*1 BAR OF NEVADA v. STATE GENTILE 27, April 1991 Decided June Argued No. 89-1836. *3 petitioner. argued Tigar With cause for E. Michael Reed, Terrance G. J. Buffone, were Samuel him the briefs on and Neil G. Galatz. respondent. argued With the cause for H.
Robert Klonoff Ayer E. Howe.* B. and John Donald him the brief were on Kennedy judgment of Court announced Justice respect opinion to Parts with of the Court and delivered respect opinion II, IV, I, to Parts and an VI, III and Blackmun, Marshall, Justice in which Justice V, and join. and Stevens Justice American filed for the urging reversal were curiae * Briefs of amici Friedman, A. Shapiro, R. John by et al. Leon Steven Union Civil Liberties Newspaper Publishers Powell, Mincberg; and for American Elliot and Fuson, Jr., Lucan, E. Harold W. Jane by al. Alice
Association et Neff Maguire, René P. Olive, Linfield, Terry R. W. M. Deborah Kirtley, David Schmidt, Jr., M. Milam, Scharff, Richard Sanford, Laurent Bruce W. J. Wartelle Wall. and Barbara Mueller, Deputy Starr, Attorney General Assistant Solicitor General a brief for the Stephen Marzen filed Bryson, J. General Solicitor affirmance. urging curiae as amicus States United by the American Bar Association were filed for curiae Briefs of amici Kuhlman; Curtin, Jr., Association George for the National A. J. John Genego; and for Nevada At- by Lawyers William J. Defense of Criminal Kelly. M. by Kevin Justice torneys for Criminal charges, on criminal was indicted his client after Hours Bar of the State member is a petitioner Gentile, who prepared a He made conference. held a Nevada, of opinion, Appendix A to this set forth which we statement, of questions. refer to most responded We he then opinion. responses of our in the course questions and those jury tried to a case criminal was later, the months six Some Bar of acquitted The State counts. on all client was and the alleging petitioner, against complaint filed then Nevada govern- Supreme a rule Rule Court Nevada violation to ABA Model Rule publicity ing pretrial almost identical Rule full text of set forth the 3.6. We Conduct Professional attorney 177(1)prohibits an Appendix Rule B. person extrajudicial a reasonable that making statement “an public commu- means of expect to be disseminated would reasonably lawyer should know knows if the nication materially prejudicing likelihood a substantial have it will 177(2) lists a proceeding.” number Rule adjudicative likely” “ordinarily in mate- to result . . . are statements 177(3) provides for the a safe harbor prejudice. Rule rial made can be attorney, listing of statements a number parts notwithstanding discipline other fear without the Rule. Disciplinary hearing,
Following Nevada the Southern made state- had that Gentile Bar found the State Board of *4 177. he violated Rule question concluded and in ments reprimand. private Petitioner recommended The board waiving con- Supreme Court, appealed to the Nevada proceeding, disciplinary Nevada fidentiality board. of the the decision court affirmed violates application in this case of Rule Nevada’s spoke in a man- at a time Petitioner First Amendment. of real threat in created nor fact in law neither ner that right trial or State’s a fair prejudice his client’s laws. Further- criminal itsof in the enforcement interest 177(3), appears provision, Rule harbor Rule’s safe more, the permit speech question, and Nevada’s decision to discipline petitioner spite provision of that raises concerns vagueness and selective enforcement. I
— question The matter before us does not call into the con- stitutionality prohibitions upon attorney’s of other States’ an speech materially will have “substantial likelihood of prejudicing adjudicative proceeding,” but is limited to Ne- interpretation vada’s of that standard. On the other hand, point analysis: one central must dominate the in- this case political speech. rep- volves classic The State Bar of Nevada petitioner supported by rimanded for his assertion, a brief sought sketch of his defense, client’s that the State the indict- “scapegoat” ment and conviction of an innocent man aas enough people had not “been honest to indict the who did it; police department, cops.” Appendix crooked infra, See constitutionality political A. At issue here is the of a ban on speech government critical of the and its officials.
A
Unlike other First Amendment cases this Term in which
speech
target
regulation
is not the direct
or statute
question,
g.,
see,
Theatre,
e.
Barnes v.
ante,
Glen
Inc.,
(ban
p.
dancing);
on nude barroom
Leathers v. Medlock,
(1991) (sales
1035 only- misconduct, which governmental to alleged relating tion traditionally which has as “speech we described last Term Amend- of the First at the core as lying recognized been Smith, 494 U. S. (1990). 624, Butterworth 632 v. ment.” justice our criminal particular judicial system, state, public in a democratic part courts, play vital g., See, e. in their operations. interest has legitimate Virginia, 435 U. S. Communications, Inc. v. Landmark out (1978). single would be difficult “[I]t 829, 838-839 and importance concern of higher aspect government trials are criminal which the manner than people Virginia, Newspapers, Inc. v. 448 Richmond conducted.” well, us for (1980). serves Public vigilance 575 555, U. S. to con is subject trial criminal every knowledge “[t]he ef is an opinion forum of public in the review temporaneous . . . power. of judicial abuse on possible restraint fective in com are insufficient: checks all othеr publicity, Without account.” are of small checks all other of publicity, parison (1948). we said Oliver, 333 U. As In re 270-271 257, S. Bridges (1941), upon pub limits California, 252 314 U. v. S. cases are pending lic comment about the most but upon time only crucial to fall “likely . . . of discussion. topics important in the Constitution can be found “No suggestion the press guaranteed there the freedom and importance timeliness ratio an inverse bears Id., at 268-269. expression.” seeking the ideas Sheppard re- Maxwell, 333, (1966), we U. S. v. In miscarriage against . . . guards minded “[t]he and judicial prosecutors, the police, subjecting of justice and criticism.” scrutiny public to extensive processes impor have even greater and criticism Public awareness cor of police allegations concern here, they where, tance Stuart, 427 U. S. Assn. Press Nebraska see ruption, (“[C]ommen- in judgment) (1976) (Brennan, J., concurring *6 1036
tary
strong
on the fact
implicating
that there is
evidence
government
activity goes
very
officialin criminal
core
public concern”),
of matters of
or where, as is also the
present
questions
judgment
circumstance, the criticism
public prosecutor.
of an
system grants prosecu-
elected
Our
stages
process,
tors vast discretion at all
of the criminal
see
(1988)
Morrison v. Olson,
B upon We are not called constitutionality to determine the of the ABA (1981), Model Rule of Professional Conduct 3.6 only interpreted applied but Rule 177 it has been and requirement the State of Nevada. Model Rule 3.6’s of sub- prejudice stantial likelihood necessarily of material is not Interpreted proper flawed. in a and narrow manner, for in- prevent attorney stance, to releasing record in- grave prejudice jury formation of phrase on the eve selection, the prejudice might substantial pun- likelihood of material only speech danger ish creates of imminent and sub- governing speech, stantial harm. A rule even enti- рrotection, full tled to constitutional need not use the words present danger” “clear pass in order constitutional muster.
“Mr. Justice express Holmes’test was never intended ‘to legal convey a technical doctrine or to a formula for adjudicating Pennekamp cases.’ v. Florida, 328 U. S. (1946) (Frankfurter, concurring). 331, 353 Properly J., applied, requires inquiry the test a court make its own magnitude danger into the imminence and said particular flow from the utterance then to balance against character of evil, as well as its likelihood, expression. the need for pos- free and unfettered sibility that other measures will serve the State’s inter- weighed.” ests should also be Landmark Communica- tions, Virginia, supra, Inc. v. at 842-843.
