June 2019

Ethical Considerations when Communicating with the Media

By Alara Chilton

Law Office of Alara T. Chilton

You are a new attorney practicing civil litigation with a client whose matter could be of significant interest to the media.  You believe much of the information surrounding your client’s matter, if made public, would best serve your client’s interests because, after all, if the public learns your client was treated unfairly or was the party who acted honestly, your client would be cast in a very favorable public light.  You ask yourself, “If the end result is good press for my client, then what else is of concern?”   

Indeed, there are many concerns regarding out-of-court statements to the media.  Both the United States California Constitutions protect a lawyer’s right to make statements that advocate for the interests of a client and the client’s right to a fair trial.  These rights, however, are not without limits. The California Rules of Professional Conduct, effective in November of 2018, play an important role in delineating these limits.

This article examines some of the ethical considerations that apply when a lawyer communicates with the media about a client matter.

Communicating with the Media Should Only Be Done When It Assists in Accomplishing Your Client’s Objectives Under California Rule 1.4
California Rule 1.4 (Communication with Clients) imposes a duty to communicate with the client regarding the client’s objectives.  The rule states a lawyer, “shall reasonably consult with the client about the means by which to accomplish the client’s objectives in the representation.” (Cal. Prof. Rule of Conduct, Rule 1.4(a)(2), emphasis added.)  Thus, it is important you ask your client sufficient questions to determine: (1) her exact objectives during your representation and, (2) if communicating with the media is an acceptable “means by which to accomplish” those objectives. (Id.)

Making these determinations intelligently requires you to explain to your client the process and consequences of engaging the media.  Indeed, Rule 1.4 imposes a duty to explain a matter “to the extent reasonably necessary to permit the client to make informed decisions. . .” (Cal. Prof. Rule of Conduct, Rule 1.4(b).)  For example, if engaging the media will likely generate requests for personal interviews of your client, it would be wise to advise the client that such out of court statements may be construed as an admission if the matter is in litigation or is likely to result in litigation.

Rule 3.6 Imposes A Duty to Not Prejudice Adjudicative Proceedings through Statements to The Media
California Rule 3.6 (Trial Publicity) bars lawyers from making an out-of-court statement to the media they “know or reasonably should know”i will be publicly disseminated and “will have a substantialii likelihood of materially prejudicing an adjudicative proceeding in the matter.” (Cal. Prof. Rule of Conduct, Rule 3.6(a).)  The Rule applies to “any lawyer who is participating or has participated in the investigation or litigation of a matter.” (Id.)  And although the rule does not define “adjudicative proceeding,” the phrase is understood as applying to statements that would materially prejudice matters involved in litigation or facing trial.iii

Rule 3.6 permits lawyers to make an extrajudicial statement regarding specific topics including:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning 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 dissemination by public communication is reasonably necessary to protect the individual or the public[.]iv

(Cal. Prof. Rule of Conduct, Rule 3.6.(b).)

The rule makes clear that an extrajudicial statement permitted by paragraph (b) is subject to compliance with Business and Professions Code section 6068(e), which requires lawyers to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. & Prof. Code § 6068(e)(1).)  Additionally, the statement must comply with Rule 1.6 which requires lawyers to “protect client confidential information to the extent mandated by Business and Professions Code § 6068(e)(1) . . . .” (Executive Summary for New Rule of Professional Conduct 1.6, State Bar of California Commission for the Revision of the Rules of Professional Conduct.) v   Thus, it is important to communicate with your client to establish limits on the statements disclosed to the media in order to avoid violating your client’s confidences.

Additionally, lawyers are also permitted to respond to statements to the media made by others which unjustly cast their client in a negative light.  Specifically, attorneys may make statements they believe are “required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.” (Cal. Prof. Rule of Conduct, Rule 3.6.(c).)  The protective statement is “limited to such information as is necessary to mitigate the recent adverse publicity.” (Id.)

