Litigation & Advocacy · 10-16% of the exam
15.1.1Trial Publicity: The General Rule and Safe-Harbor Statements (Rule 3.6(a)–(b))
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- Rule 3.6(a)–(b) — Trial publicity: prohibition and safe harbor
Free expression and the right to a fair trial pull in opposite directions when a case goes public. Rule 3.6 resolves the tension with an objective standard: does the statement carry a substantial likelihood of materially prejudicing the proceeding? Intent is irrelevant; probable effect controls.
Why
Jurors live in the world and read what is in it. A case argued in public before it is argued in court can arrive at the courtroom already settled, and the side with the better press operation would collect an advantage the record did not give it. Shutting lawyers up altogether would cost the public any view of how its courts work.
Plain English
A lawyer who is or has been participating in the investigation or litigation of a matter may not make an extrajudicial statement the lawyer knows or reasonably should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing the proceeding.
Dry facts stay open — among them the claim, offense, or defense involved, information already contained in a public record, and the scheduling or result of any step in litigation — with additional permissible facts in criminal cases. Paragraph (b) is not an exhaustive listing of what a lawyer may discuss; a statement on a subject outside it is not automatically prohibited but is measured against paragraph (a).
Rule
Rule 3.6(a)–(b) — Trial publicity: prohibition and safe harbor
General prohibition (Rule 3.6(a)): A lawyer who is or has been participating in the investigation or litigation of a matter shall not make an extrajudicial statement the lawyer knows or reasonably should know
will be disseminated by public communication, and
will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
(This standard survives First Amendment challenge; so held in Gentile v. State Bar of Nevada.)
Witness disparagement: Derogatory or disparaging public statements about a witness in a pending matter almost always meet the material-prejudice threshold and are presumptively prejudicial under (a) unless within a (b) safe harbor; the right of reply does not ordinarily extend to disparaging a witness's character.
Additional elements:
Rule 3.6(d): the prohibition reaches all associated lawyers, not only lead trial counsel.
Rule 8.4(a): it is professional misconduct for a lawyer to violate or attempt to violate the Rules, knowingly assist or induce another to do so, or do so through the acts of another.
Permissible "dry fact" statements (Rule 3.6(b)):
- The claim, offense, or defense involved, and (except when prohibited by law) the identity of the persons involved.
- Information already contained in a public record.
- That an investigation of the 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 substantial harm to an individual or the public interest is likely.
- In criminal cases (additional permissible facts): identity, residence, occupation, and family status of the accused; information needed to aid apprehension of a fugitive; the fact, time, and place of arrest; and the identity of investigating and arresting officers and the length of the investigation.
Not an exhaustive list (Comment [4]): Paragraph (b) is not intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement; statements on other matters may be subject to paragraph (a). A subject on neither list is judged under (a)'s substantial-likelihood test, not prohibited by omission.
Presumptively prejudicial under (a) (unless within a (b) safe harbor):
Comment [5]: character, credibility, reputation, or criminal record of a party, suspect, or witness; witness identity; or the expected testimony of a party or witness.
Comment [5]: in criminal or incarceration-risk cases: the possibility of a guilty plea; the existence or contents of any confession, admission, or statement by the defendant or suspect; or that person's refusal or failure to make a statement.
Comment [5]: the performance or results of any examination or test; the refusal or failure to submit to one; or the identity or nature of physical evidence expected to be presented.
Comment [5]: in criminal or incarceration-risk cases: opinion as to guilt or innocence of a defendant or suspect.
Comment [5]: information the lawyer knows or reasonably should know is likely inadmissible that would create a substantial risk of prejudicing an impartial trial.
Comment [5]: a statement that a defendant has been charged, unless accompanied by an explanation that the charge is merely an accusation and the defendant is presumed innocent until proven guilty.
Example 1
Ex. 1
Sara represents Tom, arrested on federal wire-fraud charges. At a press conference, she announces the specific charges and identifies Tom as the defendant, which is permissible. She then describes Tom as having a pristine background and being beloved by everyone who knows him, placing the accused's character and reputation before the public in exactly the way Rule 3.6 prohibits. She closes by reading from the publicly filed arrest report to challenge the government's timeline, which is permitted because it draws solely on information already in a public record. Bracket Sara's three statements and rule on each one alone — only the middle one is the problem.
A non-lead lawyer from the same firm makes a prejudicial press statement. The firm connection matters: Rule 3.6(d) extends the prohibition to all lawyers in the same firm or government agency regardless of personal involvement.
"Dry facts" equal safe harbor — Rule 3.6(b)'s "notwithstanding paragraph (a)" language makes each (b) category categorical, so a statement fitting a (b) safe harbor is permissible even when its content would otherwise be presumptively prejudicial. Every presumptively-prejudicial category connects directly to prejudice risk under (a). But the two lists are not a closed world: paragraph (b) is not exhaustive, so a statement on a subject in neither list is answered by applying (a) to it.
Questions · 2
Q 01ch15-e01
Question 1 of 2 · Rule 3.6(b)(2)
Attorney represented Plaintiff in a civil suit over a warehouse roof collapse, set for trial before a jury in four months. Defendant had listed its site supervisor as a witness expected to testify about the roof inspections. A local newspaper reporter asked Attorney about the strength of the case during a break in a scheduling hearing. Attorney answered that the site supervisor had been convicted of falsifying inspection logs six years earlier, and that the judgment of conviction sat in the same courthouse's public files, open to anyone who asked for it. Attorney said nothing else about the evidence or about the testimony either side expected. Attorney knew the answer would run in the next morning's edition. Is Attorney subject to discipline?
Keys 1 to 4 choose.