1037 Rule 3.6 apparently thought The drafters of Model likelihood of material formulation prejudice ap substantial ABA clear and test. See present danger proximated (1984) Model Rules of Professional Conduct Annotated (“formulation a standard incorporates in Model Rule 3.6 clear and on the danger by focusing approximating present Landmark and its injury substantiality”; citing likelihood Georgia, supra, Communications, Wood v. 844; at U. S. Bridges supra, California, (1962); guid *7 statement “poses sufficiently ance whether determining and imminent threat to the fair administration of jus serious A Hodes, Hazard & W. The Law of tice”); Lawyering: G. on the Model Rules of Professional Conduct 397 Handbook (“To (1985) use traditional terminology, danger preju (material) both clear dice to a must be proceeding Hinds, In re 90 N. J. likely)”); 604, present (substantially (1982) (substantial likelihood of mate 483, 449 A. 2d of clear and equivalent rial standard is a prejudice linguistic present danger). im- of serious and
The difference between the requirement in the rules of some States disciplinary minent threat found likelihood of more common formulation of substantial and the mere semantics. Each stand- material could prejudice prove of harm. proximity degree ard an assessment requires those prin- Each of valid Under may capable application. inherent in Nevada’s formulation fails First nothing ciples, demonstrates, Rule 177 review; but as this case Amendment in conformance with those interpreted principles has not been the Nevada II Supreme Court. if one to accept respondent’s argument Even were be sub- proceedings may lawyers participating judicial Amendment, re- consistent with the First jected, on the imposed general strictions that could not be The record does should not be judgment upheld. public, support petitioner reasonably the conclusionthat knew or should have known his remarks created a substantial likeli- prejudice, given any hood of if material the Rule’s terms are meaningful content. raising
We have
that “in
held
cases
First Amendment is
appellate
obligation
sues ... an
court has an
to ‘make an in
dependent examination of the
whole record’
order to make
judgment
sure that ‘the
does not constitute a forbidden intru
expression.’”
Corp.
sion on the field of free
Bose
v. Con
sumers
States,
Union
United
Inc.,
Neither the board nor the court ex- plains any petitioner’s sense in which statements had a sub- causing prejudice. stantial only likelihood of material The against videotape evidence Gentile was the of his statements testimony disciplinary hearing. and his own at the Bar’s whole case rests on the fact of the statements, the time they petitioner’s justifications. were made, and own Full findings justify deference to these factual does not abdication responsibility petitioner’s of our to determine whether state- *8 punished ments can be consistent with First Amendment standards.
Rather, this Court is
“compelled [itself] to examine for statements issue they and the circumstances under which were made to they carry see whether or not do a threat of clear and present danger impartiality good order of the they prin- courts or whether are of a character whiсh the ciples adopted by of the First Amendment, the Due Process protect.” Clause of the Fourteenth Amendment, Pennekamp (1946). v. Florida, 328 331, U. S. “ rights ‘Whenever the fundamental of free . . . alleged are open to have been invaded, it must remain present a defendant to actually the issue whether there danger, danger; did exist at the time a clear whether apprehended any, if and whether the evil imminent; was justify stringent as to restric was one so substantial interposed legislature.’” Landmark tion Com (quoting Virginia, munications, S., Inc. 435 U. at 844 v. (1927) Whitney 274 U. S. 378-379 California, (Brandeis, concurring)). J., applies the standard set out Landmark
Whether one Com- colleagues per- munications or the lower standard our find an examination of the record reveals no basis for the missible, speech presented Nevada court’s conclusion that the a sub- prejudice. stantial likelihood of material Virginia, decision earlier this Term Mu’Min v. Our (1991),provides pointed respondent’s U. S. 415 contrast to community There, in this case. had sub- contention been jected barrage publicity prior cap- to a to Mu’Min’strial for appeared ital over a course murder. News stories of several included, itself, months and addition to details of the crime prejudicial numerous items of information inadmissible at Eight trial. of the twelve individuals seated on Mu’Min’s jury publicity. exposure pretrial some We held admitted publicity requiring ques- that the did not rise even to level tioning jurors publicity. In of individual about the content of peti- light holding, of that the Nevada court’s conclusionthat general comments six before abbreviated, tioner’s months materially prejudic- trial created a “substantial likelihood of ing” proceeding say unconvincing. is, least, most A Publicity. January 31, 1987, Pre-Indictment On under- police Vegas Metropolitan cover officers with the Las Police (Metro) (four Department reported large amounts of cocaine (almost $300,000) *9 kilograms) missing and travelers’ checks safety deposit Corporation. Vault vаult at Western drugs money part as of an undercover The and had been used Intelligence Peti- Bureau. by Metro’s operation conducted John Grady Vault. Western Sanders, owned client, tioner’s press reported at the theft Vegas sheriff, Las the Moran, police naming West- and the February 1987, on conference suspects. employees as ern Vault and Scholl police Detective Steve Although officers, two deposit box enjoyed the free access Sargeant Schaub, Ed reported log com- no period theft, and throughout the reports press the over goings a series ings vault, at the and investigators consider did not year following indicated investigators focused responsible. Instead, officers these reports Newspaper its owner. upon and Vault Western saying high police as officials quoted other sheriff and the Intelligence “elite” in the they lost confidence had not “complete had beginning, Moran Sheriff the From Bureau. App. 85. officers. in his trust” faith and following reported announcement that, The media deposit Vault Western boxes theft, others with cocaine missing claimed man One items. claim forward to had come savings Western Id., at 89. $90,000. life theft of his their heavy terminated as customers losses suffered Vault company business. out of soon went and the rentals, box missing items, police opened boxes search other The they States reported $264,900 United seized it was currency as unrented. from a box listed reports Western press Sanders and stated that
Initial being cooperative; on, time went but as Vault were identify investigation police failed to had noted that beginning through process was culprit of elimination quoted Reports of a de- the affidavit point Sanders. toward part the un- to discredit of an theft effort that the was tective suggested operation records that business dercover tar- and the Sanders between a business relation existence gets probe. Id., at 85. a Metro undercover police deputy the two detectives announced chief suspects. possible vault been “cleared” had access *10 investigation,” According an to the to unnamed “source close planned police shifted from the that the thief had idea theory operation the undercover that the discredit unwittingly police. had stolen The stories thief that Sanders “could not be reached for comment.” noted Id., at 93. story reports
The took a more sensational turn with police suspects by police investiga- the two had been cleared passing tors after lie detector tests. The tests were adminis- by Ray Slaughter. later, tered one But the Federal Bureau (FBI) Investigation Slaughter distributing arrested co- FBI informant, caine to an Belinda Antal. It was also re- ported safety $264,900 that the seized from the unrented deposit at stored there in a box Western Vault had been suit- Tammy owned one Markham. Markham was case “facing Sue drug-related charges” in Tucson, a number of federal reported missing Arizona. Markham items from three boxes rented at Western as did one Beatrice Vault, Connick, she according press reports, who, was a Columbian national living Diego facing drug related San and “not (As impeached charges.” petitioner it out, turned Connick’s credibility conviction.) money laundering trial with the existence of reported have
Connick also was taken and passed charges. Id., a lie detector test to substantiate her Finally, press reports at 94-97. indicated that had Sanders police polygraph Id., take a at 41. refused to examination. press suggested suspected FBI that the Metro officers responsible reported that the theft theft, were for the severely damaged FBI had relations between the and Metro.
