Can an assistant district attorney sell media rights to her role in a prosecution, and help develop her character in a screenplay?

Plain-English summary

An assistant district attorney who had won a publicized murder conviction was approached, after a magazine article and ensuing television and movie interest, by an agent seeking to buy limited lifetime media rights so she could be developed as a major character in the story. The committee first explained that before Bates v. State Bar and the resulting amendments to the Code, such conduct would have been condemned as improper indirect advertising under former Canon 27 and a line of ABA opinions. With those advertising strictures largely removed after Bates, the committee found nothing in the Code as then in effect that would prohibit an assistant district attorney from selling her media rights once a criminal prosecution is complete. It noted that ABA Model Rule 1.8(d), though not adopted in New York, reaches the same result by barring a media-rights agreement only before the conclusion of the representation.

The committee attached safeguards. During a representation, a lawyer must not be influenced by personal motives or hopes of future publicity, and must not acquire a property right or position that would make the lawyer's judgment less protective of the client (DR 5-101(A), DR 7-101, EC 5-2, EC 5-4). That duty falls at least as heavily on a public prosecutor, whose role is to seek justice, not merely to convict (EC 7-13). The committee therefore agreed that a prosecutor may not negotiate or enter a media-rights agreement during an ongoing prosecution, also citing DR 7-107(E)'s bar on certain extrajudicial statements before sentencing. Even after a representation concludes, the lawyer must continue to protect the client's confidences and secrets under DR 4-101(B), a duty that survives the representation (EC 4-6) regardless of whether the information is also in the public record. On the second question, the committee held the assistant district attorney may participate in developing the character based on her, subject to DR 2-101(A) and (B)'s bar on false, deceptive, or misleading public communications. The committee expressed no view on whether constitutionally protected publicity could survive a Code prohibition, as that is a question of law beyond its jurisdiction.

Currency note

This opinion was issued in 1990, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009 (where the media-rights restriction appears as Rule 1.8(d)). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a prosecutor sell media rights to her role in a case?

A: Yes, once the prosecution is complete. The committee found nothing in the Code barring an assistant district attorney from selling her media rights after the representation concludes.

Q: Can she do so while the prosecution is still ongoing?

A: No. The committee held that a prosecutor may not negotiate or enter a media-rights agreement during an ongoing prosecution, because the economic interest could compromise the duty to seek justice and protect the client.

Q: Can she help develop her character in the screenplay?

A: Yes, subject to limits. The committee held she may participate in developing the character based on her, provided the portrayal contains no false, deceptive, or misleading statements (DR 2-101(A), (B)).

Q: Do confidentiality duties still apply after the case ends?

A: Yes. The committee held the duty to protect the client's confidences and secrets under DR 4-101(B) survives the representation, even for information in the public record.

Background and rules framework

The opinion interpreted DR 5-101(A) (a lawyer's personal interest that may affect professional judgment), DR 4-101(B) (protecting client confidences and secrets), and DR 7-107(E) (extrajudicial statements before sentencing), along with DR 2-101(A) and (B) (no false or misleading communications), against the prosecutor's duty under EC 7-13 to seek justice. The closest Model Rule analogues are Rule 1.8(d) (literary or media rights before the conclusion of representation) and Rule 1.7 (personal-interest conflicts).

Citations and references

Rules of Professional Conduct:

• MR 1.8 (literary and media rights; prohibited transactions)
• MR 1.7 (personal-interest conflicts)
• NY DR 5-101(A); DR 4-101(B); DR 7-107(E); DR 2-101(A); DR 2-101(B); DR 5-104(B)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977): removal of broad bans on lawyer advertising and self-promotion

Other opinions cited:

• N.Y. City 1988-6 (1988): no media-rights contract while a criminal matter is pending
• N.Y. State 492 (1980): the prosecutor's special duties

See also

• NY State Bar Op. 620: District attorney's press release on seized physical evidence
• NY State Bar Op. 616: Part-time assistant district attorney who is a police officer

Source

• Landing page: https://nysba.org/opinion-606/