When may a lawyer make public statements about a pending civil or criminal case, and when do pretrial press conferences cross the line under the trial-publicity rule?
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This page answers the general question as of 2026. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
The opinion analyzes a set of civil and criminal hypotheticals under Oregon RPC 3.6, which bars a lawyer who participates in a matter from making an extrajudicial statement the lawyer knows or should know will be publicly disseminated and have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. The opinion stresses the rule is clearer about what it permits than what it forbids: there is no violation unless there is an actual matter, the lawyer is a participant, the lawyer knows or should know the statement will be disseminated, there is an imminent fact-finding process, and the statement is highly likely to seriously prejudice that process. Tracking In re Lasswell and Gentile v. State Bar of Nevada, the rule reaches only speech that creates a danger of imminent and substantial harm, and the safe harbors of Oregon RPC 3.6(b) permit stating the claim, offense, or defense and information contained in the public record.
In the civil case, the opinion concludes a plaintiff's lawyer may hold a press conference near filing asserting the allegations as fact (Question 1: yes), because a trial is not imminent and the statements describe the claim and public-record allegations the lawyer reasonably believes true. A second press conference touting discovery documents is more problematic (Question 2: see discussion): it could violate Oregon RPC 3.6(a) if trial were imminent and the disclosures inflammatory, but if the documents are in the public record the lawyer may state their contents. A defense lawyer's plan to have the client hire a public relations firm (Question 3: see discussion) is constrained by Oregon RPC 8.4(a)(3): the lawyer may not counsel knowingly false statements; truthful statements limited to the defense or public record are permitted; and the lawyer is responsible for the firm's conduct only if the lawyer directs or ratifies it under Oregon RPC 5.3, while doing through others what the lawyer could not do directly may violate Oregon RPC 8.4(a)(1).
In the criminal cases, the opinion concludes a prosecutor's responsibility for an investigator's disclosure of a suspect's sexual predilections (Question 4: see discussion) depends on the prosecutor's supervisory authority under Oregon RPC 5.3; although Oregon RPC 3.6(a) is matter-specific, Oregon RPC 3.6(d) and Oregon RPC 8.4(a)(4) may reach cross-matter prejudice when the same office handles both cases. The prosecutor's post-verdict "most evil man" statement (Question 5: no, qualified) violates the rule only if it could prejudice an imminent sentencing before lay factfinders, such as a separate sentencing jury empaneled close in time, but not if the judge or the admonished trial jury sentences. In the eco-terrorism case (Question 6), announcing indictments and asserting innocence or a justification defense are permitted by Oregon RPC 3.6(b)(1); labeling defendants "terrorists" and the aspersions on government motives are not substantially likely to prejudice an unscheduled trial (no, qualified); and the prosecutor's evidence-foreshadowing, the defense lawyer's stronger-than-record language, and the polygraph statement turn on whether the lawyer knows or should know the statement is highly likely to seriously prejudice an imminent fact-finding process (see discussion).
In practice
This opinion was revised in 2026 and interprets the current Oregon Rules of Professional Conduct. The opinion holds that the trial-publicity rule is violated only when a lawyer's public statement is highly likely to seriously prejudice an imminent fact-finding process in the lawyer's own matter, and that imminence and material prejudice are essential. Per the opinion, the safe harbors do a lot of work: stating the claim, offense, or defense and repeating public-record information are permitted regardless of likely impact, so much pretrial commentary near filing or before any scheduled trial is allowed. The opinion holds that a lawyer cannot evade the rule by routing statements through a client, a PR firm, employees, or investigators, and that a prosecutor may bear responsibility for staff statements under Oregon RPC 5.3, with cross-matter prejudice potentially reached by Oregon RPC 3.6(d) and 8.4(a)(4).
Common questions
Q: Can a plaintiff's lawyer hold a press conference asserting the lawsuit's allegations as fact?
A: Yes, on these facts. The opinion concludes that near filing, with no imminent trial, stating the claim and public-record allegations the lawyer reasonably believes true does not violate Oregon RPC 3.6 and is permitted by the rule's safe harbors.
Q: What makes a pretrial statement actually violate the trial-publicity rule?
A: The opinion concludes the statement must be highly likely to seriously prejudice an imminent fact-finding process in a matter the lawyer is involved in; without imminence and material prejudice, there is no violation.
Q: Can a lawyer have the client hire a PR firm to push back on allegations?
A: Qualified. The opinion concludes the lawyer may not counsel knowingly false statements, may counsel truthful statements limited to the defense or public record, and is responsible for the firm only if the lawyer directs or ratifies its conduct or uses it to do what the lawyer could not do directly.
Q: Is a prosecutor responsible when an investigator makes a prejudicial statement to the press?
A: Possibly. The opinion concludes responsibility depends on the prosecutor's supervisory authority under Oregon RPC 5.3, and that cross-matter prejudice may be reached through Oregon RPC 3.6(d) or 8.4(a)(4) when the same office handles both cases.
Background and rules framework
The opinion interprets Oregon RPC 3.6 (trial publicity), including the safe harbors in 3.6(b) and the firm and employee provisions in 3.6(d) and (e); Oregon RPC 8.4(a)(3) and (a)(4) (dishonesty; conduct prejudicial to the administration of justice); Oregon RPC 5.3 (responsibility for nonlawyers); and Oregon RPC 5.1 (supervisory responsibility), corresponding to Model Rules 3.6, 8.4, 5.3, and 5.1. It applies In re Lasswell and Gentile v. State Bar of Nevada on the constitutional limits of the rule.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 3.6 / Model Rule 3.6 (trial publicity; safe harbors)
- Oregon RPC 8.4(a)(3), 8.4(a)(4) / Model Rule 8.4 (dishonesty; conduct prejudicial to the administration of justice)
- Oregon RPC 5.3 / Model Rule 5.3 (responsibility for nonlawyer conduct)
- Oregon RPC 5.1 / Model Rule 5.1 (supervisory responsibility)
Cases:
- Sheppard v. Maxwell, 384 US 333 (1966), prejudicial trial publicity
- In re Lasswell, 296 Or 121, 673 P2d 855 (1983), prosecutor extrajudicial statements
- Gentile v. State Bar of Nevada, 501 US 1030 (1991), constitutional limits of the trial-publicity rule
- In re Lawrence, 337 Or 450, 98 P3d 366 (2004), conduct prejudicial to the administration of justice
See also
- NY State Bar Op. 620: District Attorney Press Release on Seized Evidence
- TX Ethics Op. 631: Prosecutor Publishing DWI Arrestee Names
- NY State Bar Op. 977: Social Media Petition and Survey in a Pending Case
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2007-179.pdf
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