A major lawsuit drops. The press calls. And someone in the room says the magic words: “Our ethics rules won’t let us comment.”

It’s a convenient exit. It’s also wrong.

The belief that attorney ethics rules prohibit meaningful communication during litigation has become so entrenched that many firms surrender the narrative by default. While you’re citing confidentiality concerns and reciting “no comment,” the opposing party is on background with three reporters, actively shaping how your client’s story is told.

The irony? Model Rule 3.6 – the very rule partners cite to justify silence – provides a framework for what lawyers can and should say when litigation becomes public. It’s not a muzzle. It’s a roadmap.

Here are seven myths that keep law firms silent when strategic communication could directly protect a client’s position.

Myth 1: “We Can’t Talk to the Press During Active Litigation”

The myth sounds ironclad: Once litigation begins, ethics rules require silence.

The reality is more nuanced. Model Rule 3.6(a) prohibits lawyers from making extrajudicial statements that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” That’s a high bar, not a blanket prohibition.

The rule then gets more interesting. Rule 3.6(b) explicitly permits lawyers to make statements about without elaboration the claim or defense involved, the identities of the persons involved, information contained in public records, scheduling matters, and warnings of danger to individuals or the public. For criminal cases, the safe harbors are even broader.

Translation: You can talk about more than you think.

The standard isn’t whether your statement might have some impact on the case. It’s whether a reasonable lawyer would know the statement creates a substantial likelihood of material prejudice. Criminal jury trials meet that threshold most easily. Civil bench trials?  The risk of materially prejudicing a judge through public statements is significantly lower than tainting a jury pool.

The rule recognizes a basic truth: Litigants have a right to present their side of a dispute to the public, and the public has an interest in receiving information about matters in litigation. Attorneys involved in litigation are often in the best position to provide accurate information to the public.

Myth 2: “Hiring a PR Firm Automatically Waives Privilege”

This myth has stopped more strategy sessions than any other. The fear is simple: Bring in outside communications consultants and everything becomes discoverable.

The law is more favorable than that fear suggests.

 Work product protection generally extends to third-party consultants retained to assist counsel in anticipation of litigation. Courts have held that sharing work product with aligned third parties – including  PR consultants working under attorney direction – does not automatically waive protection, though outcomes remain fact-specific.

Attorney-client privilege requires more careful structuring, but it’s manageable. Several federal courts have extended the privilege to communications with PR firms under the “functional equivalent” doctrine or the Kovel standard, which treats consultants as agents of counsel when they’re necessary to help the attorney provide legal advice.

The key is how the engagement is structured. Best practices are straightforward: Outside counsel retains the PR firm. The engagement letter explicitly states the consultant is being retained to assist counsel in providing legal advice. All communications are labeled as confidential and privileged. The consultant works under the attorney’s direction. Counsel oversees the work and participates in key meetings.

Is there case law going the other way? Yes. The Pennsylvania Supreme Court’s 2019 decision in BouSamra v. Excela Health found attorney-client privilege waived when a hospital’s general counsel forwarded outside counsel’s email to an outside PR consultant, in part because the consultant wasn’t involved in formulating the legal advice itself. The court held that work product protection was not automatically waived, but remanded for fact-finding on whether the disclosure significantly increased the chance an adversary would obtain it.

But that decision reinforces the importance of proper structure, not the impossibility of protection. When litigation PR counsel is retained by and works through outside litigation counsel – not hired separately by the client for general reputation management – t the work is far more likely to fall within the doctrine’s protective scope.

Myth 3: “Everything About Our Case Is Confidential”

Partners conflate two separate concepts here: the attorney-client privilege and the ethical duty of confidentiality under Rule 1.6.

The attorney-client privilege is an evidentiary rule. It protects communications between attorney and client made for the purpose of obtaining legal advice. It applies in judicial proceedings. It can be waived.

The duty of confidentiality is broader. Rule 1.6 covers all information relating to the representation, whatever its source. It applies in all contexts, not just litigation. It requires client consent to disclose.

