Right of Reply

Rule 3.6(c) gives a participating lawyer one way to answer publicity without breaching the general prohibition: "Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client." The statement "shall be limited to such information as is necessary to mitigate the recent adverse publicity."¹ Because the clause begins "notwithstanding paragraph (a)," a statement that fits it is permitted even though it would otherwise be a public extrajudicial statement by a covered lawyer. An exam answer that has found a statement inside paragraph (a) must therefore check paragraph (c) before declaring a violation.

A client who is a party to a pending or imminent proceeding can be hurt by publicity long before any verdict. Misleading or false information can reach potential or actual jurors, and the client can suffer in social life and in business. When the damaging coverage began with someone other than the client, fairness and reciprocity favor a right to respond publicly: to correct the public understanding, to supply new information that puts matters in better context, and to remind the public that allegations are not yet proven in court.² The rule's first comment states the same idea as a right of fair response to prejudicial publicity initiated by another person or party.³ Without it, a lawyer bound to silence while the other side's version dominated the coverage could do nothing for the client.

Gentile v. State Bar of Nevada shows the problem the exception answers. Before the indictment of Gentile's client, the police and prosecution had made regular statements to the press. They praised the officers who had access to the vault, cleared those officers after an internal investigation, said the investigation was focused on the client, and referred to his supposed relationships with unsavory persons and his refusal to take a polygraph test.⁴ Gentile had monitored the coverage and was aware, before the indictment, of at least 17 articles in the major local newspapers and numerous local television stories on the theft and the investigation.⁵ The Court's opinion rejected the idea that a defense lawyer must stay silent about all of this: "An attorney's duties do not begin inside the courtroom door." A lawyer may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, including an attempt to show in the court of public opinion that the client does not deserve to be tried.⁶ Only a small fraction of Gentile's remarks reached the public, in two newspaper stories and two television broadcasts. Given the repetitive publicity from the police investigation, the Court found it "difficult to come to any conclusion but that the balance remained in favor of the prosecution."⁷

The Supreme Court nonetheless overturned Gentile's discipline, holding the state's rule void for vagueness under the First Amendment because it failed to clearly define the "safe harbor" of permissible statements. In 1994 the American Bar Association revised Rule 3.6 in response and added a specific exception for a lawyer who answers, on behalf of a client, prejudicial publicity generated by someone else.⁸ Paragraph (c) is that exception, and its conditions separate a reply from a publicity campaign.

The first check is objective. The question is what a reasonable lawyer in the speaker's position would believe, and not whether the speaker sincerely felt a need to speak. Necessity is the point on which an interested speaker is least reliable, and a standard that deferred to the lawyer's own belief would let any lawyer who wanted airtime declare a reply required. The rule's wording then fixes the harm that must exist: the publicity must be recent, and its effect on the client must be both substantial and undue. The sources describe that harm as misleading or false information reaching potential or actual jurors, together with damage to the client in social life or business.⁹ The repetitive coverage Gentile had tracked fits that description.¹⁰

The second check asks who started the publicity, and the answer must be someone other than the lawyer or the client. The condition keeps the reply right from consuming the prohibition, because without it a lawyer could open with the interviews paragraph (a) forbids, wait for any response, and call the next round a reply.

Once the publicity did come from someone else, the identity of that source is open. The rule speaks only of publicity "not initiated by the lawyer or the lawyer's client," and for criminal cases the American Bar Association's Standards for Criminal Justice recognize a right to "respond to public statements from any source in order to protect a client's legitimate interests."¹¹ The inquiry also does not ask whether the other side's statement was itself improper. A prosecutor who reads an indictment's allegations aloud, as allegations, may be within the public-record category of paragraph (b), yet days of one-sided coverage can still leave the community with a distorted picture of the defendant. The reply right follows the harm to the client, and the rule's text asks who initiated the publicity and not whether the source broke any rule.¹²

The third check limits what the reply may contain. The response is confined to what reasonably serves to counter the adverse publicity, and it should not become the source of a new form of prejudicial publicity on an aspect of the case unrelated to the publicity that prompted it.¹³ The limit follows from the reason for the permission. A reply exists to restore balance, so a statement that adds unrelated damaging matter is the lawyer's own initiative and not a response.

Hypothetical Illustration

A prosecutor tells a local station that the defendant, charged with embezzlement, refused a polygraph examination, and the story leads the evening news for two days. At a short briefing, the defense lawyer says that the defendant declined the test on counsel's advice and reminds listeners that the charge is only an accusation. Each statement answers the story that prompted it and adds nothing beyond it, so paragraph (c) covers both.

At a similar briefing in another case, convened to answer a prosecutor's remarks about a polygraph refusal, a reporter asks the defense lawyer about the state's chief witness. He answers that the witness is under investigation for fraud in an unrelated matter. That answer does nothing to mitigate the publicity that prompted the briefing. It supplies new damaging information about a witness, so paragraph (c) gives it no protection and paragraph (a) governs the remark.

The scale of a reply matters as well. Only a small fraction of Gentile's remarks reached the public, yet the Court still concluded that the balance of publicity remained with the prosecution.¹⁴ Whether every remark he made would pass the necessity limit is a separate question, because his discipline was set aside on the ground that the rule's safe harbor was vague, a ground that says nothing about whether each remark was needed to mitigate the coverage.¹⁵ A lawyer in his position today would have to tie each remark to the publicity being answered.

A lawyer facing damaging coverage may sensibly raise the problem with opposing counsel or the court first, but paragraph (c) does not require it. Its conditions are three: a reasonable belief that a statement is required, publicity not initiated by the lawyer or the client, and a statement limited to what is necessary to mitigate.¹⁶ A lawyer whose client is the subject of daily stories suggesting guilt need not wait on the prosecutor's cooperation, or on whatever relief a judge might supply, before making a statement that meets those conditions. The order of steps is a matter of judgment, while the permission itself turns on the three conditions alone.

Right of Reply

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