Obsolete Date: 8/1/2006
A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of mass public communication if the lawyer knows or reasonably should know that the statement will create a serious and imminent threat of materially prejudicing an adjudicative proceeding.
It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.
No body of rules can simultaneously satisfy all interests of fair trial and all those of free expression. The formula in this Rule emanates from the ABA Model Code of Professional Responsibility and the ABA Standards Relating to Fair Trial and Free Press, as amended in 1978.
Some matters, such as juvenile and mental health proceedings, are closed by law.Extrajudicial statements by lawyers may be limited by the law which closes these proceedings. In addition, the specific provisions of Rules 3.4(c) and 3.8 may impose duties not specifically covered by this Rule.
Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 09/20/85, 11/08/85 and 01/31/86