20.07.03. General limitations [Rule 3.6]

All lawyers (including prosecutors) are prohibited from making extrajudicial statements that the lawyer “knows or reasonably should know” will be disseminated publicly and that will have “a substantial likelihood of materially prejudicing an adjudicative proceeding….” under Rule 3.6(a).  The Comment lists a number of statements that are presumptively prejudicial and should be avoided:

• “character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness.”
• In a criminal case:  “the possibility of a plea of guilty to the offense or the existence or contents of any confession, amission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement”
• “the performce or result of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented”
• “any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration”
• “information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial”
• “the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.”[1]

Rule 3.6(b) also includes a list of statements that fall within a “safe harbor” which means they may be said even though they have a likelihood of prejudicing a proceeding:

• “the claim, offense, or defense involved and, except awhen prohibited by law, the identity of the persons involved”
• “information contained in a public record”
• “that an investigation of a matter is in progress”
• “the scheduling or result of any step in litigation”
• “a request for assistance in obtaining evidence and information necessary thereto”
• “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 interest”
• in a criminal matter:  “(i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.”

It would raise constitutional concerns if a lawyer was prohibited from speaking if someone (not the lawyer or the lawyer’s client) made statements that was likely to harm the lawyer’s client, but the lawyer could not respond.  To address this, the rule provides a limited right to respond to publicity – that was not the created by the lawyer or the client.  If the lawyer reasonably believes that a statement made by someone else could have “substantial undue influence” the lawyer may make a statement in response, but the response is limited to what is necessary to mitigate the adverse publicity.[2]

[1] ABA Rule 3.6, Comment [5].

[2] ABA Rule 3.6(c).