Also known as: substantially likely to materially prejudice an adjudicative proceeding · Rule 3.6 standard · trial publicity prejudice
Written by attorneys · grounded in primary & secondary sources — see below
A standard that triggers professional discipline when a lawyer participating in litigation makes an extrajudicial statement that the lawyer knows or reasonably should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
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Linda, lead prosecutor in a securities fraud case against Victor, appears on national television weeks before jury selection. She states there is no doubt Victor ran a criminal scheme and highlights a secretly recorded call the court has already ruled inadmissible. The remarks reach a broad audience that includes potential jurors and go beyond permitted categories of information.
Walter, counsel for River Realty in a fraud suit brought by Abigail, grants a podcast interview before trial. He calls Abigail a serial liar and reveals she is under a separate federal tax fraud investigation, facts never mentioned in any public filing. The podcast reaches a regional audience that overlaps with the venire.
Ortiz, counsel for Maya Lopez in a campus assault suit against Westfield University, gives an interview to the student newspaper one month before jury selection. She identifies alleged eyewitnesses by name and asserts that the accused student lied repeatedly to investigators and will lie on the stand. The newspaper circulates widely in the small college town where the case will be tried.
Yes. The prohibition applies to any matter being investigated or litigated, not only after a jury is sworn. Public comments made weeks before jury selection can taint the venire and create the required substantial likelihood of material prejudice.
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Yes. Statements limited to information contained in a public record fall within a recognized safe harbor even if they reach potential jurors. The rule permits such repetition because the material has already entered the public domain through court filings.
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No. Lawyers may state the claim or defense involved, scheduling information, and facts in the public record. The rule forbids only those extrajudicial statements that the lawyer knows or reasonably should know will be disseminated publicly and carry a substantial likelihood of material prejudice.
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Accusations of criminal conduct, intoxication, or document destruction that have never appeared in any public record or been tested through discovery create a substantial likelihood of material prejudice. Such statements risk tainting the jury pool on issues central to credibility and liability.
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No. The rule governs lawyers participating in the investigation or litigation of any adjudicative proceeding, civil or criminal. Civil jury trials raise the same concerns about prejudicial pretrial publicity that the rule addresses.
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