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When U.S. Attorney Patrick Fitzgerald recently announced charges against Illinois Governor Blagojevich, he labeled as “appalling” what he described as a “political corruption crime spree” that would “make Lincoln roll over in his grave.”

About three years ago, North Carolina prosecutor Michael Nifong stepped up to the microphone to announce the prosecution for what he called “abhorrent” and “reprehensible” acts by those who “don’t want to admit to the enormity of what they have done.” He went on to say, “[T]he information that I have does lead me to conclude” that a crime had been committed – several Duke lacrosse players had raped a dancer.

In the aftermath, Fitzgerald is the toast of the town, while Nifong was disbarred.

To be sure, Nifong had engaged in other serious misconduct, but the North Carolina State Bar’s order disbarring Nifong found as its very first conclusion of law that Nifong had made unethical extrajudicial statements.

With both criminal and civil cases increasingly tried in the court of public opinion, it is worth exploring the history and scope of the ethical limits on lawyers’ public statements about their cases.

Competing social interests frame the issue. Media reporting on the justice system benefits the public by bolstering confidence in the process and assuring accountability. On the other hand, civil and criminal litigants all deserve an untainted jury.

The ABA rules

Surprisingly, the ABA ethics rules did not include any specific limits on lawyers’ extrajudicial statements until 1968.

The ABA seems to have been spurred into action by the Warren Commission’s recommendation that the organized bar deal with the issue of pretrial publicity (after the orgy of news stories following President John F. Kennedy’s assassination). The ABA might also have been prompted by the U.S. Supreme Court’s reference to prejudicial pretrial publicity in the famous 1966 Sheppard v. Maxwell case, which concluded that a defendant didn’t receive a fair trial due to the publicity surrounding his case.

Under ABA Model Rule 3.6, a lawyer who “is participating or has participated” in the “investigation or litigation” of a matter shall not make an extrajudicial statement “that the lawyer knows or reasonably should know” will be publicly disseminated, and which “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

ABA Model Rule 3.6(b) describes several “safe harbor” statements that lawyers may publicly disseminate – such as public record information, scheduling dates, the claim or offense alleged, etc.

The rule’s comments also include a separate list of public statements that are generally prohibited. These include statements about “the character, credibility, reputation or criminal record” of a criminal suspect or witness, the results of any examination or tests, “any opinion as to the guilt or innocence of a defendant or suspect in a criminal case” and similar statements.

Every state has adopted limits on lawyers’ extrajudicial statements.

For example, the Illinois version of Rule 3.6 includes the ABA list of generally prohibited statements in its black letter rule – preceded by a strict warning that does not appear in ABA Model Rule 3.6.

Under Illinois Rule 3.6(b), “There are certain subjects [that] would pose a serious and imminent threat to the fairness of a proceeding, particularly when they refer to a civil matter triable to a jury, or a criminal matter.”

Not surprisingly, the ABA Model Rules also contain a separate and more restrictive prohibition covering prosecutors.

ABA Model Rule 3.8(f) indicates that prosecutors shall refrain from any extrajudicial statements “that have a substantial likelihood of heightening public condemnation of the accused.” Illinois Rule 3.8(e) contains a similar provision.

These restrictions do not represent some dead letter.

For instance, the Rhode Island court hearing the state’s case against lead paint manufacturers held Rhode Island Attorney General Patrick Lynch in civil contempt after he made a public statement referring to the manufacturers “as those who would spin and twist the facts.”

Courts and bars throughout the country have reprimanded prosecutors for public statements that violate these ethical principles.

Perhaps as a practical matter the application of these rules rises or falls with the criminal defendant’s guilt or innocence. Prosecutor Nifong’s statements about the Duke lacrosse player ended up being incorrect, and time will tell about Governor Blagojevich. However, on their face these ethics rules apply regardless of the ultimate outcome.

Tom Spahn practices as a commercial litigator at McGuireWoods in McLean, Va. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege and corporate investigations.

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