Concept
The General Prohibition
Trial publicity
The General Prohibition
Rule 3.6(a) states the prohibition in one long sentence: “A lawyer who is participating or has participated in the investigation or litigation of a matter 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 in the matter.”1 An extrajudicial statement is one made outside the proceeding itself, such as a remark to a reporter, a press release, or a social media post, as opposed to an argument or filing addressed to the tribunal. The sentence poses three questions, and the rule is violated only when all three draw a yes: who is speaking, what kind of speech is it, and how serious is the danger to the proceeding?2 A statement that fails any one of them falls outside paragraph (a), so an exam answer should take them in order and should not start from whether the statement seems harmful.
The phrase “knows or reasonably should know” governs both the dissemination element and the prejudice element, and it works on two levels.3 A lawyer knows a fact when the lawyer is actually aware of it, and a lawyer reasonably should know it when a careful lawyer in the same position would have realized it. The objective half stops a lawyer from escaping by claiming never to have expected the remark to be broadcast or never to have thought about prospective jurors. The subjective half keeps a lawyer who did understand the risk from hiding behind a kinder view of what others would have thought.
What the rule measures, then, is foreseeable effect at the moment of speaking. Intent is not an element: a lawyer who wants only to defend a client is as exposed as one who wants to sway the jury pool, if a reasonable lawyer would have seen a substantial likelihood of material prejudice. Nor must the proceeding actually have been tainted. How jurors or prospective jurors reacted may bear on how likely prejudice was, but the rule asks for a forecast, not a verdict on what happened afterward.4 That forward-looking design fits the point Sheppard made: reversals are only palliatives, the cure lies in measures that prevent prejudice at its inception, and courts must protect their processes from prejudicial outside interference by rule and regulation.5 The elements follow in order, beginning with the lawyer who is subject to the rule at all.
Covered Lawyers
Rule 3.6(a) answers “who is speaking?” by asking about the lawyer’s connection to the matter. It reaches a “lawyer who is participating or has participated in the investigation or litigation of a matter.”6 Bar membership alone adds nothing; the speaker’s tie to this particular matter decides coverage. The class includes the lawyers you would expect, namely prosecutors, defense counsel, and civil litigators for either side, and the words “investigation or litigation” mean the tie can begin before anyone files a case. This element comes first because a speaker with no such tie never reaches the questions of public dissemination and likely prejudice.
The past tense in “has participated” keeps a lawyer inside the class after the lawyer’s role has ended.7 The reason lies in what makes a participant’s words dangerous. A lawyer who has worked on a matter has seen the discovery, talked with the client, and learned which witnesses are strong and which are weak, and the public credits the lawyer’s words because it presumes they rest on inside information.8 That knowledge outlasts the engagement. If status ended on withdrawal, a lawyer who wanted to speak freely about a pending case could withdraw first, and the rule would bind only the lawyers who had no wish to evade it. Covering past participation closes that exit.
The rule draws the other side of the line just as deliberately. A lawyer with no role in the matter, such as a law professor commenting on a pending trial or a lawyer hired by a news network as a legal analyst, stands outside paragraph (a).9 The official comments explain the choice with two observations: informed commentary by lawyers has great public value, and a lawyer who is not involved in the proceeding is unlikely to prejudice it.10 Each observation traces to a feature of the speaker. An outsider has no presumed access to the file, and an outsider lacks a personal stake in the outcome, so the audience has less reason to treat the remarks as insider information and the speaker has less motive to slant them.11 A lawyer speaking as an informed citizen, rather than as an officer of the court involved in the proceeding, also exercises the right of free expression at its apex.12 Restricting such commentators would cost public debate a great deal and avert very little prejudice. The rule concentrates its restriction where the risk is concentrated, in the lawyer with presumed inside knowledge.
On an exam, the hinge is the speaker’s relationship to the matter, and the speaker’s title or stage does not move the analysis. Two lawyers can sit in the same studio and discuss the same murder trial under opposite rules. The one who never took part in the case may analyze the prosecution’s strategy freely, while the one who spent the first months on the defense team before withdrawing is a covered lawyer whose remarks must still pass the rest of paragraph (a). Paragraph (a) looks only at a lawyer’s own role in the matter; a later section takes up statements by lawyers associated with a covered lawyer.
Public Extrajudicial Statements
Rule 3.6(a) reaches a statement only if two conditions about the statement itself are met: it must be “extrajudicial,” and the lawyer must know or reasonably should know that it “will be disseminated by means of public communication.”14 The first condition fixes where the lawyer is speaking, and the second fixes who is likely to hear it. Together they confine the rule to speech that bypasses the courtroom’s filters. Each condition has its own logic.
