Can a lawyer let a newspaper reporter look at the lawyer's own copy of a deposition filed in a public-interest civil case?

Plain-English summary

In a civil suit of considerable public interest, the officer taking a deposition filed the transcript in the prescribed manner. A newspaper reporter, in a routine check of courthouse events, noticed the filing and asked one of the attorneys to let him see the attorney's copy of the transcript, stating no specific purpose. The inquiry was whether the attorney could ethically allow the reporter access.

The committee saw no ethical objection if the deposition was available for public inspection in the office of the clerk of the circuit court. It presupposed that the reporter, not the attorney, instigated the inquiry, and that the attorney complied with Canon 20. In other words, the attorney could do the reporter a courtesy but could not seek publicity in violation of Canon 27, and, as Canon 20 required, should refrain from newspaper discussion of pending litigation. If the deposition was not available for public inspection in the clerk's office, the committee questioned the propriety of an attorney making his copy available. It noted the procedural rules on sealing and opening depositions and that some counties had local rules bearing on when a deposition becomes part of the public court file.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The Florida Bar notes that the trial publicity rule was amended after Gentile v. State Bar of Nevada, 501 U.S. 1047 (1991). The opinion applied former Canons 20 and 27. Lawyer comment on pending matters is now governed by Rule 4-3.6 of the Rules Regulating The Florida Bar (Model Rule 3.6). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer show a reporter his copy of a filed deposition?

A: The committee saw no ethical objection if the deposition is available for public inspection in the clerk's office, the reporter initiated the request, and the lawyer complies with the canon on commenting on pending litigation.

Q: What if the deposition is not yet open for public inspection?

A: The committee questioned the propriety of an attorney making his copy available to a reporter where the deposition is not available for public inspection in the clerk's office.

Q: Could the lawyer use the request to generate publicity?

A: No. The committee said the attorney could do the reporter a courtesy but could not seek publicity in violation of Canon 27, and should refrain from newspaper discussion of the pending litigation under Canon 20.

Background and rules framework

The opinion applied former Canon 20 (on newspaper discussion of pending litigation) and Canon 27 (on publicity). The subject of a lawyer's extrajudicial statements about a pending matter is now addressed by Rule 4-3.6 of the Rules Regulating The Florida Bar (Model Rule 3.6), a rule amended after the Supreme Court's decision in Gentile. The committee also referenced the procedural rules then governing the sealing and opening of depositions.

Citations and references

Rules of Professional Conduct:

• Canon 20 [Canons of Professional Ethics; newspaper discussion of pending litigation]
• Canon 27 [Canons of Professional Ethics; publicity; see current Rule 4-3.6 on trial publicity]

Cases:

• Gentile v. State Bar of Nevada, 501 U.S. 1047 (1991), noted by the bar in connection with later amendment of the trial publicity rule

See also

• FL Bar Ethics Op. 70-43: Government Lawyer and Trial Publicity
• FL Bar Ethics Op. 70-30: A Newspaper Legal Column

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-43/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-43.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 65-43
July 30, 1965
Advisory ethics opinions are not binding.
A lawyer may allow a newspaper reporter to inspect the lawyer's copy of a deposition taken in a civil suit of considerable public interest if the deposition is available for public inspection in the court clerk's office, if the reporter, not the lawyer, instigated the inquiry, and if the lawyer refrains from improper discussion of pending litigation.
Note: The trial publicity rule was amended subsequent to Gentile v. State Bar of Nevada, 501 U.S. 1047, 111 S.Ct. 2720, 115 L.Ed 2d 888 (1991).
Canons: 20, 27
Chairman Kittleson stated the opinion of the committee:
A member of The Florida Bar requested the Committee's opinion on a civil suit of considerable public interest. The officer before whom the deposition was taken filed the transcript in the prescribed manner. A newspaper reporter, in a routine check of court house events, noted the filing of the deposition. The reporter has requested one of the attorneys in the suit to allow the reporter to see the attorney's copy of the transcript. The reporter has stated no specific purpose. The inquiry is whether the attorney may ethically allow the reporter access to the deposition.
The Committee assumes that this inquiry falls within the policy prescribed by the Board of Governors to the effect that the standing committee on professional ethics should render an opinion only on inquiries dealing with the proposed future conduct of the inquirer.
If the deposition is available for public inspection in the office of the clerk of the circuit court, the Committee sees no ethical objection to the attorney's allowing a newspaper reporter access to his copy of the deposition. This presupposes that the newspaper reporter, not the attorney, instigated the inquiry, and that the attorney complies with Canon 20. In other words, the attorney may do the reporter a courtesy but he may not seek publicity in violation of Canon 27, and, as required by Canon 20, he should refrain from newspaper discussion of pending litigation.
If the deposition is not available for public inspection in the clerk's office, then the Committee questions the propriety of an attorney's making his copy of the deposition available to a newspaper reporter.
Rule 1.24 provides that the officer taking the deposition shall seal the deposition before filing it with the court. Rule 1.33 provides that the deposition may be opened and examined by any party in the presence of the clerk. Some counties and circuits, however, have local court rules dealing with the clerk's responsibilities for opening and keeping the depositions. This may

be pertinent on the question of when the deposition becomes available for public inspection as part of the court file.