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I was inspired to ask this question due to these related Reddit AMA

The author of the questions is suing Reddit for trademark violations. These links are him publicly talking about his case. In both of the links, the commenters tell him that what he is doing is really bad (for him) and that his lawyer would most definitely advise against it.

Did your lawyers advise you to not do this AMA?

I can't imagine a sane lawyer that would advise this...

"I have the worst fucking client." - his attorney

My question is, what is so bad about what he is doing? People who sue others go on news all the time to talk about the case. Just by searching google news for is suing over trademark violation leads to many articles regarding a trademark lawsuit. In many of those cases there is a statement from at least one of the sides. Are all those results (I know, many are about the same case, but still, a lot) full of stupid clients?

Laurel
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HanMah
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2 Answers2

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It's a bit like talking to the police: anything you say might be used against you, so the conventional wisdom is to say nothing. It is a good rule of thumb. When you are paying a professional to represent you, why make things complicated by speaking on your own behalf about the same issue?

As you point out, not everyone follows this rule. In some circumstances there might be benefits to discussing your case publicly, such as fundraising or deterrence. Whether the risk outweighs the benefits will depend on the details of the legal case and your role in it. Lawyers are likely to emphasise the following risks:

  • If you are a witness whose credibility is in issue, any public statement could potentially become a prior inconsistent statement which is used against you in cross-examination. Again, one of the purposes of hiring a lawyer is to be careful about how you communicate your position on a litigious matter and reduce the risk of careless remarks having unexpected consequences. Speaking publicly undermines this goal.

  • In Commonwealth countries, there is a significant risk that public comment on a case before the court could amount to sub judice contempt of court. Attempting to litigate the case in the media can be perceived as undermining the authority of the court. Lawyers are expected to uphold public confidence in the administration of justice and would be reluctant to condone anything that could be regarded as a contempt. This contributes to a culture where discussing active litigation is "not the done thing" and may itself cause problems with a witness's perceived credibility, aside from the risk of a contempt allegation.

Speaking publicly about litigation is risky and the consequences are difficult to predict, which is why people often engage lawyers to do it. When the client continues to make their own statements without legal advice, it makes the lawyer's risk management job more difficult, so they are likely to advise against it.

sjy
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In the U.S., Rule of Professional Conduct 3.6 governs trial publicity, and while it is directly applicable only to lawyers, lawyers can't try to circumvent it through others and if others take actions that would violate the law it would cast doubt on the integrity of the lawyer. The rule says:

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) and Rule 3.8(f), 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) and Rule 3.8(f), 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).

This isn't the only reason, but it is an important one. And, there are isolated circumstances, some alluded to in the rule, where a different approach is ethical and appropriate (e.g. to rebut improper public statements by others).

ohwilleke
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