A frequent exam stem has a lawyer say something inflammatory during trial while the press reports every word, then asks whether the lawyer violated the trial-publicity rule. The first condition answers it. A statement made inside the proceeding, such as an opening statement, a closing argument, or an argument to the judge, is addressed to the tribunal and is therefore not extrajudicial, and press coverage does not change where the statement was made.15 The reason lies in who controls the setting. Words spoken in open court reach the decision maker directly, the judge supervises them, and opposing counsel can object or respond on the spot. An out-of-court statement has none of those controls, and that gap is what the rule exists to fill.
The hinge in that pair is the forum, not the clock or the audience, because a statement made during trial is not automatically a statement in the trial. Other rules, which are a separate subject, may still restrict what a lawyer says in open court, for example by forbidding allusions to matters that admissible evidence will not support. A prosecutor whose opening strays that far may face discipline under one of them. That analysis does not run through Rule 3.6, and an answer that treats inflammatory courtroom remarks as a trial-publicity violation has misplaced the rule.
The second condition asks whether the lawyer knows or reasonably should know that the statement will be disseminated by means of public communication, the same foreseeability standard the paragraph uses throughout.16 Some channels answer the question on their face. A lawyer who gives an interview, issues a press release, or holds a press conference has chosen a channel built to carry words to the public. A lawyer involved in the proceeding who comments on social media ordinarily should anticipate further distribution of the remarks.17
The standard stops where foresight stops. The harm the rule targets comes from amplification, since a statement can reach the jury pool only if it is published, so a lawyer answers for what the lawyer can foresee will travel and not for what an unforeseeable listener repeats. Rule 3.6(a) applies only when the lawyer knows or reasonably should know that the statement will be publicly disseminated. If the lawyer has taken reasonable steps to make a statement in a confidential setting, the surreptitious or unanticipated interception of that statement by someone positioned to publicize it does not expose the lawyer to discipline.18
The protection depends on the precautions actually taken. It would not help a lawyer who delivers the same remark in a courthouse corridor in a stage whisper while a reporter stands beside her, because that lawyer chose a setting in which public reach was the foreseeable result.
New channels follow the same analysis, so social media adds no new rule. In Missouri v. Polk the St. Louis Circuit Attorney, prosecuting a twenty-year-old rape case, posted messages about the case on Twitter before jury selection, during the trial, and while the jury deliberated.19 Each post went from outside the courtroom to the public at large, so each was extrajudicial, and a prosecutor publishing to the public cannot claim to have expected privacy. Posting while court is in session does not turn a post into a statement in the proceeding, for the reason already given: the forum is the test. The appellate court doubted that using social media to highlight the evidence and dramatize the victim’s plight served any legitimate law enforcement purpose, and it worried that calling the accused a “child rapist” could arouse heightened public condemnation.20 It nonetheless found no evidence that jurors were influenced and could not conclude that the mere potential for prejudice had substantially swayed the jury.21 The court was asking what happened to this jury, which differs from asking what the lawyer could foresee. The channel element turns on the statement’s foreseeable reach, and whether the statement carried a substantial likelihood of material prejudice is the third element, taken up next.
Substantial Likelihood of Material Prejudice
The third element carries most of the rule’s weight, because it asks whether the statement will have “a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”23 Each qualifier does separate screening work. “Substantial” attaches to the likelihood and asks how probable the harm is, so a risk that is merely conceivable does not satisfy it. “Materially” attaches to the prejudice and asks how serious the harm would be, so an effect too slight to change how the proceeding is conducted or decided does not satisfy it. The reason for stacking two thresholds follows from how public speech works. Almost any remark about a pending matter could in theory reach someone who will later sit on the jury, and if a theoretical chance were enough, the rule would forbid every participating lawyer from saying anything at all. That result would erase the free-expression interests the rule exists to honor, so the two thresholds confine it to the zone in which harm to the proceeding is both probable and significant.
Because a lawyer must be able to apply the standard before speaking, the inquiry looks forward from the moment of the statement and asks what a careful lawyer in the same position would have foreseen. No arithmetic converts a remark into a probability, so you run the element by surveying the circumstances that raise or lower the risk and combining them into one overall judgment.24
The first step sets the baseline, and the other four raise or lower it. That is why the same sentence spoken to a reporter can be a serious violation in one matter and unobjectionable in another, and why an answer that labels a statement harmful or harmless without naming the proceeding has skipped the step that matters most.
