Can a district attorney release an information sheet to the news media about criminal cases, including the reasons cases were dismissed, without violating the trial-publicity rule?

Plain-English summary

The question was whether an information sheet a district attorney proposed to release to the news media would comply with Rule 7-107 on trial publicity. The opinion concluded that, except for the reasons for dismissing criminal cases, all the information on the sheet was a matter of public record that the news media could obtain by reference to the public record, so Rule 7-107(A)(1) applied to those aspects, and the sheet would be adequate if the reasons for dismissal were omitted.

The opinion explained that including reasons for dismissal opened the door for a district attorney to inadvertently give a wrong impression or wrong reasons, or make implications that might be incorrect, and concluded that the general scope of Rule 7-107 would preclude a district attorney from giving such reasons. It acknowledged that the public would want to know why cases are dismissed, and that a district attorney would have to be extremely circumspect, giving only general reasons without specifics.

The opinion concluded that dismissals based on the factual posture of a case especially gave rise to speculation and controversy, that the less said the better, and that Rule 7-107(B)(6) could too easily be violated by giving such reasons, especially where other charges were pending against the defendant.

Currency note

This opinion was issued in 1984, when New Mexico lawyers were governed by the former New Mexico Code of Professional Responsibility, which the State Bar later replaced with the Rules of Professional Conduct; it also predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The trial-publicity rule it cites has since changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a district attorney release an information sheet about cases to the media?

A: Yes, in part. The opinion concluded that the public-record information on the sheet was acceptable under Rule 7-107(A)(1), because the media could obtain it from the public record.

Q: Could the sheet include the reasons criminal cases were dismissed?

A: No. The opinion concluded the reasons for dismissal should be omitted, because giving them could create a wrong impression and too easily violate Rule 7-107(B)(6), especially with other charges pending.

Q: How should a district attorney handle questions about why cases were dismissed?

A: The opinion concluded the district attorney would have to be extremely circumspect, giving only general reasons without specifics, and that on factual-posture dismissals "the less said, the better."

Background and rules framework

The opinion interpreted Rule 7-107 of the former New Mexico Code of Professional Responsibility (trial publicity), specifically Rule 7-107(A)(1) (information in the public record) and Rule 7-107(B)(6), as applied to a district attorney's proposed information sheet for the news media.

Citations and references

Rules of Professional Conduct (former Code):

• Model Code DR 7-107 / NM Code Rule 7-107 (trial publicity), including subsections (A)(1) and (B)(6)

See also

• NM Ethics Op. 1983-6: Spousal Conflict in Public Agency Employment
• NM Ethics Op. 1984-2: Insolvent Client Confidentiality

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1984/1984-10.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion 1984-10
QUESTION:
Whether the information sheet to be released to news media would be acceptable and not in violation of Rule 7-107 dealing with trial publicity.
OPINION:
Save and except for reasons of dismissal of criminal cases, all information contained within the information sheet are matters of public record and could be obtained by news media merely by reference to said public record. Rule 7-107(a)(1) would apply to all aspects save and except for reasons given for dismissal of criminal cases.
I feel the information sheet would be adequate if reasons for dismissal were not included. This opens the door for a District Attorney to inadvertently give the wrong impression, wrong reasons, or make implications that may or may not be correct. feel that the general scope of Rule 7-107 would preclude the District Attorney for giving any reasons in this nature for dismissal. However, I recognize the fact that the general public would like to know why many cases are dismissed. it would be necessary that the District Attorney be extremely circumspect in how he answered these by giving general reasons without going into specifics. There are a multitude of reasons for dismissing cases that are required by law or by factual posture of the cases. Too often when a case is dismissed by reason of factual posture, it gives rise to speculation and controversy as to the rightness or wrongness of the reasons for dismissing on a factual posture basis. The less said, the better. Rule 7-107(b)(6) could be too easily violated for giving such reasons, especially if there are other charges pending against a Defendant.