Also known as: substantial likelihood of material prejudice · Rule 3.6 · trial publicity standard
Written by attorneys · grounded in primary & secondary sources — see below
A standard used in professional conduct rules to determine whether a lawyer's out-of-court statement violates trial publicity restrictions. The standard is met when the lawyer knows or reasonably should know that the statement will reach the public and will create a substantial risk of tainting the fairness of an ongoing adjudicative proceeding.
Cole represents River Works in a product liability suit brought by injured workers. While discovery is ongoing, Cole appears on a widely distributed business podcast and accuses the workers of deliberate misuse while intoxicated. Potential jurors in the venue hear the unproven claims months before trial, creating the prohibited risk to the proceeding's fairness.
Linda serves as lead prosecutor in a securities fraud case against Victor. Weeks before jury selection, she states on national television that Victor orchestrated a multi-year criminal scheme and highlights a suppressed recording the jury will never hear. The remarks reach a broad audience and carry the prohibited risk of tainting the venire.
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The lawyer must be participating in the matter. The statement must be extrajudicial and one the lawyer knows or reasonably should know will be disseminated publicly. The statement must also create a substantial likelihood of materially prejudicing the adjudicative proceeding.
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Yes. The prohibition applies to matters under investigation or litigation. Public statements made while jury selection is approaching can taint the venire even if no jury has yet been empaneled.
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Attorney discipline for out-of-court statements is subject to First Amendment constraints. A rule using this standard is permissible in principle, but vague safe-harbor language can render enforcement unconstitutional.
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Lawyers may recite information contained in public court filings without creating the prohibited risk. Statements that add new inflammatory accusations or characterizations beyond those filings fall outside the safe harbor.
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