As an attorney serving on a legislative investigative commission that holds public hearings, does Rule 3.6's trial-publicity limit constrain my conduct?

Plain-English summary

The inquiring attorney serves as a member of the Select Commission to Investigate the Failure of RISDIC and Its Insured Institutions, which the legislature charged with investigating, publicly presenting evidence at hearings, and recommending criminal prosecutions, civil litigation, and legislation. The attorney asked about Rule 3.6 (trial publicity) as it bears on individuals charged with crimes relating to matters under investigation.

The panel explained that Rule 3.6 protects the integrity of the adjudicatory process by proscribing out-of-court public statements that threaten to influence proceedings improperly, balancing First Amendment free-speech rights against Sixth Amendment fair-trial rights. Unlike its predecessor, Disciplinary Rule 7-107, Rule 3.6 bars only statements with a "substantial likelihood of materially prejudicing" a proceeding, and does not require that the speaker be associated with the proceeding or that the proceeding be pending. The panel observed that the commission's televised public hearings and prominent media coverage make the likelihood of widespread coverage a primary factor in assessing material prejudice to prospective jurors. The panel stressed that Rule 3.6 is not a test of whether a defendant will receive a fair trial (a constitutional question for courts) but a rule guiding attorneys' own conduct as officers of the court, and that it would not ordinarily attempt to resolve conflicts between the judicial and legislative branches, finding no such resolution necessary here.

The panel concluded that the attorney may participate in the commission's legislatively mandated activities without violating Rule 3.6, and answered the specific questions: (1) the term "statement" in Rule 3.6 does not encompass asking questions at a public hearing if the questions are not intended as assertions; (2) Rule 3.6 does not preclude the attorney from attending hearings where testimony bearing on culpability is presented; (3) to the extent the attorney can influence the commission's public statements and reports, the attorney should attempt to have the commission satisfy its mandate with the least improper influence on pending or probable court proceedings, specifically avoiding statements based on clearly inadmissible evidence, avoiding comment on prospective defendants' refusal or failure to make statements, and avoiding improper implications about the commission's authority by urging appropriate disclaimers (that its recommendations are not findings of criminal guilt or civil liability, that defendants are presumed innocent, that the commission is an investigatory body and not a court, that persons charged are entitled to a jury trial, and that its procedures do not permit the evidence and cross-examination needed to determine guilt or liability); (4) Rule 3.6 would preclude the attorney from making statements outside the commission's reports, or as an individual member, that would have a substantial likelihood of materially prejudicing an adjudicative proceeding, except statements permitted by Rule 3.6(c); and (5) although Rule 3.6 applies, the attorney's role does not involve the direct supervisory authority that would make Rule 5.1 applicable, and Rule 8.4 imposes no different standard than the panel described under Rule 3.6.

Currency note

This opinion was issued in 1992, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 3.6 (and Rules 5.1 and 8.4) as originally adopted. Rule 3.6 was later amended nationally and in Rhode Island (including the 2007 Ethics 2000 revisions), and the "substantial likelihood of material prejudice" framework and safe-harbor provisions have been refined. 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 mentioned here.

Common questions

Q: Does asking questions at a public commission hearing count as a "statement" under Rule 3.6?

A: Per the opinion, no; the term "statement" does not encompass asking questions at a public hearing if the questions are not intended to constitute assertions.

Q: Can I attend commission hearings where testimony about a suspect's culpability is presented?

A: Per the opinion, yes; Rule 3.6 does not preclude the attorney from attending hearings when such testimony is being presented.

Q: What should I do about the commission's public reports and statements?

A: Per the opinion, the attorney should attempt to influence the commission to satisfy its mandate with the least improper influence on pending or probable proceedings and to include disclaimers, such as that its recommendations are not findings of guilt and that defendants are presumed innocent.

Q: Do Rules 5.1 and 8.4 add anything here?

A: Per the opinion, the attorney's role does not involve the direct supervisory authority that makes Rule 5.1 applicable, and Rule 8.4 imposes no different standard than the panel described under Rule 3.6.

Background and rules framework

The opinion interprets Rhode Island Rule 3.6 (trial publicity), and touches on Rule 5.1 (responsibilities of a partner or supervisory lawyer) and Rule 8.4 (misconduct), corresponding to the same-numbered Model Rules. The panel framed Rule 3.6 as prohibiting only extrajudicial statements with a substantial likelihood of materially prejudicing an adjudicative proceeding, distinguished it from the constitutional fair-trial inquiry, and applied it to guide the attorney's conduct as a member of a legislatively created investigative commission.

Citations and references

Rules of Professional Conduct:

• MR 3.6 (trial publicity)
• MR 5.1 (responsibilities of a supervisory lawyer)
• MR 8.4 (misconduct)
• RI RPC 3.6, 3.6(c), 5.1, 8.4

Statutes:

• RISDIC Commission Enabling Act, 91-H-6680 (charging the commission to investigate, present evidence publicly, and recommend prosecutions, litigation, and legislation).

Cases:

• Ruggieri v. Johns-Manville Products Corp., 503 F. Supp. 1036 (D.R.I. 1980), balancing free-speech and fair-trial concerns.

Other opinions cited:

• Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering, §§ 3.6:101, 3.6:1.02, 3.6:202 (on the purpose and scope of Rule 3.6).

