Making A Statement: Considerations for Lawyers Before Speaking to the Media

When a high-profile criminal charge lands, the media isn’t far behind. Reporters call. Cameras show up outside the courthouse. The public has already heard the police’s version, and they’re waiting for a rebuttal. A lot of defence lawyers reach for a microphone in that moment. I usually do not.

Whether to speak is not just a tactical call, it’s an ethical one. And in my experience, it does not get nearly enough honest thought.

Before anything else, the question is whether the client wants you to speak. A retainer to defend a criminal charge does not carry with it an implied licence to comment publicly. The authority to speak to the media must be granted expressly, and it should address not just what can be said, but whether anything should be said at all. The Federation of Law Societies Model Code of Professional Conduct makes this clear (Rule 7.5-1). The duty of confidentiality reinforces the point. When instructions are absent, unclear, or missing, you stay quiet.  

There is also the trial itself to think about. The risks of speaking publicly are highest when proceedings are ongoing. The Supreme Court of Canada confirmed in Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835, that even the media’s right to broadcast can give way when trial fairness is genuinely at stake. Officers of the court are held to at least the same standard. Criticizing a judicial decision publicly carries its own risks. Appellate courts read the news and the same judge whose ruling you just took apart in an interview might be sitting on your next application.

Perhaps the most important question of all, though, is whether what feels like advocacy for the client is just advocacy for the lawyer. High-profile cases come with attention, and that attention can be intoxicating. The profile, the recognition, the sense of importance, those things are real. Before any media engagement, I ask myself one question: is this genuinely necessary to protect my client’s interests, or does it primarily serve mine? If the honest answer is the latter, I say nothing.

I learned this the hard way. Early in my career I was involved in a high-profile violent offence case where, mid-trial, the complainant acknowledged under cross-examination that she had lied about the entire allegation. It was a remarkable moment, the kind that generates headlines. My client wanted to speak publicly, and he had every right to. I participated in a press release alongside with him. What I did not anticipate (but should have) was a short time later, he would be charged and convicted with an even more serious violent offence. That earlier media coverage, which had celebrated his vindication, became part of a very different story. From that moment on, I have been extremely careful and thoughtful about whether to speak to the media about a client’s matter. The lesson was not subtle.

Related to that is the danger of declaring innocence too soon. I have watched colleagues stand in front of cameras and proclaim their client’s absolute innocence and later watched those clients be convicted. The damage is significant. The lawyer’s credibility suffers. The client faces the additional weight of that public denial becoming part of the record. Our role is not to win or lose in the press. It is to ensure the Crown proves its case beyond a reasonable doubt, and if it does, that client is treated fairly. As retired Supreme Court of Canada Justice Rosalie Abella has been quoted saying, “Justice is the application of law to life, not just the application of laws to facts.” (The Joy of Judging with Justice Rosalie Silberman Abella, Judicature: https://judicature.duke.edu/articles/the-joy-of-judging-with-justice-rosalie-silberman-abella/). That application happens in courtrooms, not on courthouse steps.

There is also the complainant to think about. The media is not the place for defence counsel to challenge a complainant’s credibility or relitigate an allegation. The Supreme Court of Canada in numerous cases has emphasized that the criminal process has to respect the dignity of everyone involved. A trauma-informed approach is a professional obligation, not a courtesy.

But beyond all the rules and frameworks, there is something harder to articulate that I think about most. I have been defence counsel in numerous murder cases. In every one of them, the victim has a mother. So does the accused. On the day a conviction is entered and a life sentence imposed, one mother is relieved and another watches her child taken away. There is nothing I could possibly say to a journalist that could ever meaningfully illustrate that. The media does not cover the client who, after years of battling a serious allegation and finally being acquitted, comes to see you and says: I had a career, a family, what am I supposed to do now? The answer, I have given, is that first you grieve and then you begin again. Often, our clients never fully return to the life they had before they were charged. That is true whether they are convicted or not. The media can contribute to that reality. I have no interest in contributing to it further.

None of this means counsel should never speak publicly. Where charges do not proceed and a client genuinely wishes to restore their reputation, carefully instructed comment may serve a legitimate purpose. But even then, the framework is unchanged. It requires explicit instructions, a purpose that serves the client rather than the lawyer, and an honest reckoning with what the media will do with whatever you give it.

There are also times where the right advice is to step back entirely. When a client has their own voice, their own standing, the most useful thing counsel can do is encourage them to use it and to stay out of the story yourself. A statement that comes from the client is almost always more powerful than one that comes from their lawyer. And a lawyer who does not need their name in the paper is, in my view, exactly the kind of lawyer a client in crisis deserves.

Defence counsel already occupy a difficult position in the public eye. We are often painted with the same brush as those we represent. That reality demands we hold ourselves to a higher standard when the cameras show up not a lower one. The job does not need the media to validate it. It just needs to be done well.