B Vegas The Press criminal Petitioner is Las Conference. attorney, defense an author of articles about criminal law and procedure, a former dean of the Nationаl associate Col- lege Lawyers for Criminal Defense and Public Defenders. Through police department, Id., at 36-38. leaks from the he would indictment the date notice advance some had Pe- charges against Sanders. nature returned surrounding case, publicity monitored had titioner of at least personally aware indictment, was prior and, *11 Vegas Sun newspapers, Las the major local in the 17articles televi- local numerous and Review-Journal, Vegas Las and Vault theft reported Western on the which news stories sion Respondent’s see investigation. Id., 38-39; ensuing Petitioner deter- Disciplinary Board. before A, Exhibit a call would that he career, in his time the first mined, press a into not blunder He did press conference. formal deliberation. considerable acted but conference, explained to the petitioner As Motivation. Petitioner’s the concern primary was motivation disciplinary board, his case were the State’s weaknesses the some of that, unless by poisoned jury potential venire would be public, a made being the released press of information repetition the press repeated re- particular the police prosecutors, in police the two the fact polygraph ports tests and about Respondent App. suspects. longer 40-42. were no officers explanation admits suggests this it 177when Rule distorts proves a violation prejudice and so purpose venire the to in- only prohibits dissemination the Rule 177 Rule. reasonably has know should one knows formation adjudica- materially prejudicing an likelihood ‘'substantial thought he he not indicate proceeding.” did Petitioner tive opinion in jurors an potential form pool to sway could evidence discuss he seek to trial, nor did advance only sought counter to He at trial. inadmissible would Nevada prejudicial. The Southern already publicity deemed attempted petitioner It Disciplinary said found. Board so “(i) perceived public opinion ad- which he as to counter (ii) matters ... to refute certain Sanders, verse to Mr. appeared regarding media, in the his client which had (iii) fight against perceived efforts of the to back (iv) juror pool, poison prospective prosecution App. publicly present side of the case.” 3-4. Sanders’ “materially preju- sought Far an admission that he sought only adjudicative proceeding,” petitioner dice perceived prejudicing potential stop publicity he a wave of jurors against injuring reputation in his client and his client’s community. gave holding the
Petitioner a second reason for the additional value of his conference, which demonstrates investigation speech. part Petitioner acted because was “not had taken a serious toll on his client. Sanders *12 having multiple open-heart good sur- in suffered health,” man prior geries prior to indict- Id., at 41. And to these events. suspicion wrongdoing had caused the clo- mere of ment, the ground of lease
sure of Western Vault and the loss Sanders’ City, Jersey, property. Ibid. on an Atlantic New attorney’s begin inside the courtroom An duties do not implications ignore practical the of door. He or she cannot may attorney legal proceeding client. Just as an for the plea bargain the civil to avoid recommend a or settlement possible consequences too trial, after so of a loss adverse steps attorney may a client’s to defend an take reasonable consequences reputation of indict- adverse and reduce the unjust prosecution especially deemed ment, in the face of a attorney improper A defense or commenced motives. may strategies pursue of an indict- dismissal to obtain lawful attempt including charges, to demon- an ment or reduction of public opinion not the client does that strate in the court of deserve to be tried.
1044
2 is 177 177. Rule Investigation Rule Petitioner’s of reasonably attorney or “knows an of what phrased terms in conference, evening the before theOn know.” should research- spent hours colleagues several petitioner two and 177. Rule obligations attorney’s under an ing of extent the S. 467 Yount, U. v. Patton held, see as we have decided, He crucial was timing statement (1984), of a application, Rule’s prejudice and the possible assessment (1952). 191-194 U. S. California, Stroble accord, App. 44. date trial aset the court indictment,
Upon return Petitioner future. in the months six some August 1988, jury not would statement, his time at the knew, re-He ever. earliest, if months six empaneled for resulting from prejudice finding no reported cases called four two information “far worse” juror exposure proposed state- his concluded trial, before months preju- likely material substantially to result was ment Ibid. dice. on the venire attention reaches which A statement diffi- cause require might a continuance dire of voir the eve very least jury, and at impartial securing culties Anno- process. ABA See jury complicate the selection could (1984) (timing Conduct Professional Rules Model tated determining seriousness significant factor of statement here, threat). case to be turned out As imminence prior trial months six statement exposure same fading *13 mem- from prejudice, the content in result not would date. ory long the trial before of population excess County, had Nevada, 1988, Clark In community from size persons. Given 600,000 be drawn jury would any potential venire
which damaging in- only most trial, length before time prejudice. The give likelihood rise to could formation my reinforces petitioner’s statements content innocuous conclusion. Petitioner was Petitioner’s Statements.
The Content of (1) disciplined the evidence to the effect for statements (2) likely thief was a innocence, his client’s demonstrated (3) police the other victims were Scholl, and detective, Steve money drug or conviсted dealers credible, as most were only accused Sanders had all but one of whom launderers, “trying process police pressure, response to work something.” Appendix 1059. A, infra, out of themselves (Findings Bar App. of the State and Recommendation 2-3 Board). Disciplinary He also Nevada Nevada, Southern of strongly implied in a vid- could be observed that Steve Scholl suffering symptoms eotape course, of cocaine use. Of petitioner’s only were dissemi- remarks fraction of a small newspaper public, and two televi- stories two nated to news broadcasts. sion only press conference Gentile’s mentioned not
The stories police press response prosecution conference. also but Respondent’s App. A, Exhibit before 127-129, 131-132; See attorney deputy was Disciplinary district The chief Board.1 press conference con summary reports of the of television 1 The sole in the record is as follows: tained
“2-5-88: GENTILE COMPARES STORY. NEWS CONFERENCE
“GENTILE THE CONNECTION TO FRENCH BURGLARY THE W. VAULT SAYS WERE COPS. GENTILE THE BAD GUYS IN WHICH CASE THAT THE COPS AND THE EVIDENCE IS CIRCUMSTANTIAL CULPRITS, HAS THAT DET. SCHOLL LIKELY THE MORE SEEM USE, THAT THE OTHER CUSTOMERS SIGNS OF DRUG SHOWN METRO, THAT BY INTO COMPLAINING WERE PRESSURED DEALERS, AND THAT DRUG ARE KNOWN THOSE CUSTOMERS WITH- W. VAULT OUT OF HAVE OPERATED OTHER AGENCIES HAVING SIMILAR PROBLEMS. OUT SULLI- IN WHICH CHIEF “2-5-88: METRO NEWS CONFERENCE HAVE BEEN THE INVOLVED EXPLAINS THAT OFFICERS VAN THAT BY TESTS. STORY MENTIONS POLYGRAPH CLEARED SLAUGHTER, BE- UNUSUAL RAY WAS THE POLYGRAPHER EXAMINER, A METRO NOT A PRIVATE SLAUGHTER IS CAUSE BACK- SLAUGHTER’S DETAILS REPORTER EXAMINER. *14 legitimate indictment, and quoted saying awas that this bring court unless indictment to prosecutors cannot that beyond charges doubt. prove in it a reasonable they can Deputy stated for App. Sullivan Police Chief 128-129. “ very our offi- department: are satisfied police in Metro ‘We Schaub) (Scholl nothing Sgt. do with this had to Ed cers reproach. They Both any above are both other. theft or to honest law police who are dedicated officers are veteran ” general public In the context Id., at 129. enforcement.’ prosecution police were no statements awareness, these petitioner’s prejudice likely state- than were to result more police publicity repetitive in- given from the but ments, vestigation, any conclusion but come to to it is difficult prosecution. favor remained the balance by petitioner provided had been the information Much of obviating any potential for published another, form or one Rules of Professional prejudice. Annotated Model ABA See (1984)(extent already cir- information to which Conduct preju- determining significant likelihood of factor culated dice). pro- petitioner refused to and details remainder, willing any journalist to do a little bit were available vide, investigative work. obvious bases lack of the more statements Petitioner’s police, finding prejudice. he refused Unlike the for a reports except polygraph earlier to confirm tests comment on police polygraph; he not submitted had Sanders from searches and no evidence no confessions mentioned charge upon that the his refused to elaborate results; he test explain except credible, victims were other so-called testify they pressured theory in an general were his drug-related legal attempt some of trouble, and that to avoid REGARDING GROUND, TEST OF JOHN MORAN HIS INCLUDING SLAUGHTER’S ALSO MENTIONS CONTRIBUTIONS. SPILOTRO IT A SETUP BUST, WAS ABOUT WHETHER SPECULATES DRUG THE TWO CASES QUOTES GENTILE AS SAYING THE FBI. BY added). App. (emphasis 131-132 RELATED.” ARE DEFINITELY *15 attempt insur- to collect in an may claims asserted have them money. ance
C judg- Petitioner’s Folloioing Press Events Conference. prejudice result would material of no likelihood that ment by While trial. events vindicated was comments from his pub- controlling pretrial for Rule 177’sstandard it is true post made, ex is judged time a statement licity at the must Here, probative cases. some value can have evidence re- purports and the Constitution demand, Rule where the its harm and of the character quires, consideration altogether is occurrence, the record heightened of likelihood upon any expect state- follow would facts one devoid of prejudice ato material of likelihood real that created a ment jury trial. criminal August no place with on schedule trial took
The change or continuance. party request for venue either difficulty. apparent The empaneled no jury with was The publicity. Al- jury questioned venire about judge trial reports that vague cocaine many of though recollections hаd police under- stolen had been Western Vault stored at feared, remem- petitioner one had operation, and, as cover suspicion, a sin- police cleared had been bered press petitioner any or his gle juror recollection indicated Respondent’s B, before Exhibit App. 48-49; conference. Disciplinary Board. during peti- disseminated information all material trial,
At before evidence admitted was conference tioner’s questioning the motives including jury, information against Sanders, credibility supposed who testified victims drugs ingestion in the course Scholl’s and Detective (in gain testified, order, he operations undercover peti- acquitted jury App. suspects). 47. confidence explained disci- petitioner before the client, and, tioner’s plinary board, acquitted and the man was
“when the trial was over with jury phoned the next week the foreman of the me and they me if would have had a verdict form said to be- guilt they respect them of Steve Scholl fore guilty beyond proven a rea- would have found the man Id., sonable at 47-48. doubt.” petitioner’s support the conclusionthat state- There is no for prejudice, created a likelihood of material or indeed of ments magnitude support harm of sufficient or imminence to punishment speech.
