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Bar News - April 20, 2007

Changes to Trial Publicity Rule Afford Greater Flexibility



The NH Supreme Court Advisory Committee on Rules recently approved a number of changes to the Rules of Professional Conduct and submitted them to the Court. Among the changes proposed is a significant revision of Rule 3.6 covering a lawyer’s responsibility regarding trial publicity. The proposal, which is largely based on the ABA Model Rule, affords greater flexibility to lawyers seeking to remedy the effects of recent adverse publicity on a client.


Current Rule


The current rule provides that “[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 adjudicative proceeding.” [Rule 3.6(a)].

In other words, lawyers are prohibited from making statements to the press to gain an advantage at trial. The rule goes on to specify types of statements which are most likely to have a prejudicial effect, including statements that relate to the character, credibility, and reputation of a party; opinions as to the guilt or innocence of a suspect in a criminal case; and information that a lawyer knows to be inadmissible at trial. The rule also outlines statements lawyers are expressly permitted to make, including statements regarding the “general nature of the claim or defense” and information contained in a public record, provided such statements are made “without elaboration.”


Tension with First Amendment Rights


In the case of Gentile v. Nevada State Bar [501 U.S. 1030 (1991)], the US Supreme Court considered a Nevada ethics rule which was very similar to our current rule. A criminal defense lawyer made a statement to the press after his client was indicted suggesting that another person, a police detective, was responsible for the alleged crimes. (The client was acquitted at trial six months later). The lawyer was later charged with an ethics violation for his extrajudicial statements.


The disciplinary board of the Nevada State Bar recommended the lawyer be reprimanded for his post-indictment statements and the Nevada Supreme Court affirmed. The US Supreme Court reversed that ruling concluding that allowing a lawyer to make statements regarding the general nature of a claim or defense “without elaboration” rendered that portion of the rule, as applied, impermissibly vague. The Court found it significant that Gentile had tried to limit his comments to what he believed was allowed under the ethics rule.


New Rule Provides Flexibility


The ABA recently revised Model Rule 3.6 to strike a better balance between protecting rights to a fair trial and rights of free expression. The new proposed New Hampshire rule is based on that revised ABA Model Rule. The Model Code comments to the revised rule note that the preservation of the right to a fair trial necessarily involves some curtailment of information that may be disseminated. At the same time, the comments observe that there are vital social interests served by the free dissemination of information.


The revised language contained in the new proposed New Hampshire rule recognizes there are times when a lawyer should be able to make extrajudicial statements in order to lessen the prejudice to the lawyer’s client from recent adverse publicity. The new language is as follows:


A lawyer may 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. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.


The clear purpose of the rule change is to mitigate the adverse impact resulting from statements made by another party. The new rule does make plain that any responsive statement must be limited to information which is “necessary” to mitigate the recent adverse publicity. Thus, statements that go well beyond what is necessary to protect a client from the adverse impact of publicity are not permitted.




The new proposed rule regarding trial publicity allows lawyers more latitude to protect a client in responding to adverse publicity not initiated by the lawyer or the lawyer’s client. Particularly in cases that attract a great deal of publicity, the new rule provides a mechanism for a lawyer to remedy the effects of prejudicial publicity. Lawyers should use care to make sure any such responsive extra-judicial statements are limited to what is strictly necessary to mitigate the harm.


John C. Kissinger, Jr. is a trial lawyer practicing in the commercial litigation and professional malpractice groups at Nelson, Kinder, Mosseau & Saturley, based in Manchester.



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