Any statements, written, oral, or electronic, that might be disseminated to the public (e.g., over the internet, radio, TV).

Yes, ER 3.6(b) and (c) contain several specific exceptions (e.g., to protect the public from a threat). If you plan to rely on an exception, make sure what you say is strictly within the boundaries of the specific exception. Generally speaking, the judge presiding over the case will not appreciate seeing your comments in the news and may scrutinize your statements.

No, you must follow the judge’s orders. Comply with both ER 3.6 and the judge’s orders.

Yes, ER 3.6(c) provides a limited exception permitting you to rebut the negative publicity, assuming you or your client were not the ones who shared the negative information in the first place. Your public defense should be limited to what is necessary to protect your client from “substantial undue prejudicial effect.”

No, no lawyer associated with you (whether in a private law firm or government office) is excused from the rule. ER 3.6(d).

Yes, ER 3.6 applies to you, as well as ER 3.8(f). ER 3.8(f) states:

except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under ER 3.6 or this Rule.

 Be particularly careful about saying anything about a defendant’s character, guilt, or prior criminal misconduct, because what you say might later impact the information to which your jury pool is exposed.

As an attorney in the matter, you are generally bound by the rule of confidentiality pursuant to ER 1.6. If you want to comment publicly about the case, you should first obtain informed consent from your client. If your client gives consent, any public comment must comply with ER 3.6 (and ER 3.8(f) if you are a prosecutor).

ER 3.6 generally does not apply to media commentators or legal analysts. Instead, the rule is designed to limit the statements of the lawyers involved (currently or previously) in the litigation at issue. See ER 3.6 cmt. 3. If you have no connection to the case, you might be permitted to join the newscast, podcast, or talk show. Other ethical rules might apply to your public statements (e.g., you cannot lie, ER 8.4).

No, ER 3.6 may not excuse you from your office’s policies. For example, certain large offices or government agencies have a protocol you must follow before speaking to the press, and as noted above, you might have to obtain informed consent from your client before speaking publicly about a case you are handling.

Although ER 3.6 might no longer apply (assuming the trial and any retrial has been concluded), you would need client consent before talking about the case publicly because of ER 1.6. see also ER 1.8(d) (a lawyer cannot negotiate with a client for media rights until after the proceeding has concluded).

Criminal jury trials, followed by civil jury trials, warrant the most scrutiny. In these proceedings, pretrial publicity is more likely to cause prejudice, whereas in non-jury trials or arbitrations, the likelihood is less that public comments would prejudice the proceedings. See ER 3.6 cmt. 6.

No, ER 3.6 applies to any statement that you reasonably should know will be publicly disseminated. The rule covers statements you make on social media, your firm’s website, blogs, podcasts, and so on.