See also

• RI EAP Op. 91-27: Lawyer Subpoenaed to the Grand Jury Must Appear and Assert Privilege
• RI EAP Op. 92-28: Confidentiality When the FBI Wants Help Against a Client
• RI EAP Op. 91-63: Government Lawyer May Represent Clients Before Other Agencies if 1.7 Met

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-29.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion #92-29, Request #241
Issued June 4, 1992

An attorney inquired as to the applicability of Rule 3.6 of the Rules of Professional Conduct as an attorney serving as a member of the Select Commission To Investigate the Failure of RISDIC and Its Insured Institutions (the "Commission"). The Rhode Island legislature has charged the commission with making investigations, "making a public presentation of the evidence uncovered by the aforesaid investigations at hearings to be conducted by the commission", and making recommendations as to criminal prosecutions, civil litigation and legislation. (RISDIC Commission Enabling Act, 91-H-6680). The attorney is concerned specifically with the ethical responsibilities under Rule 3.6 as to individuals who have been charged with crimes relating to matters under investigation by the Commission.

The purpose of Rule 3.6 is to protect the integrity of the adjudicatory process by proscribing "out-of-court public statements that threaten to influence the proceedings improperly". Hazard, The Law of Lawyering, § 3.6:101. The rule attempts to balance the inherent conflict between first amendment rights of free speech and sixth amendment rights to a fair trial. See, e.g., Ruggieri v. Johns-Manville Products Corporation, 503 F. Supp. 1036 (D.R.I. 1980). To meet criticism that the Rule's predecessor, Disciplinary Rule 7-107, was overbroad, Rule 3.6 precludes only "public statements by lawyers that have a 'substantial likelihood of materially prejudicing' a proceeding." Hazard, § 3.6:1.02. However, unlike Disciplinary Rule 7-107, Rule 3.6 does not require that the lawyer making the proscribed statement be himself or herself associated with the proceeding or that the proceeding be pending at the time the statement is made.

In the questions posed to this Panel, the application of Rule 3.6 involves confrontation with the legislative mandate that the Commission conduct public hearings and make public recommendations. The Panel notes that the Commission's public hearings are televised and that the Commission's hearings and recommendations receive prominent media coverage. The likelihood of widespread news coverage in the locale of the prospective adjudicatory proceeding is a primary factor in determining the substantial likelihood of materially prejudicing prospective jurors. See Hazard, § 3.6:202.

Rule 3.6 is not, however, a rule for determining whether a given defendant or civil litigant will receive a fair trial. That is a matter for courts to decide as a matter of constitutional law. Rule 3.6 is, rather, a rule for attorneys to guide their own conduct as officers of the court responsible for preserving the integrity of the judicial system.

The Panel's role is to interpret the Rules of Professional Conduct as they apply to prospective conduct of individual attorneys. In that role, the Panel will not ordinarily attempt to resolve conflicts between the judicial branch, which has promulgated the Rules of Professional Conduct and which has appointed this Panel, and the legislative branch. In responding to the inquiry, the Panel does not believe any such attempted resolution is necessary as there is no suggestion that the legislature intended to render the Rules of Professional Conduct inapplicable to the attorney and member of the Commission.

The Panel is of the view that the attorney may as a member of the Commission participate in the Commission's legislatively mandated activities without violating Rule 3.6. The Panel responds to the specific questions as follows:

1. The Panel believes that the term "Statement" as utilized or as set forth in Rule 3.6 does not encompass the asking of questions at a public hearing if such questions are not intended to constitute assertions.

2. Rule 3.6 does not preclude an attorney from attending hearings when testimony is being presented that may bear upon the culpability of persons who have been arrested.

3. To the extent that the attorney member of the Commission may influence the Commission's public statements and reports, he or she should attempt to influence the Commission to satisfy its legislative mandate with the least possible improper influence on pending or probable court proceedings. Specifically, as an attorney member of the Commission he or she should attempt to influence the Commission to:

(a) Avoid statements based upon evidence that would clearly be inadmissible in a judicial proceeding.

(b) Avoid comments on the refusal or failure of prospective criminal defendants to make statements to the Commission.

(c) Avoid improper implications as to the authority of the Commission. In this connection, the attorney should attempt to influence the Commission to include in its public statements appropriate disclaimers to the effect that its recommendations are not findings or opinions of criminal guilt or civil liability, that criminal defendants are presumed innocent unless and until proven guilty in a criminal trial, that the Commission is not a court but an investigatory body, that persons charged with crimes are entitled to a trial by jury, and that the Commission's procedures do not permit the presentation of evidence or the cross-examination of witnesses that are necessary under the judicial system to determine criminal guilt or civil liability.

4. Rule 3.6 would preclude the attorney from making statements outside the Commission's reports or as an individual member of the Commission, whether or not based upon the Commission's investigations, that would have a substantial likelihood of materially prejudicing an adjudicative proceeding, except for statements permitted by Rule 3.6(c).

5. While the Panel concludes that Rule 3.6 is applicable to his or her conduct as an attorney while serving as a member of the Commission, the Panel does not view the attorney's role as a member of the Commission as involving the direct supervisory authority required to make Rule 5.1 applicable to him/herself or that Rule 8.4 imposes any different standard of behavior than the Panel has suggested above under Rule 3.6.

The sole purpose of this Panel's advisory opinion is that "the inquiring attorney who acts in accordance with the advisory opinion shall be conclusively presumed to have abided by the Rules of Professional Conduct." Supreme Court Rules of the Ethics Advisory Panel, Rule 47 of the Court Rules Annotated (Michie Supp. 1989-1990), Rule 5. This advisory opinion is addressed specifically to the inquiring attorney and is not to be interpreted as any attempt to limit the autonomy or to infringe on the powers or authority that the legislature has granted to the Commission.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.