Monday, October 29, 2007
The Oregon State Bar has issued a formal opinion that addresses a series of hypothetical questions concerning pretrial publicity in a variety of contexts. Noting that Oregon Rule of Professional Conduct 3.6 "is clearer about what it does not prohibit than it is regarding what it does" the opinion concludes there can be no violation of the rule unless (1) there is an actual matter being investigated or litigated (2)the lawyer or someone acting at the lawyer's direction is a participant (3)the lawyer knows or reasonably should know that the statement will be "disseminated by means of public communication"(4) there is an imminent fact-finding process in the matter and (5) the lawyer knows or reasonably should know that the statement "will have a substantial (i.e., 'highly probable' ) likelihood of materially (i.e. 'seriously') prejudicing that imminent fact-finding process."
A footnote observes that "a lawyer disciplined on the theory that his or her statements concerning the claim or defense exceeded what was permissible under Oregon RPC 3.6(b) would have a potential defense that the rule is unconstitutionally vague."(Mike Frisch)