Ill *16 interpreted by Supreme Court, As the Nevada the Rule is vagueness, provi- for its safe event, void for harbor 177(3), petitioner thinking Rule misled into that he sion, give press discipline. could his without fear of conference 177(3)(a) lawyer “may provides Rule that a state without general . . . the nature of the . . . defense.” elaboration provision protected “[notwith- Statements under this are (a-f).” standing By necessary operation 1 2 subsection and “notwithstanding,” contemplates the Rule the word that a lawyer describing “general nature of the . . . defense” discipline, if “without elaboration” need fear no even he com- credibility, reputation “[t]he charaсter, ments on or criminal reasonably if witness,” record of a. . . and even he “knows or [the statement] should know that will have a substantial like- materially prejudicing adjudicative proceeding.” lihood of grammatical any clarify- structure, this and absent Given ing interpretation by provide court, the state Rule fails to Grayned [it] “‘fair notice to those to whom is directed.’” (1972). City lawyer A seek- Rockford, U. S. 177(3)’s ing protection guess avail himself of Rule must at right explain “general” its contours. The nature of provides guid- the defense without “elaboration” insufficient “general” ance because and “elaboration” are both classic have degree. these terms us, In the context before terms interpretation in usage law. or tradition of settled no lawyer determining principle his remarks when no has general sea to the forbidden pass the safe harbor from of the elaborated. pro- thought were his statements he testified
Petitioner 177(3),App. con- A review of 59. Rule tected opening only gave supports a brief He that claim. ference Appendix 1059-1060, and on A, infra, statement, see reporters’ questions to answer occasions declined numerous exchange seeking illustrative One more detailed comments. obey attempt petitioner’s the rule: shows you Dominick, THE FLOOR: FROM “QUESTION credibility you question wit- of some of the mention gov- people in the named as victims nesses, some of indictment. ernment through go their back- and elaborate on it
“Can we — grounds, interests prohibit me because ethics I can’t
“MR. GENTILE: doing so. going night I to make I was before decided “Last profes- good at the rules of I close look statement, took a say things I responsibility. can There are sional Okay? *17 things I can’t. are that and there drug people have the back- “I name which of can’t by doing just guys you grounds. that I’m can find sure App. investigative for Cert. to Pet. work.” little bit of added).2 (emphasis 11a are as follows: occasions Other police you other of- THE Do believe “QUESTION FLOOR: FROM dope disappearance involved than were
ficers other Scholl and— proof what the is say What I believe and Let me this: “MR. GENTILE: what I believe I’m to discuss things. Okay? reluctant different are two you proof that the somebody, I can tell but I want to slander because don’t petition- only disciplinary that said board Nevertheless, per- beyond scope of the statements “went er’s comments Supreme 177(3),” App. and the Nevada mitted SCR cocaine likely taken the most to have guy that is that Scholl is the shows traveler’s checks. Express and the American proof? What is that What is that? THE FLOOR: “QUESTION FROM Pet. for Cert. out; App. to it’ll come out.” It’ll come “MR. GENTILE: 9a. reports that the FBI I THE FLOOR: have seen “QUESTION FROM you along the lines that do. think sort of seems to Well, agree them more. I couldn’t “MR. GENTILE: anything about it? you know THE Do “QUESTION FLOOR: FROM Dan, position be Yes, do; I’m not in a again, I but “MR. GENTILE: that now. able to discuss interesting months to a very six you you’re in for a “All I tell is that can Id., 10a. develops.” year case as this polygraph? cops pass the THE Did the “QUESTION FLOOR: FROM that, you on ex- Well, give like to a comment I would “MR. GENTILE: get want to in the coming up and I don’t trial is cept Ray Slaughter’s anybody being to defend themselves. way able you Slaughter ease— Do think “QUESTION THE FLOOR: FROM a connection? there’s any question about Absolutely. think there is I don’t “MR. GENTILE: it, and— What is that? “QUESTION THE FLOOR: FROM deal, Well, I think. great to a it’s intertwined “MR. GENTILE: is, something I again, is believe the connection “I what I think know that going say I can I’m not being it true and until point I to be true. can’t anything. you police involved Do think “QUESTION THE FLOOR: FROM passed lie detector tests? passed legitimate legitimately this — that for two reasons: want to comment on I don’t “MR. GENTILE: one, up and it wouldn’t Ray Slaughter coming is for trial again, “Number that it were true. if I didn’t think call him a liar right “But, polygraph tests. much faith secondly, I don’t have take one? Did ever [Sanders] THE FLOOR: “QUESTION FROM police polygraph? “MR. GENTILE: Yes. THE FLOOR: “QUESTION FROM No, police polygraph. didn’t take a he “MR. GENTILE: you? take one with THE Did he “QUESTION FLOOR: FROM Id., at 12a-13a. going to disclose now.” I'm not “MR. GENTILE: *18 177(3) rejection petitioner’s based on Rule defense Court’s App. 4a. The fact that just Pet. for Cert. terse, was studying after the Rules in was found violation Gentile compliance making demon- effort a conscious them and wary trap as well as for the Rule 177 creates strates that unwary. the regulations speech vague prohibition against is
The impermissible part risk the on the need to eliminate based discriminatory Lawson, v. enforcement, Kolender (1983); Goguen, 415 U. S. 352, 357-358, 361 Smith U. S. (1974), speech sup- history is shows 566, 572-573 message speaker pressed the is critical of when either question is not whether dis- the law. The those who enforce criminatory it here, and we assume did enforcement occurred discriminatory imprecise that the Rule is so but whether not, inquiry particular possibility. The is of a real is enforcement by regu- affected one of the classes most when relevance professional bar, which has the criminal defense lation is the challenge in- Petitioner, for actions of State. mission to preventing client, of his the conviction stance, succeeded government. speech of the involved criticism issue
I—I > point analysis m the case, this resolves things here. Five should end the discussion usual order of however, endorse an extended discus- Court, Members may interpret require- its that Nevada which concludes sion prejudice under a material likelihood of of substantial ment rule where than is the usual deferential standard more necessary, appears therefore, speech to set It concerned. is reasoning my objections and to to that conclusion forth it. which underlies attorney subject speech
Respondent argues is an by others, regulation on greater and restrictions than balancing attorney’s speech under a be assessed should regulation weighs interest the State’s test *19 1052 lawyer’s Amendment against First profession the
specialized The cases speech at issue. that was kind of in the interest balancing, support Bates v. colleagues this by to our cited Attorney (1977); v. Peel 350 S. 433 U. Arizona, Bar State of S. 91 496 U. Disciplinary Ill., Comm’n Registration and (1978); Assn., 436 U. S. (1990); Bar v. State Ohio Ohralik (1984), in U. S. Rhinehart, 467 v. Times Co. and Seattle attorneys by speech or restrictions commercial either volved upon only gain attorney could the information release of those discovery process. Neither by court’s of the use justified their underlying which interests categories, nor disciplined was implicated here. Petitioner creation, were thought community to what he proclaimed to the because he powers. police Wide- prosecutorial and be a misuse appropriate in this context. balancing not is open of interests A on justify limitation a substantial Respondent would special “lawyers to access attorneys have by speech because clients including statements confidential information, discovery plea through pretrial or obtained and information likely lawyers’ “are statements negotiations,” and so Respondent for Brief especially authoritative.” received as the at concern however, reflect does 22. Rule torney’s gained confidences, material client special access in proprietary discovery, or confidential through or other upon release upheld restrictions have We formation. by discov “only trial court’s gained virtue information supra, at Rhinehart, ery processes.” Times Co. Seattle discovery prohibit release would Seattle Times 32. And attorney Similar the client. well as information attorney confidences. client maintain require mies 1.6 Conduct Professional g., Rule of See, (1981). Model ABA e. subject under a restriction no This case involves the information Much of Times. of Seattle rationale by explicit petitioner’s reference or fair was included remarks press reports. Petitioner could not have inference earlier through press conference he revealed at the learned what special discovery process access afforded to attor- other day neys, spoke indictment, on for he proceеd- participation in the criminal his formal the outset of prosecutors, complaint ing. from the before us no We have *20 judge petitioner presiding police, misused information or special And there is no claim had access. to which he may petitioner confidences, which be waived revealed client applied any here, on its face and event. Rule preventing release limited to nor even directed is neither proceedings special through court received of information attorneys. Smith, v. 494 Butterworth afforded Cf. access beyond goes far this. 632-634. It S., at U.
