Policy regarding statements to news media regarding pending proceedings

Due to regulations governing California lawyers, the Law Office of Damian R. Fernandez and the Law Office of M. Van Smith at this time have no intention of making statements to the news media regarding pending proceedings against Apple. Instead, we intend to post court documents on our site which will serve to inform the media of the case status.

Statements to news media regarding pending proceedings

Unlike ordinary citizens, lawyers involved in pending cases may be subject to ethical limitations on their free speech rights. Such limitations are constitutionally permissible only where the lawyer’s statements to the press or other media are “substantially likely to have a materially prejudicial effect on the pending proceeding.” (Gentile v. State Bar of Nevada (1991) 501 US 1030, 1076.)

Rationale for restriction on lawyer speech

The basis for restricting lawyers’ ability to speak out on issues involved in their cases is the state’s interest in assuring fair trials: “Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.” (Gentile v. State Bar of Nevada, supra, at p. 1075.)

California Rules of Professional Conduct restrictions on statements to the media

In response to the Gentile decision, California adopted restrictions on lawyers’ speech about pending cases:
A lawyer participating in investigation or litigation of a matter is prohibited from making out-of-court statements about the matter if:

a.         a reasonable person would expect the statement to be disseminated by means of public communications; and

b.         the lawyer knows (or reasonably should know) that the statement will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (California Rules of Professional Conduct, rule 5-120(A); see also American Bar Association Model Rules, rule 3.6.)

Exception—permitted factual statements

Rule 5-120 of the California Rules of Professional Conduct do not prohibit a lawyer from stating:

a.         the claim, offense or defense involved and the identity of the persons involved (unless prohibited by law);

b.         information contained in a pubic record;

c.         that an investigation of the matter is in progress;

d.         the scheduling or result of any step in litigation;

e.         a request for assistance in obtaining evidence and information necessary thereto;

f.          a warning of danger concerning the behavior of a person involved, if there is a likelihood of substantial harm to an individual or the public interest. (CRPC 5-120(B)(1)-(6).)

We are posting relevant legal documents which address any permitted factual statements.