As attorneys, we are often confronted with the difficult question of how to respond to inquiries from the media. Due to the public nature of our courts and legal system, the filing of a lawsuit, indictment, or other legal proceeding can immediately result in a deluge of inquiries from reporters, bloggers, and other members of the media. Although lawyers are usually well-trained on how to communicate about legal issues to a judge or jury, they may not be as familiar, or as comfortable, with media communications. On the other hand, lawyers may be tempted to engage with the media in an effort to shape public perception of their clients’ matters. However, lawyers have certain legal and ethical standards that govern their communications with the media regarding pending cases. See In re Sawyer, 360 U.S. 622 (1959); see also Tex. Disciplinary R. Prof’l Conduct 3.07(a) (prohibiting lawyers from making statements out of court that “a lawyer knows or reasonably should know . . . will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.”). Therefore, before commenting on a case or proceeding, it is important for attorneys to understand the contours of these standards so they can protect not only the interests of their clients, but themselves as well.
Client Expectations and Objectives
First and foremost, lawyers should communicate with their clients before initiating media communications or responding to a request for comment. Rule 1.4(a)(2) of the ABA Model Rules of Professional Conduct states that a lawyer must “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” This may include a plan on how to address interactions with members of the media. Lawyers should discuss these matters with their clients at the outset so clients are able to meaningfully balance considerations of confidentiality, privilege, public perception, and the risks and benefits of speaking to the media.
Restrictions on Extrajudicial Statements
Even when a client authorizes a statement or communication, the statement may still violate the lawyer’s professional ethical obligations. 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.” State bar ethics rules contain similar, if not identical, provisions. See e.g., Tex. Disciplinary R. Prof. Conduct 3.07(a); N.Y. R. Prof. Conduct 3.6; Cal. R. Prof. Conduct 5-120.
In Gentile v. State Bar of Nevada, the Supreme Court of the United States set forth the standard for whether a professional restriction on an attorney’s speech violates the First Amendment. 501 U.S. 1030 (1991). In Gentile, a criminal defense attorney was disciplined by the State Bar of Nevada after conducting a press conference in which he asserted that “the State sought the indictment and conviction of an innocent man as a ‘scapegoat’ and had not ‘been honest enough to indict the people who did it; the police department, crooked cops.'” Id. at 1034. In a pair of splintered opinions, the Court held that states are permitted to restrict attorney speech if it has a substantial likelihood of prejudicing pending legal proceedings. Id. at 1074-75.
The comments to ABA Model Rule 3.6(a) note that preserving the right to a fair trial necessarily entails a curtailment of information that may be disseminated before trial. This is particularly true when a jury is involved. The comments recognize, however, that society has an interest in the free dissemination of information about legal proceedings and their consequences. As such, a balance must be struck between protecting the right to a fair trial and safeguarding the right of free expression.
Specific Statements and Circumstances
There are certain specific statements that the rule recognizes will not ordinarily result in material prejudice. Under ABA Model Rule 3.6(b), a lawyer may state the claim, offense or defense involved, the identity of the persons involved (except when prohibited by law), information contained in a public record, that an investigation of a matter is in progress, the scheduling or result of any step in litigation, a request for assistance in obtaining evidence, and a warning of danger concerning the behavior of a person involved, if there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest. Additionally, in a criminal case, an attorney may state the identity, residence, occupation, family status of the accused, if the accused has not been apprehended, information necessary to aid in apprehension of that person, the fact, time and place of arrest, and the identity of investigating and arresting officers or agencies and the length of the investigation.
The comments also identify circumstances where public statements may be more likely to lead to prejudice. These include comments as to the character, credibility, or reputation of a party, an opinion as to a defendant’s guilt or innocence in a criminal proceeding, or disclosing information that is likely to be inadmissible as evidence and that would, if disclosed, create a substantial risk of prejudicing an impartial trial.
Also relevant to the issue of prejudice is the nature of the proceeding. In general, criminal jury trials will be the most sensitive to extrajudicial speech, while civil trials are considered to be less sensitive. Non-jury hearings or arbitrations are even less sensitive than civil trials. Although there are still limitations on prejudicial statements, regardless of the nature of the proceeding, the likelihood of prejudice may vary.
