Gag orders should be carefully crafted and 
sparingly used.

In a high-profile case, a judge has issued a gag order. What are the ethical considerations of a gag order and how does it affect my First Amendment rights as a lawyer?

Gag orders are rarely used. If they are used, it’s because the court has serious concerns that the trial will be tainted by pretrial publicity.

The rule involving pretrial publicity is found in Rule of Professional Conduct 3.6. That rule prohibits pretrial publicity by an attorney if the lawyer knows or reasonably should know that the publicity will have “a substantial likelihood of materially prejudicing an adjudicative proceeding.” There are specific examples of what is considered prejudicial and what is not in the rule. Any lawyer who has a case that involves publicity should carefully review Rule 3.6. The current rule was written after the famous case of Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). Attorney Dominic Gentile had gone to the press and publicly stated his belief in his client’s innocence. He did that in response to some prejudicial information issued by the district attorney. The court essentially adopted a substantial likelihood of material prejudice test and said that it satisfied the First Amendment. As a result of that case, Rule 3.6(c) was written, allowing a lawyer to make a statement that a reasonable lawyer would believe is required to protect the client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.

Gag orders are allowed but have been criticized at times. The case of United States v. Scarfo, 263 F.3d 80 (3rd Circuit, 2001), dealt with a gag order imposed on a lawyer who had been discharged from the case. That lawyer apparently had outlined some pretrial motions that had not been decided and that angered the trial judge. The lawyer challenged the gag order. The U.S. Court of Appeals for the Third Circuit noted that limitations on attorney speech must be narrow and necessarily and carefully aimed at comments likely to influence a trial or judicial determination. The court noted that gag orders were generally directed to problems that might pollute a jury pool. The court in that case noted the fact the trial judge was upset about reading in the paper about legal issues was not a sufficient reason to gag the former defense lawyer’s free speech rights. The court noted the gag order should only be entered to ensure fairness at trial or for speech that would materially impair or prejudice. The court reversed the gag order.

Therefore, a gag order cannot be issued without some evidence there will be prejudice. The test is essentially the same. Judicial anger at a lawyer speaking out on pretrial issues does not normally meet that test, as noted in Scarfo.

Having said that, every lawyer should be very careful about pretrial publicity, particularly in criminal matters. Although there is a school of thought that sophisticated manipulation of the media will create a favorable jury forum, that kind of thought process is defective. It is exactly what Rule 3.6 is meant to prevent. If the lawyer knows advertisements or media campaigns have a substantial likelihood of materially prejudicing an adjudicative proceeding or a jury panel, then the lawyer shouldn’t do it.

Manipulating the media to publish favorable articles about an issue or a case to affect the jury is unethical, as is written in Rule 3.6. It is particularly important that Rule 3.6 be followed because of the presence of the Internet, email, social media and the like. It is not just about reading the newspaper and seeing an unfavorable story. In reality, with modern communication, manipulative or unfavorable publicity never goes away and can severely taint a jury panel, either before or during the jury process. Although jurors are sternly instructed not to listen to the media, unfortunately many of them do not follow that instruction as rigorously as they should.

Therefore, it is incumbent on all lawyers to read Rule 3.6 and comply with it. That obligation is particularly important for prosecutors. Under Rule 3.8, the prosecutor is responsible for conduct by police officers or detectives, in terms of adverse pretrial publicity. The practice of law requires integrity on the part of the lawyers and an honor system to ensure that publicity will not taint a jury pool. Any systematic plan to do so, however creative, will not meet Rule 3.6 requirements and shouldn’t be utilized.

Courts do have the right, within certain limitations, to issue a gag order. The gag order has to be carefully crafted and should not be a total prohibition of any comments by attorneys on the case under existing case law.

Lawyers are responsible for the actions of their office staff.

I discovered that a former paralegal of mine, since her departure, has had contact with a client of the firm. She would have gained knowledge during her time with my law firm concerning the client’s businesses and assets, both of which are substantial but confidential. Do I have any obligation to do something?

The question is difficult and, in fact, illustrates the Achilles’ heel of any law firm. The attorney-client privilege and confidentiality are the cornerstone of any law firm. These have to be protected at all costs. It would be impossible for a lawyer to independently represent and provide advice to clients if confidential information could be revealed.

Obviously, a law firm doesn’t work in a vacuum. Every firm needs secretaries, paralegals, assistants, interns and more to get its mission accomplished. Many nonlawyer employees don’t always appreciate the confidentiality requirements, particularly younger employees who have not been with the firm long. As a result, the Rules of Professional Conduct contain Rules 5.1, 5.2 and 5.3, which essentially require a law firm to have in place measures to ensure that all members of a firm comply with the rules. These rules apply particularly to supervising lawyers, but also to subordinate lawyers and nonlawyer assistants. Rule 5.3 deals specifically with responsibilities toward nonlawyer assistants. Supervising lawyers have to make sure that nonlegal assistants’ conduct is “compatible with the professional obligations of the lawyer.” The lawyer can be held responsible from a disciplinary standpoint if he or she orders the conduct or knows of it at a time when the consequences can be avoided or mitigated, as in Rule 5.3. Comment 2 to Rule 5.3 requires lawyers to make reasonable efforts to establish internal policies and procedures to avoid this. When a new employee is hired, that employee should be given a copy of the Rules of Professional Conduct. These copies can be purchased from the secretary of the Disciplinary Board’s Office for $2.50. But more importantly, there should be a brief summary of the rules that every nonlawyer employee of a law firm must know. That would include confidentiality and the need to protect it. A nonlawyer employee has to know there are no exceptions.

Having said that, if a lawyer learns that the former paralegal has gone to a client and is involved to some extent in advising a client, the lawyer must immediately take appropriate steps. The lawyer should advise the client to be very careful about the former paralegal and dealing with that person. The lawyer also should reach out to the former employee and remind the paralegal of his or her confidentiality obligation. Failure to do so could result in the lawyer being responsible under Rule 5.3 for any misconduct or a breach of confidentiality. Years ago, there was a Pennsylvania Bar Association Informal Opinion on a similar factual scenario, which can be found at 94-173.

The bottom line is that a lawyer can be responsible for the conduct of his or her office staff. This is particularly true with the modern world of the practice of law, where nonlawyer assistants often move rapidly between firms. It’s very rare anymore for a secretary to stick at a firm for decades. 

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.