Model Rule 3.6: Trial Publicity

When it applies

This comes up when lawyers talk to reporters, hold press conferences, or post online about ongoing cases, especially high-profile criminal or civil matters. The MPRE tests whether a given statement crosses the line into materially prejudicial territory versus being safely descriptive or protective of a client.

What the rule requires

• A lawyer participating in or having participated in the investigation or litigation of a matter is subject to the restriction.
• The prohibited standard is "substantial likelihood of material prejude" to an adjudicative proceeding, not mere possibility of harm.
• The comments (not the rule text) identify subjects that are more likely than not to have a material prejudicial effect, particularly in criminal matters, jury-triable civil matters, or proceedings that could result in incarceration. Examples include the character, credibility, or criminal record of a party or witness, or an opinion on guilt or innocence in a criminal case. These are not formal presumptions, and the ultimate test remains substantial likelihood of material prejudice.
• A lawyer associated in a firm or government agency with a lawyer who is subject to the rule is also prohibited from making a statement that the rule forbids.
• The rule applies regardless of the medium, covering statements to traditional press as well as public online posts.

Exceptions

• A lawyer may state the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved, without violating the rule.
• A lawyer may describe the general nature of the claim or defense and information contained in a public record.
• A lawyer may state that an investigation is in progress, describe the scheduling or result of steps in litigation, and request assistance in obtaining evidence.
• A lawyer may give a warning of danger concerning a person involved, when there is reason to believe a likelihood of substantial harm exists.
• A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the client, limited to what is necessary to mitigate that publicity.

How the MPRE tests Model Rule 3.6

• Students forget the standard is "substantial likelihood of material prejudice," not any statement that could conceivably influence public opinion.
• Questions test whether a listed "safe harbor" topic, like stating the general nature of a defense, is mistakenly treated as prohibited.
• The right-of-reply exception is narrow and reactive; students often misapply it as a general license to comment publicly whenever the client is criticized in the media.
• MPRE fact patterns sometimes test statements made by associated lawyers or nonlawyer staff. Lawyers associated in the firm or agency are directly bound by Rule 3.6 itself. For nonlawyer staff, responsibility runs through the supervisory duties in Rule 5.3, not through imputation.