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Bar News - September 21, 2007

Court Rejects Proposed Change to Trial Publicity Rules



John Kissinger

Following the submission of a letter by New Hampshire Attorney General Kelly Ayotte to the New Hampshire Supreme Court regarding proposed changes to New Hampshire Professional Conduct Rules 3.6 and 3.8 relating to “trial publicity” and “special responsibilities of a prosecutor,” the Court modified the rule on trial publicity, but left intact proposed changes to the rule regarding prosecutors’ responsibilities. 


I.          Proposal for Flexibility Stricken


Under the terms of a proposed modification to Rule 3.6, lawyers would have been provided more latitude to respond to adverse publicity not initiated by the lawyer or the lawyer’s client.  Specifically, the proposal would have permitted lawyers to “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.”  This proposal would have enabled lawyers to make significantly greater use of the press to remedy prejudicial publicity. 


In a letter to the New Hampshire Supreme Court, Attorney General Ayotte argued that adopting the proposed rule change would have marked a significant departure from the existing limitations on trial publicity and would have potentially opened the door to a “war of words” in the press.  The rule ultimately adopted by the Court on trial publicity did not contain the language specifically affording greater flexibility to lawyers in responding to recent prejudicial adverse publicity.  The Court may well have shared Attorney General Ayotte’s concerns about lawyers potentially abusing this new flexibility to try their cases on the courthouse steps. 


II.         Court Adopts Changes Regarding Special Responsibilities of Prosecutors


Attorney General Ayotte’s letter to the New Hampshire Supreme Court also raised two concerns regarding proposed revisions to Rule 3.8 related to “special responsibilities of a prosecutor.”  First, proposed Rule 3.8(e) limits the ability of a prosecutor in a criminal case to subpoena a lawyer to the grand jury or other criminal proceedings to present evidence about past or present client unless a prosecutor reasonably believes the information is not protected from disclosure by privilege, the evidence is essential to the successful completion of investigation or prosecution, and there is no other feasible alternative to obtain the information.  Attorney General Ayotte argued the rule change was unnecessary because existing judicial review of subpoenas afforded appropriate protection to clients and raised the concern that the proposed rule would hinder prosecution in white collar cases where a lawyer may have been involved in the commission of the crime.  Notwithstanding the concerns raised, the Court adopted the rule as proposed.  Thus, prosecutors must use care prior to using subpoena power to secure testimony or other evidence from lawyers regarding past or present clients.


Similarly, the proposed Rule 3.8(f) limits prosecutors in making comments about pending cases by requiring that they be “necessary” for legitimate law and fortunate purpose.  Attorney General Ayotte raised the concern that the proposed rule would have greatly limited a prosecutor’s ability to make any public comments about a case unless there was an immediate safety concern involved.  Specifically, Ayotte said that the rule proposal might preclude prosecutors from commenting on the progress or status of the case.  Despite these concerns, the Court approved the modifications to Rule 3.8(f) as proposed.


III.        Conclusion


The revisions to the rules regarding trial publicity and special responsibilities of a prosecutor related to statements to the press appear to be directed at preserving the notion that cases should be tried in court, not in the press.  To the extent lawyers make statements to the press that are not expressly permitted by the rules, they do so at their peril.  Both criminal defense attorneys and prosecutors should review the changes carefully to make sure that their conduct in speaking to the press conforms to the requirements of the professional conduct rules.


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


The amended NH Rules of Professional Conduct take effect Jan. 1, 2008. Visit the Ethics pages in Legal Links section of Click on the “Rewriting the Rules” link for an easily browsed version of the new rules (with links to the current rules) and recent articles on key changes.



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