In the United States, what bar ethics restrictions are there on lawyers publicly commenting on ongoing legal cases in which they represent no parties? Since different state bars might have different rules, my question could be expanded to:

  1. In general, what are the restrictions?
  2. Which states have the most extreme restrictions, and how do they differ from the general restrictions?
  3. Which states have the most lax restrictions, and how do they differ from the general restrictions?

EDIT: At what point does an uninvolved lawyer's public commentary on a case constitute a legal opinion which, according to ethics rules, requires due diligence to be done by the uninvolved lawyer? At what point does the due diligence needed become so great that it can only be done someone with access to non-public information, and thus the uninvolved lawyer is certainly violating ethic rules? [NOTE: This isn't my understanding of bar ethics rules, but that of someone I'm arguing with.]

  • When you say "lawyers" do you mean lawyers representing parties to the case or uninvolved lawyers? What makes you think that there are bar association restrictions on public comments? – sharur Dec 5 '19 at 18:30
  • @sharur Uninvolved lawyers (I've edited to clarify). Why I ask: I personally don't think that there's any such laws, but I've encountered several people who do. So I they're correct I want to know which rules apply, and if they're wrong I want to be able to point that out. – Matthew Cline Dec 5 '19 at 18:38
  • It will be hard for you to prove a negative to your acquaintances. You can search through the ABA model rules that most state bars base their ethics rules upon. americanbar.org/groups/professional_responsibility/publications/… – George White Dec 5 '19 at 18:50
  • @MatthewCline Let us know how it turns out with your friends. PS Thanks for asking this question. I've wondered about this off and on over the years. Now I know (or at least, know well enough!). – Just a guy Dec 6 '19 at 17:18

As George White says, it's hard to prove a negative, but in this instance, there's quite a bit of evidence supporting you. First, the ABA has standards for legal commentators but they are very weak. They say pretty much what you would expect, and, they are non-binding: they explicitly say they "not intended" to provide grounds for "professional discipline." Second, there are articles by lawyers indicating there are no state bar standards. Taken together, the weak ABA standards and the articles should give you enough evidence to prove your case in the "court of buddy opinion."

The ABA rules on legal commentators were issued in 2013 as part of a Fair Trial and Public Discourse Black Letter. The letter covered public comments on cases by lawyers involved in the case, lawyers not involved (ie, commentators) and judicial and judicial employees.

According to the ABA, the standards are:

intended to provide a guide to best practices for lawyers who provide public commentary or consult on criminal cases in which they are not personally involved; (Standard 8-1.1(a)(ii))

To explain what it meant by a "guide to best practices," the ABA included the following caveat about the applicability of the standards:

While these Standards are intended to provide a basis for the formulation of internal guidelines within lawyers’ offices...they are not intended to serve as the basis in and of themselves for the imposition of professional discipline...(Standard 8-1.1(c))

In other words, the ABA's rules truly are just a guide to best practices.

As for the guidance itself, it does not come close to requiring "due-diligence."

A lawyer who is serving as a legal commentator should strive to ensure that the lawyer’s commentary enhances the public’s understanding of the criminal matter and of the criminal justice system generally, promotes respect for the judicial system, and does not materially prejudice the fair administration of justice, in the particular case or in general. To that end, a legal commentator should:

(i) Have an understanding of the law and facts of the matter so as to be competent to serve as a commentator;

(ii) Refrain from providing commentary designed to sensationalize a criminal matter; and...

It may be that some states provide more stringent restrictions, but a quick search suggests they don't. Otherwise, there would not be a law review article arguing "The Legal Profession Must Broaden Ethical Standards for Legal Commentators," or an ABA Journal article (from this June) giving advice on becoming a legal commentator without mentioning state bar restrictions.

I'm sure if you look, you can find more evidence.

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