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Model Rule 3.6

Reporter's Explanation of Changes


1. Paragraph (a): Replace "reasonable person" with "reasonable lawyer"

As modified, paragraph (a) requires that a lawyer's assessment of the likelihood that a statement will be disseminated by means of public communication be judged from the perspective of a reasonable lawyer rather than a reasonable person. Whether a statement about legal proceedings will be publicly disseminated is an issue that may be viewed differently by lawyers and nonlawyers, and the Commission thinks that lawyers should only be subject to professional discipline when their judgments are unreasonably inconsistent with those of their professional peers.

2. Paragraph (a): Replace "would expect" with "knows or reasonably should know"

The Commission thinks that the scienter requirement in Rule 3.6 should employ wording consistent with the terminology as defined in Rule 1.0(f) and (j). Thus "reason to expect" is replaced with "knows or reasonably should know." No change in substance is intended.


[8] Comment [8] is new and adds a cross-reference to the paragraph in Rule 3.8 that sets forth special duties of prosecutors with respect to extrajudicial statements.

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