Can a lawyer talk to the press about a case that is on appeal, criticizing the other side and repeating the allegations in the complaint?

Plain-English summary

The opinion considers a trade-secret case in which a summary judgment for the defendants was reversed on appeal, and, while the defendants' petition for review was pending in the Texas Supreme Court, the plaintiffs' lawyer told the media that the petition was part of a strategy to "delay at all costs so their misconduct is never brought before a jury" and that the defendants "brazenly stole trade secrets worth millions of dollars." The Committee analyzes the statements under Rule 3.07(a), which bars a lawyer from making an extrajudicial statement the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.

The Committee notes the tension built into the rule: Rule 3.07(b) lists statements that "ordinarily" violate it (such as those going to a party's character, credibility, or reputation), while Rule 3.07(c) lists statements that "ordinarily" do not (such as the general nature of the claim or information in a public record), and these statements implicate both. It discusses the Supreme Court's fractured decision in Gentile v. State Bar of Nevada, which found a similar Nevada rule void for vagueness as applied because its safe-harbor provision misled the lawyer about what he could say, and observes that applying Rule 3.07 to these statements could raise the same constitutional concerns.

The Committee concludes it need not resolve that tension, because the timing of the statements (made while the case is pending on appeal) makes them permissible. Although Rule 3.07 applies to adjudicatory proceedings including appeals, Comment 1 contemplates that the likelihood of material prejudice is highest in jury trials, and appellate judges, whose analysis is confined by standards of review, are far less susceptible to prejudice. Citing Opinion 369 (a post-trial press conference) and Gentile's observation that such rules merely postpone comment until after trial, the Committee finds these statements do not have a substantial likelihood of materially prejudicing the proceeding. It expressly does not decide whether the result would differ if the statements were made shortly before or during trial, and says any such application should weigh the Gentile concerns.

In practice

Under this opinion, and under the Texas rule as it stood at the time, a lawyer's extrajudicial statements about a case that is pending on appeal usually do not have a substantial likelihood of materially prejudicing an adjudicatory proceeding, so they usually do not violate Rule 3.07. The Committee grounds this in the lower susceptibility of appellate judges to prejudice compared with juries, and in the First Amendment concerns from Gentile. The opinion expressly declines to decide whether statements made shortly before or during a jury trial would be treated the same way, and directs that any application of Rule 3.07 in that setting take the Gentile concerns into account.

Common questions

Q: Can I comment to the press about my case while it's up on appeal?

A: Per Opinion 683, generally yes. The Committee concludes that extrajudicial statements about a case pending on appeal usually do not have a substantial likelihood of materially prejudicing an adjudicatory proceeding under Rule 3.07, in part because appellate judges are less susceptible to prejudice than juries.

Q: Does it matter that I'm repeating accusations against the other side?

A: The opinion notes that statements attacking a party's character or credibility "ordinarily" implicate Rule 3.07(b), but also that statements tracking the general nature of the claim or information already in the public record "ordinarily" do not violate the rule under Rule 3.07(c). It resolves the case on timing rather than on which category the statements fall in.

Q: Would the answer change if I said the same things right before a jury trial?

A: The Committee expressly does not decide that question. It says the outcome might differ for statements made shortly before or during trial, and that any application of Rule 3.07 in that circumstance should take into account the constitutional concerns discussed in Gentile.

Q: What is the relevance of Gentile v. State Bar of Nevada?

A: The opinion explains that in Gentile the Supreme Court found a similar Nevada trial-publicity rule void for vagueness as applied, because its safe-harbor provision misled the lawyer about what he could say; the Committee warns that applying Rule 3.07 to comparable statements could raise the same constitutional concerns.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 3.07, the trial-publicity rule (ABA Model Rule 3.6), including the general standard in 3.07(a), the "ordinarily prejudicial" categories in 3.07(b), and the "ordinarily permissible" safe-harbor categories in 3.07(c), with Comments 1, 2, and 3. It reads the rule against the First Amendment analysis in Gentile v. State Bar of Nevada and the Committee's prior Opinion 369.

