## Facts

- Steven C. Litz, an Indiana attorney, represented a criminal defendant whose conviction was reversed on appeal and whose case was set for retrial.
- Before the retrial, Litz sent a letter to two newspapers for publication about the pending case.
- The letter stated the client had “passed a lie-detector test,” asserted she had been wrongfully imprisoned for about 18 months for a crime she did not commit, and called the prosecutor’s decision to retry the case “abominable.”
- Months later, Litz moved for a change of venue in the criminal case based on prejudicial pretrial publicity; the trial court granted the motion.
- The Disciplinary Commission charged Litz with violating Indiana Rule of Professional Conduct 3.6 (trial publicity).
- Litz and the Commission submitted an agreed statement of facts and misconduct and jointly recommended a public reprimand, citing mitigation (no prior discipline, cooperation, and a non-self-interested motive to assist the client).

## Issues

1. Whether Litz’s extrajudicial statements to the press created a substantial likelihood of materially prejudicing the pending criminal proceeding in violation of Indiana Rule of Professional Conduct 3.6.
2. If a violation occurred, what sanction was appropriate given the nature of the statements and mitigating circumstances.

## Decision

- The court found that Litz violated Rule 3.6 by making public statements presumptively likely to materially prejudice the retrial.
- The court treated as especially problematic his reference to polygraph results (potentially inadmissible evidence) and his categorical assertions of the client’s innocence and condemnation of the prosecution.
- The court accepted the parties’ agreed resolution and imposed a public reprimand.
- The court considered mitigation in setting the sanction, including Litz’s clean disciplinary record, cooperation, and lack of selfish motive.

## Legal Principles

- A lawyer participating in a case may not make extrajudicial statements the lawyer knows or reasonably should know have a substantial likelihood of materially prejudicing an adjudicative proceeding.
- Public discussion of potentially inadmissible evidence and a lawyer’s personal opinions on a defendant’s guilt or innocence are categories of statements that are presumptively likely to materially prejudice a criminal proceeding.
- Proof of actual prejudice is not required where the nature of the statements is inherently likely to affect the fairness of the proceeding.
- Mitigating factors may reduce the sanction but do not negate a finding of professional misconduct.

## Conclusion

The court publicly reprimanded Litz for violating Rule 3.6 by publicizing polygraph results and asserting his client’s innocence while a retrial was pending, holding that such statements are presumptively prejudicial even when motivated by zealous representation.


In re Litz, 721 N.E.2d 258 (Ind. 1999)