When may an Indiana lawyer publicly comment on a pending matter?

Plain-English summary

Opinion 1-22 applies Rules 1.6, 3.6, and 3.8(f) to press statements and social-media comments by a lawyer participating, or formerly participating, in a pending matter. Rule 1.6 requires client consent for disclosure of protected information. Rule 3.6 focuses on whether the statement, when made, creates a substantial likelihood of materially prejudicing an adjudicative proceeding; actual prejudice is unnecessary.

Rule 3.6 contains rebuttably prejudicial subjects and safe-harbor subjects. The opinion explains that public-record information means material an ordinary citizen can lawfully access, not internal reports available only to insiders. The lawyer stays within quotations from or references to that public record.

The opinion identifies comments about inadmissible tests, witness credibility, and a defendant's guilt as likely sources of prejudice. Prosecutors have the additional Rule 3.8(f) duty to limit statements to legitimate law-enforcement purposes and avoid remarks substantially likely to heighten public condemnation of the accused.

Rule 3.6(c) permits a limited response to adverse publicity not initiated by the client. The response is confined to information needed to mitigate the publicity rather than escalating it. The opinion also explains that an unnamed social-media comment can still violate Rule 1.6 when contextual details allow the matter or client to be identified.

In practice

Under this opinion, the public-comment analysis covers client consent, the content and timing of the statement, access to any cited record, the surrounding political and social climate, likelihood of prejudice, and whether a response is narrowly directed to adverse publicity.

Common questions

Q: Must public comments actually prejudice a case before Rule 3.6 applies?

A: No. The opinion focuses on the substantial likelihood of material prejudice at the time the statement is made.

Q: Can a lawyer discuss information from the public record?

A: Rule 3.6(b) permits specified public-record information, but the opinion limits that category to material an ordinary citizen can lawfully access and to quotations or references that do not go beyond it.

Q: Can a lawyer respond when another person creates adverse publicity?

A: Yes, in limited form. Rule 3.6(c) permits a response needed to mitigate publicity not initiated by the client, but the response must not escalate the prejudice.

Q: May a prosecutor announce that the death penalty will be sought?

A: In the opinion's hypothetical, that announcement serves a legitimate law-enforcement purpose, while inflammatory descriptions of the accused and omission of the presumption of innocence are problematic.

Q: Does omitting the client's name avoid confidentiality problems?

A: Not necessarily. The opinion's social-media hypothetical shows that contextual facts can expose client information even when the client is unnamed.

Background and rules framework

The opinion applies Indiana Rule 1.6 on confidentiality, Rule 3.6 on trial publicity, and Rule 3.8(f) on prosecutors. It uses five hypotheticals to address inadmissible evidence, nonpublic records, guilt statements, adverse publicity, and reactive social-media posts.

Citations and references

Indiana Rules of Professional Conduct:

• Rules 1.6, 3.6(a), 3.6(b), 3.6(c), 3.6(d), and 3.8(f)

Cases:

• Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), balance between fair-trial rights and lawyer speech
• In re Brizzi, 962 N.E.2d 1240 (Ind. 2012), likelihood of prejudice and public-record limits
• In re Litz, 721 N.E.2d 258 (Ind. 1999), polygraph results and prejudicial comments

See also

• Indiana Advisory Op. 1-20: Third-Party Social Media Content
• Virginia LEO 1542: Prosecutor Public Statements
• Ohio Opinion 1988-025: Prosecutor Statements After an Investigation

Source

• Landing page: Indiana attorney advisory opinions
• Original PDF: Opinion 1-22