DR 7-107: The ABA's Sanction Against Extrajudicial Statements by Attorneys

Disciplinary Rule 7-107(G)' imposes a sanction upon lawyers participating in civil litigation who make extrajudicial statements on specific topics which they reasonably could have expected to be disseminated through the media. This rule has received conflicting treatment in the courts. The few state courts which have dealt with the disciplinary rule have discussed it without questioning its constitutional validity. The courts have merely applied the "rea- sonable likelihood" standard contained in the rule and ruled on whether the fact situation presented violated that rule.%

Federal courts which have treated DR 7-107(G) have either failed to give it effects or held it uncon~titutional.~ Federal courts

1. MODEL CODE OF PROFESSIONAL RESPONSIBILITY [hereinafter cited as MODEL CODE] DR 7-107(G) (1980).

A lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudi- cia1 statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication that relates to:

(1) Evidence regarding the occurrence dr transaction involved. (2) The character, credibility, or criminal record of a party, wit- ness, or prospective witness. (3) The performance or results of any examinations or tests or the refusal or failure of a party to submit to such. (4) His opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule. (5) Any other matter reasonably likely to interfere with a fair . trial of the action.

Id. 2. See In re Crumpacker, 269 Ind. 630, 383 N.E.2d 36 (1978) (distribution of

attorney's brief to over eighty lawyers and judges who were not associated with the case violated DR 7-107(G); In re Richmonds, 285 Or. 469, 591 P.2d 728 (1978) (distributing letters to the Governor, legislators, and newspaper editors informing them about the pending proceeding did not violate disciplinary rules); In re Porter, 268 Or. 417,521 P.2d 345 (1974). cert. denied, 419 U.S. 1056 (1974) (attor- neys who revealed to the press the substance of a witness' deposition testimony, expected offer to settle and subsequent refusal of offer were reprimanded for vio- lating DR 7-107(G)).

3. See In re Halkin, 598 F.2d 176 (D.C. Cir. 1979); Ruggieri v. Johns-

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in Hirschkop u. S n e ~ d , ~ Chicago Council of Lawyers u. Bauer,O and Shadid u. Jackson7 held that DR 7-107(G) is unconstitutional. The courts in both Hirschkop and Bauer declared the rule over- broad.8 Narrower means are available to protect a civil trial from suffering from prejudicial pretrial publi~ity.~ These means include court orders,1° venue change, c~nt inuance ,~~ voir dire examination, jury sequestration and jury instruction^.'^

The Bauer court dissected DR 7-107(G), giving an opinion on the constitutionality of its subsections. The first sub~ec t ion ,~~ a prohibition of comment on relevant evidence in a civil trial, is an overly broad restriction because it would prevent an attorney from disclosing important information to the public. For example, it would forbid disclosure of the government's negligent manner of performing certain important tasks even if they were deemed rele- vant evidence." Prohibiting comment on character evidence was also held unacceptable.16 When law suits bring a public official's character or credibility into question, the public has a legitimate interest in an informed attorney's opinions relating to the public official.l6 The subsection17 which forbids an attorney from expres- sing his opinion on the merits of the case in which he is participat- ing was held to be so overbroad that it would even prevent an at- -

Manville Prods. Corp., 503 F. Supp. 1036 (D.R.I. 1980). 4. See Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979); Chicago Council of

Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976); Shadid v. Jackson, 521 F. Supp. 85 (E.D. Tex. 1981).

5. Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979). 6. 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976). 7. Shadid v. Jackson, 521 F. Supp. 85 (E.D. Tex. 1981). 8. Hirschkop, 594 F.2d a t 373; Bauer, 522 F.2d a t 258-59. 9. Hirschkop, 594 F.2d a t 373; see also Ruggieri, 530 F. Supp. a t 1039 Cjury

selection can control prejudice from pretrial publicity). 10. Hirschkop, 594 F.2d a t 373. 11. Shadid, 521 F. Supp. a t 87. 12. Ruggieri, 503 F. Supp. a t 1040. The court noted that once jurors have

been instructed on the "solemnity of their services, they rise to the occasion and express their opinions candidly." Further, the court stated that studies have not shown that upon being instructed to abstain from reading or discussing media coverage of the case jurors will do otherwise. Id. at 1040-41.

