It is one of the great hallmarks of our legal system that the courts are open to the public. One byproduct of an open courts system is that high-profile matters may become front-page news or even, in some instances, create a media frenzy. Although physical access to the courts has been restricted throughout the pandemic, journalists are still finding ways to stay abreast of high-profile litigation and keep the public informed.

Notwithstanding the implementation of social-distancing measures and the potential slowdown of in-person courthouse gossip, members of the media continue to seek comments from lawyers regarding their cases and the parties involved. Lawyers may even feel more pressure than usual to engage with the media to help shape public perception due to courthouse changes. In certain situations, lawyers may find it tempting to participate in some public sparring to provide a good sound bite.

Rule 1.4(a)(2) of the ABA Model Rules of Professional Conduct requires a lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished,” which can include a media plan. Here are some tips for lawyers seeking to balance their obligations of confidentiality with the risks (and benefits) of speaking to the media.

Consider the risk of material prejudice

ABA Model Rule 3.6(a) prohibits a lawyer 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 challenging to execute in practice. The comments to the rule even 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.” While the public may have a right to know, and a client may have a right to address public concern, lawyers can find themselves in trouble for going too far.

The comments to the rule also identify circumstances where 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. Nonetheless, there are other arenas that are recognized to be 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 ultimate takeaway is that the context and content of the public statement matters.

Rebutting public statements

Notwithstanding the above, the lawyer may make a statement that “a reasonable lawyer would believe is required to protect a client the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.” Rule 3.6(c). In those circumstances, if someone other than the client or the lawyer initiated recent publicity, that lawyer may then make a statement “limited to such information as is necessary to mitigate the recent adverse publicity.” Rule 3.6(c).

Thus, lawyers may be able to make statements that would otherwise not be permitted by Rule 3.6(a), if those statements are narrowly tailored to issue a 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.”

Check the rules

Each court or judge may have a standing order addressing public statements to the media. If a course of action violates a gag order or any other standing order, the lawyer may be sanctioned by the court or the bar for making public statements—even if the lawyer’s statements otherwise comply with the rules of professional conduct in the absence of the gag order.

Interacting with the media or posting statements on social media regarding a representation can also be a minefield. Nevertheless, by considering the relevant ethical rules, lawyers can take steps to best serve their clients while navigating the public interest in the matter.

Communicate with your client

As with many strategic decisions influencing the legal representation, lawyers working on high-profile matters can consult with their clients regarding a media strategy. Although the Rules of Professional Conduct provide some guidance on when a lawyer is permitted to comment on an ongoing representation and what the limitations are, the client’s wishes are also paramount for most representations. 

Clients can grant permission or place limits on how much press they want their lawyers to do and can also approve of the type (or amount) of information that is put out there. For instance, 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 monitoring media communication.

Consult law firm policy and procedure

Many lawyers facing media inquiries for their matters will discuss their options internally in their law practice before issuing a public statement. Some law firms have media policies in place or an internal media department to help lawyers navigate the media landscape. 

Separately, lawyers may find it beneficial to receive input from additional lawyers or professionals weighing in on the strategy and approach to media discussions to help ensure ethical compliance and that the firm is best serving the client’s needs. For many lawyers practicing in firms, even if asked for general comment on a case, they can still consider having an internal discussion with their firm colleagues to avoid inadvertently commenting on issues that could potentially embarrass or harm other firm clients.