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Media Policy

Due to the nature of Oberheiden P.C. (“Firm”)’s work, members of the media may, from time to time, take an interest in Firm or its pending cases. Inquiries may concern general subject areas, or they may be in regard to specific clients or sensitive internal matters. Regardless of the inquiry’s nature, Firm is committed to communicating with the media in a manner that is consistent with its legal and ethical obligations. Accordingly, it is Firm policy that any communications with the media are to be conducted in a manner that is consistent with the following rules and restrictions.

Client Objectives: ABA Model Rule of Professional Conduct 1.4(a)(2).

In any attorney-client relationship, the goals and objectives of the client must be a primary consideration. Pursuant to ABA Model Rule 1.4(a)(2), a lawyer shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished. This may include consultation as to how the lawyer should interact with members of the media. State bar ethics rules contain similar provisions. For example, both New York Rule of Professional Conduct 1.4(a)(2) and California Rule of Professional Conduct 1.4(a)(2) adopt and mirror the language of ABA Model Rule 1.4(a)(2). Texas Disciplinary Rules of Professional Conduct 1.02(a) contains a similar provision and states that a lawyer shall abide by a client’s decisions concerning the objectives and general methods of representation.

In a case where media attention is anticipated or arises, Firm’s policy is to discuss any potential media communications with its client so that the client is able to balance considerations of strategy, public perception, confidentiality, privilege, and any other matters that the client may deem relevant. Media communications will be conducted solely in accordance with the client’s authorization and direction, as required by Model Rule 1.4(a)(2) and the analogous State bar ethics rules.

Restrictions on Extrajudicial Statements: ABA Model Rule 3.6

In addition to its obligations to its clients, Firm recognizes that it has an independent obligation to avoid statements to the media that would violate a lawyer’s professional ethical obligations. Pursuant to established Supreme Court precedent, Firm understands that, consistent with the First Amendment, an attorney may be censured for an extrajudicial statement that has a substantial likelihood of prejudicing pending legal proceedings. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). This is reflected in ABA Model Rule 3.6(a), which states that 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.” Similar provisions are contained in the New York, California, and Texas rules of professional conduct. See Cal. R. Prof. Conduct 3.6; N.Y. R. Prof. Conduct 3.6; Tex. Disciplinary R. Prof. Conduct 3.07(a). California’s provision mirrors the language of the ABA Model Rule. New York’s Rule 3.6(a) varies slightly and states that a lawyer who participates “in a criminal or civil 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.” And Texas’ Rule 3.07 states that in “the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” It further provides that a lawyer “shall not counsel or assist another person to make such a statement.”

Preserving the right to a fair trial necessarily entails a curtailment of information that may be disseminated before trial, particularly when a jury is involved. However, society has an interest in the free dissemination of information about legal proceedings and their consequences, and clients have a right to defend themselves in the court of public opinion. As such, a balance must be struck between protecting the right to a fair trial and safeguarding the right of free expression. Therefore, to ensure that communications with the media do not pose any risk of materially prejudicing an adjudicative proceeding, Firm takes the following considerations into account.

Nature of the Statement

First, there are certain statements that will not ordinarily result in material prejudice. For example, ABA Model Rule 3.6(b) provides that a lawyer may, notwithstanding the language of paragraph (a), state the following:

  1. The claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
  2. Information contained in a public record;
  3. That an investigation of a matter is in progress;
  4. The scheduling or result of any step in litigation;
  5. A request for assistance in obtaining evidence and information necessary thereto;
  6. A warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
  7. In a criminal case, the identity, residence, occupation, and family status of the accused, whether the accused person has been apprehended, information necessary to aid in apprehension of that person, the fact, time, and place of arrest, and the identity of investigating and arresting officers or agencies and the length of the investigation.

