Is a government lawyer held to the same trial-publicity rules as a lawyer for a private client?

Plain-English summary

The Board of Governors of The Florida Bar asked whether an attorney representing the government (federal, state, or local, or one of its agencies, commissions, or boards) is bound by the same ethical considerations as a private attorney as to statements, comments, or publicity about litigation pending by or against the government or its entities.

The committee answered that the Code of Professional Responsibility makes no distinction between attorneys representing the government and those representing private clients in matters about the conduct of litigation, and that DR 7-107 on trial publicity applies with equal effect to all attorneys. It observed that a government attorney's situation may be more delicate, because the attorney speaks for the public yet owes allegiance to the heads of government or departments. The committee drew on ABA Formal Opinion 199, which construed the prior Canon 20 and concluded that statements about prospective or pending criminal or civil proceedings should avoid any statement of fact likely to create an adverse public attitude toward the alleged actions of defendants. It added that a government lawyer is no less subject to the Code, and no more authorized to violate it in furtherance of the employer's objectives, than a lawyer for a private person, while expressly declining to decide whether federal supremacy might immunize a federal government lawyer acting under superiors' orders.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied DR 7-107 of the former Code of Professional Responsibility; trial publicity is now addressed by Rule 4-3.6. The opinion carries an editorial note that the trial-publicity rule was amended after Gentile v. State Bar of Nevada, 501 U.S. 1047 (1991). Treat this page as historical context, not current guidance.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: Are prosecutors and other government lawyers exempt from trial-publicity limits?

A: No. The committee held that DR 7-107 applied to government lawyers with the same effect as to private lawyers, with no distinction in the Code.

Q: Did the committee say the government lawyer's position is any different?

A: It noted the situation may be more delicate, because the government lawyer speaks for the public yet answers to government superiors, and said the lawyer should exercise care to maintain the dignity of the office. It did not relax the rule's application.

Q: Did the opinion address federal lawyers acting under orders?

A: It expressly declined to decide whether the federal supremacy-of-law doctrine would immunize a federal government lawyer acting under superiors' orders.

Background and rules framework

The opinion applied DR 7-107 of the former Code of Professional Responsibility, governing trial publicity, and drew on ABA Formal Opinion 199 construing the earlier Canon 20. Trial publicity is now addressed by Rule 4-3.6 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 3.6.

Citations and references

Rules of Professional Conduct:

• DR 7-107 [Code of Professional Responsibility; trial publicity now in Rule 4-3.6]

Cases:

• Gentile v. State Bar of Nevada, 501 U.S. 1047, 111 S.Ct. 2720, 115 L.Ed. 2d 888 (1991) [per the opinion's editorial note]

Other opinions cited:

• ABA Formal Opinion 199: statements about pending proceedings under former Canon 20

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-43/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-43-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 70-43
January 12, 1971
Advisory ethics opinions are not binding.
An attorney representing a government interest is bound by the same ethical considerations as an attorney for a private individual in respect to statements or publicity pertaining to litigation pending by or against the government.
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).
CPR: DR 7-107
Opinion: ABA 199
Chairman Massey stated the opinion of the committee:
The Board of Governors of The Florida Bar has requested this Committee's opinion as to whether an attorney representing the government, federal, state or local, or one of the government's agencies, commissions or boards, is bound by the same ethical considerations as private attorneys admitted to practice in Florida as the same would obtain to statements, comments or publicity pertaining to litigation pending by or against the government or its agencies, commissions or boards.
The Code of Professional Responsibility makes no distinction between attorneys representing the government or its entities as contrasted to the lawyer representing his private client in matters pertaining to the conduct of an attorney in litigation. Such conduct is spelled out with particularity as to trial publicity at CPR DR 7-107. The application thereof is of equal effect upon all attorneys, those representing the government or otherwise. In viewing the actions of one representing the government, the situation may often be more delicate than that which faces the lawyer for a private client. This is true as the government attorney speaks for his employer, which in ultimate analysis should be the people for whom the government exists, and yet such attorney is responsive to the heads of government or departments to whom he must owe some allegiance and loyalty as well. He should scrupulously exercise care in what he says in order to maintain the dignity of the office and bring about respect for the governmental processes for which he stands.
Of particular interest is ABA Formal Opinion 199, which construed Canon 20 prior to the Code of Professional Responsibility. In reviewing a statement of the Attorney General of the United States relative to antitrust laws, it was held that statements relating to prospective or pending criminal or civil proceedings, while not prohibited by the Canon then applicable, should avoid any statement of fact likely to create an adverse public attitude respecting the alleged actions of defendants to the proceedings. Even though it was doubtful public opinion would sway or bias a trial judge in a nonjury case, no litigant should be called upon to run the risk. Thus, even prior to the Code of Professional Responsibility, the ethical criteria were essentially the same.
A lawyer who represents the government is no less subject to the Code of Professional Responsibility, and no more authorized to violate it in real or purported furtherance of his employer's objectives, than is a lawyer representing a private person. We are not called upon to advise whether the Federal supremacy-of-law doctrine would immunize a Federal government lawyer, acting under orders from his governmental superiors, from professional obligations to which other lawyers are subject.