victims' rights; extrajudicial commentary; model rule 3.6; model rules of professional responsibility; professional responsibility; victims' lawyers; victims' rights movement


In U.S. criminal proceedings, the prosecution typically presents the victim’s story. However, as part of the victims’ rights movement, victims are striving to make their voices heard and tell their stories in their own words. Yet, despite the growing role victims occupy in criminal proceedings and the rights afforded to victims by the Crime Victims’ Rights Act and its state counterparts, victims still remain nonparties in criminal proceedings. As victims increasingly retain private lawyers to help navigate criminal proceedings and represent their interests, it is important to understand how these lawyers fall within the traditional two-party adversary system. Limited by the current criminal process, one way that victims’ lawyers might help protect their clients’ interests is by engaging in extrajudicial commentary. Model Rule 3.6 of the Model Rules of Professional Conduct—the ethics rule governing trial publicity—restricts materially prejudicial statements made by participating trial lawyers. This Note examines the application of Model Rule 3.6 to victims’ lawyers, looking to the text of the model rule and its purposes. After finding Model Rule 3.6’s text ambiguous, this Note argues that policy concerns guiding the victims’ rights movement and related laws protecting victims’ interests outweigh the justifications for Model Rule 3.6’s strictures. Ultimately, this Note argues that Model Rule 3.6 should not apply to victims’ lawyers.