Permitted Statements

Permitted Statements

Paragraph (b) of Rule 3.6 opens with the words “Notwithstanding paragraph (a), a lawyer may state:” and then lists the public statements a participating lawyer is free to make.¹ The word “notwithstanding” fixes how the two paragraphs relate: when a statement fits a listed category, paragraph (b) controls, even though the speaker is a covered lawyer and the statement is public and extrajudicial. Paragraph (a) alone would leave routine announcements, such as that a hearing has been set or that a suspect has been arrested, to an uncertain forecast of prejudice. Paragraph (b) settles the answer in advance for the categories it names, so an exam answer that finds a statement within paragraph (a) must still run it against the list before declaring a violation. The list also matters only to a lawyer already inside paragraph (a), because the rule reaches only attorneys who are or have been involved in the investigation or litigation of the matter.²

The categories rest on two justifications, and keeping them apart makes the list easier to remember. Some statements are cleared because they carry little risk: not every public statement by a participating lawyer threatens the fairness of a trial, and the basic-information categories below are the plainest examples.³ Others are cleared because the public interest in being informed about the legal system, or in being warned about threats to public safety, may outweigh the opposing concerns and justify disclosure even where some risk remains.⁴ When you apply a category, ask which justification supports it.

The list is not exhaustive.⁵ A statement that fits no category is not forbidden for that reason, because paragraph (a) still requires a covered lawyer, a public extrajudicial statement, and a substantial likelihood of materially prejudicing the proceeding, and a statement missing any one of those elements does not violate the rule.⁶ The categories fall into four groups, taken in turn below: information already in a public record; basic facts about what the case is and where it stands; requests for evidence and warnings of danger; and the extra statements allowed in a criminal case.

Public Record Information

Rule 3.6(b)(2) lets a participating lawyer state “information contained in a public record.”⁷ A public record, in ordinary terms, is a document in the court's or the government's files that anyone may inspect, such as an indictment or a filed motion. A lawyer who repeats what such a document says reports something the public could already read, which is why the category is easy to understand and, in the ordinary case, easy to defend. Applying it takes two questions: does the information really come from a record, and does the lawyer's statement stay within what that record contains? Most of the difficulty lies in the second.

Two reasons support the exception. The first is that repeating a record adds no new content. As a constitutional matter, it should be easy to justify allowing an attorney to reveal what is already in a public record, and the exception is more than a creature of the ethics rules, because it is an inherent byproduct of the First Amendment.⁸ A disciplinary authority has little to point to when it punishes a speaker for repeating what any citizen may lawfully read. The second reason is practical. Prosecutors and defense counsel tend to tell a story when they file pleadings, so the exception lets each side tell the public what the case is about simply by describing what was filed.⁹

That same tendency is the catch, because filings are rarely bare bones and the exception carries whatever story the filing tells. An indictment need not be limited to the bare bones.¹⁰ Prosecutors sometimes use what are called speaking indictments, which give considerable detail about the theory of the case and the nature of the proof, including a narrative of the setting in which the offense occurred.¹¹ Defense counsel can do the same through bail motions and other pretrial motions that make detailed allegations and become part of the public record.¹² In high-profile cases, both sides may use statements made in judicial proceedings to convey to the public information they could not include in a statement to the media.¹³ One defendant claimed that he had never known his nickname was “The Snake” until he saw it listed as an alias in an indictment and then heard the prosecutor repeatedly use it on television.¹⁴ The label reached the record first and the public second, which shows how much pejorative detail a filing can hold and how far a lawyer's repetition can carry it.

The protection covers the record's contents and none of the lawyer's additions. A defense lawyer who tells reporters what a publicly filed bail motion argues is repeating the record, while one who adds a new accusation against the complaining witness that the motion never made has left it. Characterization can carry a statement outside the record without any new fact: an indictment alleges, and a lawyer who tells the press that the defendant did it has turned the record's accusation into the lawyer's own assertion, which no filed document contains. The limit follows from the reason for the exception. Repeating a record delivers nothing new to the public, so a statement that does deliver something new loses that justification and returns to the ordinary forecast of prejudice under paragraph (a).¹⁵

Staying within the record does not make a statement wise. Even when a subject has already been reported, a participating lawyer's commentary may renew attention and intensify publicity, because media outlets and the listening public may treat the lawyer as an authoritative source with an inside participant's perspective, and when a matter is sensitive and likely to be excluded from evidence and argument before a jury, the lawyer should be circumspect.¹⁶ A warrant search shows the problem. The results of a search pursuant to a warrant may be a matter of public record, and public record information ordinarily could be the subject of a permissible public statement. Even so, a prosecutor's republication of the description of seized items, especially when admissibility is disputed or the seizure swept in embarrassing material irrelevant to the charges later brought, could taint the prospective jury pool by drawing attention to a matter that should stay outside the jurors' knowledge.¹⁷ The exception tells a lawyer what may be said, and it does not tell the lawyer what is prudent.