13. MODEL CODE, supra Note 1, DR 7-107(G)(1) (1980). 14. Bauer, 522 F.2d a t 258. 15. Id. a t 259. 16. Id. 17. MODEL CODE, supra Note 1, DR 7-107(G)(4) (1980).

Extrajudicial Statements 189

torney from writing a law review article on the subject.'' Finally, the last subsectionle was regarded as so vague and overbroad that i t left attorneys uncertain about the boundaries of protected speech and hence chilled the exercise of their first amendment rights.20

The court in Shadid, however, viewed the disciplinary rule as a prior re~traint .~ ' A prior restraint which restricts first amend- ment freedom of expressionz2 carries with it a heavy burden against its constitutionality.23

[T]o overcome its presumptive invalidity . . . a prior restraint must: (1) be necessary in order to prevent a direct, immediate, and irreparable harm; (2) sweep no more broadly than neces- sary to accomplish its purpose; (3) be accompanied by proce- dural safeguards to minimize the danger of suppressing consti- tutionally-protected speech."

Having met none of these requirements, DR 7-107(G) was consti- tutionally infirm.26

Although it was held in Hirschkop and Bauer that DR 7- 107(G) did not constitute a prior restraint, those courts did note similarities between the rule and a prior restraint. The discipli- nary rule is like a prior restraint in that both are punishable by the court's contempt power.2s The rules are different in that a prior restraint is enforceable through the court's adjudicative capacity while disciplinary rules are enforceable through the court's legisla- tive capacity.a7 Further, unlike a violation of a prior restraint which is punishable even though the restraint may have been un- cons t i t~ t iona l ,~~ a violation of the disciplinary rule may be de-

18. Bauer, 522 F.2d a t 259. 19. MODEL CODE, supra Note 1, DR 7-107(G)(4) (1980). 20. Bauer, 522 F.2d a t 259. 21. Shadid, 521 F. Supp. a t 86. 22. See In re Primo, 436 U.S. 412, 431 (1978) (litigation can serve as a "vehi-

cle for effective political expression"); Halkin, 598 F.2d a t 187 ("litigation itself is a form of expression protected by the first amendment").

23. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 557-58 (1976) (quoting Or- ganization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

24. Shadid, 521 F. Supp. a t 86. 25. Id. a t 87. 26. Hirschkop, 594 F.2d at 369; Bauer, 522 F.2d a t 248. 27. See In re Oliver, 452 F.2d 111, 113-14 (7th Cir. 1971). 28. See Walker v. City of Birmingham, 388 U.S. 307 (1967).

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fended on the grounds that the rule was unconstitutional.as Fi- nally, the rule is distinct from a prior restraint because a prior restraint forbids all comment on the subjects0 while this rule only forbids speech which threatens to prejudice the judicial proceeding^.^^

Provisions in DR 7-107 which deal with restrictions imposed on attorneys participating in criminal trials have fared better than the 7-107(G) provision. For the most parts2 these non-7-107(G) provisionsss have been upheld as constitutional. In Bauer, however, the court stated that the disciplinary rule resembled a prior re- straint closely enough to warrant strict ~crutiny.~' Thus, the court required that before the proscriptions in DR 7-107 could apply, the attorney's extrajudicial statements must pose a "serious and immi- nent threat" to a fair trial.s6

According to the Hirschkop court, the serious and imminent threat test is not necessary and may not even be desirable.se Shep- pard v. Maxwells7 is cited as an example that this test is too strin- gent to protect the trial from prejudicial pretrial p ~ b l i c i t y . ~ ~ Since

29. Oliver, 452 F.2d at 114. 30. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 560 (1975). 31. See Waldo v. Lakeshore Estates, Inc., 433 F. Supp. 782, 790-91 (E.D. La.

