ABA Journal - December 2009

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 the matter.”

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.

GENERAL PRACTICE

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.