Basic Case Facts

Three safe harbors in Rule 3.6(b) rest on one premise: each lets a lawyer say what a case is and where it stands. Paragraph (b)(1) permits a participating lawyer to state “the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved,” paragraph (b)(3) permits a statement “that an investigation of a matter is in progress,” and paragraph (b)(4) permits a statement of “the scheduling or result of any step in litigation.”¹⁹

These categories describe the matter without arguing it, and that is why they carry little risk. A listener who hears that a contract suit is pending, that discovery is under way, or that a hearing is set for next month has nothing to weigh in deciding who should win. The public also has an interest in being informed about what the legal system is doing, which is part of why the rule clears these statements in advance instead of leaving each one to a forecast of prejudice.²⁰ Each harbor still has its own limit.

Paragraph (b)(1) has two parts. The first lets a lawyer describe the dispute at the level of a caption: the plaintiff claims that a supplier breached a contract, the state charges embezzlement, the defendant intends to contest the charge on a stated ground. A lawyer who calls the plaintiff's claim a baseless shakedown has added argument that the label “claim” does not cover. The second part lets a lawyer name the persons involved, with one qualifier: the permission applies “except when prohibited by law.”²¹

The qualifier defers to any other law that forbids disclosing a person's identity. A statute protecting a juvenile's name is the standard example. The safe harbor lists identity, but it does not override the statute, so a lawyer must check whether some other rule protects a person before naming him or her.

Paragraph (b)(3) is the narrowest of the three harbors because it reaches only the existence of an inquiry. A lawyer who says that an investigation is in progress tells the public that the matter is being looked into, and nothing in the statement reveals what investigators have found, whom they suspect, or what any witness has said. In a criminal case, paragraph (b)(7) adds the identity of the investigating and arresting officers or agencies and the length of the investigation, so paragraph (b)(3) alone supplies only the bare fact.²² The harbor protects the sentence announcing the investigation and not whatever the lawyer attaches to it. An exam stem will often join a protected statement to an unprotected one at a single press conference, and the answer has to sort the clauses one by one.

Paragraph (b)(4) covers dates and outcomes. Scheduling means when something will happen in the case, such as a hearing, a deadline, or a trial date, and result means how a step came out, such as a motion granted or denied. A statement about either reports what the tribunal did or will do and says nothing about the merits. The word to watch is result: a lawyer who says the court denied the motion has stated a result, while one who adds that the denial shows the other side has no evidence has stated an argument, and the argument falls outside the harbor.

The three harbors share a limit as well as a premise. Each permits a statement that describes the matter, and none permits a statement that argues it. A statement that mixes the two is sorted piece by piece, with the descriptive part protected and the remainder judged under paragraph (a), whose elements of a covered lawyer, a public extrajudicial statement, and a substantial likelihood of material prejudice still decide whether a violation occurred.²³ Two checks are worth running on any basic-facts statement: whether it stays at the level of description, and, when it names a person, whether another law forbids the naming.

Safety and Evidence Requests

Two more safe harbors rest on a different premise from the basic-facts harbors. Rule 3.6(b)(5) permits “a request for assistance in obtaining evidence and information necessary thereto,” and Rule 3.6(b)(6) permits “a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest.”²⁵ The basic-facts harbors clear statements because they say too little to prejudice anyone. These two are justified by the strength of the public's interest in disclosure: the interest in being warned about threats to safety, like the interest in being informed about the legal system, may outweigh the concern about a later trial's fairness.²⁶

Each interest is concrete. A matter depends on evidence, and the people who hold it, such as a bystander who saw a getaway car, are often unknown to the lawyer, so a public appeal may be the only way to reach them. A warning protects people at risk while the proceeding is still pending. Because the interest is what excuses the risk, each permission reaches only as far as its purpose. A statement made for the purpose is protected, a statement that merely uses the purpose as an occasion is not, and anything beyond the purpose is judged under paragraph (a) like any other public remark.²⁷

The request harbor is limited by the word “necessary.” A request for help needs only enough content for a listener to respond: what happened, when and where, what is being sought, and whom to call. A listener can help find a witness without being told that the accused is guilty, so anything added beyond that serves publicity and leaves the request behind.

The warning harbor has three working parts, and each limits the others. The statement must be a warning, meaning a communication aimed at protecting someone. It must concern the behavior of a person involved in the matter. And the lawyer must have reason to believe that substantial harm to an individual or to the public interest is likely.²⁸ That last part requires facts that exist when the lawyer speaks. A prosecutor who announces that an armed suspect remains at large and asks anyone with information to call a tip line is using both harbors at once, because the announcement warns the public of a danger and seeks the help needed to end it.²⁹

On an exam, a stem in which a lawyer asks for tips or warns of a dangerous person calls for a sorting step. First identify the purpose and the facts that support it, then separate the protected request or warning from any added commentary on the accused's character, record, or guilt, and send the added commentary back to paragraph (a).