1977). 32. See Note, The Free Speech-Fair Trial Controversy: DR 7-107, 37

WASH. & LEE L. REV. 219, 223 (1980) (Bauer held that post-trial and civil trial restraints on speech are unconstitutional; Hirschkop held the same, adding re- straints on comments during a criminal bench trial are also unconstitutional).

33. MODEL CODE supra Note 1, DR 7-107 (1980). 34. Bauer, 522 F.2d at 248-49. 35. Id. at 249. For a more in-depth discussion of the test the Bauer court

applied to DR 7-107 as compared to the test the Hirschkop court applied, see Note, supra note 32; Recent Developments, Constitutional Law-Attorney's Right to Free Speech Versus Protection of Fair Trial-DR 7-107 Restricting At- torney's Speech During Pending Litigation Only Constitutional to Protect Crirn- inal Jury from Reasonable Likelihood of Prejudice, 25 VILL. L. REV. 522 (1979- 1980).

36. Hirschkop, 594 F.2d at 365. 37. Sheppard v. Maxwell, 384 U.S. 333 (1966). 38. The Sheppard court employed a reasonable likelihood test to determine

whether the pretrial publicity had prejudiced defendant's trial. Since they found it was reasonably likely that the trial had been prejudiced, defendant was granted a new trial. Id. Apparently, the Hirschkop court interpreted this to mean that a test requiring a greater showing of prejudice than the reasonable likelihood test would not protect a trial from prejudicial pretrial publicity such as that which occurred in Sheppard.

Extrajudicial Statements 191

DR 7-107 enumerates specific subjects on which attorneys are pro- hibited from commenting extrajudicially, the standard contained within the rule itself suffices to provide notice to the attorney^.^^ This standard directs that an attorney shall not make statements reasonably likely to prejudice a trial.'O

Disciplinary sanctions are justifiably imposed upon lawyers as opposed to non-lawyers because lawyers, as officers of the court, are charged with protecting the judicial system from factors which could lead to an unfair trial." Additionally the sanctions are justi- fied because lawyers are, in general, subject to disciplinary mea- sures which non-lawyers are not.'=

Another justification for these sanctions is that lawyers have easier access to information than do non- lawyer^.'^ The public rec- ognizes this and consequently accepts as true the contents of a

. lawyer's extrajudicial comments." This could prejudice the case on which the lawyer is commenting since he will present only the favorable side of the case.46 Besides prejudicing the public, and hence possible jurors, these types of extrajudicial statements can lead the public to expect "justice" to be done as the lawyer has advocated it should. If, however, the judge, after hearing all sides of the case, decides against the side presented so favorably in the press, the public may become disillusioned with the integrity of the judicial system.46 That police officers and others can and do supply the press with much of the information to which the attorney is privy is not a valid argument against allowing disciplinary sanc- tions against lawyers;" the standard of ethics for lawyers is not

39. 594 F.2d a t 368. Contra In re Halkin, 598 F.2d 176, 193 n.42 (D.C. Cir. 1979) (The reasonable likelihood standard is insufficient; "[tlhe protection af- forded expression by the First Amendment would be illusory if every conceivable threat to an important public interest, no matter how remote or speculative were sufficient to justify a restriction of speech.").

40. MODEL CODE, supra Note 1, DR 7-107(G) (1980); Recent Developments, supra note 35, a t 528.

41. Hirschkop, 594 F.2d a t 370; I n re Rachmiel, 90 N.J. 646, -, 449 A.2d 505, 511 (1982).

42. Hirschkop, 594 F.2d a t 366. 43. Bauer, 522 F.2d a t 250. 44. Id. 45. Note, Professional Ethics, 47 FLA. B.J. 322, 322 (1973). 46. Id. 47. Hirschkop, 594 F.2d a t 370.