B
Sawyer,
upon
Respondent
In re
dicta from
360
relies
obiter
(1966),
(1959),Sheppard Maxwell,
At our cases punish activity legal profession governing cannot rules protected by that First Amendment, and Amend the First attorney protection even when the violates ment survives obey prac disciplinary when admitted to the rule he swore to (1978); g., Primus, In re 436 U. S. See, law e. tice of . supra. have not in recent Arizona, Bar We Bates v. State years accepted theory prac colleagues’apparent that the our brings comprehensive restrictions, or that with it tice of law professional bodies when those restrictions will we defer impinge upon First Amendment freedoms. And none of the by respondent justifications put suffice to sanction forward principles in First Amendment of our normal abandonment attorney regarding pending speech by an cases. the case
V respondent and as in Times we correct, Even if is Seattle ‘practice question [furthers] in an “whether the must balance governmental important interest unrelated to or substantial expression’ suppression ‘the limitation of and whether the of necessary greater [is] no than is Amendment freedoms First particular governmental protection or essential supra, (quoting Times, at 32 involved,”’ Seattle interest (1974)), 396, 413 the Rule Martinez, 416 U. S. Procunier inquiry required searching interpreted Nevada fails the as by precedents. those
A prejudice presents danger Only of the occasional case suggests publicity. Empirical pretrial research exposed jurors exten- when have been the few instances disregard they prejudicial publicity, it are able sive presented upon in court. the evidence their verdict and base in Nebraska generally Decision the Court’s Simon, Does See Impact on the Evidence Fit the Research Press Association (1977); Coverage?, L. Rev. 29 Stan. of News on Jurors Media-Judiciary Relations: of An Alternative View Drechsel, Suggests Non-Legal the Fair About Evidence the What (1989). L. Rev. Voir 18 Hofstra Issue, Press Trial-Free reminding jurors important play to set role an dire cаn upon the decide case information and to out-of-court aside weigh in presented All these factors at trial. of evidence pro- attorney’s speech ongoing affording about favor of protections. ceedings Our First Amendment traditional our notwithstanding, respondent survey colleagues’ has historical restricting interest sufficient state not demonstrated attorneys justify First speech standard of lower of scrutiny. Amendment justification of scru- for a lower standard exists
Still less prosecutor po- speech tiny or involved not here, as this attorney. Respondent and its a criminal defense lice, but attorney single example present where a defense not a amici prosecu- prejudice by public managed statements has discounting the obvious rea- case. Even tion of the State’s topic appellate dif- on decisions for a lack son —the acquittal ficulty appealing absence a verdict of —the survey in much-studied area of evidence anecdotal remarkable. law is advisory commission re- bar association
The various promulgation ABA Rule of ports Model which resulted (1981), regulations at- and other 3.6 Professional Conduct convincing they present torney speech, cite, no and sources attorneys. upon defense restrictions case for *22 Regulation of An Model Rule 3.6: Unconstitutional Swift, See Publicity, Attorney 1003, B. U. L. Rev. Trial Defense (1984) concluding (summarizing there studies 1031-1049 empirical need for restrictions evidence of a or anecdotal is no (“[D]ata supra, publicity); Drechsel, at 35 also see on defense heavy journalists showing reliance of on law enforcement appropriateness prosecutors confirms the fo- sources and attempting cusing when to control attention on those sources police, prosecution, gov- pre-trial publicity”). The other community large hold innumera- officials, ernment and the of information adverse to a ble avenues for the dissemination many scope are defendant, criminal of which not within By regulation. contrast, a defendant Rule 177 or other incriminating preju- speak himself and cannot without fear dicing criminal defendants have insuffi- defense, his and most apart public relations team from de- cient means to retain a countering prosecution purpose fense counsel for the sole my factors conclusion that statements. These underscore attorneys restricting speech of should blanket rulés defense scrutiny. accepted without careful First Amendment B imply Respondent the “officer of the court” label to uses attorney press somehow is inimical to contact with attorney’s proper posits no such inconsis- role. Rule 177 attorney’s tency an role and discussions with the between press. press permits It all comment to the absent “a sub- materially prejudicing adjudicative stantial likelihood of Respondent principle proceeding.” does not articulate the press cannot be reconciled with the at- that contact with the torney’s explain might how this be so. role justice sys- attorneys participate in the criminal
Because complexities, they unique in its hold tem and are trained pending qualifications as a source of information about cases. lawyers regard pending are considered credible “Since they engaged litigation are and are one of the which they knowledgeable positions, are a crucial source of most opinion.” Chicago Lawyers v. Council information (CA7 1975). To the extent the Bauer, 522 F. 2d rely attorneys public upon for information because may attorneys prove the value to the informed, are well this *23 dangers by public speech If the of of the bar. members of ability persuasiveness, speech their arise from its their judicial proceedings, likelihood the explain from the or to dangers speech of are not the sort believed, these will does not First Amendment restrictions. can validate power suppression speech permit its to com- because of of mand assent. attorney’s speech proposition may that an concede
One dangers may present pending not arise that could cases about attorney’s nonparticipant, and that an a from statements may process prevent judicial him duty cooperate or in the proc- taking frustrate that an intent to actions with her from justice system attorneys in sub- the criminal The role of ess. par- fiduciary obligations jects to the court and them to ability may attorney’s position added result some An ties. through proceedings statements to well-timed to obstruct attorney’s though an press, the extent of one can debate violating ability A duties. other established so without do cooperation attorney’s require an extent not an can court weighing dangers proper nonparticipants. possible A speech might about on- occurs when the harm that consider steps proceedings take going court to burdensome forces the change sequestration, of venue. continuance, or such as attorney pending speech by regular an about matter If as a gov- dangers a kind, then substantial of this raised real cases regulation might support additional interest ernmental sanction of so speech. involves the But this case 177(3)’s application safe harbor Rule an innocuous, begrudging, difficult to determine provision that it is so setting. carry arguments in a different would these force precision defining poor vehicle case is The instant ability to a court’s limits under the Constitution the outer adjudicative ongoing attorney’s regulate about statements say very can proceedings. least, however, we At the represents punished petitioner’s statements the Rule which greater than is nec- freedoms Amendment of First limitation govern- particular protection of the essary essentiаl or danger against protect and does interest, mental likelihood. necessary gravity, imminence, *24 legal profession is advocacy theof vigorous demand we The dispassion- place neutral, the under accepted it takes because delays Though system. and cost judicial the of ate control judicial trial many American cases, the too it in all undermine the lawful for purest, forums most rational the one of remains just profession takes disputes. A which of determination may if law- them disserved consider pride traditions in these allegations insight to make untested yers and skills use their of constraints But courtroom. press in the of instead the disapproval as will act responsibility and societal professional circum- some And in safeguards in most cases. sufficient rights protect necessary is comment stances be said It cannot prevent the courts. abuse client and any specific real or petitioner’s demonstrated conduct full have the legal process, statements and his threat protection First Amendment.3 of the
HH > Supreme is of Nevada judgment Court The
