Accuracy and Defamation Risks

Rule 3.6(a) asks one question of a lawyer who is participating or has participated in a matter: will an extrajudicial statement that the lawyer knows or reasonably should know will reach the public carry a substantial likelihood of materially prejudicing the proceeding?¹ A statement that clears that test has satisfied Rule 3.6, but only Rule 3.6. A lawyer who speaks to the press as a client's representative still faces three further risks: a separate duty of accuracy, a defamation claim that the courtroom privilege does not answer, and damage to the client's own case. Each belongs in the calculation before the lawyer talks to a reporter.

Accuracy in Public Statements

A lawyer who makes a public statement as the client's representative, to advance the client's interests, owes a heightened duty of care and accuracy, and the duty weighs most when the statement concerns pending litigation.² That duty has its own footing in Rule 8.4(c), which independently bars conduct involving dishonesty or misrepresentation.³ Because the two rules ask different questions, a statement can pass one and fail the other. Rule 3.6(a) asks what the statement will do to the proceeding; Rule 8.4(c) asks whether the statement is honest.

Two decisions show how little a technical defense helps. In Board of Professional Ethics & Conduct v. Visser the Iowa Supreme Court held that a lawyer's statements to a newspaper reporter, challenging the merits of a recently filed suit against the lawyer's client, were not reasonably likely to affect the fairness of the litigation. It reprimanded the lawyer anyway, because one statement was only partially true.⁴ The prejudice inquiry came out clean; the honesty inquiry did not. In United States v. Aversa, a federal prosecutor issued a press release that described the defendant's structuring of bank deposits as conduct usually undertaken for tax evasion, drug dealing, or organized crime, although the prosecutor knew the defendant was trying to shield assets in case a spouse sought a divorce.⁵ The court declined to hold the United States liable for slander, but it called the statement "false, misleading, self-serving, unjust, and unprofessional" and referred the matter for disciplinary investigation.⁶ In both cases a statement that was partly true or misleading counted as a failure of accuracy, whatever its effect on the litigation.

Defamation and Privilege

Statements a lawyer makes in connection with a proceeding before a tribunal are absolutely privileged. The protection covers pleadings, affidavits, hearings, trials, briefs, motions, conferences, and other communications preliminary to the proceeding, and it means the lawyer cannot be sued for defamation, or on any other theory, based on them.⁸ The privilege is tied to the judicial process, and it stops where the process stops. A press interview lies outside that process, so the privilege does not cover a lawyer's statements to a newspaper reporter, even when the lawyer simply describes the allegations or arguments in the litigation.⁹

Repeating a filed complaint to the press is the usual way into this trap. Rule 3.6(b)(2) permits a lawyer to state information contained in a public record, and a filed complaint ordinarily is one, so the lawyer may escape discipline for the repetition.¹⁰ That permission answers only whether the bar may punish the statement. It gives the lawyer no privilege against a civil claim by the person the statement names.

Harm to the Client's Case

Public statements create evidence, and the other side can use it. A lawyer who elects to speak, or who advises a client to speak, about pending or imminent litigation risks a poor choice of words, an inadvertent remark, or an inaccurate declaration that reaches the public, opposing counsel included.¹² Professors Peter Joy and Kevin McMunigal warn that a client's public statements can reveal confidential information and tip off the prosecutor to the defense's trial strategy, and that they can also create evidentiary admissions and impeachment material for cross-examination, such as a prior inconsistent statement or a false exculpatory statement.¹³ The other side hears the same broadcast as the public and can quote it back to the speaker at trial.

The lawyer always has an alternative: refrain from public comment and confine statements to the judicial process.¹⁴ A lawyer who clears Rule 3.6 and still wants to speak must weigh the benefit of the statement against the accuracy, defamation, and evidentiary risks above.