Here’s what matters for public communication: The confidentiality rule permits disclosure when the client gives informed consent. It’s not a question of whether information is “confidential” in some absolute sense. It’s a question of whether the client agrees to let you share it, and whether doing so violates Rule 3.6’s prohibition of prejudicial statements.

Moreover, facts that are already public aren’t confidential in any meaningful way. If the complaint is a public filing, if the basic facts have been reported, if the information is in a court record, commenting on it carries far less confidentiality risk, though Rule 1.6 still applies to information relating to the representation, so confirm client consent.

The bottom line: “It’s all confidential” is often a category error. The question isn’t confidentiality. It’s whether your client wants you to speak, and whether what you’d say crosses the “substantial likelihood of prejudice” line.

Myth 4: “The Other Side Started It, But We Still Can’t Respond”

This might be the most damaging myth of all, because it abandons the field precisely when strategic communication matters most.

Rule 3.6(c) provides an explicit safe harbor for responsive statements. When recent publicity creates a “substantial undue prejudicial effect” for your client – and that publicity wasn’t initiated by you or your client – you may make a statement to protect your client. The response must be limited to what is necessary to mitigate the adverse publicity.

Comment 7 to the rule goes further. It states that when prejudicial statements have been made publicly by another party, another party’s lawyer, or third persons, “responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.”

The comment doesn’t just permit responsive statements. It suggests that they can reduce prejudice in the proceeding.

The practical reality is that negative publicity creates its own form of prejudice. It shapes potential juror perceptions. It affects settlement dynamics. It damages business relationships and client confidence. Letting an opposing narrative go unchallenged isn’t ethically safer. It can directly disadvantage your client.

The rule contemplates exactly this scenario. Your opponent holds a press conference. Their lawyer gives an interview. A plaintiff’s attorney sends a statement to the media. You’re not required to sit silently while they define the case. You’re permitted to respond.

Myth 5: “Silence Is Always the Safest Option”

Risk-averse counsel love this one. If we say nothing, we can’t get in trouble.

Except silence has consequences too.

In high-stakes litigation, particularly cases that draw media attention, the absence of your client’s perspective doesn’t create a vacuum. It creates a one-sided story. The other party becomes the only source. Their version becomes the narrative. And that narrative affects everything from jury perception to settlement leverage to your client’s business relationships.

There’s an ethics dimension here as well. Comment 1 to Rule 3.6 acknowledges that “there are vital social interests served by the free dissemination of information about events having  legal consequences and about legal proceedings themselves.” It notes that litigants have a right to present their side of a dispute to the public, and the public has an interest in receiving information.

The Supreme Court recognized this tension in Gentile v. State Bar of Nevada, the 1991 case that established the constitutional boundaries of Rule 3.6. Justice Kennedy wrote that “in some circumstances press comment is necessary to protect the rights of the client and prevent abuse of the courts.”

Silence isn’t neutral. In litigation that has become public, choosing not to communicate is itself a communication strategy – and often a losing one.

And one final recommendation when you are trying to craft, command and control a narrative? If you have something good to say, say it. Any pushback on this is plainly inconsistent with client advocacy. The only challenge should be how to do it well.

Myth 6: “Only ‘No Comment’ Is Ethically Safe”

This myth treats Rule 3.6 like a landmine. One wrong word and you’ve violated ethics rules.

The actual standard is far more forgiving.

The prohibition applies only to statements that a lawyer “knows or reasonably should know” will have a “substantial likelihood of materially prejudicing” the proceeding. That’s three qualifiers stacked on top of each other. It’s not a hair-trigger.

Context matters enormously. Comment 6 to rule 3.6 makes this explicit: “Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitrary proceedings may be even less affected.”

If you’re defending a civil case that will be decided by a judge, the risk of “materially prejudicing” that proceeding through a public statement is minimal. Judges are presumed capable of ignoring extrajudicial commentary. The same statement that might taint a jury pool in a criminal case is unlikely to affect a commercial arbitration.

The rule also distinguishes between central and peripheral issues. Statements on peripheral matters carry little prejudicial risk. Commenting on procedural posture, case schedule or background facts that aren’t disputed rarely crosses the line.

