98 Formal Ethics Opinion 4

January 15, 1998

Publicity in Civil Trial

 

Opinion examines the restrictions on a lawyer's public comments about a pending civil proceeding in which the lawyer is participating.

 

Inquiry #1:

 

Attorney A represents a public school board of education (hereinafter "the Board"). Attorney B represents a minor and her parents who sued the Board in 1992 alleging negligent supervision by the Board's employees, resulting in the sexual assault of the minor at her school by another student. Plaintiffs also allege that when the minor reported the incident to a teacher's assistant, the minor was "chastised by the assistant." No one employed by the Board gave the minor medical attention, nor did any employee ever report the incident to the parents.

 

Four years after suit was filed, the trial court denied the Board's motion for summary judgment and motion to dismiss based upon sovereign immunity. The Board appealed denial of its sovereign immunity defense to the court of appeals. The court of appeals ruled that some but not all of the plaintiffs' claims were governed by sovereign immunity and remanded for trial. The decision of the court of appeals, including numerous factual allegations from the plaintiffs' complaint, was picked up by a news wire service. Thereafter, several news media ran the story from the wire service and printed or announced portions of the decision.

 

When local news media personnel began calling local school officials, the superintendent of the school system called Attorney A and asked how to respond to the inquiries. The superintendent and Attorney A decided a press release was the best way to respond to the news media. The school administration sent the release to those members of the news media who made inquiry about the case. The superintendent was concerned the public might conclude the schools in his system were unsafe and that school employees had ignored or hidden the alleged facts. The pertinent portions of the press release are as follows:

 

1) nothing in the court of appeals' decision means that any school employee has done anything wrong nor that the school system is liable to anyone. The questions before the court and the court's decision involve only technical legal issues related to insurance and sovereign immunity from suit.

 

2) the Board of Education and the employees of the school system are dedicated to the safety of all students, including the student involved in this case. From the time that the allegations in this case came to school employees' attention, every effort has been made to determine as fully as possible what happened and to attend to the student's needs in the most appropriate way.

 

3) after a very thorough investigation of the matter by the principal, the superintendent, and others, no credible evidence was discovered that the alleged assault had ever taken place. The Board of Education and all school employees have consistently and confidently affirmed that no assault took place.

 

4) if it is finally necessary to try this case before a jury, school officials are confident that the jury will determine that all employees involved in this matter acted properly and that there is no liability in this case for them or the school system.

 

Was this press release a violation of Revised Rule 3.6?

 

Opinion #1:   

 

Revised Rule 3.6 provides, "[a] lawyer 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 there is a reasonable likelihood that the statement will materially prejudice an adjudicative proceeding in the matter." This rule was designed to preserve a right to a fair trial by avoiding trial by media, but at the same time it attempts to balance the legal right to free speech. Revised Rule 3.6, Comment [1]. There is no bright-line rule for determining when an extrajudicial statement is proper. In fact, this is a case of first impression.

 

Keeping in mind the purpose behind the rule, the question is whether there is a reasonable likelihood the above press release will materially prejudice an adjudicative proceeding. Several factors may assist in evaluating the potential for prejudice of an attorney's extrajudicial statements. First, Revised Rule 3.6(b) prohibits certain specified extrajudicial statements. This list is not exhaustive but does provide guidance as to the types of disclosures which would be prohibited. Second, any publicity involving information already available to the public, such as that contained in filed pleadings, discovery responses, affidavits, and previous witness testimony, is less likely to have a prejudicial effect on a subsequent court proceeding. Annotated Model Rules of Professional Conduct Rule 3.6 cmt., p. 352 (3rd ed. 1996). Third, extrajudicial statements concerning civil proceedings are generally not as strictly scrutinized as those regarding criminal proceedings. Id. Fourth, an attorney should be permitted some leeway in making a necessary response to protect a client from undue prejudicial effect of recent publicity not initiated by the attorney or his client. Model Rules, Rule 3.6(c). Fifth, whether the attorney intended a trial by media is also a significant factor. Model Rules, Rule 3.6 cmt. at 353.

 

In this case, the press release by the Board involved extrajudicial statements about a civil proceeding but none of the statements are specifically prohibited by Revised Rule 3.6(b). Moreover, because of the proceedings at the trial court level, much of the information contained in the press release was already in the public domain. For example, the denial of evidence to support the claim was present in the Board's answer to the complaint. Finally, the release was intended not to prejudice a court proceeding, but to counter adverse publicity about the Board. In light of these factors, the press release would not "materially prejudice an adjudicative proceeding" pursuant to Revised Rule 3.6.

 

Inquiry #2:     

 

Does it matter that the release came from the Board rather than the attorney?

 

Opinion #2:   

 

Revised Rule 3.6 does not impinge upon the constitutional right of clients to make extrajudicial statements concerning their case. The rule, however, does place restrictions on attorneys' extrajudicial speech and that of their agents. If the above press release had a reasonable likelihood of materially prejudicing an adjudicative proceeding, and the Board was merely used as conduit by the attorney to make prejudicial statements the attorney could not, then the attorney violated Revised Rule 3.6.

 


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