Ethics Opinions
Iowa Supreme Court Board of Professional Ethics and Conduct

Date of Opinion: 03/12/2003

Opinion Number: 03-02

Title: INTERPRETATION OF DR 7–107(H)

Opinion: You seek an opinion regarding the proper interpretation of the phrase “during the pendency of an administrative proceeding” as used in DR 7–107(H). The rule provides in its entirety:

(H) During the pendency of an administrative proceeding, a lawyer or law firm associated therewith shall not make or participate in making a statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication if it is made outside the official course of the proceeding and relates to:

(1) Evidence regarding the occurrence or transaction involved.

(2) The character, credibility, or criminal record of a party, witness, or prospective witness.

(3) Physical evidence or the performance or results of any examination or tests or the refusal or failure of a party to submit to such.

(4) An opinion as to the merits of the claims, defenses, or positions of an interested person.

(5) Any other matter reasonably likely to interfere with a fair hearing.

The “reasonably likely to interfere with a fair hearing” standard of paragraph (5) is read into paragraphs (1) through (4) as well, so that statements about matters specified in those paragraphs are prohibited only if reasonably likely to interfere with a fair hearing. See Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Visser, 629 N.W.2d 376, 382 (Iowa 2001) (agreeing with and quoting Pennsylvania court’s analysis of DR 7–107(H) that “whether or not an attorney in a case must remain silent as to any matter delineated in subparagraphs (1) through (4) must depend upon whether or not his speech on that particular issue and in that specific situation would be reasonably likely to prejudice the tribunal.”) (emphasis by Iowa court) .

Your inquiry is whether “the pendency of an administrative proceeding” refers to the period ending on the date of final agency action or whether the relevant period ends only with administrative or judicial finality, i. e. when no further appeal or judicial review is available.

It is the opinion of the Board that the phrase in question applies until no further appeal or judicial review is available. The agency action could be overturned on appeal and remanded for further hearing. A lawyer should not make any extrajudicial statement that would be reasonably likely to interfere with a fair hearing upon remand.