May an assistant district attorney who prosecuted a
highly publicized criminal case sell media rights concerning her role in
the case while still employed as an assistant district
May the assistant district attorney participate in the
development of her character in the screenplay or other literary
The inquirer, an assistant district attorney,
prosecuted a murder case that resulted in a conviction. A national
magazine did a review of the murder victim's life and of the trial. The
trial transcript itself was the basis for much of the factual
information regarding the case. As a result of the publication of the
article, there is both television and movie interest in the case. The
inquirer has been approached by an agent seeking to purchase limited
lifetime media rights to her life so that the assistant district
attorney can be developed as a major character in the story.
Prior to the decision of the United States Supreme
Court in Bates v. State Bar, 433 U.S. 350 (1977) and the consequent
amendments to the Code of Professional Responsibility, the proposed
conduct would have been deemed improper advertising. Several opinions of
this and other bar associations condemned cooperation by lawyers with
the media as indirect - and improper advertising. See, e.g., ABA 298
(1961) (lawyers may not appear on commercial programs as actors or
performers where they are "identified as lawyers either generally or
individually"); ABA Inf. 1067 (1968) (an attorney writing newspaper
articles concerning legislation cautioned by the Committee not to extol
himself as a lawyer); ABA Inf. 79 (unpublished), ABA Opinions on
Professional Ethics 1967, p. 118 ("law firm may not acquiesce in the
publication by a magazine of a laudatory history of the firm"). These
opinions were premised upon the view that every direct and indirect form
of advertising by lawyers was unethical Indeed, Former Canon 27 provided
Indirect advertisements for professional employment
such as furnishing or inspiring newspaper comments, or procuring his
photograph to be published in connection with causes in which the lawyer
has been or is engaged or concerning the manner of their conduct, the
magnitude of the interest involved, the importance of the lawyer's
position and all other like self-laudation, offend the traditions and
lower the tone of our profession and are reprehensible.
In light of Bates and its progeny, however, many of
the ethical strictures against advertising by lawyers have been removed.
Former pronouncements that self-laudatory conduct offends the traditions
of the profession and is reprehensible are no longer viable.
Nothing in the Code of Professional Responsibility as
currently in effect would prohibit an assistant district attorney from
selling her media rights upon completion of a criminal prosecution.
Although the American Bar Association's Model Rules of
Professional Conduct do not obtain in New York, it is worth noting that
they, in fact, sanction such conduct Model Rule 1.8(d)
Prior to the conclusion of representation of a client,
a lawyer shall not make or negotiate an agreement giving the lawyer
literary or media rights to a portrayal or account based in substantial
part on information relating to the representation.
This rule prohibits a lawyer from negotiating or
entering into a media or literary rights agreement while a matter is
still pending. N.Y. City 1988-6 (1988). The prohibition attempts to
avoid possible conflicts of interest that arise when the lawyer's
economic motivation might prevent her from devoting the requisite
undivided loyalty to her client. See ABA Model Rules of Professional
Conduct, MR. 1.8(d), Comment (Legal Background). After the conclusion of
the representation, however, the potential conflict with which the rule
is concerned disappears.
The Model Rules, of course, have not been adopted in
this State, so that conduct sanctioned by the Model Rules may
nevertheless be improper under the Code of Professional Responsibility.
This Committee knows of no reason under the Code, however, why an
assistant district attorney may not sell her life rights with respect to
the subject matter of a completed representation. (*2)
We must caution, however, that certain safeguards
should be noted and followed by attorneys involved in "newsworthy"
A lawyer must be certain during representation of a
client not to be influenced by any personal motives or hopes for future
employment. Counsel must avoid even the temptation to take a course of
action that might enhance the value of the lawyer's publication or media
rights at the risk of impeding the client's cause. See DR 5-101(A); DR
7-101. The lawyer must act solely in the interest of the lawyer's
client, free of compromising influences. EC 5-1; EC 7-9. A lawyer should
not, after accepting employment, "acquir(e) a property right or assum(e)
a position that would tend to make his judgment less protective of the
interest of his client." EC 5-2. This responsibility devolves at least
as heavily upon a public prosecutor as upon other advocates if not more
so. As noted in EC 7-13, the prosecutor's special duty "is to seek
justice, not merely to convict." See also N. Y. State 492 (1980). A
lawyer who gains an interest in publication rights relating to the
subject matter of employment may be tempted to compromise the interest
of the client for the lawyer's own anticipated pecuniary gain. EC 5-4.
