Legal Ethics Opinion #1594

Extrajudicial Statements: Commonwealth's Attorney Making Public
Statements Regarding Subject of an Investigation

You have presented a hypothetical situation in which a
Commonwealth's Attorney made statements to a newspaper reporter
which were reported as quotes in a written article.  The
substance of the statements concerned the Commonwealth's Attorney
referring an investigation to a special prosecutor because the
subject of the investigation was an opponent of the
Commonwealth's Attorney in the upcoming election for that office. 
At the time the Commonwealth's Attorney made these statements, no
charges had been lodged against the subject of the investigation. 
Finally, you indicate that no charges were ever lodged against
the subject of the investigation. 

You have asked the committee to opine whether, under the facts of
the inquiry, the Commonwealth's Attorney has violated DR 7-
106(A), in that there were no charges pending at the time the
Commonwealth's Attorney made the statements, and, in fact, no
charges were ever pressed.  

The committee finds that the appropriate and controlling
Disciplinary Rule related to your inquiry is DR 7-106(A), which
states that a lawyer participating in or associated with the
investigation or the prosecution or the defense of a criminal
matter that may be tried by a jury shall not make or participate
in making an extrajudicial statement that a reasonable person
would expect to be disseminated by means of public communication
that he knows, or should know, constitutes a clear and present
danger of interfering with the fairness of the trial by a jury. 
See also EC 7-30.  The committee also directs your attention to
EC 8-8 which states in pertinent part that "[a] lawyer who is a
public officer...should not engage in activities in which his
personal or professional interests are or foreseeably may be in
conflict with his official duties".

The committee has earlier opined that the determination of
whether specific extrajudicial statements, such as those you have
cited, constitute a clear and present danger of interfering with
the fairness of the trial by a jury raises a legal question
requiring a factual determination beyond the purview of this
committee.  However, the committee cautions that should a finder
of fact ultimately determine that the extrajudicial statements
did constitute such a danger to a fair trial, clearly the
statements would also be per se violative of DR 7-l06(A).  SeeLEO #l542.  The committee believes that the fact that the matter
was not ultimately tried by a jury is not dispositive.

Committee Opinion
June 14, 1994