July 2023 Ethically Speaking - Ethical Considerations for Attorneys Before Speaking to the Media

by Cathy Tran Moses

From time to time, attorneys may receive a request from a reporter to comment on an ongoing lawsuit or respond to comments made to the press by an opposing party in a case. Attorneys who are considering speaking to the press should be aware that legal and ethical constraints apply to statements that they make to the media about a case. As the California Supreme Court has recognized, a lawyer’s “extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative.” See Broadman v. Comm’n on Jud. Performance, 18 Cal. 4th 1079, 1100 (1998), as modified (Sept. 2, 1998) (citing Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)). Because of this threat to the proceedings, regulations of public commentary by lawyers in pending cases exist in order to “serve[] the state’s interest in ensuring fair trials.” See id.

This article addresses the ethical regulations and considerations that California attorneys should contemplate before discussing any pending legal matters with a member of the media.

First, Obtain the Client’s Informed Consent
An attorney first should keep in mind the requirements of California Rule of Professional Conduct 1.6. That rule prohibits an attorney from revealing any client confidences regarding a representation unless the client gives its informed consent to the disclosure.

Separately, Rule 1.4 requires attorneys to, among other things, reasonably consult with their client regarding the means by which to accomplish their client’s objectives in the representation. The client and its attorneys may decide that talking to the media about the case may be a means of accomplishing the client’s objectives, but that decision should be made with the client’s informed consent regarding the content and goals of those communications.

Under Rule 3.6, Attorneys Cannot Make Statements That Would “Materially Prejudice” an Adjudicative Proceeding
Assuming that a lawyer has the client’s informed consent to make statements to the media about an ongoing case, the attorney then should look to the requirements set forth in California Rule of Professional Conduct 3.6, which is entitled “Trial Publicity.”

Rule 3.6(a) states that a lawyer who is participating or has participated in the investigation or litigation of a matter must not make an extrajudicial statement that the lawyer knows, or reasonably should know, will (1) be disseminated by means of public communication and (2) have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

The comments to Rule 3.6 list a number of factors that may bear on whether an attorney’s extrajudicial statement violates the Rule. The factors include whether the attorney’s statement presents information that would be clearly inadmissible as evidence, or information that the lawyer knows is false or deceptive, or would violate Business & Professions Code section 6068(d) [requiring lawyers to use only means consistent with the truth] or Rule 3.3 [Candor Toward the Tribunal]; whether the statement would violate a gag order, protective order, statute, rule of court, or other special rule of confidentiality; and the timing of the attorney’s statement.

Rule 3.6(d) also makes explicit that the limitations above apply to any lawyer who is associated in a law firm or government agency with a lawyer who is subject to Rule 3.6(a)’s restrictions.

California’s Rule 3.6 is based on ABA Model Rule 3.6, and the comments to the ABA Model Rule introduce further factors that may bear on whether an attorney’s out-of-court statement may materially prejudice a proceeding and should be avoided. Among other things, attorney comments involving the following subjects may be cause for concern: a party’s or witness’s character, credibility, reputation, or criminal record, or that person’s expected testimony; the performance or result of any examination or a test, or refusal or failure of a person to submit to such examination or test; or any opinion as to a criminal defendant’s or suspect’s guilt or innocence. Model Rules of Prof’l Conduct R. 3.6, comment [5].

The ABA Comments also note that the nature of the proceeding involved may matter. Specifically, criminal jury trials will likely be most sensitive to an attorney’s extrajudicial speech. In contrast, civil trials may be less sensitive, and non-jury hearings and arbitration proceedings “may be even less affected.” Model Rules of Prof’l Conduct R. 3.6, comment [6].

California’s Rule 3.6(b) also provides that, so long as otherwise permitted under Business & Professions Code section 6068(e) [prohibiting disclosure of confidential information] and Rule 1.6 [Confidential Information of a Client], a lawyer can state other basic information about the matter, such as the claim or offense involved, the identity of the person involved (unless prohibited by law), and information contained in a public record. Attorneys also may state that an investigation is in progress or the scheduling or result of any step in litigation, and request assistance in obtaining evidence and information that is necessary. They also can state “a warning of danger regarding 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,” but only to the extent that the provision of such information by public communication is reasonably necessary to protect the individual or the public. Cal. Rules of Prof’l Conduct R. 3.6(b)(6). Rule 3.6 also states that attorneys in criminal cases may provide other information such as the general area of residence and occupation of the accused person; the information needed to aid in apprehending that person if the accused has not been apprehended; the fact, place, and time of the arrest; the identity of investigating and arresting officers or agencies; and the length of the investigation.

The commentary to Rule 3.6 notes that the rule applies to prosecutors and criminal defense counsel, and also states that Rule 3.8(e) sets forth additional duties for prosecutors with respect to extrajudicial statements about criminal proceedings.

Rule 3.6 Also Contains a “Right of Reply” if Conditions Are Met
In addition to the statements permitted above, Rule of Professional Conduct 3.6(c) allows for what has been described as a “right of reply” for attorneys, to permit them to speak to the media in order to respond to comments that are made by the other side. Rule 3.6(c) states that a lawyer can make an out-of-court statement in response to recent publicity regarding a legal matter if three elements are met: (1) the lawyer’s statement is one that a reasonable lawyer would believe is required to protect the client from substantial undue prejudicial effect of recent publicity; (2) the prejudicial publicity to which they are responding was not initiated by the lawyer or the client; and (3) the reply is limited to statements that provide only that information that is necessary to mitigate the recent adverse publicity.

Attorneys who are considering speaking with the media about a pending case should keep in mind all of the above considerations before doing so, including having a prior frank discussion with their client regarding the objectives and general content of communications with the media, obtaining the client’s informed consent, and ensuring that any statements to the media about a proceeding fall well within the limits of Rule 3.6. Any statements that pose a risk of materially prejudicing the fairness of an adjudicative proceeding should be avoided. Furthermore, the above considerations should govern attorneys’ extrajudicial statements about a case regardless of whether the statement is made to a particular media member or the identity of the media members with whom the attorney speaks. In other words, these same considerations should apply regardless of whether the attorney speaks to a reporter from a traditional print publication, posts an update about an ongoing trial or hearing to a social networking site such as LinkedIn, or responds to content on Twitter.

Cathy Tran Moses is a partner at Cox, Castle & Nicholson LLP, in Irvine, and is a member of the OCBA’s Professionalism & Ethics Committee. Ms. Moses specializes in complex business litigation, and can be contacted at cmoses@coxcastle.com.