192 The Journal of the Legal Profession

that which is the standard of the marketpla~e.'~ Perhaps the differential treatment given restraints on extraju-

dicial comments concerning civil cases and those concerning crimi- nal cases is justified by the distinction^^^ drawn between civil and criminal trials. Several characteristics which are alleged to be at- tributable only to one type trial, however, may in reality character- ize both.

The argument has been made that restraints on comments re- garding a criminal trial should be allowed because, constitution- ally, a criminal defendant is guaranteed a "fair trial"60 while a civil litigant is only guaranteed a right to "trial by jury."61 As the Hirschkop court noted, after a criminal defendant's case has re- ceived what he would consider prejudicial publicity, he may so dis- trust the possibility of ever securing an impartial jury, even if granted a postponement or transfer of his case, that he would waive his right to a jury trial.62 Surely this reasoning applies as well to a civil litigant's situation. If it does, the concern over preju- dicial publicity renders a civil litigant's right to a choice of trial by jury meaningless.

Another factor alleged to differentiate civil and criminal trials is that civil litigation often raises social issues and, therefore, par- ticipants in civil trials should be allowed greater freedom of dis- closure so information regarding these important issues can be dis- seminated to the public.63 This implies that social issues do not arise in criminal cases. As the Bauer court noted, however, the public does have an interest in issues raised in criminal trials. Often the issues raised serve to provide a check on g ~ v e r n m e n t . ~ Further, a lawyer in a criminal case may be in the best position to attack the constitutionality of a statute.66 These are important is- sues and warrant being aired for public information. Then, the ar-

48. Id. 49. For a full listing and discussion of the distinctions see Hirschkop, 594

F.2d at 373; Bauer, 522 F.2d at 257; Ruggieri, 503 F. Supp. at 1039. 50. See U.S. CONST. amend VI (stating, "In all criminal prosecutions, the ac-

cused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .").

51. See U.S. CONST. amend VII. 52. Hirschkop, 594 F.2d at 367. 53. Id. at 373; Bauer, 522 F.2d at 257; Ruggieri, 503 F. Supp. at 1039. 54. Bauer, 522 F.2d at 250. 55. Id. at 253.

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gument used in the Hirschkop court for support of less restraint on comments in civil cases can also be used to support less re- straint on comments in criminal cases. That is, the first amend- ment protects timeliness as well as content of spee~h.~"

Other arguments made which attack the validity of DR 7- 107(G) can also be rebutted. The rule is undesirable, according to the court in Hirschkop, since narrower means are available to pro- tect a trial from prejudicial pretrial publi~ity.~' These means, such as voir dire examination, grant of continuance, and venue change can also be effectively utilized to prevent prejudice in a criminal trial. For instance, in State u. Wixon," the court held that any danger of prejudice from pretrial publicity was nullified by defen- dant's opportunity to check for prejudice during voir dire examina- tion and by the lapse of time from the publication of the prejudi- cial remarks to the commencement of the trial. Instructions to a jury sitting for a civil trial provides another check on prejudicial p u b l i ~ i t y . ~ ~ In Ruggieri u. Johns Mansville Products Corp., the court stated that "no studies [have disproven] the conclusion that overwhelmingly Ijurors] will follow [the] instructions of the court not to read any news accounts of the case, discuss the evidence or place themselves in any prejudicial ambiance.""O Since juries for civil and criminal trials are drawn from the same group of citizens, the above rationale should apply to juries in general, whether they sit on criminal or civil trials."'

A danger attributed to DR 7-107(G) is that, fearing reversal or grant of a new trial on appeal, a trial court will seek to prevent error such as prejudicial publicity by attempting to restrain all comment on the case."= As a result, "free speech may lose out to fair trial."e3 The Ruggieri court, however, only uses this argument to refute the validity of DR 7-107(G). That this situation would apply to judges in criminal as well as civil trials is obvious.

