Current Model Rule 3.6. Of the ethics rules that bear on a lawyer’s interactions with the media, none is more significant than ABA Model Rule (MR) 3.6 and its state counterparts. A quick look at the architecture of the rule reveals four components: (1) the rule, (2) a list of illustrations, (3) an exception, and (4) a provision extending the rule to all lawyers associated in a firm or office.
MR 3.6(a) is the foundational rule and prohibits a lawyer who is participating or has participated in the investigation or litigation of a matter from making any 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.
MR 3.6(b) gives a list of typically permitted statements—ones that will not ordinarily violate Section (a). Comment [5] sets out a list of impermissible topics.
MR 3.6(c) creates what may be called its “fair reply” exception, the only exception found in MR 3.6. It allows a lawyer to reply to negative publicity about a client. The exception does not limit a lawyer to responding to publicity generated by an opposing lawyer or client. Negative publicity from a third party, such as a newspaper or television news, can trigger the exception. There are two important limitations on this right of fair reply. The first is a sort of contributory fault or “unclean hands” component, which states that neither the lawyer nor the client can have initiated the publicity. The second is that the responsive statement should contain only information necessary to mitigate undue prejudice created by the statements others made.
MR 3.6(d) addresses application of the rule to lawyers in a firm or government agency who are not personally involved in a case. Section (d) eliminates the possibility that a lawyer can evade MR 3.6’s restrictions by having another lawyer in his or her office make public statements prohibited by Section (a).
MR 3.6’s obligations apply to prosecutors just as they do to criminal defense lawyers and civil litigators. MR 3.8(f) also imposes responsibilities on a prosecutor regarding publicity. This provision has two focal points: statements that could increase public condemnation and the exercise of reasonable care to control public statements by others working with the prosecutor.
MR 3.6 also presents interpretative challenges. One is the task of assessing under MR 3.6(a) whether a particular statement will have a substantial likelihood of creating material prejudice. Another is whether under MR 3.6(c) a lawyer’s public reply to a prior public statement is required to protect a client from substantial undue prejudice. https://bit.ly/2Ujr5lW
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