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.  

Public Statements re Pending Cases:  Be Careful and Be Truthful

A year and a half after he publicly announced Rod Blagojevich had been part of a “crime spree” that would make “Lincoln roll over in his grave,” U.S. Attorney Patrick Fitzgerald made his first public comments after the trial and was much more subdued.  During a brief interview last month, after a jury deadlocked on all but one charge against the disgraced former governor, Fitzgerald merely thanked the jurors without saying anything about Blagojevich or his alleged crimes. 

Fitzgerald’s “crime spree” speech was a lightening rod for criticism from members of the bar and others.  The case itself makes for a great novel, but the extrajudicial comments by Fitzgerald, and the contrast between both press conferences is a good of example of what to say, and what not to say in a high profile case.  

Most states, including California, have enacted rules restricting the right of lawyers to make public statements about pending cases.  California Rule of Professional Conduct 5-120 (modeled after American Bar Association Rule of Professional Conduct 3.6) provides that an attorney who is participating in the 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 attorney] knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” The negative consequences for making a misstep (or misstatement) can be significant: discipline and possibly, civil liability for slander and/or libel.

The obvious purpose of the Rule is to prevent lawyers from making public statements about a pending matter that might taint the pool of prospective jurors and thereby influence the outcome of a case.  As Supreme Court Justice Oliver Wendell Holmes wrote more than 100 years ago:

The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court and not by any outside influence, whether of private talk or public print.

Patterson v. Colorado, 205 U.S. 454 (1907).  Justice Holmes’s comments, of course, were made before the invention of broadcast media and the internet.  Today, given the volume and variety of “public print” and the ease with which it is created, duplicated, and disseminated, the potential for lawyers to “induce a conclusion” through extrajudicial speech is far greater, particularly in high profile cases.

Notwithstanding the general prohibition against materially prejudicial statements to the media, CRPC 5-120(B) specifically permits extrajudicial speech in a number of limited areas, including, most significantly, any matters of public record.  The comments to ABA Rule 3.6 also offer some guidance to lawyers on this issue by identifying “certain subjects that are more likely than not to have a material prejudicial effect on a proceeding,” particularly when they refer to a civil jury trial, a criminal matter, or any other proceeding that could result in incarceration.

In the final analysis, “less is more” is always a good rule of thumb.  When “no comment” is not sufficient: 1) always speak truthfully; 2) try to stick to the public record; and 3) avoid statements, even if it is a matter of public record, which could prejudice the proceedings (e.g., opinions about guilt or innocence, statements about evidence that may not be admitted during trial, character, credibility or reputation of a party or witness).  And try to avoid hyperbole about our former presidents …

**No portion of this article 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.**