Statements by Associated Lawyers

Statements by Associated Lawyers

Rule 3.6(d) carries the prohibition past the lawyer who works on the matter: "No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a)."¹ Paragraph (a) alone reaches only a lawyer who is participating or has participated in the investigation or litigation, and it says nothing about that lawyer's colleagues.² Paragraph (d) closes the gap by borrowing paragraph (a)'s standard whole. A colleague's statement therefore meets the questions this chapter has already covered. Is it an extrajudicial statement? Does the speaker know or reasonably should know that public communication will disseminate it? Does it carry a substantial likelihood of materially prejudicing the proceeding? Only the identity of the person tested has changed.

Imagining the rule without paragraph (d) shows why it exists. If only the lawyer of record were bound, a defense firm could deliver a damaging remark to the jury pool through a partner who is not on the case, and a prosecutor's office could do the same through another assistant. The harm to the proceeding would be identical, and the rule would go unbroken. Paragraph (d) closes that route: a lawyer cannot avoid paragraph (a) by choosing a messenger from down the hall. The rule draws its circle around the firm or government agency, and it does not ask whether the colleague has worked on the matter, seen the file, or been asked to speak.

Association is the hinge of that pair. Neither the topic of the remark nor the stage from which the speaker delivers it moves the analysis. Once the speaker falls within paragraph (d), the full paragraph (a) analysis runs against the speaker's own statement. The permitted statements covered earlier protect the colleague as they protect the participating lawyer: a statement the rule allows, such as the scheduling of a hearing or information in a public record, is not a statement that paragraph (a) prohibits, so an associated lawyer may make it.

Three rules concern other people's conduct, and they cover different speakers and different wrongs.

• Rule 3.6(d) makes a lawyer associated with a covered lawyer answerable for that lawyer's own prohibited statement. Association is enough, and no one need have been assisted or supervised.
• Rule 5.3 directs the managing or supervising lawyer to make "reasonable efforts" to ensure that nonlawyer assistants uphold the "professional obligations of the lawyer." It governs assistants who are not lawyers, whom paragraph (d) does not reach, and it asks for the supervisor's efforts.³
• Rule 8.4(a) defines misconduct to include "knowingly assist[ing] or induc[ing] another to" violate the Rules. It attaches to the lawyer who helps or induces, and it requires knowledge.⁴

One scheme can trigger two of them. A trial lawyer who asks a colleague to deliver a prejudicial statement faces Rule 8.4(a) for inducing it, while the colleague who delivers it faces paragraph (d) for the statement itself.

Prosecutors carry a further, express duty to control the statements of those who work with them, and the next section takes it up. The expectation that lawyers in other proceedings will similarly control their associates and assistants stands as well, resting on the general rules above.⁵

On an exam, start by asking whether the speaker is a lawyer in the same firm or government agency as someone who is participating or has participated in the matter. If so, run paragraph (a) against the speaker's statement. If the speaker is a nonlawyer assistant, or the participating lawyer arranged the statement, the analysis shifts to Rule 5.3 or Rule 8.4(a).