Can a Plaintiff Lawyer Use a Communications Consultant Under Rule 3.6?

Yes. Rule 3.6 limits what a lawyer may say publicly about a pending matter. It does not bar hiring help. What it does, read with the rules on supervising nonlawyers and on acting through others, is make the lawyer answerable for what the consultant says and does. So the question is not whether you can retain one. It is how the engagement is built.

What the rule allows

The Model Rule bars a statement a lawyer knows or should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing the proceeding. It then lists what a lawyer may say regardless: the claim and the parties, anything in the public record, that an investigation is under way, the schedule and result of any step, a request for help finding evidence, and a warning of danger. A separate provision lets a lawyer reply to publicity the other side started, limited to what is needed to mitigate it. Your state’s version controls, and some states read the reply provision narrowly. Counsel reads it. I don’t.

What it does not allow

The comment to the rule lists the subjects most likely to be found prejudicial: the character, credibility or reputation of a party or witness, expected testimony, the results of tests, and evidence likely to be inadmissible. Those are the sentences reporters most want. They are also the sentences a lawyer cannot hand to a consultant to say instead. The rule reaches through the consultant to the lawyer.

How I build an engagement so it holds

I am retained through the firm, not by the client. The engagement letter says I work at counsel’s direction and names the rule. Nothing goes to a reporter without written sign-off from the lawyer on the case; a text is enough. I keep a log of what went out, to whom and when. I never contact jurors, witnesses or the venire. And when the record shows nothing is running against a case, I say nothing is running, because manufactured urgency is a credibility problem with the court before it is anything else.

I am not a lawyer, and this is how I structure my own work, not advice on yours. The one-hour version, with the rule text and the cases, is a course I give to firms and bar associations. How the work runs →