LOCAL GOVERNMENT LAW
ETHICS RULES SET BOUNDARIES
FOR YOUR RESPONSE TO CASE PUBLICITY
BY MICHAEL DOWNEY
LAWSUITS AGAINST SCHOOL DISTRICTS, MUNICIPALI-
ties and other government bodies often receive
plenty of public attention triggered by statements
from plaintiffs counsel and media coverage focusing
on the entity’s alleged mismanagement or misconduct. Typically, government officials want to respond
with more than a “no comment,” but any response
also must not jeopardize the entity’s legal position
in the case.
A lawyer representing a government body must
recognize that working with the client to develop
and present a response is a matter of ethics as well as
damage control. See, for example, 1998 N.C. Ethics
Opinion 4. But it also helps to know that, at least under the ABA Model Rules of Professional Conduct,
there is more leeway to respond to adverse publicity
than many lawyers might think they have. (State versions may vary from the Model Rule.)
Trial publicity is addressed in ABA Model Rule 3. 6.
Rule 3. 6(a) generally prohibits a lawyer participating
in a matter (as well as other lawyers at the firm or government agency) from making “an extrajudicial statement that the lawyer knows or reasonably should
know will be disseminated by means of public communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in
Model Rule 3. 6(b) specifies permissible content
for a lawyer’s extrajudicial comment, including the
claim, offense or defense involved and—except
when prohibited by law—the identity of the people
involved, information contained in a public record,
schedules for proceedings and the results of proceedings, confirmation that an investigation is in progress,
and a request for assistance in obtaining evidence
and information relating to a matter.
Comment 5 to Rule 3. 6, meanwhile, identifies certain types of content that would likely have prejudicial effect on a proceeding. Most of the prohibitions
relate to criminal proceedings, but a key provision
with general application covers “information that the
lawyer knows or reasonably should know is likely to
be inadmissible as evidence in a trial and that would,
if disclosed, create a substantial risk of prejudicing
an impartial trial.”
A critical provision in Model Rule 3. 6 allows a limited “right to respond” when a lawyer or the client
did not initiate publicity about the case. Under Rule
3. 6(c), 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.” Under those circumstances, the lawyer may re- spond to publicity initiated by opposing counsel or the media even if, as Comment 7 to Rule 3. 6 states, those statements “might otherwise raise a question under this rule.” But any protective responses “should be limited to contain only such information as is necessary to mitigate” the effects of recent ad- verse publicity. Model Rule 3. 6 provides some room to maneuver when it comes to discussing legal matters in the press.
Just watch where you’re going.
Michael Downey is a St. Louis-based partner in the national Lawyers for the Profession practice group at Hinshaw &
Culbertson. In the ABA, he is a council member for the Law
Practice Management Section.
IF YOU DON’T KNOW IT, DON’T DO IT
BY DAVID L. SASSEVILLE
A WISE MAN KNOWS WHAT HE DOESN’T KNOW. SO IT IS
with wise lawyers—they understand the limits of their
own knowledge, and act accordingly.
Rule 1. 1 of the ABA Model Rules of Professional
Conduct states: “A lawyer shall provide competent
representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.”
The rule seems straightforward enough, but things
can get very messy for a lawyer who doesn’t follow it.
Zelig is a general practitioner who won a substantial
judgment for Fletcher. A year later, Fletcher asked
Zelig for help with his estate plan: “I want to live off
the income from my assets and
leave the principal to my favorite
charity.” Fletcher mentioned
that he had a niece for whom he
wanted to leave something. Zelig
drafted an irrevocable trust
agreement using a form he obtained from a lawyer down the hall. It designated the
niece as a secondary beneficiary of the trust income.
Fletcher transferred all his assets into the trust, relying on Zelig’s assurance that he would not have to pay
gift or estate taxes. But under a controlling Treasury
regulation—of which Zelig was ignorant—the entire
actuarial value of the income portion of the trust—
nearly $12 million—was treated as a taxable gift because the trust was irrevocable and because it named
the niece as a secondary income beneficiary.
Read the rules