Following is the 74th post in a series from Parker Taylor Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 3 – “Advocate,” discussing the issues surrounding publicity regarding a trial.
This Rule of Professional Conduct, as revised, is as follows:
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 (i) be disseminated by means of public communication and (ii) have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), but only to the extent permitted by Business and Professions Code section 6068, subdivision (e) and rule 1.6, 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 but only to the extent that dissemination by public communication is reasonably necessary to protect the individual or the public; and
(7) in a criminal case, in addition to paragraphs (1) through (6):
(i) the identity, general area of residence, and occupation of the accused;
(ii) if the accused has not been apprehended, the 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. A statement 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 law firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
The wording in Rule 3.8 of CBA’s revised RPC, as set forth above, closely matches the wording of Rule 5-120 in CBA’s previous version of the RPC. However, the clause that mentions permission given by Business and Professions Code section 6068, subdivisions (e) and rule 1.6 is new. Also new is an entire subdivision – (d).
The rule concerning trial publicity in the American Bar Association (ABA)’s Model RPC matches the wording in the CBA’s new rule almost verbatim. One exception to that is the inclusion – in subd. (b) – of the reference to California’s Bus. & Prof. Code § 6068(e), and Rule 1.6. The other exception is that subd. (b)(6) in the ABA rule is about 20 words shorter than the same subdivision in CBA’s rule. The phrase that starts with “but only to the extent” is missing from the ABA rule.
Benefit: Generally speaking, the addition of the last subdivision to this revised rule serves as a reminder to law firms and government agencies that this regulation applies to ALL of their attorneys, even if only one attorney is the one currently involved with the litigation or investigation of a particular matter.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Taylor Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 23 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at (916) 996-0400 or at firstname.lastname@example.org. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
Rules of Professional Conduct, California Bar Association, American Bar Association, Legal Malpractice, Client Rights, Trial Publicity, Pretrial Publicity, Parker Taylor Law Group, Port Parker