Reversed. 177(2) prohibition categorical is a that Rule argues Petitioner Petitioner of overbreadth. analysis because First Amendment which fails “pre are particular statements providing that as interprets this subsection surrounding the the circumstances regardless prohibited sumptively ” 177(2)’s Rule read Respondent does not 48. Petitioner Brief for speech. prejudice estab material as likely” to “ordinarily create statements list of a law to “assist as intended but rather evidentiary presumption, lishing an opinions of the n. 27. Respondent Brief for compliance. yer” in this not address Supreme Court do the Nevada Disciplinary Board sup at one treatise least reading plausible, is petitioner’s though point, Hodes, Law The Law of W.& G. Hazard reading. See ports petitioner’s 398-399 Conduct Professional Rules of the Model on A Handbook yering: (b) presump creates Rule 3.6 ABA (1985) Model (analogous subsection opin lower court in the lack of discussion Given prejudice). tion of arguments. these find, we not address do we ion, difficulties the other KENNEDY, J. OF TO OPINION
APPENDIX Appendix A Opening the Press Remarks Petitioner’s Conference of App. 8a-9a. February Pet. Cert. 5, 1988. saying in clear this off I want to start “ME. GENTILE: significant event is a this indictment I think that terms that City sophistication of the history theof evolution in the exactly this things nature, of Vegas, this because of Las French connec- happened in New York have nature there— two cases least in Miamiwith cases—at tion case and cities Chicago three of those but all well, happened in have people enough it; who did to indict honest have been cops. police department, crooked you’re develops, goes and as it trial, *25 this case “When Grady only prove that going will that the evidence to see any nothing person to do with had and innocent is an Sanders against the being him, that but charges are leveled that theof position the stolen to have person most direct in the that was Express checks, Travelers’ money, drugs American and Steve Scholl. Detective is Detec- that will establish evidence that far more
“There is Ex- drugs these American took and these took tive Scholl being. living any human other than checks Travelers’ being Grady is Sanders say I that that feel to “And I have up obvi- try has to be scapegoat what to cover to used as Depart- Metropolitan Vegas Police people Las at the to ous Attorney’s office. the District ment and charges con- that are respect other to these with “Now, victims, I sit other indictment, so-called in this tained are you of them one, two—four today that I can tell here money and launderers drug convicted dealers known anything say about a word didn’t drug whom three dealers; they by approached and after they Metro were until after trying themselves work already and are in trouble were something. out
“Now, moment, course, until the that up they stаrted with going along what detectives from Metro wanted them to these say, were held out as incredible and people being being liars same who are by very people going say now that can you believe them.
“Another are problem you to see here is going develop counts, fact that of these other at least four them said about about nothing this, until anything being missing after Las Police Vegas Metropolitan Department an- nounced last their claim that publicly year drugs Ameri- can Travelers’ Express were missing. c[h]ecks of the contracts that these had
“Many people show on the face of the contract that there is insurance $100,000 for the contents box.
“If look at the indictment you very closely, you’re going see that these claims fall under $100,000. there
“Finally, were two claims on the face of in- only dictment that came to our attention prior the events of January ’87, 31 of the date that being Metro said that there was from their box. something missing
“And both of these claims were dealt with Mr. Sanders essentially we’re here dealing people we’re not sure if they ever had in the box. anything
“That’s about all that I have to say.” [Questions the floor followed.] B
Appendix *26 Nevada Rule Supreme Court as prior effect 5, 1991. January “Trial Publicity
“1. A shall lawyer not make an statement extrajudicial a reasonable would person to be disseminated expect means of if communication knows or public lawyer reason- ably should know that it will have a substantial likelihood of an materially prejudicing adjudicative proceeding. ordinarily is “2. A statement referred to subsection likely it refers to a civil matter to have such an effect when any proceeding jury, matter, or other triable to a a criminal relates and the statement incarceration, result that could to:
“(a) reputation credibility, or criminal character, investigation suspect party, in a criminal of a
record identity witness, of a or the ex- witness, or or the testimony pected party witness; a or “(b) proceeding in in- in criminal case that could result a or plea guilty possibility of a of-
carceration, any confession, the existence or contents of fense or given by a or statement defendant or sus- admission, person’s pect or a or that refusal failure to make statement;
“(c) performance results of examination or test or person to an
or the refusal or failure of submit identity physi- or or the or nature of test, examination expected presented; cal evidence to be “(d) any opinion guilt or innocence of a defendant proceeding suspect or that could
or a criminal case incarceration; result in
“(e) lawyer reasonably knows or should information likely as evidence in a trial
know is to be inadmissible prej- if create a substantial risk of and would disclosed udicing impartial trial; an or “(f) charged that a has been the fact defendant included therein a statement ex-
crime, unless there is charge merely plaining that the is accusation presumed until and un- that the defendant is innocent proven guilty. less 2(a-f), lawyer Notwithstanding in-
“3. subsection may investigation litigation of a matter state in the volved without elaboration:
“(a) general defense; claim or nature of the *27 public record; in a
“(b) contained the information progress, in- inis matter investigation of the “(c) an that investigation, the scope the of general cluding the except and, involved defense or claim or offense persons identity the of by law, the prohibited when involved; litigation; step scheduling of
“(d) result or the in- obtaining and evidence “(e) request for assistance a necessary thereto; formation per- of a concerning behavior the danger “(f) warning of that believe reason is there when involved, son an harm to of substantial likelihood the exists there and public interest; the toor individual case: “(g) criminal in a family occupation and identity,
“(i) residence, the accused; the status in- apprehended, been “(ii) has accused if the apprehension of necessary aid formatiоn person; that and place arrest;
“(iii) time fact, arresting of- investigating and identity “(iv) length of the agencies and or ficers investigation.” opinion delivered Rehnquist Justice Chief dissent- and delivered II, I and respect Parts
Court in which III, respect to Part Justice ing opinion with join. Souter Justice Scalia, Justice White, to the making statements disciplined for was Petitioner criminal represented a he in which pending case about Ne- Supreme Court bar, state defendant. have should petitioner knew that found review, vada on state- his likelihood a substantial was there known client. his trial materially prejudice the would ments Amendment First petitioner contends Nonetheless, standard requires a stricter Constitution States United may attorney disci- be such before met *28 prejudice finding plined: “actual or a sub- there must be a fair trial.” Brief for Peti- imminent threat to stantial and likelihood of conclude that the “substantial tioner 15. We applied by prejudice” standard Nevada and most material the First Amendment. other States satisfies
HH subject highly publicized client was the Petitioner’s response publicity client, to adverse about his case, and day press conference on the after Sanders was held Gentile petitioner among conference, made, At the indicted. following others, the statements: goes develops, as it trial, this case to and
“When only prove you’re going will see that the evidence person Grady an innocent and had noth- that Sanders is any charges being ing are with of the that leveled to do person against that the that was the most di- him, but money, drugs position and the to have stolen the rect Express cheeks, Travelers’ is Detective Steve American Scholl. far evidence that will establish that
“There is more drugs these Ameri- took these and took Detective Scholl living Express than other Travelers’ checks can being. human today Ias sit here I victims, . . the so-called other
“. drug you them are one, that two—four of known can tell money drug launderers and deal- dealers and convicted say anything a word about three of whom didn’t ers; by they approached after were Metro and until after trying they already in trouble and are to work were something. themselves out of they up course, moment, “Now, until along going with what detectives from Metro started being say, people were held out as these wanted them very people being same who incredible and liars App. you them.” say going can believe now that are 8a-9a. for Cert. to Pet. questions response to following were statements press:
from members merely stigma that attaches . “. . because represent okay—I an innocent I being know accused— you, a conference I had time The last .... man you you I told him talk to I let with a client was Okay? it was. dismissed would be case represent an cheap I like this. shots “I don’t take *29 right? guy. All innocent very . . . playing and loose. police] fast
