Tuesday, November 3, 2009
The Michigan Attorney Discipline Board recently vacated a hearing panel's dismissal of a formal complaint filed against the Oakland County Prosecutor for statements to the media in connection with charges of criminal sexual conduct against a defendant. The board opined that summary disposition of the bar complaint was not appropriate. The record did not establish that the comments at issue did not have a substantial likelihood of material prejudice to the trial of the matter. Rule 3.6 is designed to prevent harm and the subjective good faith of the commenting lawyer "affords no defense" to the bar complaint.
One statement at issue refered to inadmissible evidence. Another press release (issued the day a retrial had been ordered) referred to the defendant's refusal to take a polygraph examination. The fact that no date was set for retrial when the press release was issued does not render the Rule inapplicable.
Although a reasonable lawyer in respondent's shoes at the time he made his statements would have been faced with contingencies and uncertainty as to future events (such as whether a new trial might occur), we cannot conclude that it is impossible for the Administrator to develop a record establishing a violation of MRCP 3.6.
The complaint was remanded for a hearing. (Mike Frisch)