The phone rings. It’s a reporter asking you to comment regarding your company’s lawsuit and provide a copy of the complaint. Or maybe it’s your company’s chief executive or press spokesperson, seeking your statement for the company’s upcoming press release regarding your adversary’s alleged wrongdoing. What should you say? Counsel often face this difficult question when determining whether and what to communicate to the media about pending litigation, particularly during a trial. When deciding how to answer, you should carefully consider your ethical obligations and the company’s potential civil liability, not just the benefits that a media statement might bring to your company.
Thoughtful counsel wants to be sensitive to ethical obligations. Most states have adopted ethical rules specifically addressing communications to the media during trial. These rules are designed to insure that a lawyer’s comments do not impair the fairness of judicial proceedings. While ethical rules vary state-to-state, many are similar to Rule 3.6 of the ABA Model Rules of Professional Conduct. In general, Rule 3.6(a) prohibits lawyers involved in litigation from making an extrajudicial statement that is likely to be disseminated publicly if the statement is substantially likely to materially prejudice the proceeding. The determination of whether a public statement is likely to prejudice a proceeding involves a number of considerations, such as the timing of the statement and the type of proceeding involved. The comments to Rule 3.6 note which subjects are more likely than not to be prejudicial.
Conversely, Rule 3.6(b) provides a non-exhaustive list of permitted statements, including those addressing the claim or defense involved, information contained in a public record and the status of the case. Moreover, Rule 3.6 and the accompanying comments recognize that a lawyer’s statements can sometimes facilitate fairness. For example, you can and should make a public statement where a reasonable lawyer would believe it is needed to mitigate the prejudicial effect of uninitiated publicity concerning your client.
While it appears rare, discipline for violating trial publicity rules does happen. In one case, for example, a defense lawyer received a public reprimand for violating Indiana’s version of Rule 3.6 and thereby compromising the likelihood of a fair trial, by submitting a letter to newspapers stating that his client was innocent, noting that she had passed a lie detector test, and criticizing the prosecutor’s decision to retry the case. An ethical rule limiting counsel’s right to speak publicly has withstood First Amendment challenge.
Simply complying with ethical rules should not be the only concern of in-house counsel when considering whether to communicate with the media on the company’s behalf. Potentially, statements to the media can be defamatory or cause financial injury to the subject of the statement. As a result, counsel must also be sensitive to the potential for tort liability to the subject of any defamatory media communications.
Regarding exposure to defamation liability, there is a clear difference between statements that counsel (or counsel’s client) made within the judicial proceeding and extrajudicial statements made directly to the press. Under the law applicable in most states, a lawyer and client are immunized from liability by an absolute “litigation privilege” for defamatory statements pertinent to a case that are made during the course of the judicial proceeding, such as those made in pleadings, briefs, discovery or court appearances. This privilege is designed to allow lawyers and their clients to advocate their positions vigorously in court proceedings without fear of defamation or other tort liability for their statements.
But can the lawyer repeat to the press, outside of court, the defamatory statements originally made at trial? The law in most jurisdictions provides a “fair report” privilege that allows the press and other third parties to provide fair and accurate reports of defamatory statements made by participants in judicial proceedings. However, in most states that have considered the issue, the fair report privilege does not protect a lawyer (or client) who makes defamatory statements outside the confines of the judicial proceeding, even when the statements merely repeat what the lawyer (or client) said within the proceeding. In these jurisdictions, there may be no privilege to protect lawyers who communicate to the media by merely disseminating the complaint or repeating their defamatory in-court statements. Conversely, in a small number of states, you are protected under the fair report privilege, either by statute or common law, where you repeat your own defamatory, trial statement to the press.
Although these ethical and liability issues may lead you to prefer to say “no comment,” you owe it to your client to consider whether a public statement may serve your client’s best interests. When considering whether and what to communicate to the media during trial, you should carefully review the existing public record, reflect on your client’s goals, review carefully the content of proposed press statements and research the relevant jurisdiction’s law regarding ethical standards and the fair report privilege. But your client has an interest in correcting a misleading or unfair representation and the scope of your duties may compel a public response, within ethical and legal limits, to protect your client’s interests.