Citations and references

Rules of Professional Conduct:

• MR 3.6 (trial publicity)
• Texas Disciplinary Rules 3.07, 3.07(a), 3.07(b), 3.07(c)

Cases:

• Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991): a state trial-publicity rule held void for vagueness as applied on First Amendment grounds

Other opinions cited:

• Texas Professional Ethics Committee Opinion 631 (July 2013): Rule 3.07 imposes a flexible standard that must account for the manner and circumstances of a statement
• Texas Professional Ethics Committee Opinion 369 (August 1974): timing matters; statements after a trial concluded did not violate the rule

See also

• TX Ethics Op. 662: Responding to a Former Client's Negative Online Review
• TX Ethics Op. 671: Anonymously Contacting an Anonymous Online Defamer

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-683/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_683.pdf

Original opinion text

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

QUESTION PRESENTED

Does a lawyer violate the Texas Disciplinary Rules of Professional Conduct by making statements to the news media about a case pending on appeal when the lawyer criticizes the opponent's litigation tactics and reiterates the misconduct alleged in the underlying complaint?

STATEMENT OF FACTS

Following a summary judgment dismissing all of their claims for trade secret misappropriation, plaintiffs appealed to an intermediate Texas court of appeals and succeeded in reversing the summary judgment. Defendants filed a petition for review with the Texas Supreme Court in hopes of reinstating the summary judgment.

While the case was pending in the Texas Supreme Court, the plaintiffs' lawyer made statements to the news media that the filing of the petition for review is consistent with defendants' litigation strategy to "delay at all costs so their misconduct is never brought before a jury." The plaintiffs' lawyer also stated that the defendants "brazenly stole trade secrets worth millions of dollars from my clients and are now just as brazenly trying to take this case away from a Texas jury." The statements of the plaintiffs' lawyer were widely published by the media.

DISCUSSION

Rule 3.07 of the Texas Disciplinary Rules of Professional Conduct imposes certain limitations on what a lawyer may say publicly about a dispute in which the lawyer represents a client. Rule 3.07(a) provides in part that:

"In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding."

Comment 1 to Rule 3.07 notes that this Rule is "premised on the idea that preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial." But the comments also note the "vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves," and the Rule therefore incorporates a "degree of concern for the first amendment rights of lawyers, listeners, and the media." See Comments 1 & 2 to Rule 3.07. This is a "difficult" balance to strike, and the existence of "material prejudice normally depends on the circumstances in which a particular statement is made." Comments 2 & 3 to Rule 3.07.

Rules 3.07(b) and (c) give some guidance on the types of statements that may or may not violate the "general standard of Rule 3.07(a)." See Professional Ethics Committee Opinion 631 (July 2013). Rule 3.07(b) identifies certain categories of statements that "ordinarily" violate the Rule, including those that refer to "the character, credibility, [or] reputation" of a party. Rule 3.07(c) identifies certain categories of statements that "ordinarily" do not violate the Rule, including those where the lawyer states "the general nature of the claim or defense" or "information contained in a public record." The statements presented here implicate both paragraphs (b) and (c). On the one hand, the lawyer's statements arguably attack the defendants' character and credibility by accusing them of theft and dilatory litigation tactics. On the other hand, these statements largely track the allegations at the heart of the plaintiffs' trade secret claims, therefore arguably stating the general nature of the claims and information already contained in the public record (i.e., plaintiffs' pleadings).

The Committee addressed a similar tension in Opinion 631. Citing Rule 3.07(c)(8), the Committee stated that, while it is not generally a violation of Rule 3.07 for a district attorney to publicly post the names of persons charged with a crime, the "manner in which the information is posted must also be considered to determine if the posting is in violation of Rule 3.07 because it has the likelihood to materially prejudice the accused." Opinion 631. In other words, Rule 3.07 imposes a flexible standard that must account for the "unique considerations" of a particular case. See Comment 3 to Rule 3.07.

