Rule 3.07 Trial Publicity(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.
(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness; or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that person's refusal or failure to make a statement;
(3) the performance, refusal to perform, or results of any examination or test; the refusal or failure of a person to allow or submit to an examination or test; or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or
(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.
The Texas Disciplinary Rules of Professional Conduct refer to conduct engaged in by attorneys during the course of representing a client (whether that client be a criminal defendant or the State of Texas). We are forbidden from making statements that we know, or should know, may prejudice one of the parties in a lawsuit.
"The DEA conducted a brilliant investigation and has stopped a dirty doctor and his cohorts from continuing to profit from the wretchedness of addiction." -- Harris County District Attorney Pat LykosMs. Lykos was referring to Dr. Gerald Ratinov who was charged with running an illegal "pill mill" that dispensed pain killers.
Ms. Lykos represents the State of Texas, the party who is prosecuting Dr. Ratinov. Ms. Lykos made an extrajudicial (outside the courtroom) statement that brought Dr. Ratinov's character and reputation into question. That would appear to be a violation of Rule 3.07(b)(1).
Ms. Lykos' statement implied that Dr. Ratinov was guilty. Considering that Dr. Ratinov is charged with a felony that could result in his incarceration, that would appear to be a violation of Rule 3.07(b)(4).
Ms. Lykos has been in office for over two years now, she should be aware of the ethics rules governing what she can and cannot say about a pending criminal case. Ms. Lykos should be held accountable for violating those rules. Someone should file an ethics complaint. But, will anyone step up to the plate?
Maybe someone could schedule a meeting with Ms. Lykos. They could sit down and discuss the matter - and maybe become best friends by the end of the day. Maybe she'd even say she was wrong and that she wouldn't do it again. A group of defense attorneys could argue about whether filing an ethics complaint would be piling on poor Ms. Lykos. Maybe her new best friend could bring her to a meeting while the group is deciding what to do. Maybe that group might decide to do nothing because they don't want to piss off Ms. Lykos or her supporters.
On second thought, there's no way anything like that could happen. Is there?