The nature of the proceeding comes first because it determines who will hear the case and how exposed that person is to the outside world. Criminal jury trials are the most sensitive to extrajudicial speech, and the greatest danger the rule targets is that the pool of prospective jurors, or the seated jury, will be tainted by publicity that draws attention to matters likely to be inadmissible at trial or that inflames public hostility toward the accused.25 Lay jurors have no training in setting aside what they have heard, and a conviction costs the defendant liberty, so words that would pass harmlessly elsewhere carry their highest risk here. Civil jury trials are less sensitive as a category, yet the civil cases that attract reporters often involve scandalous facts, charges of serious misconduct, or publicity about subjects the judge will keep from the jury, and in those cases the risk to the jury approaches the criminal level.26
The bench-trial half of that pair marks the opposite pole. In Gentile v. State Bar of Nevada the Chief Justice’s opinion observed that the substantial-likelihood test would rarely be met where the judge is the trier of fact, since judges often have access to inadmissible and highly prejudicial information and are presumed able to discount or disregard it.27 A judge who rules on admissibility must see the excluded material in order to rule on it, so a press statement reveals little the judge has not already seen. Appeals sit lower still. A lawyer who has briefed or argued an appeal may talk with the news media about its substance and issues, at least if the case is unlikely to be tried before a jury on remand, because appellate judges face no real risk of being influenced by media reports and public understanding of a pending appeal is especially worthwhile.28 A low risk of prejudice does not end every restriction, however. Special rules of confidentiality may validly govern juvenile, domestic relations, and mental disability proceedings, for reasons other than the effect of publicity on the decisionmaker, and a lawyer must comply with them when they apply.29
Content, place, and timing work together on top of that baseline. A bland remark, or one confined to matters on which the jury will hear admissible evidence anyway, creates little danger, while a statement about a party’s character, a witness’s credibility, or excluded material creates much more. Place matters because the audience that counts is the community that supplies the jurors, so the risk depends on whether the statement was disseminated close to the trial venue or some distance away. Timing matters because memory fades, so the risk depends on whether the statement came long before the trial or close to its date.30 A statement that reaches the venire on the eve of voir dire can force a continuance or a change of venue, because a judge who faces a reasonable likelihood that prejudicial news will prevent a fair trial should continue the case until the threat abates or transfer it to a county not so permeated with publicity.31 Justice Kennedy’s opinion in Gentile applied these considerations to the lawyer’s own press conference. The community from which any jury venire would be drawn exceeded 600,000 people, and a long interval remained before trial, so only the most damaging information could give rise to any likelihood of prejudice, and the innocuous content of the statements reinforced that conclusion.32 A later section returns to what Gentile held about the First Amendment and vagueness; here it supplies the timing and venue-size considerations.
United States v. Cutler shows a lawyer on the wrong side of nearly every one of those circumstances. Bruce Cutler represented John Gotti in a racketeering prosecution built on extensive wiretap evidence. After the trial court repeatedly admonished him to comply with the local rule on prejudicial publicity, he held a press conference outside the courthouse, declared that the government had thrown the Constitution out the window, and called its witnesses bums.33 The remarks made the local news that night and the tabloids the next morning.34 A month before the scheduled trial he appeared on a live one-hour television program, described Gotti as a good and honorable man, called the government’s tapes phony, accused the prosecutors of a witch hunt, and said that jurors realize the witnesses lie.35 The Second Circuit held that his comments were reasonably likely to prejudice the proceedings, relying on the observation in Gentile that lawyers’ statements tend to be received as especially authoritative because lawyers have special access to information through discovery and client communications.36
Mapped onto the five circumstances, the facts line up closely. The proceeding was a criminal jury trial, the most sensitive setting. The content attacked the evidence and the credibility of witnesses and vouched for the accused’s character, which are the very questions the jury would decide. The statements ran in the community from which the jury would be drawn, a month before trial, after the court had already warned the lawyer. One caution keeps the case in its place: Cutler was a criminal contempt prosecution under the Eastern District’s local rule, which asked whether there was a “reasonable likelihood” of interfering with a fair trial.37 The court read Gentile as treating statements of this sort as ordinarily likely to meet the stricter substantial-likelihood standard.38 Comparing the two press events isolates what Cutler added. Gentile spoke once, long before trial, in a large county; Cutler spoke repeatedly, a month before trial, in the face of judicial warnings.
The last circumstance needs its own caution because exam stems tempt students to treat it as decisive. Evidence that jurors or prospective jurors actually absorbed a statement supports the conclusion that the risk was real, but the rule does not condition a violation on proof that anyone was swayed.39 The Second Circuit framed its finding in terms of what Cutler’s comments were reasonably likely to do, which tracks the forward-looking character of the inquiry. An answer that calls a statement harmless because no juror was affected has substituted a verdict about the aftermath for the forecast the rule asks about. An answer that calls any lawyer remark near a criminal trial a violation has skipped the content, place, and timing that make the forecast substantial.