Pretrial publicity except for what is specifically allowed, is clearly prohibited under the Rules of Professional Conduct.

I represent a client in a fairly high-profile criminal case. There has been some adverse publicity in the newspapers and on the internet about my client, which may be the results of leaks from the District Attorney's Office, elsewhere or from origins not known. I want to respond to those leaks. Can I do so ethically?

Samuel C. Stretton.

Pretrial publicity is obviously of great concern to all participants in litigation. Everyone wants a fair trial, but if potential jurors are tainted by pretrial publicity, that can create problems. This kind of taint is hard to throw out. Jurors may not be as candid as they should in the voir dire process or, at times, jurors may not know or appreciate the taint until they are in jury deliberation and issues arise.

The basic rule is found in Rule of Professional Conduct 3.6 titled, "Pretrial Publicity." A lawyer cannot make an extra judicial statement that the lawyer knows or reasonably should know would be made public and "will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." In other words, if what one says would taint a potential jury, that is prohibited and could subject the lawyer to professional discipline.

In this question, referenced to evidence that would be inadmissible by either a prosecutor or defense lawyer would be absolutely prejudicial and could and should result in discipline. Rule 3.6(b) sets forth what a lawyer can say. It includes the nature of the charges, information contained in the public record, an investigation is in process, scheduling of court dates, requests for assistance for obtaining evidence and a warning of danger when there is danger to a person involved in the case. In criminal cases, one can also provide the identity of the business and occupation and family status of the defendant. If the defendant hasn't been arrested and the police are looking for him, any information necessary to help find the defendant would be allowed. The district attorney is allowed to give the facts, time and place of arrest and the district attorney is allowed to give the identity of the investigating and arresting officers or agencies.

But there is a safe harbor under Rule 3.6 in Rule 3.6(c). That rule reads as follows: "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. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity."

Comment 7 to Rule 3.6 notes a reasonable lawyer has to believe a public response is required in order to avoid prejudice when there is adverse publicity. The comment again emphasizes that the response can be only limited to mitigate the prejudice created by the earlier statements.

Therefore, if there is horrible adverse publicity or leaks, information that wouldn't be admissible at trial, and a reasonable lawyer would believe this could taint either the judge or jurors, then the lawyer has the right in a measured fashion to release information to negate the earlier information. It must be done in a professional way and not overdone.

The comment to Rule 3.6 also lists examples of what would be considered very prejudicial. These items would include the character, credibility, reputation or criminal record of a party. It would also include any confession, admissions or plea negotiations. It would also include a test result from physical evidence. Clearly, it would include a prohibition against any opinion by the participants as to the guilt or innocence of the defendant. It also would include referencing any evidence that the lawyers know are inadmissible at trial. In fact, under Comment 5 to Rule 3.6, when a defendant has been charged with a crime, but it is considered prejudicial unless there is included statements explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

In this age of overwhelming and all-inclusive publicity and communications, at times lawyers will have to respond to extremely negative or adverse publicity. But it must be done in a proper fashion. It also should be noted that under Rule 3.8 of the Rules of Professional Conduct titled, "Special Responsibilities of a Prosecutor," the prosecutor has the obligation and duty to exercise reasonable care to prevent investigators, police, employees or others associated with the office from making any extra-judicial statements that the prosecutor would be prohibited from doing. In other words, there is a duty to control the police.

To answer the question, pretrial publicity except for what is specifically allowed, is clearly prohibited under Rules of Professional Conduct and result in serious violations of due process. This could result in substantial discipline. It rarely does, but it could.

At least in this modern world, sometimes it seems as if prosecutors don't read Rule 3.6 when they have their press conferences and talk about everything under the sun involving the case. That is clearly prohibited.

A defense lawyer also is under similar obligations not to bring out information that is potentially prejudicial or that could taint the jury pool. But there is allowed a measured response to very adverse publicity as noted under Rule 3.6(c). At times, every defense lawyer may have to take advantage of that exception.

One cannot call experts in another area without the consent of both parties.

Can a judge call a lawyer who has knowledge in the area about a point of law being argued and briefed in a pending criminal case before that judge? Can the judge even call someone in the district attorney's appellate unit who is not directly involved in the case just to inquire as to the current status of the law on a particular point? 

Presumably, all judges have competent law clerks who can research the law. A judge certainly has the right to ask her law clerk to do a thorough research and provide the status of existing law on the issue presented to the court. Further, presumably, both the district attorney and the defense lawyer will have set forth in a brief the case authority to enlighten the judge on the pending legal issue.

But a judge cannot go to outside people, particularly someone from the DA's office.

Under the Code of Judicial Conduct in Pennsylvania for Common Pleas and appellate judges, Rule 2.9 specifically deals and prohibits most ex parte communications. Under Rule 2.9(a), a judge cannot have an ex parte communication outside the presence of the parties or lawyers in a matter pending before the judge. There are exceptions to this rule for scheduling purposes or for emergency purposes. Even then the judge has to reasonably believe no party will gain any substantive or tactical advantage by the ex parte communications. Further, under Code of Judicial Conduct, Rule 2.9(a)(1)(b), a judge has to properly notify all parties of the substance of ex parte communication and give the parties an opportunity to respond.

Under Rule 2.9(a)(1)(b)(2), the following is noted: "The judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received."

The comments to the rule explain further. Under Comment 3 to the rule, it notes the following: "The proscription against communications concerning a proceeding includes communications with lawyers, law teachers and other persons who are not participants in the proceeding, except to the limited extent permitted by this rule."

Therefore, it would appear that calling a respected lawyer to get their take on the issue of law is absolutely prohibited. The only way it can happen is if the judge advises everyone that she would like to call Professor So-and-So who is an expert on whatever the subject matter and just ask them a question as to the status of law. If there is no consent to that then the judge can't make the call.

Now if the person has an interest in some fashion, then the judge cannot call them even with the parties' consent. Obviously, in a criminal case calling an attorney in the district attorney's appellate division, even if that person is not involved in the case at issue, would not be allowed because that person clearly couldn't be disinterested when they are part of the district attorney's office. There are several court decisions that have held that in that situation a person would not be a disinterested party.

In conclusion, judges have to be very careful about ex parte communications since it's not allowed with the rarest of exceptions. The reason is that under the other rules of the Code of Judicial Conduct, a judge has to appear to be impartial. A judge can't appear to be biased. No matter how well-intentioned a call to an expert on law might be, unless it's done pursuant to the procedures set forth in the Code of Judicial Conduct, it's prohibited and could raise questions as to what is said and whether that tainted the decision or the decision-making process. A judge that does so, even with the best of intentions, could undermine the fairness of the office the judge holds. Litigants would quickly talk to friends, neighbors and other people if they feel they were treated unfairly or the judge was doing something wrong. In a small county, that could be devastating to the appearance of the fairness of the bench. Therefore, the answer to the question is no, one cannot call experts in another area without the consent of the parties. And then they can only be called if they are disinterested. If they are not disinterested, they can never be called with or without the consent of the parties.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.