Everybody’s Talkin’

In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect 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 adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.

Rule 3.07(b) states:

b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to:

(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness; or the expected testimony of a party or witness;

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; 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;

(3) the performance, refusal to perform, or results of any examination or test; the refusal or failure of a person to allow or submit to an examination or test; or the identity or nature of physical evidence expected to be presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or

(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.

Many of the extra-judicial statements made by Will and Marsha appear to violate the general rule articulated in Rule 307(a) and more clearly violate some of the enumerated examples in Rule 307(b). However, Comment 1 to the Rule recognizes the competing interest of transparency in court proceedings and seems to imply that “adjudicatory proceeding” may be more focused on pre-trial public comments:   

Paragraph (a) is premised on the idea that preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial. This is particularly so where trial by jury or lay judge is involved. If there were no such limits, the results would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. Thus, paragraph (a) provides that in the course of representing a client, a lawyer's right to free speech is subordinate to the constitutional requirements of a fair trial. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

The Professional Ethics Committee for the State Bar of Texas addressed the issue in Ethics Opinion 683, which involved a case on appeal to the Texas Supreme Court, where:

the plaintiffs’ lawyer made statements to the news media that the filing of the petition for review is consistent with defendants’ litigation strategy to “delay at all costs so their misconduct is never brought before a jury.”  The plaintiffs’ lawyer also stated that the defendants “brazenly stole trade secrets worth millions of dollars from my clients and are now just as brazenly trying to take this case away from a Texas jury.”  The statements of the plaintiffs’ lawyer were widely published by the media.

The Committee stated  that “[u]nder the facts presented here, the Committee concludes that the lawyer’s statements do not have a substantial likelihood of materially prejudicing an adjudicatory proceeding given that the case is pending on appeal and it is unknown when (or if) the case will be tried.”  Noting the tension between court transparency and free speech on the one hand and prejudicial statements in the press on the other, the Committee drew a sharper distinction between statements made before a trial and statements made while an appeal is pending, finding that:

Fortunately, a precise resolution of that tension is not necessary under the question presented because the timing of the statements here—made while the case is pending on appeal—renders them permissible under Rule 3.07.  To be sure, Rule 3.07 by its terms applies to “adjudicatory proceeding[s],” which include cases pending on appeal.  See Terminology to the Rules (defining “Adjudicatory Proceeding” and “Tribunal”). But Comment 1 to Rule 3.07 contemplates that the likelihood of material prejudice is highest where trial by jury is involved. See also Comment 6 to ABA Model Rule of Professional Conduct 3.6 (noting that the “likelihood of prejudice may be different depending on the type of proceeding” and that “[n]on-jury hearings” may be less affected than jury trials). And that makes sense because judges are trained to apply the law to the legally-relevant facts, and are therefore less susceptible to being materially prejudiced by extrajudicial statements. This is particularly true on appeal, where an appellate judge’s analysis of the case is carefully confined by appellate standards of review.  In short, the likelihood of a lawyer’s statements “materially prejudicing” a proceeding on appeal is, as a general matter, fairly low.

Because the public statements made here were made after trial and while the case was pending in the Supreme Court of Texas, the best answer is D. 

If the statements were made before trial, the analysis would be considerably different. Will’s statement appears to violate several specifically prohibited categories of statements in Rule 307(b):

• Sub-section (b)(1) prohibits statements referring to the character or reputation of a party or witness. Will’s depiction of the Vitatek CEO as encouraging drinking, offering cocaine to female partygoers in exchange for sex, concealing a witness, and interfering with obtaining evidence seems to refer to his character and reputation, and violates this sub-section.
• Sub-section (b)(3) prohibits statements about “the refusal or failure of a person to allow or submit to an examination.” Will’s allegation that Elizabeth was hidden for several days to avoid timely drug and alcohol testing runs afoul of this rule.
• Subsection (b)(5) prohibits “information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.” The first three parts of Will’s statement are based on what he describes as an anonymous tip, which would make them unsubstantiated hearsay and therefore “inadmissible as evidence in a trial.” His final statement, about settlement offers, is inadmissible under Rule of Evidence 408.

On the other hand, Marsha’s first statement that simply denies Will’s allegations in a general way does not violate the general rule of Rule 3.07(a) or any of the specific provisions of Rule 3.07(b). Her second comment would be inadmissible at trial under Rule of Evidence 408, and therefore ordinarily would violate Rule 3.07(b)(5). However, Comment 3 to Rule 3.07(a) provides that, “an otherwise objectionable statement may be excusable if reasonably calculated to counter the unfair prejudicial effect of another public statement.” Marsha’s comment about the actual settlement offer of a million dollars was reasonably calculated to counter Will’s unfairly prejudicial suggestion that no substantial offer had been made.

If these statements had been made before trial, the best answer would have been B.