56. Hirschkop, 594 F.2d at 373 (citing Bridges v. California, 314 U.S. 252, 268 (1941)).

57. Id. 58. 30 Wash. App. 63, -, 631 P.2d 1033, 1039 (1981). 59. Ruggieri, 503 F. Supp. at 1040. 60. Id. 61. Hirschkop, 594 F.2d at 382-83 (Widener, J., concurring in part and dis-

senting in part); Recent Developments, supra note 35, at 533. 62. Ruggieri, 503 F. Supp. at 1041. 63. Id.

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Disciplinary Rule 7-107(G) has also been distinguished from the provisions pertaining to criminal trials in that it is governed by the "reasonable likelihood" standard whereas the criminal provi- sions are governed by the "serious and imminent threat" stan- dard.64 This distinction is unsupported since as the rules are writ- ten, both are governed by the reasonable likelihood standard?" The serious and imminent threat standarde6 is merely a court im- posed standard. The standard could be imposed by a court upon the civil section as easily as it was the criminal section. No court has, however, chosen to do so.

"The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence[s] whether of private talk or public print."'j7 This philosophy is mirrored in the discipli- nary rules.e8 An ABA Ethical Opinion states that in keeping with this policy, an attorney is forbidden from calling press conferences and the like to initiate publicity on his civil case.6B The courts in Hirschkop, Bauer and Shadid did not follow this prohibition. These decisions allow attorneys participating in civil litigation in those jurisdictions to initiate all the publicity they desire without guide from ethical rules. Surely,'this violates the theory of the ju- dicial system.

Conclusion

It is not suggested that because the distinctions drawn be- tween civil and criminal trials are weak that all of DR 7-107 should be considered void. Rather, it is suggested that, in keeping with the theory of our legal system, restrictions should be placed upon extrajudicial comments made of a civil trial as well as those made regarding criminal trials.70 As Judge Phillips concurring in

64. Id. at 1040. 65. MODEL CODE, supra Note 1, DR 7-107(G) (1980); see Note, supra note 32,

at 227; Recent Developments, supra Note 35 at 536. 66. This standard is imposed by Bauer, 522 F.2d 242. 67. CBS v. Young, 522 F.2d 234, 241 (6th Cir. 1975) (quoting Patterson v.

Colorado, 205 U.S. 454, 462 (1907)). 68. See Hirschkop, 594 F.2d at 366. 69. ABA Comm. on Ethics and Professional Responsibility, Informal Op.

1230 (1972). 70. See Note, supra 32, at 233; Recent Developments, supra note 35, at 536.

Extrajudicial statements 195

Hirschkop noted, restraints in civil trials are important.?' Further, he suggests that DR 7-107(G) can be revised to be made con~ti tutional .~~

Restrictions on speech are constitutional if they satisfy two criteria: (1) the restraint must promote a substantial governmental interest which is unrelated to the speech to be suppressed; (2) the restraint must be no broader than necessary to satisfy the govern- mental interest.73 DR 7-107(G) satisfies the first criterion because it seeks to promote fair adjudication.?' However, the rule fails to meet the second criterion as it has been determined to be over- broad.76 One reason for the overbreadth is the rule extends for an indefinite period of time.76 It imposes a restraint on comments which begins before trial and remains intact years afterward, until all appeals have been taken.?? Time restrictions are more specific and less extensive in the criminal section^.?^ If patterned after the criminal sections, DR 7-107(G) might survive constitutional attack. Until revised, the rule stands no chance of surviving in federal courts.

Dehryl A. Mason

71. Hirschkop, 594 F.2d at 378. 72. Id. 73. Id. at 363. 74. Id. 75. See Hirschkop, 594 F.2d at 373; Bauer, 522 F.2d at 258-59. 76. Halkin, 598 F.2d at 183; see Ruggieri, 503 F. Supp. at 1939. 77. Ruggieri, 503 F. Supp. at 1039 (citing Bauer, 522 F.2d at 258.) 78. Halkin, 598 F.2d at 183.

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