In a word, attorneys are advocates. Our role is to effectively represent our clients with an eye toward accomplishing the client’s goals. There are many resources available for us to do so, but there are also limits. One resource is the media and not just necessarily social media but old school, newsprint and other news outlets. For some attorneys, depending on the situation, a press conference or media interview can be an important outlet to convey a position or to promote a client agenda. For others, the media is too risky, and it may be best to simply avoid.

A Miami homebuilder filed suit this month against his adversary’s counsel alleging defamation. According to the complaint, an attorney made false statements to the press and to others calling the plaintiff a criminal. As alleged, the claims – which are now impacting the plaintiff’s business – had no bearing on the underlying suit. The dispute got us thinking in light of the risks, how and when should an attorney use the media to a client’s advantage. Here are some considerations.

We are guided by Model Rule 3.6 which prohibits an attorney from making any “extrajudicial statement” that the attorney knows “will have a substantial likelihood of materially prejudicing an adjudicative proceeding” in a pending matter. Moreover, Rule 1.4 mandates that attorney and client collaborate on the “means by which the client’s objectives are to be accomplished,” which necessarily includes how best to utilize the media, if at all. In other words, let’s be sure to ask the client how best to strategically approach media. Along those lines, it is possible that the court has taken a position on media commentary and, in some cases, will implement a gag order or similar restrictions.

In high profile circumstances — those that may draw the attention of the press — an attorney may face the awkward situation of feeling compelled to respond to media commentary to set the record straight. In those circumstances, if someone other than the client or attorney acted first, an attorney may issue a statement “limited to such information as is necessary to mitigate the recent adverse publicity,” per Rule 3.6. The purpose of that Rule is to permit a reactionary comment intended to end a debate, not to increase media drama.

The media can be unpredictable as can the public reaction to any publication. The risks of misinterpretation or backlash or worse are very real. Again, attorneys are advocates who must use all resources to advance the client’s goals, i.e. not to promote an attorney’s brand or success or agenda. Thus, the best comment may often be “no comment” at all.