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

B. Duty Not to Assist Others in Violating an Ethical Rule

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B. Duty Not to Assist Others in Violating an Ethical Rule.

Attorneys must be careful of the way in which they prepare and guide clients in communicating with the press. Model Rule 8.4(a) prohibits attorneys from knowingly assisting or inducing others to violate the rules of professional conduct. See also Model Code of Professional Responsibility DR 1-102(A)(2). Accordingly, where an attorney assists a client in making extrajudicial comments to the press which she herself could not make, she may be deemed to have committed an ethical violation.

The Delaware Superior Court addressed this issue directly in State of Delaware v. Grossberg, 705 A.2d 608 (Del. Sup. Ct. 1997) (discussed supra) and found that the criminal defense attorney violated Rule 8.4(a) by assisting his client in violating Rule 3.6. In that case the defendant's attorney appeared with her on a television news program. The attorney precluded inquiries into the events occurring around the time of the alleged crime, but proceeded to guide the defendant in her answers to questions about what the past months had been like for her, her feelings about the co-defendant in the case, how she felt the previous summer when the events occurred, how she felt on the date of the alleged murder, and her response to the allegation that she is a murderer. Id. at 611-12. The court found that the information could be relevant to the defendant's state of mind and at a minimum addressed the character and propensities of the defendant. Id. at 613. The court then ruled that the attorney violated Rule 3.6 through Rule 8.4(a) and stated that "[a]ny preparation . . . of [the defendant] for a television interview should have been limited to those areas which [the attorney] himself would have been permitted to comment." Id. at 613.

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