The following legal opinion was handed down by The Florida Bar on March 13, 1973. It deals with whether or not an attorney should make a public statement about litigation in which the attorney is involved.
Subject to any constitutional privilege a lawyer should not originate public statements pertaining to litigation in which he is involved. However, a lawyer commits no impropriety in stating without elaboration those matters that are clearly and specifically authorized by DR 7-107. As to matters not so specifically authorized, a lawyer may fairly state to a representative of the media the issues to be tried and the contentions of the parties if it is done anonymously.
Chairman Clarkson stated the opinion of the committee:
The Board of Governors solicits our opinion “developing guidelines under which lawyers may properly make statements for publication in connection with litigated matters in which they are involved.”
Professing some skepticism about entering the realm of guideline writers, we do so by direction of the Board.
The general philosophy underlying the restrictive rules set forth in DR 7-107 may be found in EC 7-33, quoted as follows:
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. Such news or comments may prevent prospective jurors from being impartial at the outset of the trial and may also interfere with the obligation of jurors to base their verdict solely upon the evidence admitted in the trial. The release by a lawyer of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal. For these reasons, standards for permissible and prohibited conduct of a lawyer with respect to trial publicity have been established.
DR 7-107 of the CPR prohibits extra-judicial statements for public dissemination except those of a limited and specified kind. Specific limitations are stated separately for criminal and quasi-criminal matters, civil actions and administrative proceedings.
The Committee has concluded that a lawyer should originate no public statements concerning a case in which he is involved. While our conclusion may seem harsh, particularly as applied to public officers discussing cases of great public interest, there are compelling reasons for adhering to such a standard. Aside from the tendency of public statements to create pressures that might be felt by jurors or even judges, there is a greater danger. A lawyer representing a litigant naturally and properly presents all matters in the light most favorable to his client. Should his public statements convince a substantial part of the public that he is right and later the courts, after considering both sides of the controversy, rule the other way, public confidence in the integrity of the judicial system will be shaken.
Permitting lawyers to try their cases in newspaper or radio statements (or on television screens) would invite the use of these media by a lawyer to advertise himself by demonstrating his adroitness and exploiting the sensational aspects of cases. Of course, this is forbidden by DR 2-101(A) as well as DR 7-107. Nor is it any part of a lawyer’s legitimate role to influence public opinion toward his client’s cause.
What we have said to this point concerns publicity originated by the lawyer. If requested by representatives of the media, there can be no impropriety in stating without elaboration those matters which are clearly and specifically authorized by DR 7-107.
We are told that lawyers must assist reporters in “presenting both sides of an issue in as accurate and balanced a manner as possible,” which process necessarily involves statements by lawyers for attribution. As to matters not clearly and specifically authorized by the black-letter provisions of DR 7-107, a majority of the committee finds no impropriety in a lawyer’s fairly stating to a representative of the media the issues to be tried and the contentions of the parties if it be done anonymously. Use of the lawyer’s name invites elaboration and self-laudation and tends to lead to the undesirable practice of trying the case in the press or on television.
The general pronouncements set forth above are subject to the qualification that a lawyer may be constitutionally privileged to make press comments. Compare our caveat expressed in the concluding portion of Opinion 70-43. Subject to the foregoing, a lawyer should obey all valid court rules and orders regarding public statements.
To summarize, we have concluded:
1. Subject to any constitutional privilege, a lawyer should not originate public statements pertaining to litigation in which he is involved.
2. A lawyer commits no in propriety in stating without elaboration those matters which are clearly and specifically authorized by DR 7-107.
3. As 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.
Committeeman Sullivan field the specifically concurring opinion which follows:
It seems to me that most litigation (I include all adversary proceedings in that definition), criminal or civil, is of little interest except to the people directly involved.
Newspapers, radio and television do not report most cases as news while the trial is in progress and only rarely report the result. A large verdict in a personal injury case is an example of such a report. More often than not, the lawyers involved have no opportunity to discuss those cases publicly while they are pending.
I think actually we are considering the question as it applies to a small percentage of all cases filed and tried. Even so, for the reasons stated below, I would not try to limit lawyers’ extrajudicial statements in any cases beyond the limits of DR 7-107.
The American Bar Association Project On Standards For Criminal Justice issued a Tentative Draft in 1966 and a Supplement in 1968 of Standards Relating to Fair Trial and Free Press. It was approved by the ABA House of Delegates in 1968.
The Approved Draft (p. 82) recommended revisions in the Canons Of Professional Ethics to include certain standards relating to public discussion by attorneys of pending or imminent criminal litigation in which they are involved. DR 7-107 of the CPR seems to have evolved in part from those recommendations although it contains standards for civil cases and administrative proceedings as well.
I think it is significant that in the Approved Draft the ABA Project Committee rejected an approach similar to that used in English courts where judges have broad powers to hold the media in contempt. As one of the grounds, the Committee said that “any significant expansion of the contempt power against the media would pose constitutional questions that have yet to be resolved.” Approved Draft, p. 70. Again, in its Recommendations Relating to the Exercise of the Contempt Power, the Committee said:
The use of the contempt power against persons who disseminate information by means of public communication, or who make statements for dissemination, can in certain circumstances raise grave constitutional questions. Apart from those questions, indiscriminate use of that power can cause unnecessary friction and stifle desirable discussion. (Approved Draft, p. 150.)
As an alternative to restricting the media by use of contempt power, the ABA Project Committee recommended an approach that would limit, but not eliminate, extrajudicial statements by attorneys. Approved Draft, p. 84. The Committee stated that some public discussion was beneficial. Approved Draft, p. 70.
I believe DR 7-107 represents the best efforts of the ABA Special Committee On Evaluation of Ethical Standards to define standards that will accomplish what the ABA Project Committee recommended. DR 7-107, which is applicable in Florida as part of CPR, does not prohibit all extrajudicial statements by attorneys.
If our Committee attempts to impose a more restricted standard by prohibiting all extrajudicial statements, I believe we will in effect be rewriting DR 7-107, and I do not think that is our function.
Even aside from DR 7-107, I do not believe that attorneys should be prohibited from making any extrajudicial statements about pending litigation.