Can a lawyer draft an advertisement for a client to run under the client's own name when the lawyer could not run it herself under the trial-publicity rule?
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This page answers the general question as of 2003. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A client wanted a lawyer to draft and place a newspaper advertisement about a pending lawsuit. The lawyer declined to place it herself, having concluded that, although truthful, it would likely materially prejudice the proceeding and so violate Rule 3.6. The client then asked whether it could run the advertisement under its own name, and the lawyer said it could; the client next asked the lawyer to draft the advertisement for the client to insert under the client's name. The lawyer asked whether she could do so.
The committee analyzes the question through Rule 3.6 (trial publicity) and Rule 8.4(a), which makes it misconduct to violate the rules "through the acts of another." It relies on its earlier Opinion 82-8, where it advised that a client's transmission of a settlement position the lawyer had developed amounted to "causation" by the lawyer of conduct the lawyer could not undertake directly. The committee reads the present facts as materially similar, indeed stronger, because the lawyer is being asked to do the drafting entirely. Because the lawyer has concluded that material prejudice is likely whether she or the client signs the advertisement, the committee advises that the combination of Rules 3.6 and 8.4(a) indicates that preparing the advertisement would be a violation.
The committee then addresses the ABA's then-recent addition of a Comment to Model Rule 8.4(a) stating that the paragraph "does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take." It observes the Comment can be read narrowly (allowing advice but not making the client the lawyer's mouthpiece) or broadly (permitting the lawyer to achieve indirectly what she cannot do directly), and concludes the broad reading should not be treated as a mere interpretation of the existing rule. The committee declines to predict how the Supreme Judicial Court would resolve the question, noting the SJC had recently taken differing approaches in Messing, Rudavsky & Weliky v. Harvard College and In re Georgette. It therefore frames its conclusion as a "substantial risk" rather than a categorical bar.
In practice
Under this opinion, conduct that has the lawyer draft a litigation advertisement she has already judged would violate Rule 3.6, for the client to run under the client's own name, presents a substantial risk of violating Rules 3.6 and 8.4(a). Per the opinion, the analysis turns on the principle that a lawyer may not accomplish through the client, as the client's mouthpiece, what the rules bar her from doing directly. The committee expressly declined to predict how the Supreme Judicial Court would treat the ABA's new Comment to Rule 8.4(a), and it flagged the issue as one the SJC's Standing Committee on the Model Rules may wish to address.
Common questions
Q: Can a lawyer draft something for a client to publish that the lawyer is barred from publishing herself?
A: The committee concludes that doing so presents a substantial risk of violating Rule 8.4(a), which prohibits violating the rules "through the acts of another," when the underlying act (here a Rule 3.6 trial-publicity violation) is one the lawyer could not perform directly.
Q: Does the ABA Comment allowing a lawyer to advise on lawful client action change the answer?
A: The committee reads that Comment narrowly. It concludes the Comment permits advising a client about lawful action but should not be read to let a lawyer achieve indirectly, through the client, what the rules forbid the lawyer from doing directly.
Q: Did the committee say this is definitely a violation?
A: No. It declined to predict how the Supreme Judicial Court would rule and framed the conclusion as a substantial risk of being held in violation rather than a certainty.
Background and rules framework
The opinion interprets Mass. R. Prof. C. 3.6 (trial publicity), which bars an extrajudicial statement a lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding, together with Mass. R. Prof. C. 8.4(a), which makes it misconduct to violate the rules or to do so "through the acts of another." Both correspond to the Model Rules of the same numbers.
Citations and references
Rules of Professional Conduct:
- Model Rule 3.6 / Mass. R. Prof. C. 3.6(a) (trial publicity)
- Model Rule 8.4 / Mass. R. Prof. C. 8.4(a) (misconduct, including acting "through the acts of another")
Cases:
- Messing, Rudavsky & Weliky v. President and Fellows of Harvard College, 436 Mass. 347 (2002) (SJC rewrote a rule Comment in the course of deciding the case)
- In re Georgette, 439 Mass. 28 (2003) (SJC referred interpretive difficulties to its standing committee)
Other opinions cited:
- MBA Opinion 82-8: a lawyer's "causation" of conduct transmitted through a client
- MBA Opinions 98-1 and 87-3: following Opinion 82-8
See also
No sibling opinions yet indexed.
Source
- Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2003-opinion-03-2/opinion-03-2
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