Also known as: extrajudicial comment · extrajudicial statement
Written by attorneys · grounded in primary & secondary sources — see below
Statements made outside of judicial proceedings by a lawyer participating in the investigation or litigation of a matter. The statements are those the lawyer knows or reasonably should know will be disseminated by public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
Walter represented River Realty in a fraud suit brought by Abigail. He told a popular podcast that Abigail was a serial liar under federal tax investigation. The episode reached local listeners weeks before jury selection in the pending case.
Gentile held a press conference hours after his client's indictment and named another suspect. The remarks reached the public before trial and prompted bar discipline proceedings.
Select any source to read its text and confirm it supports the definition.
Ortiz told a widely read student newspaper that an accused student lied to investigators and would lie on the stand. Jury selection was set for the following month in the small college town.
Antonio sent a food-industry blog copies of health-inspection reports already attached to court filings and added a note that the records showed no negligence. The article appeared two months before trial.
Cole told a business podcast that injured workers had misused presses while intoxicated. No evidence of intoxication had entered the public record and trial was eight months away.
Declan displayed customer-service logs and a court order on a tech livestream and told viewers the filings proved the claims lacked merit. The broadcast reached potential jurors in the pending class action.
The statement must be one the lawyer knows or reasonably should know will reach the public and will likely affect the fairness of the proceeding. Inflammatory attacks on credibility or disclosure of unfiled allegations shortly before trial ordinarily satisfy the standard.
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The exception covers accurate repetition of information already in the public court file. Adding argumentative gloss, selective display, or live narration that frames the documents as proof of no liability can remove the protection.
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Rule 3.6(c) permits a narrow response reasonably necessary to counter recent adverse publicity not initiated by the lawyer. Detailed new accusations of misconduct or references to undiscovered materials exceed that safe harbor.
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No. The rule reaches any public communication the lawyer knows or reasonably should know will be disseminated, including campus newspapers, local forums, and podcasts that reach potential jurors in the venue.
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…Paoli was that it is “reasonably possible for the jury to follow” sufficiently clear instructions to disregard the confessor’s extrajudicial statement that his codefendant participated with him in committing the crime. 352 U.S., at 239. If it were true that the jury disregarded the reference to the co-defendant, no question would arise…