Added Criminal Case Statements

Rule 3.6(b)(7) gives a lawyer in a criminal case four more kinds of permitted statement, “in addition to subparagraphs (1) through (6).”³¹ A prosecutor or defense lawyer in a criminal matter therefore keeps every general safe harbor already discussed, from the claim or defense involved to the warning of danger, and gains these four on top of them. A lawyer in a civil case gains nothing, because every clause concerns an accused or an arrest. The four clauses cover the identity, residence, occupation, and family status of the accused; information necessary to aid in apprehension if the accused has not been apprehended; the fact, time, and place of arrest; and the identity of the investigating and arresting officers or agencies and the length of the investigation.³²

Each clause describes the accused or the arrest, and none describes the evidence. That common feature explains why they sit together. The subjects that threaten a proceeding, as the earlier discussion of presumptively prejudicial topics showed, are previews of proof and opinions about people, and these clauses reach neither. Three of them, covering who the accused is, when and where the arrest happened, and which officers or agencies acted, tell the public that the state has moved against a named person and who moved, and a listener who learns those facts has nothing yet to weigh about the strength of the case. The apprehension clause rests on the public interest in disclosure that supports the safety harbors, because an accused who is at large can be found sooner when the public knows whom to look for.³³

The first clause lists four facts about the accused as a person, and its wording as a list of facts sets its boundary. A prosecutor who says the accused is a married electrician who lives on Birch Street with two children is reciting identity, residence, occupation, and family status. A prosecutor who calls the accused a known thug from a rough family has moved from facts that identify the person to a characterization that invites the audience to judge him. The line runs in both directions. A defense lawyer who describes the client as a pillar of the community and a devoted father is characterizing the accused just as surely as the prosecutor who uses the opposite adjectives, and neither remark draws protection from the clause.

The apprehension clause differs from its neighbors in both its justification and its limits. It applies only if the accused has not been apprehended, and it reaches only information necessary to aid in apprehension.³⁴ The first condition gives the clause a short life: once the accused is in custody, the need that justified the disclosure is gone, and the arrest clause governs what may be said next. The second condition ties the content to its purpose, as the request-for-assistance harbor does. A physical description, a vehicle, a last known location, and a number to call help a listener spot the person, while a recital of the case against the accused helps no one find anybody and only adds to what the community believes about guilt.

The arrest clauses report events, and their limit is that an event is distinct from its contents. A statement that the accused was arrested at nine on Tuesday evening at his workplace gives the fact, time, and place of arrest. What the accused said to the officers during the arrest is a confession or admission, and what the officers found when they searched is physical evidence, so both fall into flagged topics outside the clause. The investigation clause follows the same pattern. The earlier harbor allowed a lawyer to say that an investigation is in progress, and this clause adds the identity of the investigating and arresting agencies and the length of the investigation, so a prosecutor may say that the county sheriff's office and the state police worked the case for five months. Who investigated and for how long reveals nothing about what they found.

The hinge is the direction of the statement. Everything the prosecutor said first describes the person and the arrest, and everything said second describes the case against him. The reporter's question is typical of how a lawyer who begins inside a safe harbor ends up outside it, since an invitation to say what was found is an invitation to move from the arrest to the proof.

The omission that matters most on an exam is a permission the rules once contained. The former Model Code of Professional Responsibility allowed a prosecutor to reveal “[a]t the time of seizure, a description of the physical evidence seized, other than a confession, admission, or statement,” and the current list has no counterpart. When the American Bar Association substantially revised Rule 3.6 in 1994, its drafting committee explained that revealing seized evidence “may be substantially prejudicial” because such seizures “are frequently the subject of pretrial suppression motions whose success would be undermined by disclosure of the suppressed evidence to the press.”³⁵ The mechanism is a matter of sequence. The court rules on suppression after the seizure, so a description at the moment of seizure reaches the community before the ruling does, and if the court then excludes the evidence, the people who might become jurors have already heard about it. An arrest involves no such disputed object, which is why a lawyer may announce the arrest but may not, under this paragraph, describe the contents of the truck.

Omission is not prohibition, however. A warrant return filed with the court may be a public record, and paragraph (b)(2) separately permits a lawyer to state information contained in one.³⁶ Even then, republishing a list of seized items while its admissibility is contested can taint the pool. A prosecutor with no clause of (b)(7) to rely on should expect the statement to be tested under paragraph (a), which asks whether a covered lawyer's public extrajudicial statement carries a substantial likelihood of materially prejudicing the proceeding.³⁷