What kinds of public statements about a pending case may a lawyer not make to the press, radio, or television?

Plain-English summary

Opinion 31 (adopted June 6, 1964) issued a "Statement of Principles on Published Comment Concerning Pending Litigation." It began with Canon 20, which condemned newspaper publications by a lawyer about pending or anticipated litigation that may interfere with a fair trial, and observed that the canon had not been effective and, having been drafted before radio and television, needed embellishment and implementation.

The Committee reasoned that a fair trial presupposes an impartial finder of fact, and that a jury can be improperly influenced not only by out-of-court approaches but by what jurors read or hear in the press and on radio and television. Because lawyers are responsible for many prejudicial statements that reach the public, the Committee stated that members of the bar have a duty to refrain from originating the kinds of statements that should not be published. In criminal proceedings, the listed categories included the accused's criminal record; an alleged confession or admission bearing on guilt; any public official's statement as to guilt; counsel's personal opinion on guilt or innocence; statements that a witness will testify to certain facts; comment on evidence already introduced; comment on witness credibility; and matter excluded from evidence. In civil proceedings, the categories included counsel's personal opinion on the factual or legal merits of either party's claims, predictions of witness testimony, comment on introduced evidence, comment on witness credibility, and matter excluded from evidence. Quoting Craig v. Harney, the Committee stressed that trials are not to be won through the meeting hall, the radio, and the newspaper, and that self-restraint by the bar gives meaning to the constitutional safeguards for a fair trial.

Currency note

This opinion was issued in 1964 under the former Canons of Professional Ethics, before the Colorado Rules of Professional Conduct took effect on January 1, 1993, and before Colorado's 2008 revisions to those rules. The subject, a lawyer's extrajudicial statements about a pending matter, is now governed by Rule 3.6 (trial publicity), whose categories and safe harbors differ from this 1964 statement of principles. Treat this page as historical context, not current guidance. Verify against current Rule 3.6 before relying on any specific limitation mentioned here.

Common questions

Q: Can a lawyer tell the press about the defendant's prior criminal record in a pending case?

A: No, under this opinion. The Committee listed the accused's criminal record among the categories of statements lawyers should not originate for publication while a criminal case is pending.

Q: Can a lawyer give the media his personal opinion about who should win a pending civil case?

A: No, under this opinion. The Committee listed counsel's personal opinion on the factual or legal merits of a party's claims among the prohibited categories in civil proceedings.

Q: Why did the Committee treat trial publicity as a fair-trial problem?

A: The opinion concluded that a jury can be improperly influenced by what jurors read or hear in the media, just as by out-of-court approaches, so prejudicial publicity originated by lawyers threatens the impartial fact-finding a fair trial requires.

Background and rules framework

The opinion interprets Canon 20 of the Canons of Professional Ethics (published comment on pending litigation) and supplements it with a detailed statement of principles. The corresponding Model Rule is 3.6 (trial publicity). The Committee cited Craig v. Harney for the principle that trials are not won through media campaigns.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 3.6 / Model Rule 3.6 (trial publicity; the modern analog to the Canon 20 analysis)

Cases:

• Craig v. Harney, 331 U.S. 367 (1947) (trials are not to be won through the meeting hall, radio, and newspaper)

See also

• CBA Formal Op. 33: Lawyer Contributions to Judicial Campaigns
• CBA Formal Op. 13: Judge and City Attorney Sharing Offices

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_31_2011.pdf