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Rules of Professional Conduct

Rule 3.6: Trial Publicity

A lawyer engaged in a case being tried to a judge or jury shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of mass public communication and will create a serious and imminent threat of material prejudice to the proceeding.


   [1] It is difficult to strike a proper balance between protecting the right to a fair trial and safeguarding the right of free expression, which are both guaranteed by the Constitution. On one hand, publicity should not be allowed to influence the fair administration of justice. On the other hand, litigants have a right to present their side of a dispute to the public, and the public has an interest in receiving information about matters that are in litigation. Often a lawyer involved in the litigation is in the best position to assist in furthering these legitimate objectives. No body of rules can simultaneously satisfy all interests of fair trial and all those of free expression.
   [2] The special obligations of prosecutors to limit comment on criminal matters involve considerations in addition to those implicated in this rule, and are dealt with in Rule 3.8(f). Furthermore, this rule is not intended to abrogate special court rules of confidentiality in juvenile or other cases. Lawyers are bound by Rule 3.4(c) to adhere to any such rules that have not been found invalid.
   [3] Because administrative agencies should have the prerogative to determine the ethical rules for prehearing publicity, this rule does not purport to apply to matters before administrative agencies.