Texas Disciplinary Rule of Professional Conduct 3.07(c), New York Rule of Professional Conduct 3.6(c), and California Rule of Professional Conduct 3.6(b) recognize that the statements identified in ABA Model Rule 3.6(b) will not ordinarily result in material prejudice. One example from New York is the case In Re Sullivan, 185 A.D.2d 440 (1992). In Sullivan, a New York lawyer allegedly violated New York’s Code of Professional Responsibility by giving an interview where he discussed his client’s potential testimony, summarized expert testimony, and discussed the potential testimony of a witness. Id. at 442. On appeal, the court noted that the respondent’s interview “was a mere drop in the ocean of publicity surrounding this trial, and indeed, all of the matters remarked upon by respondent had been otherwise publicized prior to the interview.” Therefore, because the information was already known to the public, the statements did not create a substantial likelihood of materially prejudicing the proceeding.

The Comment to Model Rule 3.6 and the Texas and New York Rules identify certain statements that will ordinarily result in a likelihood of material prejudice. According to Texas Disciplinary Rule of Professional Conduct 3.07(b), a statement ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:

  1. the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
  2. in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;
  3. the performance or results of any examination or test or the refusal of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
  4. any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or
  5. information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.

Similarly, New York Rule of Professional Conduct 3.6(b) instructs that a statement ordinarily is likely to prejudice materially an adjudicative proceeding when it refers to a civil matter triable to a jury, a criminal matter or any other proceeding that could result in incarceration, and the statement relates to:

  1. the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness or the expected testimony of a party or witness;
  2. in a criminal matter that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission or statement given by a defendant or suspect, or that person’s refusal or failure to make a statement;
  3. the performance or results of any examination or test, or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
  4. any opinion as to the guilt or innocence of a defendant or suspect in a criminal matter that could result in incarceration;
  5. information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial
  6. risk of prejudicing an impartial trial; or
  7. the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

Nature of the Proceeding

In addition to the type of statement, the nature of the proceeding is relevant to whether a statement is more likely to create a substantial risk of material prejudice. The Comments to both ABA Model Rule 3.6 and New York Rule of Professional Conduct 3.6 state that criminal jury trials will be the most sensitive to extrajudicial speech while civil trials may be less sensitive. Non-jury hearings and arbitration proceedings are even less likely to be affected. Although there are still limitations on prejudicial comments in these cases, the likelihood of prejudice may differ depending on the type of proceeding.

Whether the Statement Addresses a Central Issue

Statements that address peripheral issues generally pose less risk of material prejudice than statements that concern central issues. For example, in New York State Ethics Opinion 977 (2013), the ethics committee noted that “statements on peripheral issues may carry little risk of prejudice,” while statements “may be more likely to be prejudicial if they address crucial issues committed to the finder of fact or are expressed in an inflammatory way.” Therefore, if it concerns an issue that is not central to a legal matter, it is usually appropriate for a lawyer to comment upon the subject. On the other hand, lawyers should clearly refrain from commenting on a central issue, such as a disputed fact that is to be determined by a judge or a jury.

Protecting a Client From Substantial Undue Prejudice

Under ABA Model Rule 3.6(c), a lawyer may make a statement that would otherwise be impermissible under Model Rule 3.6(a) if it is 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. Additionally, such a statement must be limited to such information as is necessary to mitigate the recent adverse publicity. See also Cal. R. Prof. Conduct 3.6(c) and N.Y. R. Prof. Conduct 3.6(d) (permitting 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 client). Therefore, a lawyer may also make certain extrajudicial statements as long as they are limited to information necessary to mitigate recent negative publicity. Additionally, any defensive statement should be crafted so as to minimize the possibility of materially prejudicing an adjudicative proceeding.

Conclusion

Consistent with its professional ethics obligations, and any other federal, state, or local rules that may be applicable in a given instance, it is Firm policy that any communications with the media must comport with the foregoing principles. Accordingly, the foregoing rules, considerations and factors are taken into account whenever Firm or Firm attorneys make extrajudicial statements with respect to any criminal or civil matter in which Firm has participated.

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