PROPOSED RULE 3.6
TRIAL PUBLICITY

(a) 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
disseminated by means of public communication and will have a substantial likelihood of materially
prejudicing an adjudicative proceeding.

(b)Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved, and, except when prohibited by law, the identity
of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason
to believe that there exists the likelihood of substantial harm to an individual or to the public
interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i)the identity, residence, occupation and family status of the accused;

(ii)if the accused has not been apprehended, information necessary to aid in
apprehension of that person;

(iii)the fact, time and place of arrest; and

(iv)the identity of investigating and arresting officers or agencies and the length of
the investigation.

(c)Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would
believe is required to protect a client from the substantial undue prejudicial effect of recent publicity
not initiated by the lawyer or the lawyer's client. Astatement made pursuant to this paragraph shall
be limited to such information as is necessary to mitigate the recent adverse publicity.

(d)No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a)
shall make a statement prohibited by paragraph (a).

COMMENT

[1] 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

80

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.

[2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic
relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c)
requires compliance with such Rules.

[3] The Rule sets forth a basic general prohibition against a lawyer's making statements that
the lawyer knows or should know will have a substantial likelihood of materially prejudicing an
adjudicative proceeding. Recognizing that the public value of informed commentary is great and the
likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the
proceeding is small, the rule applies only to lawyers who are, or who have been involved in the
investigation or litigation of a case, and their associates.

[4] Paragraph (b) identifies specific matters about which a lawyer's statements would not
ordinarily be considered to present a substantial likelihood of material prejudice, and should not in
any event be considered prohibited by the general prohibition of paragraph (a). Paragraph (b) is
not intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement,
but statements on other matters will be governed by paragraph (a).

[5] There are, on the other hand, certain subjects which are more likely than not to have a
material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a
jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects
relate to:

(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal
investigation or witness, or the identity of a witness, or the expected testimony of a party or
witness;

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a
plea of guilty to the offense or the existence or contents of any confession, admission, or
statement given by a defendant or suspect or that person's refusal or failure to make a
statement;

(3) the performance or results of any examination or test or the refusal or failure of a person
to submit to an examination or test, or the identity or nature of physical evidence expected to be
presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or
proceeding that could result in incarceration; or

(5) information that the lawyer knows or reasonably should know is likely to be
inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of
prejudicing an impartial trial.

81

[6] Another relevant factor in determining prejudice is the nature of the proceeding involved.
Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive.
Nonjury hearings and arbitration proceedings may be even less affected. The Rule will still place
limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different
depending on the type of proceeding.

[7] Finally, extrajudicial statements that might otherwise raise a question under this Rule
may be permissible when they are made in response to statements made publicly by another party,
another party's lawyer, or third persons, but only if a reasonable lawyer would believe a public
response is required in order to avoid substantial prejudice to the lawyer's client. In some
situations, prejudicial statements have been publicly made by others, responsive statements may
have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.
Such responsive statements should be limited to contain only such information as is necessary to
mitigate undue prejudice created by the statements made by others.

[8] See Rules 3.8(e) for additional duties of prosecutors in connection with extrajudicial
statements about criminal proceedings.

DEFINITIONAL CROSS-REFERENCES

“Firm”See Rule 1.0(d)
“Knows”See Rule 1.0(f)
“Materially”See Rule 1.0(g)
“Reasonably Should Know”See Rule 1.0(k)
“Reasonable”See Rule 1.0(i)
“Substantial”See Rule 1.0(l)

82

PROPOSED RULE 3.7
LAWYER AS WITNESS

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness
except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to
be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

COMMENT

[1] Combining the roles of advocate and witness can prejudice the opposing party and can
involve a conflict of interest between the lawyer and client.

[2] The opposing party has proper objection where the combination of roles may prejudice
that party's rights in the litigation. A witness is required to testify on the basis of personal
knowledge, while an advocate is expected to explain and comment on evidence given by others. It
may not be clear whether a statement by an advocate-witness should be taken as proof or as an
analysis of the proof.

[3] Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in
the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns
the extent and value of legal services rendered in the action in which the testimony is offered,
permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that
issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence,
there is less dependence on the adversary process to test the credibility of the testimony.

[4]Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is
required between the interests of the client and those of the opposing party. Whether the opposing
party is likely to suffer prejudice depends on the nature of the case, the importance and probable
tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that
of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should
be disqualified due regard must be given to the effect of disqualification on the lawyer's client. It is
relevant that one or both parties could reasonably foresee that the lawyer would probably be a
witness. The principle of imputed disqualification stated in Rule 1.10 has no application to this
aspect of the problem.

[5] Whether the combination of roles involves an improper conflict of interest with respect
to the client is determined by Rule 1.7 or 1.9. For example, if there is likely to be substantial
conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm,
the representation is improper. The problem can arise whether the lawyer is called as a witness on
behalf of the client or is called by the opposing party. Determining whether or not such a conflict
exists is primarily the responsibility of the lawyer involved. See Comment to Rule 1.7. If a lawyer
who is a member of a firm may not act as both advocate and witness by reason of conflict of
interest, Rule 1.10 disqualifies the firm also.

83

DEFINITIONAL CROSS-REFERENCES

“Firm”See Rule 1.0(d)
“Substantial”See Rule 1.0(l)

84

PROPOSED RULE 3.8
SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal matter:

(a) shall refrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause; and

(b) shall make reasonable efforts to assure that the accused has been advised of the right to,
and the procedure for obtaining counsel, and has been given reasonable opportunity to
obtain counsel; and

(c)shall not advise an unrepresented accused to waive important pretrial rights; and

(d) shall make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in
connection with sentencing, disclose to the defense and, if the defendant is proceeding pro
se, to the tribunal all unprivileged mitigating information known to the prosecutor, except
when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
and

(e) shall:

(1) exercise reasonable care to prevent employees of the prosecutor’s office from
making an extrajudicial statement that the prosecutor would be prohibited from mak-
ing under Rule 3.6; and

(2) discourage investigators, law enforcement personnel, and other persons assisting
or associated with the prosecutor in a criminal matter from making an extrajudicial
statement that the prosecutor would be prohibited from making under Rule 3.6; and

(f) shall not subpoena a lawyer in a grand jury or other criminal proceeding to present
evidence about a client or former client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable
privilege;

(2) the evidence sought is essential to the successful completion of an ongoing
investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information.

COMMENT

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far
the prosecutor is required to go in this direction is a matter of debate and varies in different
jurisdictions. Applicable law may require other measures by the prosecutor and knowing disregard
of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of
Rule 8.4.

85