Ind. Prof. Cond. Rule 3.6

Effective January 1, 2005

(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), 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), 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) A statement referred to in paragraph (a) will be rebuttably presumed to have a substantial

likelihood of materially prejudicing an adjudicative proceeding when it refers to that proceeding and the statement is related to:

(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal

investigation or witness, or the identity of a witness, or the expected testimony of a party

or witness;

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a

plea of guilty to the offense or the existence or contents of any confession, admission, or

statement given by a defendant or suspect or that person's refusal or failure to make a

statement;

(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence

expected to be presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or

proceeding that could result in incarceration;

(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing

an impartial trial; or

(6) the fact that a defendant has been charged with a crime, unless there is included

therein a statement explaining that the charge is merely an accusation and that the

defendant is presumed innocent until and unless proven guilty.

(e) No lawyer associated in a firm or government agency with a lawyer subject to paragraph

(a) shall make a statement prohibited by paragraph (a).

Comment

[1] It is difficult to strike a balance between protecting the right to a fair trial and safe-

guarding the right of free expression. Preserving the right to a fair trial necessarily entails

some curtailment of the information that may be disseminated about a party prior to trial,

particularly where trial by jury is involved. If there were no such limits, the result would be

the practical nullification of the protective effect of the rules of forensic decorum and the

exclusionary rules of evidence. On the other hand, there are vital social interests served

by the free dissemination of information about events having legal consequences and

about legal proceedings themselves. The public has a right to know about threats to its

safety and measures aimed at assuring its security. It also has a legitimate interest in the

conduct of judicial proceedings, particularly in matters of general public concern. Fur-

thermore, the subject matter of legal proceedings is often of direct significance in debate

and deliberation over questions of public policy.

[2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic

relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4

(c) requires compliance with such rules.

[3] The Rule sets forth a basic general prohibition against a lawyer's making statements

that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a

lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who

are, or who have been involved in the investigation or litigation of a case, and their asso-

ciates.

[4] Paragraph (b) identifies specific matters about which a lawyer's statements would not

ordinarily be considered to present a substantial likelihood of material prejudice, and

should not in any event be considered prohibited by the general prohibition of paragraph

(a). Paragraph (b) is not intended to be an exhaustive listing of the subjects upon which a

lawyer may make a statement, but statements on other matters may be subject to paragraph (a).

[5] Another relevant factor in determining prejudice is the nature of the proceeding

involved. Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may

be less sensitive. Non-jury hearings and arbitration proceedings may be even less

affected. The Rule will still place limitations on prejudicial comments in these cases, but

the likelihood of prejudice may be different depending on the type of proceeding.

[6] See Rule 3.8(f) for additional duties of prosecutors in connection with extrajudicial

statements about criminal proceedings.

[7] Finally, extrajudicial statements that might otherwise raise a question under this Rule

may be permissible when they are made in response to statements made publicly by

another party, another party's lawyer, or third persons, where a reasonable lawyer would

believe a public response is required in order to avoid prejudice to the lawyer's client.

When prejudicial statements have been publicly made by others, responsive statements

may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such

information as is necessary to mitigate undue prejudice created by the statements made

by others.