We concur with the drafters of the Model Rules that these concerns would
prohibit a public prosecutor from negotiating or entering into an
agreement with third parties for the sale of media rights during the
course of an ongoing criminal prosecution. Accord NY City 1988-6 (1988)
(law firm that continues to represent defendant in connection with a
criminal trial may not enter into a contract with a publisher or a movie
or television producer until matter has been concluded). See also DR
7-107(E) (prior to sentencing, prosecutor shall not make "an
extrajudicial statement that a reasonable person would expect to be
disseminated by public communication and that is reasonably likely to
affect the imposition of sentence"); DR 5-104(B); EC 2-21.
Even with respect to a representation that has been
concluded, the lawyer proposing to sell media rights must be certain to
continue to protect the confidences and secrets of the client. See N.Y.
City 1988-6 (1988); N.Y. City 82-34 (1982). DR 4-101(B) prohibits a
lawyer from revealing confidences or secrets or using them "for the
advantage of himself or of a third person, unless the client consents
after full disclosure.' This duty of confidentiality exists without
regard to whether others share the information or whether it is part of
the public record or available from another source. See EC 4-4; N.Y.
City 82-71 (1982); N.Y. City 82-34 (1982); N.Y. City 79-63 (1980).
Furthermore, the duty of confidentiality expressed in Canon 4 survives
the termination of the representation. EC 4-6; see ABA Inf. 1301 (1975);
N.Y. City 1988-6 (1988).
The inquirer has also asked whether she can
participate in the development of the assistant district attorney as a
major character in the story. Despite the substantial relaxation of the
rules against advertising, DR 2-101(A) still precludes a lawyer from
participating in the preparation of any public communication containing
statements or claims that are false, deceptive or misleading. See ABA
Inf. 1423 (1978). Subject to that limitation and those contained in DR
2-101(B), we believe that an assistant district attorney may properly
participate in the development of the character based on her.
We express no opinion as to whether advertising or
publicity that is neither false nor misleading may, even though
prohibited by the Code, nevertheless be protected by the Constitution.
That is an issue of law that is beyond the jurisdiction of this
Committee to resolve and upon which we cannot opine. See generally
Shapero v. Kentucky Bar Ass'n, 486 U. S. 466 (1988); In re R.M.J, 455
U.S. 191 (1982); Bates v State Bar, 433 U. S. 350 (1977); In re von
Wiegen; 63 NY 2d 163, 470 N. E. 2d 838, 481 N Y.S 2d 40 (1984), cert.
denied, 472 U. S. 1007 (1985).
For the reasons stated, and subject to the foregoing
ethical restrictions, the questions posed are answered in the
(*1) We are not addressing here the issue of the
defendant's property rights or the propriety of defense counsel entering
into an arrangement with the defendant giving the lawyer an interest in
literary or media rights with respect to the defendant's life story.
That issue has been addressed in a number of cases See, e.g., Ray v.
Rose. 535 F 2d 966 (6th Cir.), cert. denied. 429 US. 1026 (1976);
Maxwell v. Superior Court, 30 Cal. 3d 606, 639 P.2d 248. 180 Cal. Rptr.
177 (1982), People v. Gomna, 80 Cal. App. 3d 684, 146 Cal. Rptr.
894(1978) See a/so N Y. City 1988-6 (1988).
(*2) For purposes of this opinion we assume there are
no laws or internal guidelines in the District Attorney’s office
that would prohibit the conduct addressed herein.