by M. Kevin Anders, II
The March 2019 ethics opinion answers the question of whether a lawyer violates the Texas Disciplinary Rules of Professional Conduct by making statements to the news media about a case pending on appeal when the lawyer criticizes the opponent’s litigation tactics and reiterates alleged misconduct underlying the complaint. Even though a minuscule number of our colleagues may ever speak to the media regarding any case, this opinion serves as a reminder of the rules and roles surrounding the extent to which attorneys can speak to the public at large.
The facts involved in this opinion surround statements made by a plaintiff’s lawyer about the defendants and their legal strategy on a case pending in the Texas Supreme Court, namely that “the defendants ‘brazenly stole trade secrets worth millions of dollars from my clients and are now just as brazenly trying to take this case away from a Texas jury,” and that their strategy was “to ‘delay at all costs so their misconduct is never brought before a jury.’”
This is the third ethics opinion discussing issues implicated here—the prior two being Opinion 369 (August 1974) and Opinion 631 (July 2013). Opinion 369 addressed the importance of the timing of the speech. Opinion 631 addressed “the manner in which the information is posted.” The facts in Opinion 631 are similar to those involved here.
Texas Disciplinary Rule 3.07 applies to the types of statements made here. Rule 3.07(b) states that “ordinarily … [the] character, credibility, [or] reputation” of a party are generally impermissible categories for statements. Contrast this with Rule 3.07(c), where “ordinarily … the general nature of the claim or defense … [or] information contained in a public record” are permissible categories for statements. The applicable test, found in 3.07(a), is whether or not there is a “substantial likelihood of materially prejudicing an adjudicatory proceeding.”
As with most cases involving the First Amendment, the specifics of each individual case drive the analysis. Comment 3 to Rule 3.07 speaks to the importance of the flexible nature of the Rule 3.07(a) standard and the “unique considerations” of each case.
Even the U.S. Supreme Court has struggled in reaching consensus with the issues involved in these types of cases. In Gentile v. State Bar of Nevada, Justice Kennedy struck down the Nevada analogue to Texas Rule 3.07 as void for vagueness, but Chief Justice Rehnquist upheld the “substantial likelihood of material prejudice” standard.
When applied to this standard, the speech involved in this ethics opinion does not violate Rule 3.07. The Committee reasoned that even though an appellate proceeding is an “adjudicatory proceeding,” it is manifestly different from a jury trial where “the likelihood of material prejudice is highest.” In finding no prejudice resulting from the statements, the point the Committee seems to be making is that appellate justices are not likely to be swayed by public comments by counsel in the way jurors or potential jurors are.
This Ethics Opinion provides yet another reminder of the rules and the roles of attorneys. As noted in Gentile, attorneys frequently face restrictions on our First Amendment rights to the freedom of speech so as to facilitate the jury trial process. The trade-off of the rights guaranteed by the Constitution to all at the expense of some First Amendment rights of attorneys is what we signed up for when we became attorneys.
The Texas Lawyer’s Creed, while aspirational, also speaks to the speech issues involved here. Point 10 states, “I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety.” While the counsel in this case would undoubtedly argue that there was good cause to make the statements to the media, the case law and Ethics Opinions show that even in the limited cases where speaking to media about these issues can happen, counsel should stop and think about their larger role in society first.
Kevin Anders is a Project Associate at Level 2 Legal Solutions. He can be reached at firstname.lastname@example.org.