In a plurality decision, the U.S. Supreme Court recognized a lawyer’s First Amendment right to speak publicly on behalf of a client. But that right is not unfettered. A lawyer’s right to communicate with the media is limited by several ethical rules.
First, pursuant to Rule 1.6 of the Georgia Rules of Professional Conduct, a lawyer has a duty to keep all information gained from a client confidential. So unless and until a client has authorized disclosure of his or her confidential information, a lawyer cannot ethically discuss it with the media.
Second, a lawyer is required to be truthful when dealing with others on a client’s behalf. When speaking with the media, a lawyer must not misrepresent facts.
Lastly, Georgia has adopted Rule 3.6, which directly deals with trial publicity and public statements made by attorneys. Under Rule 3.6, a lawyer “who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a person would reasonably believe to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Rule 3.6 applies only to lawyers who are, or who have been involved in the investigation or litigation of a case, but it applies to all lawyers in the firm or government agency involved.
A lawyer may usually state:
- the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
- information contained in a public record;
- that an investigation of a matter is in progress;
- the scheduling or result of any step in litigation;
- a request for assistance in obtaining evidence and information necessary thereto;
- a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
- in a criminal case, in addition to the topics above:
- the identity, residence, occupation and family status of the accused;
- if the accused has not been apprehended, information necessary to aid in apprehension of that person;
- the fact, time and place of arrest; and
- the identity of investigating and arresting officers or agencies and the length of the investigation.
Rule 3.6 also allows a lawyer to “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.” But such a statement must be limited only to such information that “is necessary to mitigate the recent adverse publicity.”
Certain topics are considered more likely than not to have a material prejudicial effect on a proceeding and should not be discussed publicly by a lawyer. These topics include:
- the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
- in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;
- the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
- any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
- 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; or
- the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
Prosecutors are subject to additional restrictions. Rule 3.8 provides that a prosecutor in a criminal case must, “except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”