After the physical separation over the last few years while courts implemented social-distancing measures, media scrutiny (and, in some instances, hysteria) is unwavering when it comes to flashy legal disputes. Journalists and court watchers alike continue to seek comments from attorneys handling the cases as well as from their clients, either on the footsteps of the courthouse, on a radio show, or during a guest appearance on a cable news show.

Attorneys may be tempted to engage with the media as a means to shape public perception or participate in some public sparring to grab headlines. But such practices can create risks for both attorney and the client, particularly in light of the ethical rules about lawyers engaging with the press.

Here are some practical pointers for attorneys trying to strike a balance between their ethical obligations with the risks (and benefits) of speaking with the media.

Consult With the Client

Rule 1.4(a)(2) of the California Rules of Professional Conduct requires attorneys to "reasonably consult with the client about the means by which to accomplish the client's objectives in the representation." Depending on the case, the "means" may include a media plan or strategy. Although the Rules of Professional Conduct provide some guidance on when an attorney can comment on an ongoing representation, many attorneys take steps to ensure that the media strategy is consistent with the client's wishes (in addition to being within the parameters of permissible commentary).

The extent to which the client will control the media strategy will inevitably vary. In some instances, clients may place limits on the amount and frequency of media engagement or public comment by their attorneys. Clients may also require approval of the type of information that is injected into the media by their attorney's comments. Indeed, some corporate clients have official guidelines that place hard-and-fast rules on media strategy, such as expressly requiring prior authorization before making statements to the media. Other clients may even require attorneys to consult with the client's in-house teams that monitor media communication.

Discussing some of these issues early on in a representation can help manage expectations.

Review the Firm's Policy and Procedure

The client may not be the only one influencing the attorney's media strategy. Attorneys facing media inquiries will often discuss their options internally at their law firm before issuing a public statement. In fact, some law firms have implemented specific media policies or have an internal media department to assist their attorneys with handling and navigating the media landscape.

Some attorneys also find it helpful to consult with other firm attorneys and professionals regarding a contemplated media strategy to help ensure compliance with ethical obligations and the client's objectives. Discussing with other colleagues could also mitigate the risk of inadvertently raising issues in a media statement on behalf of one client that could potentially embarrass or harm other firm clients.

Consult the Rules of Professional Conduct and Standing Orders

For attorneys involved in a court case, Rule 3.6(a) of the California Rules of Professional Conduct prohibits them from making "an extrajudicial statement that the lawyer knows or reasonably should know will (i) be disseminated by means of public communication and (ii) have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." This rule can be challenging to execute in practice. Indeed, some have observed that it presents an inherent tension between the right to freedom of expression and the right to a fair trial.

Rule 3.6(b) sets forth areas that are considered more fair game for public comment, including information about the claim and defenses involved, information contained in a public record, confirmation that an investigation is ongoing, or a reasonably necessary warning of danger regarding a "person involved when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public." In other words, the context and content of the public statement matters.

Attorneys may find themselves in hot water with the court or the bar if they go too far. Comment [1] provides some guidelines to determine whether extrajudicial statements violate Rule 3.6.  Relevant factors include whether the statements provide information that is clearly inadmissible as evidence in the case, whether the attorney knows the information is false or deceptive, and whether the statement "violates a lawful 'gag' order" or other order. Courts may even have standing orders specifically addressing statements to the media by parties and attorneys.

Rule 3.6(a) makes clear that an attorney risks being sanctioned for making public statements or comments to the media in violation of a gag order or any other applicable standing order. The attorney may be sanctioned even if the statements otherwise comply with the Rules of Professional Conduct.

The Public Rebuttal

An attorney may, pursuant to Rule 3.6(c), "make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity" not initiated by the client or the client's attorney. The attorney's statement, however, must be "limited to such information as is necessary to mitigate the recent adverse publicity." Rule 3.6(c). Thus, attorneys may be able to make statements that would otherwise not be permitted by Rule 3.6(a), if those statements are narrowly tailored as a rebuttal.

Interacting with the media regarding a representation can be a minefield. Nevertheless, by considering the relevant ethical rules, attorneys can take steps to best serve their clients while remaining compliant with their ethical obligations.