Wisconsin Lawyer
Vol. 82, No. 9, September 2009

Question

I’m nervous about interacting with my local news media. Are there restrictions on what I can say when talking to the news media about a trial with which I or my firm is involved?

Answer

Specific provisions in the Rules of Professional Conduct address statements that can be made in regard to a pending trial. SCR 20:3.8 provides that a lawyer shall not make 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.” These rules govern both civil matters that are triable to a jury and criminal matters. This article discusses what a lawyer can say and cannot say in a civil matter triable to a jury. A subsequent ethics column will discuss what types of statements can be made and cannot be made about a criminal proceeding.

The gist of the rule is that a lawyer may not make statements that will be transmitted by public communication means (for example, radio or local news media) if there is a substantial likelihood that the statements will materially prejudice an adjudicative proceeding. This applies to all attorneys involved in the litigation, as well as other members of the law firms of the participating attorneys.

Things you may not discuss. There are several things that an attorney who is engaged in representation in the civil matter may not reveal or comment on. These include:

• The identity of any witness likely to be called in the trial;
• Any statements regarding the character, credibility, reputation, or criminal record of any party or any witness who is likely to be called;
• The expected testimony, whether of a party or of a witness, that likely will be given in the proceeding;
• The results of a test that may have been undergone by a party or witness or reference to a failure to take any type of test by those individuals;
• The identity or the nature of physical evidence that is likely to be presented in the trial;
• Information that the lawyer knows or reasonably should know is likely to be inadmissible at the trial; and
• Information that the lawyer knows or reasonably should know is likely, if disclosed, to create a substantial risk of prejudicing the impartiality of the trial.

Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

The list of things that a lawyer may not disclose or discuss in the media is subject to interpretation and depends on the facts of the particular civil trial proceeding. It is important that lawyers recognize, however, that they must be careful when making statements on matters relating to a pending jury trial.

Things you may discuss. There are some things that a lawyer can reveal or comment on within the context of discussions regarding a pending jury trial. These include:

• A statement that a reasonable lawyer believes is required to protect the client from the substantial likelihood of undue prejudicial effect of recent publicity, provided the publicity was not initiated by the lawyer or the client and as long as the statement is limited to only the information needed to mitigate the adverse publicity;
• Information regarding the claim, offense, or defense involved and the identity of the person involved in such claim or defense;
• Information that is already available in the public record;
• Statements indicating that the investigation of a matter or claim is in progress;
• Statements regarding scheduling matters related to the trial proceedings;
• Statements that indicate the result of any step in the litigation;
• A request for assistance from the public in obtaining evidence or information regarding an occurrence or matter involved in the litigation; and
• Information that warns of danger concerning the behavior of persons involved in the proceeding, if and only if there is the likelihood of substantial harm to others.

The attorney can discuss these items in statements outside of the trial proceeding, but the attorney must avoid disclosing information that the attorney is prohibited from discussing because of the potential prejudice that could result to the trial proceedings.

It is important that lawyers be familiar with techniques for dealing with the local news media. It also is important to be familiar with information that may not be communicated to the local news media because it is inappropriate trial publicity.

For a look at some individual lawyers’ personal experiences with the news media and resources for interacting effectively with the news media, please see the article “Rapport with Reporters” elsewhere in this issue.    

Wisconsin Lawyer