Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Rule of Professional Conduct 5-120, Trial Publicity: What may be said out of court?

Motivated by an ethics self-study CLE for another state, a friend recently asked me about trial publicity under our rules here in California with respect to a hypothetical he conjured up.  “Why,” he asked, “is it presumptively improper to comment to the press on the anticipated testimony of a witness?  Does this mean that if I represent Mr. Criminal, I can't say, ‘we expect that witness Jones will testify that Mr. Criminal was not even in San Diego at the time of the bank robbery, but was in fact in New Jersey attending a Bon Jovi concert’ ”? (My first thought was, “Bon Jovi?  Really?”) 

Rule of Professional Conduct 5-120 (“Trial Publicity”) provides:

A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (5-120(A).)

However, an attorney is permitted to state:

  1. the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
  2. the information contained in a public record;
  3. that an investigation of the 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 the public interest; and
  7. in a criminal case, in addition to subparagraphs (1) through (6):
    1. the identity, residence, occupation, and family status of the
    2. if the accused has not been apprehended, the information
      necessary to aid in apprehension of that person;
    3. the fact, time, and place of arrest; and
    4. the identity of investigating and arresting officers or agencies and the length of the investigation. (Id., subd. (B)(1-7).)

Making extra-judicial statements regarding the anticipated testimony of a defense witness regarding an accused being out of state at the time of a crime, i.e., an alibi, appears to fall within the language of (A)(1) which allows attorneys to make statements regarding the defense involved.  Naturally, one would like to be able to reach a conclusion one way or the other with more certainty. However, only a few cases have cited to Rule 5-120 since it went into effect on October 1, 1995, and no case actually applies it to reach a conclusion on whether the rule was violated.  Instead, the cases either mention the rule in passing or ultimately bypass allegations of its violation on other substantive or procedural grounds. (People v. Marshall (1996) 13 Cal.4th 799; Hollywood v. Superior Court (2008) 43 Cal.4th 721; Rothman v. Jackson (1996) 49 Cal.App.4th 1134; Polanski v. Superior Court (2009) 180 Cal.App.4th 507.) 

While, to be sure, there are many circumstances under which making extra-judicial statements is permissible, warranted, and/or even prudent, in a world of Facebook, Twitter, and the like, many attorneys default to speaking out of court without considering possible violation of Rule 5-120 and other consequences.  However, “[o]ne of the lessons of history is that nothing is often a good thing to do and always a clever thing to say.” (Will Durant, American historian and philosopher, 1885-1981.)

--Luis E. Ventura

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis.  Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**