As published by The Daily Report

No matter the size of the client, many attorneys working on matters that may involve media requests will consider their obligations under Rule 1.4(a)(2) of the Model Rules of Professional Conduct, requiring an attorney to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” It is one of the great prides of our legal system that the courts are open to the public. Case materials become part of the public record so that society can be informed of developments that impact their daily world. One byproduct of an open courts system is that high-profile litigation may reach the front page of the paper or even, in some instances, create a media firestorm.

Although the public pleadings may provide significant fodder for the press, it is not uncommon for members of the media to ask attorneys to comment on their cases or the parties involved. The availability and instant access to social media can also prove tempting. Attorneys may even feel some pressure to engage in some trash-talking, however light, to provide a good sound bite.

Some litigation may be subject to gag orders or other limitations that impact what an attorney can tell the public about one of their cases. This article provides tips for attorneys seeking to balance their obligations of confidentiality with the risks of speaking to the media.

What Does the Client Want?

As with many strategic decisions impacting the representation, most attorneys working on high-profile matters will consult with their clients regarding a media strategy. The clients can provide permission or limits on how much they want their lawyers to do. Although, as noted below, the Model Rules of Professional Conduct provide some guidance on when an attorney is permitted to comment on an ongoing representation and what the limitations are, the client’s wishes are also paramount for most attorneys.

Some corporate clients will have official guidelines that expressly preclude public statements to the media without prior consent. Other clients may even have in-house public relations teams that are solely tasked with media communication.

No matter the size of the client, however, many attorneys working on matters that may involve media requests will consider their obligations under Rule 1.4(a)(2) of the Model Rules of Professional Conduct, requiring an attorney to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”

Is There a Risk of Material Prejudice?

Rule 3.6(a) of the Model Rules of Professional Conduct prohibits an attorney from making “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 rule can be tricky to interpret in practice. Even the comments to the rule acknowledge that “[i]t is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression.” The public may have a right to know, and a client may have a right to address public concern, but lawyers can find themselves getting in trouble for going too far.

The comments to the rule also identify circumstances regarding which public statements may be more likely to lead to prejudice. These include comments as to the character of a party to the litigation, a stated opinion as to a defendant’s guilt or innocence, or disclosing information that is likely to be inadmissible as evidence in a trial.

There are other arenas that the comments recognize are considered more fair game, such as information contained within a public record, a warning of danger to the public where there is a likelihood of harm, or a statement that an investigation is ongoing. The takeaway here is that the context and content of the public statement matters.

Who Started It?

Although it is reminiscent of family squabbles, it matters in these instances “who started it.” Indeed, even if an attorney is generally prohibited from making certain statements to the press, the lawyer may make a statement that “a reasonable lawyer would believe is required to protect a client” from the harm of recent publicity initiated by someone else. Rule 3.6(c).

In those circumstances, if someone other than the client or the attorney initiated recent publicity, that attorney may then make a statement “limited to such information as is necessary to mitigate the recent adverse publicity.” Thus, attorneys may be able to make statements that would otherwise not be permitted by Rule 3.6(a) if those statements are narrowly aimed at rebuttal. This is because, as the comments to Rule 3.6 recognize, “responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.”

Does Your Firm Have a Policy?

In addition to checking with the client, many attorneys facing media inquiries for their matters will discuss their options internally before making a comment. Some law firms have media policies in place or even an internal media department to help attorneys navigate the media. Separately, attorneys may find that they benefit from additional minds weighing in on the strategy and approach to media discussions to help ensure both ethical compliance and that the firm is best serving the client’s needs.

Even if asked for general comment on an unrelated case, an attorney may want to discuss internally to avoid inadvertently commenting on issues that could damage or embarrass other firm clients.

Each court or judge may have a standing order addressing public statements to the media. Thus, attorneys would be well-served by making sure that they are not at risk of being called to chambers over their extrajudicial statements. Further, if a course of action violates a gag or other order, the attorney may be sanctioned by the court or the bar for making public statements—even if the attorney’s statements otherwise comply with the rules of professional conduct in the absence of a gag order.

Interacting with the media or posting statements on social media regarding a representation can be a minefield. By considering the relevant ethical rules, however, attorneys can take steps to best serve their clients while navigating the public interest.