The ethics and defamation concerns attorneys need to think about when holding a press conference

Bottom line: When attorneys hold press conferences regarding their clients’ legal disputes, they need not only be persuasive. They must be ethical and avoid defaming others.

When attorneys hold a press conference regarding a client’s legal dispute,
they are rightly focused on being persuasive and presenting their client’s story in a way that will help influence the Court of Public Opinion favorably.

By doing this, hopefully, the client will be able to resolve his or her dispute as favorably as possible, as soon as possible.

But when attorneys hold press conferences, they need to also be thinking about the ethics of what they’re saying and whether they are defaming anyone by saying it.

First things first.

When it comes to ethics, generally speaking— I’m not sure which jurisdiction you are in right now so I can’t speak to that jurisdiction specifically—there are two main rules of professional conduct that attorneys should be thinking about when they hold a press conference.

The first rule is ABA Model Rule of Professional Conduct 1.6 which concerns confidentiality. This one is pretty easy.

You’re going to almost certainly need your client’s approval to give a press conference and speak publicly about your client’s case — even when you’re talking about public information that’s already out there in the form of your own legal filings or something else the client may have put out into the public sphere.

This usually isn’t a big concern with press conferences because if you as an attorney are holding a press conference, and if your client is willingly attending the press conference, presumably they’ve already signed off on it.

But still, you want to make sure that you have explicit, written approval from your client to hold the press conference and talk publicly about that client’s case.

The other rule is ABA Model Rule of Professional Conduct Rule 3.6 (Trial Publicity).

This rule says that a lawyer “shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding” in a case the lawyer is actively investigating or litigating.

The Supreme Court of the United States has said that with Rule 3.6, what we’re concerned about is prejudicing a jury. We don’t want lawyers’ comments outside of court to negatively impact a judge’s ability to seat a jury or the jury’s ability to deliberate a case based only on evidence that has been admitted in that case.

The U.S. Supreme Court has also said that typically, six months between an attorney’s public comments being made and a jury trial beginning is enough time for any potential prejudice from those public comments to dissipate.

That’s great news for attorneys holding press conferences about filing a lawsuit. Rarely will a civil case go to trial a mere six months after a case is filed. More often, a trial will take place 12 months, 18 months, two years down the road.

There’s more good news for attorneys. There are two huge—and helpful—safe harbors in the ABA Model Rule and in most states’ versions of that rule.

The first safe harbor lists ten categories of information attorneys can always talk about without running afoul of the rule. These include (i) their claims, offenses, and defenses in a case, and (ii) the contents of a public record.

The second safe harbor permits attorneys to make statements to protect a client from the “substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client” so long as those statements are “limited to such information as is necessary to mitigate the recent adverse publicity.”

Generally speaking, ethics issues tend to arise under Rule 3.6 when attorneys start talking outside of court about information that is unlikely to be admissible in court.

While I am not going to dive any further into Rule 3.6 in this blog post, you can read ABA Model Rule 3.6 and its comments in their entirety here: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_6_trial_publicity.

Turning now to defamation, this is an area where attorneys often screw up.

They do so because they often forget that the litigation privilege to defamation doesn’t typically extend to when attorneys talk publicly—outside of court—about their client’s case.

That’s a problem because attorneys often fail to properly couch what they’re saying as accusations or allegations.

As an attorney, when you’re talking about a legal dispute and you’re sprinkling those magic words like “as we allege,” “as the complaint states,” “as we claim,” “our claims include,” and “as we’ve stated in our papers,” you are helping to distance yourself from a defamation claim because you are couching your accusations and allegations properly.

And that’s the key here. Attorneys can help themselves avoid defaming an opposing or third party by making sure that when they are alleging something, they are actually saying it is an allegation. They should avoid repeating an allegation in a way that suggests that they’re asserting it as a fact. (Unless, of course, the attorney knows an alleged fact is 100% true.)

Another way attorneys can help themselves avoid defamation is by talking in sound bites.

As I mentioned in a video I recorded recently, generally speaking— again, I’m not addressing the law in your jurisdiction because I don’t know which jurisdiction you are in— when it comes to sound bites, courts will not tend to find a claim of defamation when attorneys use rhetorical hyperbole.

When courts talk about rhetorical hyperbole (which is a term of art) they’re talking about words and phrases that are so ridiculous and that are so over the top that no one could reasonably think that when an attorney was using that language, they were actually asserting facts.

There are many things attorneys need to be thinking about when they hold a press conference regarding a client’s legal dispute.

They need to be thinking about how to persuasively tell that client’s story.

They need to be thinking about and anticipating questions from reporters in attendance.

But they also need to be thinking about the ethics of what they’re saying.

And they also need to be thinking about how to avoid defaming an adversary or another party when they talk about their client’s legal dispute.

By keeping these ethical concerns and defamation tips in mind, hopefully attorneys will be able to keep their press conferences and the subsequent media coverage focused on their clients and their clients’ legal disputes, and not become part of these stories themselves.

Bottom line: When attorneys hold press conferences regarding their clients’ legal disputes, they need not only be persuasive. They must be ethical and avoid defaming others.

Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a national legal services and communications firm. Attorneys and law firms enlist Copo Strategies to engage the media and the public regarding their clients’ cases (to help resolve those cases favorably), and to engage the media, referral sources and prospective clients regarding their firms (to help bring new client matters in the door). Contact him at waynepollock@copostrategies.com or 215–454–2180.