There are exceptional circumstances when it may be appropriate to have press conferences or other media outreach about ongoing matters before indictment or other formal charge. These include cases where: 1) the heinous or extraordinary nature of the crime requires public reassurance that the matter is being promptly and properly handled by the appropriate authority; 2) the community needs to be told of an imminent threat to public safety; or 3) a request for public assistance or information is vital. … Particular care must be taken to avoid any statement or presentation that would prejudice the fairness of any subsequent legal proceeding. … Because the release of certain types of information could tend to prejudice an adjudicative proceeding, Department personnel should refrain from making available the following: … Any opinion as to the defendant’s guilt, or the possibility of a plea of guilty to the offense charged, or the possibility of a plea of a lesser offense.

– United States Attorneys’ Manual, U.S. Department of Justice

In the area of trial publicity, ethical constraints are placed on a prosecutor from publicly disseminating extrajudicial statements after commencement of a criminal action where an individual has been formally accused of a crime (see, Code of Professional Responsibility DR 7-107). In that situation, certain disclosures are permitted while others are not. However, where an individual has not been formally charged with any crime, it is this court’s position that the ethical considerations involved require even greater responsibility on the part of the prosecutor from disseminating sensitive information to the public. The actions of the prosecutor in this case, in publicly identifying the suspect on all court papers in connection with the investigation, smacks of irresponsibility and a breach of his ethical obligation. On this issue, it is this court’s opinion that the prosecutor has violated, if not the letter, the spirit of the law.

-“In the Matter of an Investigation into the Death of Jessica Manners,” County Court of New York, Suffolk County, May 22, 1989

DR 7-107 [1200.38] Trial Publicity.

A. A lawyer participating in or associated with a criminal or civil matter, or associated in a law firm or government agency with a lawyer participating in or associated with a criminal or civil matter, shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in that matter.

– New York Lawyer’s Code of Ethical Responsibility

GEORGE STEPHANOPOULOS (off camera): Bad accounting but no crime.

ELIOT SPITZER: Well, obviously, I disagree with that … The evidence is overwhelming that these were transactions created for the purpose of deceiving the market. We call that fraud. It is deceptive, it is wrong. It is illegal. … We have powerful evidence. We will proceed with it, and I’ll agree with Mr. Boies about one thing. It’s not a capital offense, this relates to money. It could be civil. It could be criminal. It’s not capital, meaning the death penalty. Let’s keep everything in perspective, but these are very serious offenses…. That company was a black box run with an iron fist by a CEO who did not tell the public the truth. That is the problem.

– ABC News “This Week,” April 10, 2005

Even lawyers, it turns out, have ethical rules. The attorney general of New York, Eliot Spitzer, has made a career out of pursuing what he claims are rule-breakers in the Wall Street research, mutual fund, and insurance industries. But with the excitement of appearing on national network television Sunday, he appears to have gotten carried away with himself and to have broken at least the spirit of the rules governing ethical conduct by prosecutors both in New York State and at the federal level.

These columns carry no particular brief for Maurice “Hank” Greenberg, the former CEO of AIG who bought something that Warren Buffett sold him and who now is mysteriously being vilified in public by Mr. Spitzer before any judicial proceedings have been brought. He’s been too soft on the Chinese communists for our taste. But nobody deserves this kind of treatment in America; it violates basic notions of due process, which is why these rules are in place. We’d like to believe Mr. Spitzer when he claims, as he did at a Financial Times event the other night, that he’s not pursuing “a populist crusade to redistribute wealth” but rather that he’s simply trying to enforce “simple rules of transparency.” But for all Mr. Spitzer’s talk about rules, he seems to have little regard for the ones governing his own conduct. Who’s going to rise to the challenge of investigating Mr. Spitzer? We wish him a fairer proceeding than the one Mr. Greenberg is getting.