Also known as: substantially likely to materially prejudice an adjudicative proceeding · Rule 3.6 standard · trial publicity prejudice
Written by attorneys — see sources below.
A standard that triggers professional discipline when a lawyer participating in litigation makes an extrajudicial statement that the lawyer knows or reasonably should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
Linda, lead prosecutor in a securities fraud case against Victor, appears on national television weeks before jury selection. She states there is no doubt Victor ran a criminal scheme and highlights a secretly recorded call the court has already ruled inadmissible. The remarks reach a broad audience that includes potential jurors and go beyond permitted categories of information.
Walter, counsel for River Realty in a fraud suit brought by Abigail, grants a podcast interview before trial. He calls Abigail a serial liar and reveals she is under a separate federal tax fraud investigation, facts never mentioned in any public filing. The podcast reaches a regional audience that overlaps with the venire.
Ortiz, counsel for Maya Lopez in a campus assault suit against Westfield University, gives an interview to the student newspaper one month before jury selection. She identifies alleged eyewitnesses by name and asserts that the accused student lied repeatedly to investigators and will lie on the stand. The newspaper circulates widely in the small college town where the case will be tried.
Gentile, a Las Vegas criminal defense attorney, represented Grady Sanders, the owner of Western Vault Corporation. On January 31, 1987, undercover police officers with the Las Vegas Metropolitan Police Department reported that four kilograms of cocaine and almost $300,000 in travelers' checks were missing from a safety deposit vault at Western Vault. The items had been used as part of an undercover operation conducted by Metro's Intelligence Bureau. Sheriff John Moran held a press conference on February 2, 1987, naming the police and Western Vault employees as suspects. Over the following year, press reports indicated that investigators focused on Sanders and Western Vault rather than the two police officers who enjoyed free access to the vault. Reports described other customers claiming missing items, Western Vault suffering heavy losses and going out of business, police officers being cleared after passing lie detector tests administered by Ray Slaughter, and Sanders refusing a police polygraph. One report noted that $264,900 in currency had been seized from an unrented box at Western Vault. Hours after Sanders was indicted, Gentile held a press conference on February 5, 1988. He stated that the evidence would prove Sanders innocent, that Detective Steve Scholl was the person most likely to have stolen the drugs and checks, and that four of the other alleged victims were known drug dealers and convicted money launderers who had been pressured by police after getting into trouble themselves. Gentile had researched Rule 177 the evening before with two colleagues and concluded that the timing six months before trial and the general nature of his comments placed the statements within the rule's safe harbor. Six months later the criminal case was tried to a jury in August 1988 and Sanders was acquitted on all counts. The trial judge questioned the jury venire about publicity, but not a single juror indicated any recollection of Gentile or his press conference. The State Bar of Nevada then filed a complaint against Gentile alleging a violation of Rule 177. Following a hearing, the Southern Nevada Disciplinary Board found that Gentile had made the statements and recommended a private reprimand. Gentile appealed to the Nevada Supreme Court, which affirmed the decision of the board.
Yes. The prohibition applies to any matter being investigated or litigated, not only after a jury is sworn. Public comments made weeks before jury selection can taint the venire and create the required substantial likelihood of material prejudice.
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Yes. Statements limited to information contained in a public record fall within a recognized safe harbor even if they reach potential jurors. The rule permits such repetition because the material has already entered the public domain through court filings.
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No. Lawyers may state the claim or defense involved, scheduling information, and facts in the public record. The rule forbids only those extrajudicial statements that the lawyer knows or reasonably should know will be disseminated publicly and carry a substantial likelihood of material prejudice.
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Accusations of criminal conduct, intoxication, or document destruction that have never appeared in any public record or been tested through discovery create a substantial likelihood of material prejudice. Such statements risk tainting the jury pool on issues central to credibility and liability.
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No. The rule governs lawyers participating in the investigation or litigation of any adjudicative proceeding, civil or criminal. Civil jury trials raise the same concerns about prejudicial pretrial publicity that the rule addresses.
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