And remember Rule 3.6(b)’s safe harbors. You can state the claim or defense. You can identify the parties. You can discuss information already in the public record. You can explain that your client denies the allegations. None of that requires “no comment.”

Myth 7: “This Only Matters for Criminal Cases”

Sometimes, lawyers treat Rule 3.6 as a criminal defense issue; one that is only relevant  when representing individuals facing charges.

That’s dangerously incomplete.

The rule applies to any lawyer “participating or has participated in the investigation or litigation of a matter.” Criminal, civil, regulatory, administrative – if there’s an adjudicative proceeding, Rule 3.6 applies.

The standards do vary by context. Criminal cases, especially those heading to jury trial, face the strictest scrutiny. But civil litigation – particularly bet-the-company cases, class actions, shareholder disputes and matters involving public companies – often generates significant media interest and reputational stakes.

For corporate clients, the court of public opinion frequently matters as much as the courtroom. A securities fraud lawsuit affects stock price before discovery even starts. An employment discrimination case influences recruiting and retention while motions are still being briefed. A product liability claim shapes consumer perception long before any jury is empaneled.

Rule 3.6 governs all of it. And the same framework applies: What’s the nature of the proceeding? What’s the likelihood of prejudice? What does the client need to say to protect its interests?

In many civil matters, particularly those resolved through settlement or decided by judges rather than juries, the prejudice threshold is difficult to meet. That creates room to communicate strategically while remaining well within ethical bounds.

Beyond the Myths: What the Rules Actually Allow

Strip away the myths and here’s the framework that remains: Rule 3.6 is not a prohibition on communication. It’s a guide to what forms of communication create unacceptable risk.

You can discuss the claims and defenses. You can talk about information that’s already public. You can correct factual inaccuracies. You can respond when the other side speaks first. You can explain your client’s position without disclosing privileged strategy or confidential information.

What you can’t do is make statements likely to materially prejudice the proceeding. In practice, that means avoiding discussions of evidence admissibility, witness credibility, or opinions about guilt or liability in ways that could taint a jury pool. Even then, the risk varies based on timing, forum, and the nature of the case.

The standard isn’t perfection. It’s reasonableness. Would a reasonable lawyer believe this statement has a substantial likelihood of material prejudice? If the answer is no, you’re on solid ground.

Might you have to argue for such? Sure. But again, effective advocacy is a lawyer’s role and the possibility of having to argue in support of one’s own effort should not deter.

This is where litigation PR counsel adds value – not as a workaround to ethics rules, but as a resource for operating effectively within them. Skilled firms understand Rule 3.6’s boundaries, can identify what’s fair game for comment, and handle the mechanics that litigation teams aren’t structured to manage. When properly retained by outside counsel to assist in providing legal advice, their work can remain within the scope of privilege and work product protection.

Every week, law firms cite ethics concerns to justify silence while opposing counsel shapes the story. The cost shows up in weakened settlement positions, damaged business relationships, and tainted jury pools. The myths explored here make that choice feel inevitable. They transform Rule 3.6 from a framework for permissible communication into a wall of prohibition.

The reality is simpler: Zealous advocacy doesn’t stop at the courtroom door. When litigation becomes public, your client’s interests include reputation, stakeholder confidence, and business continuity. The ethics rules don’t prohibit you from protecting those interests. They provide a framework for doing exactly that.

The myths keep firms silent. The rules show the path forward. Effective advocacy depends on knowing the difference.

Andrea Christman is a managing director at Poston Communications, where she counsels law firm and corporate leaders on complex crisis, litigation and strategic communications matters. Her work spans crisis communications, litigation PR, reputation strategy and media relations, with a focus on protecting institutional credibility and supporting long-term growth and resilience.

Dave Poston is the CEO and general counsel of Poston Communications. A licensed attorney, he has worked as a legal business development, marketing and communications professional for the last 30 years.

Jacob Anderson is a business development professional, bringing a background in legal marketing, communications and legal research to his role. Prior to his current role, he served as a content intern at Poston Communications. He earned his J.D. from the University of St. Thomas School of Law and is admitted to practice in Minnesota.