That said, any resolution of this tension must be squared with the United States Supreme Court's opinion in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). There, the Supreme Court reversed on First Amendment grounds discipline imposed on a lawyer by the State Bar of Nevada under a pretrial publicity rule similar to Rule 3.07. Id. at 1048. Gentile arose from a press conference in which a lawyer representing a criminal defendant made statements criticizing the "crooked" police department, claiming a police officer committed the crime for which his client had been indicted, and calling several putative witnesses "liars." See id. at 1059-60, 1063-64.

In a fractured opinion, the Supreme Court held that the Nevada rule, as applied, was void for vagueness because the "safe harbor provision" in the Nevada rule, which is similar to Texas Rule 3.07(c), contemplated that "a lawyer describing the general nature of the defense without elaboration need fear no discipline, even if he comments on the character, credibility, reputation or criminal record of a witness." Id. at 1048 (internal punctuation omitted). In so holding, the Court suggested that the disciplined lawyer's statements described the "general nature" of the defense, and thus the safe harbor provision "misled [him] into thinking that he could give his press conference without fear of discipline." Id. at 1048. Because the statements at issue in the question presented here implicate the same tension resolved in Gentile, and in much the same way, similar constitutional infirmities could be in play for any application of Rule 3.07 to the statements made by the plaintiffs' lawyer.

Fortunately, a precise resolution of that tension is not necessary under the question presented because the timing of the statements here, made while the case is pending on appeal, renders them permissible under Rule 3.07. To be sure, Rule 3.07 by its terms applies to "adjudicatory proceeding[s]," which include cases pending on appeal. See Terminology to the Rules (defining "Adjudicatory Proceeding" and "Tribunal"). But Comment 1 to Rule 3.07 contemplates that the likelihood of material prejudice is highest where trial by jury is involved. See also Comment 6 to ABA Model Rule of Professional Conduct 3.6 (noting that the "likelihood of prejudice may be different depending on the type of proceeding" and that "[n]on-jury hearings" may be less affected than jury trials). And that makes sense because judges are trained to apply the law to the legally-relevant facts, and are therefore less susceptible to being materially prejudiced by extrajudicial statements. This is particularly true on appeal, where an appellate judge's analysis of the case is carefully confined by appellate standards of review. In short, the likelihood of a lawyer's statements "materially prejudicing" a proceeding on appeal is, as a general matter, fairly low.

This Committee has previously suggested that timing considerations could have an impact on the analysis under Rule 3.07. In Opinion 369 (August 1974), the Committee considered the actions of a district attorney who criticized a trial judge in a post-trial press conference, calling the judge's actions during trial "unethical and illegal and grounds for reversible error." The Committee concluded those statements, though ethically questionable, did not violate any disciplinary rule. But, the Committee noted: "Had the questioned remarks been made prior to the conclusion of the trial, a different result might obtain" under former Disciplinary Rule 7-107, which was the trial publicity rule before Rule 3.07. Opinion 369 does not answer the question presently before this Committee because there was no ongoing adjudicatory proceeding in that case, but it does highlight the importance of timing to this inquiry. See also Gentile, 501 U.S. at 1076 (noting the Nevada Rule, which is similar to the Texas Rule, "merely postpones the attorneys' comments until after the trial").

Under the facts presented here, the Committee concludes that the lawyer's statements do not have a substantial likelihood of materially prejudicing an adjudicatory proceeding given that the case is pending on appeal and it is unknown when (or if) the case will be tried. As in Opinion 369, this opinion does not address whether the outcome would be different if these statements had been made shortly before or during the trial. But any application of Rule 3.07 in that circumstance should take into consideration the constitutional concerns discussed in Gentile.

CONCLUSION

Extrajudicial statements about a case that is pending on appeal usually would not have a reasonable likelihood of materially prejudicing an adjudicatory proceeding, and thus usually would not violate the Texas Disciplinary Rules of Professional Conduct, particularly where the statements implicate the constitutional issues addressed by the U.S. Supreme Court in Gentile v. State Bar of Nevada.

Tex. Comm. On Professional Ethics, Op. 683 (2019)