Timing is another critical issue when it comes to public statements. Plainly, a statement to the media on the eve of trial, or immediately before a jury begins its deliberations, could have a greater prejudicial effect. But statements made long before a proceeding may have their prejudicial impact lessened. Similarly, statements that are made after a hearing, trial, or other proceeding is resolved are much less likely to result in material prejudice. Nonetheless, attorneys should not feel completely free to comment publicly on a matter simply because it is resolved. There is often a possibility of appeal, re-hearing, or a new trial at some point in the future. Therefore, attorneys should ensure that a matter is finally resolved before making comments that have any likelihood of prejudicing a future proceeding.
Under ABA Model Rule 3.6(c), a lawyer may make a statement that a is required to protect a client from the substantial undue prejudicial effect of recent publicity, so long as it was not initiated by the lawyer or the lawyer’s client. Such statements can be made even if they would be impermissible under Rule 3.6(a), so long as the statement is narrowly tailored and designed to rebut a public statement. Additionally, responses to recent publicity must be limited to such information as is necessary to mitigate the recent adverse publicity.
Courts have also recognized the dilemma an attorney faces when a client’s case receives significant public attention. Although an attorney may always decline to comment, or turn to the tried-and-true statement that a client is always innocent until proven guilty, such responses forego an opportunity to proactively counter allegations and may even be seen as tacit admissions of guilt or liability. The 7th Circuit acknowledged this difficulty when it stated that “the scales of justice in the eyes of the public are weighed extraordinarily heavy against an accused after his indictment,” and a “bare denial and a possible reminder that a charged person is presumed to be innocent until proved guilty is often insufficient to balance the scales.” Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 250 (7th Cir. 1974). Therefore, as the ABA Model Rules permit, it may be appropriate for an attorney to publicly defend a client in order to balance the scales.
Oberheiden P.C. takes its obligations under the rules of professional conduct, and any other applicable law, into account when it issues statements to the media regarding ongoing client matters. Primarily, our firm considers the goals and objectives of our clients when deciding whether to issue a public statement. At the same time, it is important for any public statement to comport with the ethical obligations, discussed above.
For example, it was reported in February of 2022 that a firm client and the head of Homeland Security in Michigan and Ohio, Vance Callender, had been suspended following a search of his home by federal investigators. Partner Nick Oberheiden was asked to comment on the investigation, but declined to discuss its focus or what, if anything, was seized during the search. Mr. Oberheiden noted that he does not participate in discussions that could infringe upon the presumption of innocence and stated that he could only “confirm we have entered a dialogue with investigators.” By limiting his statements to information contained in the public record, and by merely noting that an investigation was in progress, Mr. Oberheiden avoided making any statement that could even potentially create any likelihood of material prejudice to a future adjudicative proceeding. Mr. Oberheiden was also quoted as saying “Special Agent-in-Charge Callender is a highly decorated federal law enforcement official whose security and reputation are our top priority. That said, some rumors about him online are incorrect. To the extent, Mr. Callender is required to enforce or defend his rights, he is prepared to do so.” As set out in Rule 3.6(c), a lawyer is permitted to protect his or her client from adverse publicity that was not initiated by the lawyer or client. This statement concerned public information and was strictly limited to what was necessary to mitigate recent adverse publicity.
In another instance, Oberheiden P.C. represented an individual, Changcheng Li, who was charged with conspiracy to commit interstate transportation of stolen property. When asked for comment, Mr. Oberheiden stated that Mr. Li was “prepared to challenge these allegations in court,” and that “like all defendants, Mr. Li is entitled to a presumption of innocence and a fair trial, and he is looking forward to telling his side of the story in court.” Significantly, Mr. Oberheiden’s comments were limited to the general nature of legal proceedings and the right every defendant has to the presumption of innocence and fair trial. These comments avoided expressing an opinion about Mr. Li’s character, credibility, or reputation, and specifically avoided stating an opinion as to Mr. Li’s guilt or innocence.
As these examples demonstrate, lawyers have a number of options when issuing public statements about an ongoing case. However, any statements must be carefully considered in light of both the client’s wishes and the lawyer’s professional ethical obligations. Ultimately, the key inquiry is whether, and to what extent, a future fact-finder may be exposed to and influenced by a lawyer’s statement. Lawyers should consider the nature of any potential adjudication, whether it is going to happen in the near future, and whether the statement is of a type that will ordinarily result in material prejudice or not. In all cases, the above information and rules should be taken into account when drafting extrajudicial statements.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.