical violation.
In Ruggieri v. Johns-Manville Products Corp., 503 F.Supp. 1036 (D. R.I. 1980), the plaintiff's attorney in an asbestos case appeared on a nationally televised show discussing the surge of nationwide asbestos litigation. In the interview, the attorney revealed that there was evidence showing that the major asbestos manufacturers had knowledge of the dangers of asbestos as early as 1935. The defendant asbestos company brought a proceeding to disqualify the attorney and to prohibit him from making any further extrajudicial statements about the litigation. The court denied the motion, relying on the fact that the there was no evidence that the television show was broadcast in the trial district or had any impact on potential jurors. The court explicitly recognized the distinction between civil and criminal trials and limited its holding to civil litigation, reasoning that other, less restrictive protections, were available to insulate civil trials from prejudice. For example, the opinion stated that Rule 47(a) of the Federal Rules of Civil Procedure gives judges broad discretion in examining prospective jurors. The opinion also cautioned that each civil case is unique and that no bright line rule can be established for extrajudicial speech in the civil arena.
In Longs Drug Stores Cal., Inc. v. Shea, 2005 WL 91682 (Cal. App. 1 Dist. Jan. 18, 2005) (unpublished), the attorney represented plaintiffs charging the defendant, their employer, with tortious conduct in interrogating them about suspected thefts. In a press release issued after the jury verdict was rendered in the plaintiffs' favor, the attorney commented on evidence not introduced at trial involving the Longs' alleged failure to take action after an employee who had been interrogated committed suicide. Id. at *1. Longs then sued the attorney for defamation. On appeal from the order denying the attorney's motion to strike the complaint under the anti-SLAPP statute, Code Civ. Proc., § 425.15, the court held that litigation privilege does not protect an attorney from liability for libel or slander who issues statements to the press about matters that were not introduced as evidence at the trial. The court specifically affirmed on the ground that Longs' claim did not involve a "widespread" public issue where it was not apparent that the verdict on the issue of Longs' abusive employee-interrogation techniques would directly affect anyone other than the plaintiffs in the original lawsuit. Id. at *6-8. The court rejected the attorney's argument that the subject of the suicide could not be divorced from "the larger, assertedly public issue of Longs' employee abuse" and, instead, found that the suicide was part of any public interest potentially created by the trial because it was not addressed at trial and because it was a private matter prior to the press release. Id.
Courts are much more willing to impose sanctions on lawyers involved in criminal trials. In State of Delaware v. Grossberg, 705 A.2d 608 (Del. Sup. Ct. 1997), the State sought sanctions against one of the defendant's attorneys for violation of the Delaware Lawyers' Rules of Professional Conduct. Prior to the attorney's admission pro hac vice, the court entered an order limiting pretrial publicity in accordance with Rule 3.6 and both parties represented to the court that they would abide by the rule. Later the attorney gave two television interviews where he stated "Amy did not commit the crime" and that she was "not guilty." Id. at 611. The court analyzed the statements under Rule 3.6 and stated that it was "plain that [the statements] conveyed his personal opinion as to the innocence of defendant Grossberg". Id. at 613. The court found the statements, made only 97 days before the scheduled trial, violated the state's rules. As a sanction, the court revoked the attorney's appearance in the court.
However, the public record exception applies in criminal as well as civil trials. In United States v. Pasciuti, 803 F. Supp. 563 (D.N.H. 1992), the District of New Hampshire refused to grant the defendant's motion in a criminal drug conspiracy case for a continuance and disqualification of the prosecuting attorney. Among the prosecutor's statements were that "an anonymous jury is used when the defendant is engaged in alleged violent activity"; "jurors can act unimpeded if they have no threat of retaliation"; "the notoriety of the Hell's Angels group around the country is (sic) the Hell's Angels are alleged (sic) in attempts to influence jurors' decisions or judge's decisions with bribery and so on"; "Prosecutors said though he has been jailed since October, he continued to run the drug operation from his cell. This has led to concern that he is capable of retaliating against the jurors even while incarcerated"; and "Don Pasciuti has very significant power and authority within the Hell's Angels organization . . . By virtue of his position and authority, he can cause things to happen outside the jail." Id. at 566-67.
Analyzing the prosecutor's conduct under Model Rule 3.6, the court found that all of his statements to the press could be traced to the record of the case or information made available prior to a stipulation to limit contact with the press. Id. at 566. The statements at issue appeared prejudicial to the defendant, but the court found that each statement satisfied the ethical requirements of Rule 3.6(c) since they were statements without elaboration of information contained in the public record. Id. at 568.