Bar News - June 22, 2007
Ayotte: Proposed Trial Publicity Rules Are One-Sided
By: Dan Wise
NH Attorney General Kelly Ayotte says proposed changes to Rule 3.6 and 3.8 of the NH Rules of Professional Conduct (“Trial Publicity” and “Special Responsibilities of a Prosecutor”) are unnecessary and threaten to “alter the existing balance between unfair prejudicial publicity and the public’s right to be informed about criminal cases.”
In a seven-page letter to the NH Supreme Court submitted for the June 1 pre-adoption comments deadline, Ayotte asked the Court to allow oral argument on the amendments her office opposes. The Attorney General also had submitted comments on those particular Rules during the Supreme Court Advisory Committee’s review of the ethics rules. No comments were submitted by members of the criminal defense bar regarding the rule changes opposed by Ayotte.
Ayotte’s letter focuses on three amendments:
Rule 3.6(d) – this proposed rule, not existing in the current NH rules but drawn from a recent ABA model, allows an attorney to provide information to the public 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.” Ayotte said she believes that creating this exception to the general limitations on trial publicity would “virtually eliminate all restrictions on public comment and would open the door to a ‘war of words’ in the press.”
Rule 3.8 (e) – another rule new to NH, would make it unethical for a prosecutor to subpoena a lawyer regarding “evidence about a past or present client” unless the attorney”reasonably believes” the information sought is not privileged, is “essential” to a prosecution or investigation; and no other “feasible alternative” exists to obtain the information. Ayotte said existing judicial reviews required of subpoenas offered sufficient protection, and that the new rule would hinder prosecutions of some cases, particularly white-collar crimes where a lawyer may have been involved in the commission of the crime.
Rule 3.8(f) – this new rule places specific limits on comments by prosecutors to make public comments about pending cases by requiring that they be “necessary” for a legitimate law enforcement purpose. Ayotte said that, in practice, a cautious reading of the rule would “essentially eliminate the prosecutor’s ability to make public comments at all” unless there is an immediate concern for public safety, for example. Ayotte said that the Rule thus means prosecutors “might not be able to update the public on the progress or status of a case.”
Four other attorneys submitted substantive comments on the Rules of Professional Conduct by the June 1 deadline. See www.nhbar.org for details on their comments regarding Rules 1.18 (duties to prospective client); Rules 1.11a (conduct of lawyer-officials); Rule 5.5 (unauthorized practice of law, multijurisdictional practice of law); and Rule 6.1 (voluntary pro bono publico service).