From the ABA Journal, here’s an interesting story from Georgia. At issue: television ads run by a plaintiffs firm. The ads urge viewers to “spread the word” that in most “car crash cases, the person who caused the crash has insurance but the jury is never allowed to know.”
Per the story, the defense bar argues that the ads verge on jury tampering, improperly attempt to influence jurors, and constitute conduct intended to disrupt a tribunal. See, V.R.Pr.C. 3.5. The plaintiffs firm responds that the ads are true and that any ban thereof would “violate our First Amendment right to free speech.”
Surely, a challenge to the ads would raise substantial questions for a court to consider.
Besides the issues mentioned in the article, Rule 3.5(a) states that “[a] lawyer shall not seek to influence a judge, juror, or prospective juror or other official by means prohibited by law.” (emphasis added). I’d always assumed that a “prospective juror” was a person in the pool; that is, an individual summoned for duty, but not yet “picked” for a particular jury. However, in a sense, we’re all “potential” jurors. Could Rule 3.5(a) possibly extend that broadly?
And how might Rule 3.6(a) apply? The rule prohibits a lawyer who is “participating or has participated in the investigation of a matter…..[from making] 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.” The answer, it seems, is that the rule doesn’t apply: there’s no “matter.” Rather, the ads provide general information on state law.
On that point, whether by television ad or at a public forum, is it impermissible for lawyers to inform the public what the law is? I’m talking outside the context of a specific matter or case. Would you look at this issue differently if, instead, it was a private criminal defense firm running ads “informing” the public about rape-shield statutes?
Food for thought. But, for now, please think about the issue (if at all) outside! To paraphrase my man Kenny, the sun is too bright, the sky is too blue, and the foliage is too spectacular to be thinking about legal ethics. Save ethics for a rainy day.