But what if you would like to make an extrajudicial statement about your client’s matter that is not covered by paragraph (b)?  How can you determine if your statements will have a “substantial likelihood of materially prejudicing an “adjudicative Proceeding?” Comment [1] to Rule 3.6 reveals the following:

Comment [1] to California Rule 3.6 Lists Several Factors to Determine If an Extrajudicial Statement Will Have a Substantial Likelihood of Materially Prejudicing an Adjudicative Proceeding

Comment [1] to Rule 3.6 lists several factors to determine whether an extrajudicial statement will have a substantial likelihood of materially prejudicing an adjudicative proceeding, including:

(i) whether the extrajudicial statement presents information clearly inadmissible as evidence in the matter for the purpose of proving or disproving a material fact in issue; (ii) whether the extrajudicial statement presents information the lawyer knows is false, deceptive, or the use of which would violate Business and Professions Code section 6068, subdivision (d) or rule 3.3; (iii) whether the extrajudicial statement violates a lawful “gag” order, or protective order, statute, rule of court, or special rule of confidentiality, for example, in juvenile, domestic, mental disability, and certain criminal proceedings, (see Bus. & Prof. Code, § 6068, subd. (a) and rule 3.4(f), which require compliance with such obligations); and (iv) the timing of the statement.vi

(Comment [1] to Cal. Prof. Rule of Conduct, Rule 3.6.)

California Rule 8.2 Bars Lawyers from Making Knowingly False Statements of Fact Concerning the Qualifications or Integrity of a Judge

California Rule 8.2 limits statements that lawyers can make concerning judges.  This rule provides, “(a) lawyer shall not make a statement of fact that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or judicial officer or of a candidate for election or appointment to judicial office.”  The aim of this provision is to “increase public confidence in the legal profession.” (Executive Summary for New Rule of Professional Conduct 8.2, State Bar of California Commission for the Revision of the Rules of Professional Conduct.)

This rule appears straightforward, but determining if it has been violated is not quite as simple. The Executive Summary to the rule discusses In the Matter of Parish, (Rev. Dept 2015) 5 Cal. State Bar. Ct. Rptr. 370, 374–376, which examined Rule 1-700, the predecessor to Rule 8.2.  Rule 1-700 barred candidates for judicial office from making misrepresentations about themselves or their opponents.  

The State Bar alleged attorney Parish, who ran for judicial office, had made five factual misrepresentations concerning himself and his judicial opponent during the election. (Id. at 370.) The Review Department examined all the statements and found by clear and convincing evidence Parish knowingly, or with reckless disregard for the truth, made one factual misrepresentations during the election. (Id.)

In arriving at its finding, the Review Department applied the “objective standard” to determine “what [a]reasonable attorney . . . would do in the same or similar circumstances and concluded Parish conducted no research concerning the truth of the statement concerning his opponent. (Id.)

Thus, if you plan to make a statement to the media that concerns the qualifications or integrity of judge, it is important to cautiously consider exactly what the statement will entail.  Not only should you avoid making intentionally false statement concerning a judge, but any statement you make should be truthful and supported by a reasonable investigation to confirm a reasonable factual basis.

Given the rapid speed by which information moves in our society, it may seem tempting to communicate fairly quickly with the media concerning your client’s matter. It is important, however, to take the necessary time to ensure your client agrees to allow the proposed statements to the media, and to review such statements in light of the applicable ethical considerations.  Doing so will place you in the best position to leverage media communications in a manner that not only protects your client, but also your bar card.

i “Knowingly,” known,” or “knows,” is defined as “actual knowledge of the fact in question.”  A person’s knowledge may be inferred from the circumstances. (Cal. Prof. Rule of Conduct, Rule 1.0.1 (f).)

ii “Substantial,” when used in reference to degree or extent, means a material matter of clear and weighty importance. (Cal. Prof. Rule of Conduct, Rule 1.0.1 (l).)

iii Comment 6 to Model Rule 3.6 states “Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be more sensitive to extrajudicial speech. Civil trials may be less sensitive.” (Comment [6] to Model Rule of Conduct, Rule 3.6.)

iv Rule 3.6 also lists extrajudicial statements that a lawyer may make in a criminal matter. See paragraph (b)(7).  

v Under Rule 1.6, Disclosure of confidential information is permitted “where the client gives informed consent or as provided by paragraph (b).” (Executive Summary for New Rule of Professional Conduct 1.6, State Bar of California Commission for the Revision of the Rules of Professional Conduct.)

vi The closer a statement is made to trial, the more likely it is to have a materially prejudicial effect on a jury panel. (Gentile v. State Bar of Nevada (1991) 501 U.S. 1031, 1079 [111 S.Ct. 2720, 2747, 115 L.Ed.2d 888].)