## **Learning Outcomes**

After reading this article, you will be able to identify and apply the rules governing lawyers’ public statements about pending matters, recognize when trial publicity is improper, and explain the restrictions on lawyers acting as both advocate and witness. You will also understand the consequences of violating these rules and how they are tested on the MPRE.

## **MPRE Syllabus**

For the MPRE, you are required to understand the ethical limits on lawyers’ public statements and the circumstances under which a lawyer may serve as both advocate and witness. This article covers:

- The prohibition on extrajudicial statements likely to prejudice proceedings.
- Exceptions allowing certain public statements.
- The advocate-witness rule and its exceptions.
- The application of these rules to lawyers and associated firm members.
- The consequences of improper trial publicity and improper dual roles.

## **Test Your Knowledge**

_Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision._

1. Which statement about a pending criminal jury trial is most likely to subject a lawyer to discipline?
   a) Stating the defendant’s name and the charge filed.
   b) Announcing the date of the next hearing.
   c) Discussing the expected testimony of a key witness.
   d) Confirming that an investigation is ongoing.

2. Under the advocate-witness rule, a lawyer may act as advocate at trial if:
   a) The lawyer’s testimony concerns an uncontested issue.
   b) The lawyer’s testimony is central to the client’s claim.
   c) The client consents in writing.
   d) The lawyer’s firm has no other available counsel.

3. Which of the following is a permissible extrajudicial statement by a lawyer involved in a pending case?
   a) Stating the defendant’s prior criminal record.
   b) Warning the public of a danger posed by a party.
   c) Predicting the outcome of the trial.
   d) Discussing inadmissible evidence.

4. If a lawyer makes a prejudicial public statement, who else may be subject to discipline?
   a) Only the lawyer who spoke.
   b) Any lawyer in the same firm.
   c) Only the supervising partner.
   d) Only the client.

## **Introduction**

Lawyers involved in litigation must balance their duty to represent clients with the obligation to protect the fairness of proceedings. The rules on trial publicity restrict what lawyers may say publicly about pending matters. Additionally, the advocate-witness rule limits when a lawyer may serve as both an advocate and a witness in the same trial. Violations can result in discipline, disqualification, or other sanctions.

### Trial Publicity: The General Rule

Lawyers participating in the investigation or litigation of a matter must not make extrajudicial statements that they know or reasonably should know will be disseminated by public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

> **Key Term: Trial Publicity**
> The ethical rules restricting lawyers from making public statements about pending matters that could materially prejudice a proceeding.

### Prohibited and Permitted Statements

Statements likely to be prohibited include:

- Comments on the character, credibility, or criminal record of a party, suspect, or witness.
- Descriptions of expected testimony.
- Opinions on guilt or innocence.
- Discussion of inadmissible evidence.

Permitted statements include:

- The claim, offense, or defense involved.
- Information in the public record.
- The fact that an investigation is ongoing.
- The scheduling or result of any step in litigation.
- Requests for assistance in obtaining evidence.
- Warnings of danger when there is reason to believe there is a likelihood of substantial harm.

> **Key Term: Extrajudicial Statement**
> Any statement made by a lawyer outside the courtroom regarding a pending matter, especially to the media or public.

### Exception: Protecting the Client

A lawyer may make a limited statement that a reasonable lawyer would believe is necessary to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or client. The response must be limited to what is necessary to mitigate the effect.

### Application to Associated Lawyers

The rules on trial publicity apply to all lawyers associated in a firm or government agency with a participating lawyer. If one lawyer makes a prohibited statement, others in the same firm may also be subject to discipline if they direct, ratify, or fail to prevent the conduct.

> **Key Term: Associated Lawyer**
> Any lawyer in the same firm or agency as the lawyer participating in the matter, subject to the same restrictions on public statements.

### Advocate as Witness: The General Rule

A lawyer must not act as an advocate at a trial in which the lawyer is likely to be a necessary witness, except in limited circumstances.

> **Key Term: Advocate-Witness Rule**
> The prohibition against a lawyer serving as both advocate and necessary witness in the same trial, subject to specific exceptions.

### Exceptions to the Advocate-Witness Rule

A lawyer may serve as both advocate and witness if:

- The testimony relates to an uncontested issue.
- The testimony relates to the nature and value of legal services rendered in the case.
- Disqualification would work substantial hardship on the client.

Other lawyers in the same firm may act as advocates even if one lawyer is likely to be a necessary witness, unless a conflict of interest exists under other rules.

### **Worked Example 1.1**

A defense lawyer in a widely publicized criminal case gives a press interview, stating, “The prosecution’s main witness has a history of lying and will be exposed at trial.” Is the lawyer subject to discipline?

> **Answer:** Yes. The lawyer’s statement comments on the credibility of a witness and is likely to materially prejudice the proceeding, violating the rule on trial publicity.

### **Worked Example 1.2**

A lawyer represents a client in a contract dispute. The only issue in dispute is the amount of attorney’s fees. The lawyer is called to testify about the value of her services and continues to act as advocate at trial. Is this permitted?

> **Answer:** Yes. The advocate-witness rule allows a lawyer to act as advocate when the testimony concerns the nature and value of legal services rendered in the case.

### **Worked Example 1.3**

A prosecutor issues a press release stating that the defendant has confessed and failed a polygraph test. Is this statement proper?

> **Answer:** No. Discussing confessions and test results is likely to prejudice the proceeding and is prohibited by the trial publicity rule.

### **Exam Warning**

> Statements about the expected testimony of witnesses, opinions on guilt, or inadmissible evidence are almost always prohibited. Even if the information is true, public comments that could influence jurors or the outcome are likely to result in discipline.

### **Revision Tip**

> Focus on the difference between statements that are always allowed (e.g., procedural status, public record facts) and those that are likely to prejudice a proceeding. Practice distinguishing these in sample questions.

## **Summary**

Lawyers must avoid public statements that could materially prejudice a pending proceeding. Only certain factual or procedural statements are permitted. The advocate-witness rule generally prohibits a lawyer from acting as both advocate and necessary witness at trial, with narrow exceptions. These rules protect the fairness and integrity of the legal process.

## **Key Point Checklist**

_This article has covered the following key knowledge points:_

- Lawyers must not make public statements likely to prejudice a proceeding.
- Certain statements (e.g., public record, procedural status) are permitted.
- The trial publicity rule applies to all lawyers associated with the case.
- The advocate-witness rule bars lawyers from acting as both advocate and necessary witness, except for uncontested issues, legal fees, or to avoid hardship.
- Violations can result in discipline, disqualification, or litigation sanctions.

## **Key Terms and Concepts**

- Trial Publicity
- Extrajudicial Statement
- Associated Lawyer
- Advocate-Witness Rule

Public statements and lawyer as witness - Trial publicity