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Trial Publicity
Q: I represent a high-profile criminal defendant, and the District
Attorney's office was quoted by the newspapers as saying things which are
extremely damaging to my client. May I hold a press conference to tell my
client's side of the story?
A: As a general rule, there is a level of Constitutional protection associated
with speaking to the press on your client's behalf. However, attorney speech
may be limited with reasonable restrictions, even if content based, provided
there is a compelling reason for the restrictions. After a little prodding
by the legislature, the State Bar of California elected to do so.
Rule 5-120 of the California Rules of Professional Conduct prohibits any
extrajudicial statement that a reasonable person would expect to be disseminated
by means of public communication (and you can bet a press conference satisfies
that requirement) if the attorney "knows or reasonably should know that
it will have a substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter." The rule applies equally to prosecutors and
defense counsel, and does not supersede any trial court "gag" or
similar orders which may be in place. Fear not, aspiring news commentators:
the rule only applies to attorneys who participate or have participated in
the investigation or litigation of the subject matter.
Now, words like "reasonable" and "substantial" and "material"
are not particularly instructive (the discussion section following the rule
provides some determining factors), so there is inherent risk in making public
statements, particularly if unprepared. What Rule 5-120(B) gives us, however,
is a not-particularly-generous list of acceptable public statements. Also,
Rule 5-210(C) permits "rebuttal" statements if the attorney believes
it is "required to protect a client from the substantial undue prejudicial
effect of recent publicity not initiated by" the attorney or the client,
provided the statements made are "limited to such information as is necessary
to mitigate the recent adverse publicity."
This column is intended to be informal and nonauthoritative, and does
not represent the position of the San Diego County Bar Association. The discussion
does not apply to everyone, and you should retain legal counsel to assist
with your individual circumstances.
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