A lawyer is representing a client in a high-profile criminal case. A local newspaper publishes an article falsely claiming the client has a history of similar criminal behavior, which is entirely untrue and highly prejudicial. The lawyer believes this article will severely prejudice the jury pool. What is the lawyer's most appropriate immediate action?
- AFile a motion for a change of venue or for a continuance to allow public sentiment to cool.
- BAdvise the client to ignore the publicity, as the jury will be instructed to decide based on evidence.
- CContact the newspaper and demand a retraction, threatening a defamation lawsuit.
- DIssue a public statement to the press refuting the article's claims.
Show answer & explanationAnswer & explanation
Correct answer: A. File a motion for a change of venue or for a continuance to allow public sentiment to cool.
When prejudicial extrajudicial statements threaten to taint a jury pool, a lawyer's appropriate action is to seek judicial remedies such as a change of venue or a continuance. These measures aim to mitigate the impact of the publicity and ensure a fair trial, rather than engaging in further public commentary.
Why the other options are wrong
- B. Ignoring highly prejudicial publicity is a dereliction of the lawyer's duty to protect the client's right to a fair trial.
- C. While a retraction might be desirable, it's a separate legal action and does not immediately address the impact on the current jury pool; threatening a lawsuit might also be seen as generating further publicity.
- D. Issuing a public statement could violate the trial publicity rule (MRPC 3.6) by generating additional prejudicial publicity, or at minimum, is not the most effective legal remedy.
Trial Publicity Rule
A lawyer participating in 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.
- Prohibits statements likely to cause material prejudice.
- Specific 'safe harbor' statements are allowed (e.g., claim/defense, public record).
- Remedies for prejudicial publicity often involve judicial intervention.
Memory trick: Press harms? Seek venue change, calm the storm.