1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229
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:
investigation or witness, or the identity of a witness, or the expected testimony of a party or
witness;
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;
proceeding that could result in incarceration; or
inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of
prejudicing an impartial trial.
[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.
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)
Proposed Rule 3.6 is similar to the very cumbersome DR 7-107, except as follows: First,
Rule 3.6 adopts the general criterion of "substantial likelihood of materially prejudicing an
adjudicative proceeding" to describe impermissible conduct. Second, Rule 3.6 makes clear that only
attorneys who are, or have been involved in a proceeding, or their associates, are subject to the Rule.
Third, Rule 3.6 omits the particulars in DR 7-107(B), transforming them instead into an illustrative
compilation as part of the Rule's commentary that is intended to give fair notice of the kinds of
statements that are generally thought to be more likely than other kinds of statements to pose
unacceptable dangers to the fair administration of justice. Whether any statement will have a
substantial likelihood of materially prejudicing an adjudicatory proceeding will depend upon the
facts of each case. The particulars of DR 7-107(C) are retained in Rule 3.6(b), except for DR 7--
107(C)(7), which provided that a lawyer may reveal "[a]t the time of seizure, a description of the
physical evidence seized, other than a confession, admission or statement."Finally, Rule 3.6
authorizes a lawyer to protect a client by making a limited reply to adverse publicity substantially
prejudicial to the client.
Proposed Rule 3.6 is identical to ABA Model Rule 3.6, except that the expectation of
whether a statement will be disseminated by means of public communication will be judged from
the perspective of a reasonable lawyer, rather than that of a reasonable person. Also, because of its
Rule.
Made
1. The cross-reference to Rule 3.8(g) in Comment [8] was dropped because the Committee
is recommending the deletion of Rule 3.8(g).
2. After considering commentspro(Tennessee Association of Criminal Defense Lawyers)
and con(Circuit Court Judge Robert A. Lanier, the United States Attorneys, and the Tennessee
District Attorney Generals Conference), the Committee persists in its recommendation that the
Court approve both paragraph (c) and Comment [7]. As an express exception to Paragraph (a)’s
prohibition against public statements that will have a substantial likelihood of materially prejudicing
an adjudicative proceeding, Paragraph (c) permits a lawyer to make a statement the lawyer
reasonably believes is necessary to protect a client the substantial undue prejudicial effect of recent
publicity not initiated by the lawyer or the lawyer’s client. To be within the protection of Paragraph
(c), the statement must be limited to information necessary to mitigate the recent adverse publicity.
The Committee disagrees with the characterization of paragraph (c) as permitting one wrong
to justify another. Such is not the rationale for the Rule. Rather, the Committee believes that
Paragraph (c) is a narrowly crafted exception that protects a lawyer’s mitigating statement because
such a mitigating statement does not present a substantial likelihood of materially prejudicing an
adjudicative proceeding and, therefore, constitutionally cannot be prohibited in light of the U.S.
Supreme Court’s ruling in Gentile v. Nevada State Bar, 501 U.S. 1030 (1991).
recommends that Comment [7] be revised as follows:
[7] Finally, extrajudicial statements that might, standing by themselves, presenta
substantial likelihood of materially prejudicing an adjudicative proceeding.otherwise raise a
be permissible when they are made in
materially prejudicialstatements made publicly by another party, another party's
lawyer, or third persons, but only if a reasonable lawyer would believe a public response is
and the response serves
only to mitigate or rectify the prejudicial affect of the prior statements.Such a response
could haveIn some situations, prejudicial statements have been publicly made by others,
any
theadverse impact of the prior statementson the adjudicative proceeding. Such
responsive statements should
be limited to contain only such information as is
undue prejudice created by the statements made by
others or that does not otherwise violate paragraph (a).
This Comment makes the point that one of the circumstances to be considered in
determining whether a statement presents a substantial likelihood of materially prejudicing an
adjudicative proceeding is whether the statement’s effect is to mitigate or rectify the material
prejudicial effect of prior statements by others. Unlike Paragraph (c), which is presented as an
Paragraph (a), as do Comments [5] and [6].
PROPOSED RULE 3.7
LAWYER AS WITNESS
except where:
be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
[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.
See Rule 1.0(d)
“Substantial”See Rule 1.0(l)
DR 5-102(B) prohibits a lawyer, or the lawyer's firm, from serving as advocate if the lawyer
"learns or it is obvious that the lawyer or a lawyer in the lawyer’s firm ought to be called as a
witness on behalf of his client." DR 5-102(B) provides that a lawyer, and the lawyer's firm, may
continue representation if the "lawyer learns or it is obvious that the lawyer or a lawyer in the
lawyer’s firm may be called as a witness other than on behalf of the client . . . until it is apparent
that his testimony is or may be prejudicial to the client." DR 5-101(B) permits a lawyer to testify
while representing a client: "(1) If the testimony will relate solely to an uncontested matter; (2) If the
testimony will relate solely to a matter of formality and there is no reason to believe that substantial
evidence will be offered in opposition to the testimony; (3) If the testimony will relate solely to the
nature and value of legal services rendered in the case by the lawyer or his firm to the client; (4) As
to any matter if refusal would work a substantial hardship on the client because of the distinctive
value of the lawyer or the lawyer’s firm as counsel in the particular case."
Made
PROPOSED RULE 3.8
SPECIAL RESPONSIBILITIES OF A PROSECUTOR
probable cause; and
and the procedure for obtaining counsel, and has been given reasonable opportunity to
obtain counsel; and
shall not advise an unrepresented accused to waive important pretrial rights; and
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in