The Professional Responsibility Ace Outline
– Attorneys and the 1st Amendment-Political Speech
o MRPC 3.5, 3.6, 3.8, 6.5(a) and 8.2
o ABA Model Rules 3.5(d), 3.6, 3.8 and 8.21
ABA model rules
Rule 3.5 Impartiality And Decorum Of The Tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.
Rule 3.6 Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), 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 lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
Rule 3.8 Special Responsibilities Of A Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitiga
Lawyers enjoy 1st amendment protection for 2 kinds of speech: 1) they may criticize govt. (including courts and judges), 2) and speak about public issues…both subject to the narrow limitations that 1st amendment permits (also protects commercial speech)
o 2 exceptions: 1) lawyer has less freedom than others do to speak publicly about her own cases, 2) lawyers may sometimes be disciplined for false and reckless accusations against judges
– contempt of court/obstruction of justice: lawyers who commit these crimes may be punished, even if advocating in the best interest of their client at the time.
o Punishment through summary (direct) contempt:
o Appropriate: when speech threatens the “dignity and the authority” of the court and “summary punishment for direct contempt is warranted only when essential to the orderly administration of justice”.
o Not appropriate method for punishing all statements that are “crude or vulgar”.–>look to the effect on the tribunal
o court imposes an immediate sanction w/out traditional procedural protection-reserved for misconduct in the presence of the court that in some significant way interferes w/ the court’s business or dignity
Examples where upheld: summary contempt affirmed whenà1) lawyer asked questions that would reveal prejudicial info to jury after judge said not to, 2) lawyer said “kiss my ass”, 3) after sentencing