"
MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-67
Trial Publicity: Disclosure by Counsel of Settlement Agreement Prior to Signing of Written Agreement by Both Parties
Your client, an environmental group, filed a non-jury case in the Federal Court against an alleged polluter. In 1986 the Court awarded your client a sizable verdict and an appeal was taken to the Fourth Circuit. Subsequent to argument of the case but before the decision was rendered, negotiations between counsel for the parties resulted in a tentative settlement agreement. Prior to formal execution of the agreement, you disclosed the terms of the tentative settlement to certain members of the press. Counsel who had conducted settlement discussions for the defendant, was interviewed by the reporters before articles were published, and the tentative nature of the settlement was reflected in the articles. Counsel of record in the litigation has taken exception to your discussion with the press and has stated they intend to report you to Bar Counsel for violating Rules 3.6(a), 4.1(a)(1) and 4.4.
You have asked whether Rule 3.6 applies to your conduct in this case specifically and generally whether the Rule applies to publicity about cases on appeal, to publicity about settlements of non-jury cases and finally, to publicity about cases that have been arbitrated by the Health Claims panel which may be appealed through a jury trial.
Rule 3.6(a), as your letter observes, prohibits a lawyer from making extra judicial statements which have ""a substantial likelihood of materially prejudicing and adjudicative proceeding."" With respect to civil matter, Rule 3.6(b) recognizes that ""ordinarily"" the prejudicial effect will occur when certain types of statements are made and the case is triable to a jury.
Although Rule 3.6(a) is not expressly limited to jury trials, the situations listed in Rule 3.6(b) reflect that a primary concern behind the prohibition on extra judicial statements is to preserve a fair trial by limiting the type of information disseminated to potential jurors. There is greater concern that jury trials will be negatively affected by judicial statements because ""pretrial publicity has not been shown to be a source of interference to fair [criminal] bench trials."" Hirsckon V. Snead, 549 F.2d 356, 371 (4th Cir. 1979) (holding DR 7-107 of the Virginia Code of Professional Responsibility unconstitutionally vague when applied to criminal bench trials, administrative agency proceedings and civil trials).
From the facts you have presented, the Committee does not consider that your statements to the press violated Rule 3.6. The case was on appeal and even if remanded, would not have been remanded to jury. More fundamentally, your comments were not of the type that in our judgment would ""have a substantial likelihood of materially prejudicing an adjudicative proceeding."""" Rule 3.6(a).
Of course, whether the information contained in your statements was accurate and whether a settlement had actually been reached are factual issues which cannot be resolved by this Committee.
"