“[The were you tapes a look at if take got that video some We’ve Scholl] [Detective had a you either what, I’ll tell them, a better doctor.” have seen he should cold hell 14a. Id., 12a, describing newspapers the appeared in the local
Articles petitioner’s The trial took statements. press and conference although trial the later, place approximately months and six jury empaneling not been acquitted had that court succeeded coverage was and Sanders the media affected petitioner disciplined for his charges, bar the state on all statements. peti- Disciplinary that found Board Southern Nevada
The perpetrating the accused he the detective knew tioner prosecu- drugs the for abusing be witness would and crime whom he petitioner others believed that It also found tion. drug money would be dealers and launderers as characterized pur- admitted prosecution Petitioner’s witnesses. as called public counter calling press to was pose conference the fight client, his perceived adverse to opinion as which he poi- prosecution to perceived against efforts back present publicly his cli- juror pool, prospective and to son light of the that found board of the case. side ent’s petitioner purpose, timing, petitioner’s statements, their like- a substantial there was known that have knew or should materially prejudice the statements would that the lihood trial. Sanders decision, Supreme the board’s Court affirmed
The Nevada petitioner convincing finding by evidence that clear and reasonably comments that his known should have “knew or materially prejudicing the ad- likelihood had a substantial 2d 787 P. 60, 62, 106 Nev. judication case.” client’s of his “highly (1990). the case was noted that The court day after the held the publicized”; conference, arraignment, day was “timed the same indictment petitioner’s impact”; comments maximum to have credibility, reputation or criminal character, “related to the potential police witnesses.” and other detective record of preju- actual “absence of concluded that The court Ibid. likeli- was no substantial that there establish dice does prejudice.” Ibid. of material hood
h-1 h-H applied stringent m standard same asserts Gentile (1976), re- 427 U. S. Stuart, Assn. Press Nebraska *30 during pendency a crimi- publication press on straints by lawyer applied client a whose to nal trial should proceeding. case, we In that criminal in a is a defendant commentary press suppress on eviden- in order held that tiary “further have to show that would the State matters, potential distort the views publicity, so unchecked, would proper would, who under jurors not be found could that 12 just duty verdict to render a their sworn instructions, fulfill open presented Id., at in exclusively court.” the evidence on Respondent, relies on statements hand, other on the 569. (1966), Sheppard S. 333 Maxwell, 384 U. v. such as cases press distinguished restraints on sharply between which pаrties lawyers clients are whose on restraints proceeding:
1066
“Collaboration between counsel and the in as to affecting formation the fairness of a criminal trial is not only subject regulation, highly but is censurable and worthy disciplinary measures.” at 363. Id., opposing To contentions, evaluate these some reference must history regulation practice be made to the of the of law by the courts. historically regulated
In States, the United the courts have practice admission to the of law before them and exercised authority discipline ultimately lawyers to disbar departed prescribed whose conduct standards. “Mem- bership privilege a the bar is burdened with conditions,” to oft-repeated use the statement J., in In re Cardozo, Rouss, (1917),quoted 221 81, 84, N. Y. 116N. E. 782, Theard (1957). States, 278, United 364 U. S. century ago, legal than a More the first officialcode of eth- country, promulgated ics in this the Alabama Code of 1887, attorneys Newspaper Legal warned to “Avoid Discussion of “[n]ewspaper publications by Matters,” and stated an at- torney pending anticipated litigation the merits or prevent . . . tend to a fair trial in courts, and otherwise prejudice justice.” the due administration of H. Drinker, (1953). Legal Ethics In 1908, the American Bar As- promulgated code, sociation its own entitled “Canons of Pro- Many adopted fessional Ethics.” States thereafter the ABA jurisdictions. Canons for their own Canon 20 stated: “Newspaper publications by lawyer pending as to anticipated litigation may interfere awith fair trial in prejudice Courts and otherwise the due administration justice. Generally they are to be If condemned. particular justify extreme circumstances of case public, unprofessional statement to the it is to make it anonymously. parte An ex reference to the facts should beyond go quotation papers from the records and on file but even in court; extreme cases it is better to *31 parte avoid ex statement.” quarter century, legаl profession has re- In the last extrajudicial its ethical limitations on statements viewed by lawyers interpreting in the context of this Court’s cases Amendment. ABA Model Rule of Professional the First Responsibility 3.6 resulted from the recommendations of the (Advisory Advisory on Fair Trial and Free Press Committee Committee), upon created the recommendation of the report The on Warren Commission. Warren Commission’s Kennedy of President included the recom- the assassination mendation
“representatives
bar,
of the
law enforcement associa-
together
the news media
tions, and
work
establish
concerning
presenta-
ethical standards
the collection and
public
tion of information to the
so that there will be no
investigations,
pending
with
interference
criminal
court
proceedings,
right
a fair trial.”
or the
of individuals to
Report
on the Assassination of
of the President’s Commission
(1964),
Kennedy
quoted Ainsworth,
“Fair Trial-
President
(1968).
Advisory
Press,”
Free
45 F. R. D. 417
Commit
developed
Relating
ABA
to Fair Trial and
tee
Standards
relating
comprehensive guidelines
to disclosure
Press,
Free
concerning
proceedings, which were
of information
criminal
formulating
upon by ABA in
Rule 3.6. The
relied
appropriateness
a rule had been identi
for,
of,
need
such
Sheppard
years
Maxwell,
earlier in
fied
this Court two
supra,
In
the Judicial Conference of the
at 362-363.
“Special
Imple
authorized a
Subcommittee to
United States
proceed
study
Sheppard
v. Maxwell” to
ment
necessity
taking
promulgating guidelines other correc
prejudicial publicity.
juries
action to shield federal
tive
Operation
Jury
Report
of the Committee on the
See
System
Issue,
Trial”
45 F. R. D.
on the “Free Press-Fair
(1968).
responding to the
Courts,
recommen
391, 404-407
incorpo
proceeded
report,
local rules
in this
to enact
dations
rating
standards, and thus the “reasonable likelihood
these
by majority
prejudicing
courts,
fair trial”
was used
test
*32
following Sheppard.
years
Ten
in the
federal,
state and
guidelines,
years
and the “rea-
its
ABA amended
later, the
present
changed
to a “clear
test was
sonable likelihood”
(as
danger”
8-1.1
for Criminal Justice
ABA Standards
test.
1986).
1978)(2d
Supp.
ed.
amended
were
Professional Conduct
Rules of
When the Model
go
early
far
drafters did not
as
1980’s,the
drafted in the
prece
giving
press
standards
fair trial-free
the revised
extrajudicial
lawyer’s right make
statements
dence
adopted
implicated,
rights
and instead
fair trial
are
when
prejudice” test.
material
Cur
“substantial likelihood
adopted
rently,
have
to Nevada
in addition
31 States
—either
insignificant
3.6 of the
variations —Rule
or with
verbatim
adopted Discipli
have
Eleven States
Model Rules.1
ABA’s
nary
Respon
of Professional
the ABA’s Code
Rule 7-107 of
lawyer speech
protective
sibility,
than
Model
less
which is
preju
applies a “reasonable likelihood of
in that it
3.6,
Rule
explicitly
Only
Virginia, has
State,
one
dice” standard.2
danger
present
adopted
standard, while four
a clear and
adopted standards
Columbia have
and the District of
States
danger.”3
present
approximate
arguably
“clear and
Indiana, Kansas,
1 Arizona, Arkansas, Connecticut, Idaho,
Kentucky,
Missouri,
Mexico, Pennsylvania,
New
Rhode Is
Maryland, Mississippi,
land,
Carolina,
Wyoming
adopted Model
Virginia, and
have
West
South
Florida,
Montana,
Delaware,
Louisiana,
Hamp
New
Rule 3.6 verbatim.
Texas,
York, Oklahoma,
Dakota,
shire,
and Wis
Jersey,
South
New
New
with minor modifications that are irrel
adopted Model Rule 3.6
consin have
Washington
Michigan
case.
have
presented
this
evant to the issues
(a)
3.6,
adopted
has
only
of Model Rule
and Minnesota
adopted
subsection
(a)
“pending
jury
criminal
application to
only
and limits its
subsection
employing
Model Rule 3.6
a “substan
adopted a version of
Utah
trial[s].”
materially influencing” test.
tial
likelihood
2 Alaska,
Massachusetts, Nebraska,
Iowa,
Colorado,
Hawaii,
Georgia,
Ohio, Tennessee,
Disciplinary
7-107
adopted
Rule
ver
and Vermont have
preju
. . .
the “reasonable likelihood of
also uses
batim. North Carolina
(1991).
