No.32 Solicitors commenting to the media

Introduction

1. Who should read this Guidance Statement?

This Guidance Statement is for solicitors and law practices.

1.1. What is the issue?

The purpose of this Guidance Statement is to outline the ethical issues that practitioners should consider if they wish to comment on their client’s matter to the media under the Australian Solicitors Conduct Rules 2012 (‘ASCR’) and the common law.

1.2. Status of this Guidance Statement

This Guidance Statement is issued by the Queensland Law Society (‘QLS’) Ethics and Practice Centre for the use and benefit of solicitors.

This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.

This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct. 

This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee.

2. Ethical principles

ASCR   

Rules 3, 4, 5, 9, 28 and 36 of the Australian Solicitors' Conduct-Rules 2012 apply to this Guidance Statement

These Rules impose a professional obligation on all solicitors[1] together with the relevant common law and legislation. 

3. Issues

The extent to which practitioners may make media communications is balanced by several competing interests:

• the interest of the public and media to access facts and opinions about a case;
• the interests of litigants in countering adverse publicity or placing a legal dispute before the public;
• the interest of the parties concerned (clients) in ensuring that the court process is not distorted by statements carried in the media.[2]

3.1. Administration of justice

Traditionally, it has been assumed that the administration of justice is better served if practitioners are “seen but not heard” and there have been several cases where solicitors were found guilty of unprofessional conduct for making media comments and disclosures regarding their clients’ cases.[3]

Rule 28 of the ASCR states that a solicitor must “not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice”.[4] It should be noted that this is not restricted to media publication.[5]

With the prolific use of social media and the high levels of media scrutiny in high profile matters, practitioners need to be aware of the issues that may arise if they decide to comment to the media. The safer option is not to seek media attention but if you are asked to comment, you should consider the below factors before doing so. There is also naturally a difference in commenting generally as an observer or “expert” as opposed to specifically on your client’s matter but even with the former, our ethical duties still apply.

3.2. Consent of the client and confidentiality

In order to protect the confidentiality of your client’s matter, practitioners cannot comment to the media without their client’s informed consent. Solicitors should be aware that any such comment may inadvertently reveal confidential information or material which is subject to legal professional privilege if it is not carefully considered and curated.[6] Practitioners are reminded that even impressions may amount to confidential information.[7] This consent should be specific, explicit and written; practitioners should not rely on a generic consent to comment contained in the retainer, especially with respect to unsophisticated clients.

4. Comments to the media

In making a comment to the media concerning your client’s matter, practitioners must consider a range of issues including but not limited to the below. This is not an exhaustive list and in the majority of instances, the wiser option is not to comment.

Practitioners must:

• not disclose any information that is confidential to a client and acquired by the solicitor during the client’s engagement unless they have their client’s express authorisation to do so;[8]
• have their client’s informed consent[9] - it is recommended that such consent be specific and in writing;
• not breach rule 28 of the ASCR as discussed above in clause 3.1 or prejudice a subsequent appeal or retrial;[10]
• never offer their personal opinions as to the innocence of their client;
• explain to their client, possible repercussions in commenting – if it is an oral interview, practitioners may not be able to answer the question without instructions or fear of breaching confidentiality or waiving privilege; there may be substantial exposure that may not benefit the client despite the client’s expectations; issues of contempt or defamation may arise; you will have greater control over what is said if it is a written statement;
• be satisfied that any comment is in the client’s best interests[11] – your role is to represent your client and to do so in a professional manner. It is not to act as your client’s mouthpiece or to identify yourself personally with your client’s matter – you must maintain your professional independence.[12] You should be wary of creating any perception or expectation that managing the media during litigation is any part of the service you provide as a practitioner and there will be instances where you do not have the knowledge or skills and may need to engage expert advice on this aspect;
• ensure that any such comment does not breach an existing court ruling or non-disclosure obligation between you or your client;
• be satisfied that any comment is not going to be contrary to the administration of justice[13] – avoid any commentary which would amount to litigating the matter through the media as ultimately it is for the court or tribunal to decide not public opinion;
• ensure it is based upon an accurate appreciation of the facts and is not misleading;
• ensure that you do not prejudice you or your client from such comments;
• not breach rule 36 of the ASCR – ensure that any comment in the media is not seen as misleading or deceptive advertising or marketing of the solicitor or law practice;
• make it clear whether the views expressed are those of the client or your views, or both;
• not be critical of a police or other regulatory investigator’s character, motives or behaviour;
• avoid any commentary which may contaminate the jury pool, impugn the presumption of innocence or influence an empanelled jury;
• not be critical of the judiciary, the opposing legal representatives, the other party or their witnesses.

Practitioners should also:

• note that it is recommended that any comment to the media on a client’s specific matter should be in the form of a written statement first agreed with the client;
• be aware that just because some of the information is in the public domain does not mean that the information is still not confidential as between the solicitor and client;^[14]
• consider having an appropriate media policy (that covers commenting to the media) in place for your firm / staff;
• understand that the media will not discuss how they will report on the story or what quotes (if any) they will use – it is essential that you ensure that your quote / comments are accurately recorded by the journalist, keep a recorded version of the story (if possible) and take a detailed file note as soon as possible after the event for your own records; 
• be aware that the media are rarely interested in what is already clearly in the public domain; a new angle is invariably being sought;^[15]
• be aware that the solicitor’s own personal or commercial interests should not be a motivating factor;
• not comment generally on an area of practice or a specific / proposed law unless they have specific experience or expertise in that area – if the practitioner does not, they should decline to comment and may consider referring the journalist to QLS or another practitioner who does have such expertise;
• consider whether any such comments would diminish the trust and confidence in or bring the profession or judicial system into disrepute.^[16]

More Information

Solicitors are also referred to the Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).

For further assistance, including difficulties you may be experiencing as either a supervisor or as a practitioner who is being supervised, please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au or a QLS Senior Counsellor.[17]