Lawyers are sometimes tempted to seek an advantage in a lawsuit by cultivating or influencing media attention to support their case. In other instances, lawyers may believe existing media attention is unjustly casting a negative light on the lawyers’ clients, deserving a public response. Such situations reflect lawyers’ admirable desires to advocate zealously for clients and to protect their clients’ reputations as well as their legal interests.
The U.S. Constitution protects both the right of lawyers to speak in defense of their clients and the right of the public to learn about litigated matters. Yet, such protections and rights have limits. For lawyers, their rules of professional conduct provide four major limits. This article discusses these four limits: (1) the limit that American Bar Association Model Rule 3.6 imposes on extrajudicial statements during civil and criminal investigations and litigation; (2) additional limits that Model Rule 3.8(f) imposes on prosecutors regarding extrajudicial comments; (3) restrictions that Model Rule 8.2 places on criticisms of the judges; and (4) the prohibitions that Model Rule 8.4 contains against misrepresentations and conduct prejudicial to the administration of justice. In addition, this article addresses the rather unusual application of Federal Rule of Civil Procedure 11 to punish a lawyer for his use of the media in Whitehead v. Food Max of Mississippi, Inc., 332 F.3d 796 (5th Cir. 2003) (en banc).
Model Rule 3.6 and Extrajudicial Statements about Pending Matters
“Substantial Likelihood of Materially Prejudicing a Proceeding”
Model Rule 3.6(a) states the fundamental principle that determines when public statements regarding pending matters are permitted and prohibited:
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
This standard also likely governs dissemination of court pleadings, transcripts, and the like to the media without further comment. See Pa. Informal Op. 96-45 (June 21, 1996).
Model Rule 3.6(a) “sets forth a basic general prohibition against a lawyer’s making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” Model Rules of Prof’l Conduct R. 3.6 cmt. . In doing so, Model Rule 3.6 attempts to strike a balance between “protecting the right to a fair trial and safeguarding the right of free expression.” Model Rules of Prof’l Conduct R. 3.6 cmt. .
When determining whether a particular statement is substantially likely to have a materially prejudicing effect on a proceeding, the comment to Model Rule 3.6 and other law indicates that at least five factors should be considered. The first factor is the subject matter of the statement, a topic discussed at length below.
The second factor relates to the nature of the proceedings involved. According to paragraph  of the comment, criminal jury trials are the “most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected.”
The third factor relates to whether the information disclosed is likely to be admissible or inadmissible at trial. Pennsylvania Informal Opinion 96-45 advises that if a lawyer concludes the information is likely to be inadmissible, then under Rule 3.6 [the lawyer] may not release this information to the media. However, if [the lawyer] reasonably feel[s] that this information is not likely to be inadmissible, [the lawyer] must then determine whether it can be disclosed without creating a substantial risk of prejudicing an impartial trial. If [the lawyer] reasonably conclude[s] that releasing this information will not create a substantial risk of prejudicing an impartial trial [the lawyer] then may release this information to the media.
See also Bush v. Commonwealth, 839 S.W.2d 550, 554 (Ky. 1992) (declaring, while considering the effects of a prosecutor’s dissemination of information to a newspaper, “[a]mong other things, these rules prohibit dissemination of information that would be inadmissible evidence at trial”).
Fourth, the timing of the disclosure relative to the anticipated start of jury selection or other sensitive proceedings should be considered. Gentile v. State Bar of Nevada, 501 U.S. 1031, 1079 (1991). Information disclosed at the start of a case, long before a jury will be empaneled, will be less likely to result in discipline than the public release of significant information on the eve of or during trial.