Newspaper article THE JOURNAL RECORD

New Rule May Loosen Attorneys' Tongues

Newspaper article THE JOURNAL RECORD

New Rule May Loosen Attorneys' Tongues

Article excerpt

Despite concerns that high-profile cases are tried in courts of public opinion instead of courts of law, a proposed change to Oklahoma's professional conduct rules is giving attorneys more latitude in what they can say to the press.

The rule deals with trial publicity, and though its changes will allow attorneys more room to comment, those pushing for the modification say they're necessary in order for Oklahoma's laws to be constitutional.

As the Rules of Professional Conduct stand now, an attorney is limited to comments if there is a "substantial likelihood" that the statements will materially prejudice the trial. The proposal, drafted by Oklahoma City University School of Law professor Lawrence Hellman, would change that standard to restrict attorneys' statements only if they will have an "imminent and materially prejudicial effect" on the trial. Legalese aside, the upshot is that attorneys have a First Amendment right to speak, and the new standard more fairly preserves that right, says Hellman. Rules of Professional Conduct, though not statutes, are those edicts that attorneys must follow or risk disbarment by the Oklahoma Supreme Court. "The major change," said Hellman, "is the standard by which speech is judged permissible or impermissible." The impetus for the change stems from a 1991 U.S. Supreme Court decision that rendered a Nevada rule virtually identical to Oklahoma's unconstitutional because the standard that attorneys were to use in judging what kind of comments they could make was vague. "We needed to change (Oklahoma's rule) because the whole rule could be unconstitutional," Hellman said. The law professor explains that because the standard is unclear, attorneys wanting to make comments may be "chilled" from doing so because they aren't sure where to draw the line. But Judge Dynda Post of Rogers County is concerned about the latitude the rule gives attorneys. "It's problematic. Trials need to take place in the courtroom and not the press -- free of preconceived notions." The proposal also modifies the existing rule by applying the "imminent" harm test to criminal trials and civil jury trials. …

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