Before the Court Convenes: What Communications Teams Must Understand About Pretrial Publicity
How Understanding Attorney Conduct Rules, Jurisdictional Variations, and Strategic Message Architecture Keeps Organizations Protected When Legal Matters Go Public
By Stephanie Kirijan Cooper
The court of public opinion often convenes before a judge ever presides over a legal matter. Between reporters calling, social media amplifying, and stakeholders seeking answers, lawyers are preparing for trial. The legal team is constrained by professional conduct rules governing pretrial publicity. And while the communications team is not bound by these rules, anything they say may affect the case.
Neglecting this balance — between legal constraint and communications imperative — is how reputations get damaged. The strategic communications decisions around pretrial publicity — what to say, when to say it, and through which channels — belong to the whole team. And that is why communications professionals should understand the legal framework governing what attorneys can and cannot say, as the foundation of sound strategic narrative.
The Rules Lawyers Live By — and Why Communicators Should Understand Them
Every licensed attorney in the United States operates under some version of American Bar Association (ABA) Model Rule of Professional Conduct 3.6, which governs trial publicity. Across all 50 states and the District of Columbia, the premise is the same: an attorney participating in an investigation or litigation cannot make extrajudicial statements if they know, or reasonably should know, that the statement poses a substantial likelihood of materially prejudicing the adjudicative proceeding.
This rule applies not only to the lead attorney on a case but also to every lawyer associated with the firm or government entity involved. The practical implication is significant: when legal counsel remains silent, the communications vacuum does not disappear. It expands. Understanding where the rules of professional conduct draw the line helps the communications team deploy strategy paired with accountability.
How Rule 3.6 Works — and Where It Varies by State
The rule permits attorneys to communicate basic, uncontested information — the nature of a claim, the identity of the accused, scheduling information, and procedural status. It also allows a narrow exception: lawyers may make statements necessary to protect a client from the substantial undue prejudicial effect of publicity that was not initiated by the lawyer or their client. Outside of those defined parameters, attorneys cannot opine on the merits of the case.
What complicates this for national organizations and multi-jurisdictional matters is that Rule 3.6 is not uniform in its application. Most states, including Arizona, Maryland, and Pennsylvania, adopt the ABA Model Rule verbatim. Others, including Georgia, Ohio, and Tennessee, apply modified versions. California operates under its own Rule 3.6 which uses the threshold of a "serious and imminent threat" to the fairness of a proceeding, a meaningfully different standard from the ABA model. For organizations operating across state lines, this patchwork of rules is important to understand. A communications approach calibrated for one jurisdiction may create ethical exposure in another. Federal courts compound this further: many U.S. District Courts maintain localized standing orders that impose restrictions beyond state bar rules, placing additional limits on the public release of information in pending civil and criminal matters.
The message for communications professionals is this: before building any message framework around pending litigation, the applicable jurisdiction's version of Rule 3.6 — and any relevant federal standing orders — must inform the foundational message framework.
"No Comment": When Silence Backfires
"No comment" is often a standard response from attorneys and, in many cases, the most legally defensible posture when a matter becomes public. It buys time for counsel to make an assessment, while protecting the client and the case. In today's fast-paced media environment, that interval creates meaningful strategic value.
But "no comment" is not a neutral statement in the court of public opinion. The public tends to read silence in contested situations as evasion. That dynamic can be especially damaging for public-facing institutions — law enforcement agencies, hospitals, universities, elected officials, or publicly traded companies — where silence is often interpreted as confirmation rather than prudence.
The practical effect compounds quickly. By declining to engage, an organization surrenders the narrative to other voices. Reputational trust built over years can erode within a single news cycle when external sources are the only ones shaping the story. Understanding this tension — between legally defensible silence and the communications imperative to respond — is precisely where strategic communications professionals provide value.
The Space Between Silence and Overexposure: Strategic Options That Work
The viable communications lane in pretrial matters is narrower than many practitioners expect, but it remains navigable. Attorneys are permitted to acknowledge that a matter exists, reference publicly available court documents, and correct demonstrably false statements of fact. Communications teams can operate effectively within these boundaries — provided they understand them.
The goal is not to litigate the case in public. It is to establish a credible institutional voice, demonstrate procedural transparency where permitted, and protect long-term reputational equity without compromising the legal proceeding. That requires a message architecture built around what can be said.
In practice, this means developing holding statements that acknowledge the matter without characterizing opposing parties, identifying spokespeople who are not bound by attorney conduct rules, and establishing clear internal protocols for what information may be shared and through which channels. It also means resisting the pressure — often intense in high-profile matters — to respond in kind to media speculation or adversarial public statements.
Building the Protocol Before You Need It
Waiting until a legal matter is filed to determine who speaks, through what channels, and with what authorization is the single most preventable failure in high-stakes communications. The protocol should already exist. Here is what it requires:
A cross-functional decision framework that identifies, in advance, which communications decisions require legal sign-off and which can be made independently by the communications team.
Jurisdiction mapping that documents the applicable version of Rule 3.6 — and any relevant federal standing orders — for every geography in which the organization regularly operates or litigates.
A tiered response architecture that distinguishes between holding statements, background briefings, on-record responses, and proactive disclosures — with clear criteria for when each is appropriate.
Pre-drafted holding statements reviewed by legal counsel that can be deployed quickly without requiring real-time legal review at the moment of maximum pressure.
Stakeholder listening integration that ensures message development is grounded in real audience intelligence — because messaging built on genuine understanding of stakeholder concerns proves more durable and resonant than messaging built on assumption.
This infrastructure is accessible to both legal counsel and the communications team. It does not require either discipline to compromise its core responsibilities. It requires both to plan together before the pressure arrives.
The Shared Obligation
Communications professionals who work alongside legal teams in high-stakes matters carry a consequential obligation: protecting the integrity of the judicial process while also protecting the institution they serve. These goals are not in conflict. They are, in fact, interdependent.
The organizations that navigate pretrial publicity most effectively are not the ones with the most aggressive communications strategies. They are the ones with the clearest internal alignment — where legal and communications professionals have built shared frameworks, agreed on boundaries, and established a common language for decision-making under pressure.
That alignment is the one built before a matter becomes public — not the one assembled under pressure.