The following legal opinion was handed down by the Florida Bar on April 6, 1978.
An attorney may not write a letter to the editor of a newspaper commenting on the merits of pending civil litigation in which he is involved and on his own credibility. This is true even when the newspaper, which is published by a party to the litigation, printed an article commenting on the merits and the lawyer’s credibility, and even if the attorney’s letter merely quotes from the lawyer’s brief.
A lawyer inquires whether he may write a letter to the editor of a newspaper commenting on the merits of pending civil litigation in which he is involved and commenting as to his own credibility before the court. The lawyer recognizes the provisions of DR 7-107(G), which read:
A lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication and that relates to: ... (2) The character, credibility ... of a party, witness, or prospective witness.... (4) His opinion as to the merits of the claims or defenses of a party.... (5) Any other matter reasonably likely to interfere with a fair trial of the action.
But the lawyer questions whether those proscriptions should apply when the newspaper, which is itself published by a party to the litigation, has published an article commenting, in the lawyer’s view, unfairly as to the merits of the litigation and as to the lawyer’s credibility. The lawyer’s proposed letter to the editor is to be in response to that article.
In addition, the lawyer asks whether, if he may not write the foregoing type of letter, may he nonetheless write a letter simply quoting from his brief filed with the court with respect to the same matters.
The Committee answers that such letter to the editor may not be written without violating the Code of Professional Responsibility, whether or not the letter quotes from the lawyer’s brief.
EC 7-33 says: “A goal of our legal system is that each party shall have his case, criminal or civil, adjudicated by an impartial tribunal. The attainment of this goal may be defeated by dissemination of news or comments which tend to influence judge or jury.... The release by a lawyer of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal....”
See Opinion 70-43 (attorney representing governmental agency) and Opinion 71-51 [since withdrawn] (publicity release of newsworthy event involving lawyer). See also Opinion 72-46, which enunciates stringent standards under DR 7-107 and says that a lawyer should originate no public statements concerning a case in which he is involved except, subject to constitutional privilege, for statements clearly and specifically authorized by DR 7-107, and “[a]s to matters not clearly and specifically authorized by the black-letter provisions of DR 7-107, a lawyer may fairly state to a representative of the media the issues to be tried and the contentions of the parties if it be done anonymously.”
In the context of this inquiry we do not consider the public records exception of DR 7-107(G) to include a lawyer promoting publication in the media of his own comments made in his brief. If that were the case, the meaning and purpose of that Disciplinary Rule could be subverted. The additional aspects, as presented in the inquiry, that the newspaper publisher is a party to the litigation and that the lawyer’s letter would be in response to a prior unfair article do not bring the lawyer’s proposed letter within any exceptions to DR 7-107.