A Violation You Didn’t See Coming

There are a ton of obvious ethics violations that lawyers might commit when using social media, but few people consider whether their posts violate the rule on Trial Publicity.  Did the lawyer’s internet search rise to the level of “participating…in the investigation” of a matter?” Was that errant tweet an “extrajudicial statement” that triggers the rule? You need to know this usual potential violation.

Here’s the rule, with the key phrases I’ll discuss in bold.

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.

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