OVERVIEW
This Professional Responsibility question gives two interrogatories-the violations of A and P- so it is natural to organize the answer into two parts.
A lawyer has a duty to not make any extrajudicial statements which he knows or should know will be disseminated by means of public communication which have any likelihood
of prejudicing the proceedings. The exceptions to this duty revolve around permitting extrajudicial statements that do not contain a substantial likelihood of prejudice.
Alex, an attorney, represents Dusty, a well-known movie actor. Dusty had recently been arrested for battery after Vic reported that Dusty knocked him down when he went to Dusty’s home trying to take photos of Dusty and his family. Dusty claims Vic simply tripped.
Paul, the prosecutor, filed a criminal complaint against Dusty. Suspecting that Paul was anxious to publicize the arrest of a high-profile defendant as part of his election bid for District Attorney, Alex held a press conference on the steps of the courthouse. He told the press: “Any intelligent jury will find that Dusty did not strike Vic. Dusty is the innocent victim of a witch-hunt by a prosecutor who wants to become District Attorney.”
Meanwhile, Paul received a copy of the police report describing Dusty’s alleged criminal behavior. Concerned that the description of Dusty’s behavior sounded vague, Paul asked the reporting police officer to destroy the existing police report and to draft one that included more details of Dusty’s alleged criminal behavior.
Paul interviewed Dusty’s housekeeper, Henry, who witnessed the incident involving Dusty and Vic. Henry told Paul that Dusty did not knock Vic down. Paul told Henry to avoid contact with Alex.
Paul has not been able to obtain Vic’s version of the events because Vic is on an extended trip abroad and will not be back in time for Dusty’s preliminary hearing.
Confident that Dusty is nevertheless guilty, Paul has decided to proceed with the preliminary hearing.
1. What ethical violation(s), if any, has Alex committed? Discuss.
2. What ethical violation(s), if any, has Paul committed? Discuss.
Answer according to both California and ABA authorities.
A lawyer has a duty to not make any extrajudicial statements which he knows or should know will be disseminated by means of public communication which have any likelihood of prejudicing the proceedings. The exceptions to this duty revolve around permitting extrajudicial statements that do not contain a substantial likelihood of prejudice.