Can a lawyer sit in on a client's own press conference about pending litigation just to advise the client?

Plain-English summary

A Kentucky attorney asked whether another lawyer acted improperly by sitting in on a press conference his client called about pending civil litigation that had received wide publicity (criminal proceedings against the same person were also pending). The newspaper clippings furnished to the committee showed the lawyer was present but did not show that he made any statement to the press. The committee answered that the lawyer's mere presence to advise the client was proper.

The committee distinguished the inquiry from the usual pretrial-publicity problem in two ways. First, the typical concern is the lawyer, rather than the client, making statements to the press about pending litigation, conduct that is generally condemned or highly restricted under Canon 20 of the former Canons of Professional Ethics and DR 7-107 of the Disciplinary Rules. Second, many such problems arise from statements by public prosecutors about evidence in a pending criminal matter, which are condemned because of the likelihood of creating an adverse attitude toward the guilt of an accused.

The committee stated that the ethical guidelines restricting pretrial publicity by lawyers are sound and should be rigidly enforced. But it reasoned that if a client chooses, however foolishly, to call a press conference and make his own statements, he has a right to have his attorney present solely to advise him; indeed, any person has a right to insist on his attorney's presence at virtually any transaction, public or private, civil or criminal. The committee added that a lawyer remains obligated to refrain from participating in illegal acts and may be justified in refusing to represent a client who persistently disregards his advice, but those questions were not raised by the inquiry.

Currency note

This opinion was issued in 1973 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. The trial-publicity rule it applies (DR 7-107) is now Model Rule 3.6 (and Kentucky's SCR 3.130(3.6)), whose text and standard differ from the former rule. 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 Treat this page as historical context, not current guidance.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 rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer attend a client's press conference about a pending case?

A: Yes. The committee held that a client who calls his own press conference has a right to have his attorney present solely to advise him, where the attorney makes no statements to the press.

Q: Does this loosen the rules on lawyers generating pretrial publicity?

A: No. The committee said the guidelines restricting pretrial publicity by lawyers are sound and should be rigidly enforced; the distinction was that here the client, not the lawyer, made the statements.

Q: Did the committee address whether the lawyer must counsel against the press conference?

A: It noted only that a lawyer must refrain from participating in illegal acts and may be justified in refusing to represent a client who persistently disregards his advice, but it said those questions were not raised by the inquiry.

Background and rules framework

The opinion applied Canon 20 of the former Canons of Professional Ethics and DR 7-107 of the Code of Professional Responsibility, the rules restricting lawyer-generated pretrial publicity about pending matters. The modern analog is Model Rule 3.6 (trial publicity), adopted in Kentucky as SCR 3.130(3.6).

Citations and references

Rules of Professional Conduct:

• Canon 20 (Canons of Professional Ethics) and DR 7-107 (Code of Professional Responsibility); modern analog Model Rule 3.6

See also

• FL Bar Ethics Op. 70-43: Government Lawyer Trial Publicity
• FL Bar Ethics Op. 65-43: Showing a Reporter a Deposition
• LACBA Ethics Op. 451: Publishing on a Client's Issue

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-068.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-68
Issued: May 1973

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney be present to render legal advice to his client at a press conference called by this client?

Answer:

Yes.

References:

DR 7-107

OPINION

The Ethics Committee has received a novel and interesting inquiry from a Kentucky attorney concerning the possibility of impropriety on the part of another attorney who appears to have sat in on a press conference called by his client concerning civil litigation then pending, the details of which have received wide publicity in the press and other news media. Incidentally, criminal proceedings were also pending against the same person who called the press conference, and newspaper clippings furnished the Committee indicated presence of the person's attorney, but did not indicate that the attorney had made any statement of any kind to the press. The attorney making the inquiry wonders whether or not the other attorney committed any improper conduct in "participating in publicity" about pending litigation.
This inquiry is novel from the standpoint that it is different in two respects from the usual problems encountered concerning publicity generated by attorneys:
First, in the typical inquiry concerning publicity, it is the attorney, rather than the client, who makes statements to the press concerning pending civil or criminal litigation, and such activity on the part of the attorney is, of course, generally condemned or highly restricted. See Canon 20 of the former Canons of Professional Ethics, and DR 7-107 of the newer Disciplinary Rules of the American Bar Association, adopted as official guidelines by the Kentucky Bar Association.
Secondly, many of these problems arise out of statements by public prosecutors concerning evidence, etc., in a pending criminal matter and these are universally condemned because of the likelihood of creating an adverse public or official attitude concerning the guilt of a person accused of crime.

It seems to the Committee that the ethical guidelines and opinions of the Standing Committee on Ethics of the American Bar Association concerning pretrial publicity by lawyers are sound and should be rigidly enforced. On the other hand, if a client undertakes, however foolishly, to call a press conference and make his own statements concerning litigation or pending criminal proceedings, it seems to us that he has a perfect right to have his attorney present at the time the statements are given for the sole purpose of advising him. As a matter of fact, it occurs to us that any person, regardless of his circumstances, has a perfect right to insist on his attorney being present at virtually any transaction in which he may be engaged, be it public, private, civil, criminal, or otherwise. Obviously, an attorney may be under ethical obligation to refrain from participating in illegal acts, and he may well be justified in refusing to represent a client who persistently chooses to disregard his advice, but those matters are not raised by the present inquiry.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.