COMMENT
[1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.
[2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation.
[3] The Rule sets forth a basic general prohibition against a lawyer’s making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who are, or who have been involved in the investigation or litigation of a case, and their associates.
[4] [Reserved] [5] [Reserved] [6] [Reserved] [7] [Reserved] [8] [Reserved]
REPORTER’S NOTES:
Model Rule 3.6 (2002) addresses the issue of extra judicial speech and sets forth specific limits on out of court public statements by lawyers participating in an investigation or litigation. The Task Force was mindful, however, of the risks associated with predicting the types of speech that may or may not be ultimately prejudicial to a fair trial. Accordingly, the Task Force recommended the adoption of the language found in M. Bar R. 3.7(j) in lieu of Model Rule 3.6 (2002). The recommendation attempts to strike a balance between three competing concerns: (i) the right to a fair trial without prejudicial interference; (ii) the free speech rights of attorneys; and (iii) the public interest in, and right to know about, judicial proceedings.
