The phone rings. It's a reporter asking you to comment regarding your company's lawsuit and provide a copy of the complaint. Or maybe it's your company's chief executive or press spokesperson, seeking your statement for the company's upcoming press release regarding your adversary's alleged wrongdoing. What should you say? Counsel often face this difficult question when determining whether and what to communicate to the media about pending litigation, particularly during a trial. When deciding how to answer, you should carefully consider your ethical obligations and the company's potential civil liability, not just the benefits that a media statement might bring to your company.
Thoughtful counsel wants to be sensitive to ethical obligations. Most states have adopted ethical rules specifically addressing communications to the media during trial. These rules are designed to insure that a lawyer's comments do not impair the fairness of judicial proceedings. While ethical rules vary state-to-state, many are similar to Rule 3.6 of the ABA Model Rules of Professional Conduct. In general, Rule 3.6(a) prohibits lawyers involved in litigation from making an extrajudicial statement that is likely to be disseminated publicly if the statement is substantially likely to materially prejudice the proceeding. The determination of whether a public statement is likely to prejudice a proceeding involves a number of considerations, such as the timing of the statement and the type of proceeding involved. The comments to Rule 3.6 note which subjects are more likely than not to be prejudicial.