LEO: Advertising and Solicitation - Extra  LE Op. 1336


Advertising and Solicitation - Extra Judicial Statements:

Publication of Article in Professional Journal Regarding

Both Counsel and Civil Matters Pending Appeal and

Another Civil Matter Pending Trial.


May 8, 1990


You have advised that you represented the defendant in a matter which

resulted in a highly publicized criminal case and subsequent civil cases.

In each case, you indicate that expert testimony on accident

reconstruction was the primary evidence set forth, first by the

prosecution and then by the civil plaintiff. The criminal case and the

first of two civil cases are now on appeal. The second civil case is

pending in the circuit court. You indicate that you have prepared an

article for publication in the journal of a lawyers' association stating

your opinion on the use of accident reconstruction testimony generally and

as it was used specifically in the fact situation involving your client.

You have also indicated that everything in the article has already been

stated in the record and in briefs in the two completed cases.


You have asked that the Committee consider the propriety of the

publication of such an article.


The appropriate and controlling disciplinary rules applicable to the

facts you have presented are DR:4-101(C)(1) which holds that a lawyer

may reveal confidences or secrets with the consent of the client (after a

full disclosure to the client); DR:5-101(A) which requires a client's

informed consent when a lawyer's professional judgment on behalf of his

client may be affected by his own financial, business, property, or

personal interests; and 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. (emphasis added)


Further guidance is available through Ethical Consideration 7-30 [ EC:7-

30] which states, in pertinent part, that "news or comments [which tend to

influence judge or jury] may prevent prospective jurors from being

impartial at the outset of the trial and may also interfere with the

obligation of jurors to base their verdict solely upon the evidence

admitted in the trial."


For purposes of this opinion, the Committee assumes that the client has

consented to the preparation of the article, and that no contract has been

executed between the lawyer and client assigning any literary rights

regarding the matter. Such client consent must be based on a full and

adequate disclosure which, the Committee believes, should include

information as to the potential for opposing parties to use the article's

information to the advantage of the plaintiff in preparing the pending

second civil case. Furthermore, the Committee also assumes that the

attorney is not receiving remuneration for the preparation of the journal

article. The converse of any of those situations could result in ethical

improprieties which are not being considered under these assumptions.


With regard to the article's impact on the civil cases, one of which is

currently on appeal and the other of which is currently pending in circuit

court, the Committee is of the opinion that the plain language of the rule,

in conjunction with the holding in Hirschkop v. Snead, 594 F.2d 356, 373 (

4th Cir. 1979) upon which this version of DR:7-106 is founded, limits

any restraint to extrajudicial comments related to criminal actions.


Thus, the Committee is of the opinion that there is no ethical

impropriety in publishing a law journal article dealing with both civil

cases, provided that the information contained in such publication is not

false, fraudulent, misleading or deceptive, and that it will not prejudice

the client. As noted above, however, any potential use of the information

by opposing parties may prove adverse to the client. (See DR:2-101(A)

and DR:7-101(A)(3). See also LE Op. 443; Los Angeles County Bar

Association Opinion 451 (undated))


With regard to the article's impact on the currently pending appeal of

the criminal case, the Committee is of the opinion that the author/lawyer

must consider the potential for a remand of the matter for a new jury

trial. The committee is cognizant of the minimal likelihood of

dissemination of your proposed article to potential jurors since you have

advised that it will be published in a professional journal. The Committee

is of the opinion that, under the "reasonable person" standard articulated

in DR:7-106, it is unlikely that the publication of such an article

would constitute the requisite "clear and present danger of interfering

with the fairness of the trial by a jury" even if a new jury trial were



It is therefore the opinion of the Committee that, assuming the client's

fully informed consent and further assuming that the article contains

nothing which may be considered to be false, fraudulent, misleading or

deceptive, the preparation and publication of an article in a legal

professionals' journal would not be improper, notwithstanding the

possibility of a remand for a new jury trial.


Committee Opinion May 8, 1990