Disciplining Lawyers for Speaking about Pending Cases

Lawyers sometimes believe that it is important to influence public opinion as part of the representation of a client. Perhaps the aim is to present a favorable case to potential jurors, or perhaps the client is a public figure whose reputation may be affected by the outcome of the proceedings. In any event, when lawyers discuss a pending case at a news conference or make statements to reporters, these extrajudicial comments may have a negative impact on the fairness of the trial process. Courts and bar associations therefore seek to limit speech concerning pending cases. These limitations pose a conflict between two constitutional rights: the First Amendment press-freedom guarantee and the litigants’ right to a fair trial, protected by the Sixth Amendment.

The Supreme Court has tried to balance these rights. After a mid-century trial accompanied by a media frenzy, the Court granted a writ of habeas corpus sought by a doctor who had allegedly killed his wife, on the grounds that the publicity prevented him from receiving a fair trial (Sheppard v. Maxwell, 384 U.S. 333, 1969). In the wake of the Sheppard case, many states adopted rules to limit extrajudicial statements by lawyers. The Court considered a First Amendment challenge to one of these rules and concluded in a divided decision that many existing rules were unconstitutionally vague (Gentile v. State Bar of Nevada, 501 U.S. 1030, 1991). The rule in effect in most jurisdictions now prohibits a lawyer from making an extrajudicial statement that will have a ‘‘substantial likelihood of materially prejudicing an adjudicative proceeding.’’

W. BRADLEY WENDEL

References and Further Reading

• Cole, Kevin, and Fred Zacharias, People v. Simpson: The Agony of Victory and the Ethics of Lawyer Speech, Southern California Law Review 69 (1996): 1627–1678.

Cases and Statutes Cited

• Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)
• Sheppard v. Maxwell, 384 U.S. 333 (1969)
• ABA Model Rules of Professional Conduct, Rule 3.6 (2002)

See also Cameras in the Courtroom; Due Process; Gag Orders in Judicial Proceedings; Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); Right of Access to Criminal Trials; Rights of the Accused