Litigation & Advocacy · 10-16% of the exam
15.1.2The Right of Reply and Extra Prosecutorial Duties (Rule 3.6(c)–(d); Rule 3.8(f))
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- Rule 3.6(c)–(d) and Rule 3.8(f) — Right of reply and prosecutorial constraint
A lawyer may respond to recent adverse publicity the lawyer and the client did not initiate, whatever its source; prosecutors carry an added constraint under Rule 3.8(f) that operates independently.
Why
A restriction that only silenced the lawyer would leave the client exposed to publicity coming from somewhere else, and the client would end up paying for the lawyer's compliance. The reply provision keeps the restraint from operating in one direction only. A prosecutor stands differently again, because a prosecutor speaks with the state audible behind the words.
Plain English
A lawyer may make the statement a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the client, whatever its source — limited to the information necessary to mitigate it. What travels across the firm or agency is the prohibition: no lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) may make a statement paragraph (a) prohibits.
A prosecutor additionally may not make extrajudicial comments with a substantial likelihood of heightening public condemnation of the accused, except statements necessary to inform the public of the nature and extent of the prosecutor's action that serve a legitimate law-enforcement purpose, and must use reasonable care to keep investigators, law-enforcement staff, and other assisting persons from making statements the prosecutor could not.
Rule
Rule 3.6(c)–(d) and Rule 3.8(f) — Right of reply and prosecutorial constraint
Right of reply (Rule 3.6(c)): A lawyer may 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 lawyer or the lawyer's client.
The statement must be limited to information necessary to mitigate the adverse publicity.
Associated lawyers (Rule 3.6(d)): No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement paragraph (a) prohibits. Paragraph (d) reaches only statements paragraph (a) prohibits; a reply statement is carved out of paragraph (a) by paragraph (c)'s own "notwithstanding" clause, so a colleague in the firm or agency may make one on the same terms as any other lawyer.
Extra prosecutorial duty (Rule 3.8(f)): A prosecutor shall not make extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused, except statements necessary to inform the public of the nature and extent of the prosecutor's action that serve a legitimate law-enforcement purpose; the prosecutor must also use reasonable care to prevent investigators, law-enforcement staff, and other assisting persons from making statements the prosecutor could not.
This is an obligation in addition to Rule 3.6.
A statement may satisfy Rule 3.6(a)'s substantial-likelihood-of-material-prejudice test and still violate Rule 3.8(f).
Example 1
Ex. 1
Plaintiff's counsel holds a press conference during a civil fraud trial, calling defendant Ben "a serial fraudster who has robbed dozens of families." Ben's defense lawyer, Carla, calls her own press conference the following morning. She describes Ben's two decades of charitable work and his role founding a local food bank. The right of reply permits this response. Plaintiff's counsel initiated the prejudicial publicity, not Ben's side. Carla limits her remarks to information that directly counters the "fraudster" characterization and doesn't wander into unrelated favorable claims. The response is proportionate and necessary. If Carla had also attacked opposing counsel's professional conduct, that additional material would exceed what the right of reply permits. It would need its own justification. Order the two press conferences on a timeline, then read Carla's remarks against the one that came first.
Trap
Questions · 3
Q 01ch15-e03
Question 1 of 3 · Rule 3.6(c)
Attorney represented Employer in a wrongful-termination suit brought by a former warehouse worker. Two weeks before jury selection, Plaintiff's publicist held a televised press conference describing Employer as a workplace bully that had driven three sick employees onto the street. Attorney had said nothing public about the case up to that point, and neither had Employer. The next morning Attorney issued a short written statement describing Employer's paid medical-leave policy and its record of taking workers back after long absences. Attorney said nothing about Plaintiff, the witnesses, or the merits of the claim. Was Attorney's conduct proper?
Keys 1 to 4 choose.