7.7
Rule of Professional Conduct
test.
dicio]"
(1990) (“serious and imminent
Professional Conduct 3.6
3 IllinoisRule of
proceeding”); Maine Bar Rule of
adjudicative
threat
the fairness of
Amendment
the First
however, that
maintains,
Petitioner
requires
State,
such as
States Constitution
United
present
a “clear
case,
to demonstrate
this
Nevada
prejudice
danger”
threat” before
an imminent
of “actual
lawyer
may'be imposed
any discipline
who initiates
on a
He relies on
here.4
as occurred
such
conference
*33
427 U.
Stuart,
Press Assn. v.
S.
Nebraska
such as
decisions
(1941),
(1976), Bridges
252
314 U. S.
v. California,
539
Pennekamp
(1946),
Craig v.
and
331
Florida, 328 U. S.
v.
(1947),
position.
support
In
Harney,
his
to
Respondent Bar of State repre lawyers who involved these cases none hand, that points to proceeding in court. It pending parties ato sented rel. ex v. Colorado Patterson J., Holmes, the statement (1907),that U. S. Colorado, 205 Attorney General of subject crit same are courts “[w]hen finished, case is necessity pre propriety people, but as other icism venting by premature justice the course interference hardly denied.” can be argument intimidation statement, Bridges, points statement a similar Respondent also supra, 271: evidence on the very decisions connotes ‘trial’ word
“The Legal open court. properly arguments advanced through the use won to be elections, like trials are newspaper.” meeting-hall, radio, and many dilem- positions one opposing illustrate These *34 adjudication. constitutional of in the course arise mas which epitomize Bridges the quotes Patterson from The above theory upon system justice founded: is our criminal which impartial by to be decided trial is criminal of a The outcome on possible case, based the as little jurors, know who in a court them before into evidence admitted material of, or discussion Extrajudicial on,' comments proceeding. parte ex trial and might be admitted never which evidence obvi- the facts giving version their counsel statements tenet. this basic ously undermine to threaten system justice ex- criminal however, the time, At the same peo- ultimately government larger of a context in a ists happenings the crimi- in about informed ple, to who wish sufficiently those about system, informed if justice and, nal system. changes The the in might to make happenings, wish the media. acquire is from information way of them most speech have protections Amendment The First showing require a above, to cited cases in the held, been danger” present in the criminal that a malfunction “clear and may prohibit system justice a State be caused before will pending particular speech publication trial. a about media lawyer question in case is whether a must answer this The we justice represents the criminal a defendant involved with who may system before he is disci- on the same standard insist pronouncements plined public or whether case, about may speech upon penalize a that sort of instead the State showing. lesser during unquestionable itself, a that in the courtroom
It is
right
speech”
judicial proceeding,
an attor-
whatever
to “free
attorney may
extremely
ney
not,
An
circumscribed.
has is
ruling
by speech
of the trial court
conduct, resist
or other
preserve
appeal.
necessary
beyond
point
a claim for
(1952)(criminal trial);
1, 8
States, 343 U. S.
v. United
Sacher
(1949)(civil trial). Even out-
1072 ) person lawyer con- he too has a and is a a course,
“Of may exercise it to and freedom of utterance stitutional jlistice. But of castigate administration and their courts particularly actively participating lawyer trial, in a a emotionally merely prosecution, charged is not criminal lawyer. merely a person and not even part of the and essential trusted intimate and “He is an machinery justice, the most of the court' an ‘officer of (Frankfurter, J., compelling 668 Id., at sense.” JJ.). dissenting, joined Harlan, Whittaker, Clark, Sheppard Maxwell, where the defendant’s Likewise, pre- prejudicial extensive overturned because convictionwas trial, fair we held publicity defendant a denied the trial had publicity, remedy but for such new trial was that a palliatives; are but that reversals remember “we must pre- that will measures remedial lies those the cure inception. prejudice courts must at its vent the protect regulation steps by will rule take such prejudicial processes interferences. outside their prosecutors, accused, defense, counsel Neither coming officers enforcement witnesses, court staff nor permitted jurisdiction the court should of under betweencounsel function. Collaboration frustrate its affecting as to and the fairness information subject regulation, only but trial is a criminal worthy disciplinary meas- highly is censurable added). (emphasis S., ures.” U. partici contemplated those expressly We distinction pating be limited.5 This the courts could before consistently all of Rule 177 parts read Supreme has Court The Nevаda cases, lawyers or and not to other lawyers pending only to applying as constitutionality regu a rule express opinion on the nonlawyers. no We pending in the participating lawyer who is not lating the statements all the cases We note made. the statements are case about which present danger clear and supporting the use petitioner cites
1073 strangers is litigation to it and participants in the between holding Times by in Co. sharp Seattle our brought relief into unanimously (1984). we There, 20 U. S. Rhinehart, 467 v. in a libel defendant newspaper, a was itself which a held that about publishing material restrained could be action, gained had supporters it to which plaintiffs their and the discovery. we case In that through court-ordered access First their “[although litigants ‘surrender do not said may rights those door,’ rights courthouse at the Amendment setting,” in this arise interests to other subordinated (citation omitted), sev- that “on noted and 18 32-33, n. at id., approved the commu- have] on [we restriction occasions eral necessary a to ensure participants where trial of nications Ibid. a criminal defendant.” fair trial pendency and the the courtroom far from in an area Even right lawyer’s dealing under awith decisions case, our of a con advertise, solicit business Amendment First suggested that have promulgated ethics, of trary rules to the same protected Amendment the First lawyers are g., e. See, engaged in businesses. other as those extent (1977);Peel v. S. 350 433 U. Arizona, Bar v. State Bates Ill., Disciplinary 496 Registration Comm’n Attorney S. Assn., 436 U. Bar (1990); Ohio State Ohralik 9 U. S. balancing engaged in a (1978). cases, we In each these regulation a in weighing interest process, the State’s lawyer’s Amendment against First profession specialized These cases at issue. that was in kind interest party was nonthird arguably involved that even standard, only one (1962), county was held sheriff where S. 375 Georgia, U. v.Wood judge grand to a by a given criticizing instructions publicly contempt for by vir- court” technically “officer sheriff was Although the jury. were made his statements position, the Court determined his tue of official duties. citizen, to his no connection capacity private as a his petitioner, whose statements be said about cannot Id., The same 393. of, role as defense of, his furtherance course made were counsel. principle long-established
recognize in In stated re *37 (1960): 672, 166 N. E. 2d 675 Cohen, 488, 495, Y. 2d 7 N. “Appellant could not be denied as a citizen rights in- But he stood before the of citizens. common Appellate quite quiry in another Division and before lawyer capacity, ‘an officer also. As a he was different itself, like the court an instrument. . . and, the court, of Hurley, justice (quoted in Cohen v. 366 . . . of (1961)). 126 117, S.U. opinions quoted in statements from our think that the
We
(1959),
Sheppard
Sawyer,
v. Max
In re
When a against the interests rights, must balance those Court activity ques- regulating legitimate interest State’s supra, g., at 32. “substan- Times, e. Seattle See, tion. 177 is constitutional Rule likelihood” test embodied tial integrity protect designed analysis, for it is this under *38 only imposes system, judicial it and a State’s fairness of and lawyers’ speech. necessary The on limitations narrow and (1) principal comments evils: aimed two are at limitations and likely trial, the actual outcome to influence are jury (2) prejudice likely venire, to are comments ultimately if Few, panel be found. can if untainted an even more fundamental are any, under Constitution interests jurors, by an “impartial” right a fair trial to than the by extrajudicial violate would statements outcome affected Sheppard, g., right. S., 384 U. See, e. that fundamental (1965)(evi- 466, 379 U. S. Louisiana, 350-351; Turner solely stand from witness trial must come in criminal dence evidentiary protections). if Even public with full courtroom through dire, ultimately voir be ensured can a fair trial entail these measures change device, some other venue, of may system. dire voir Extensive costs serious publicity, pretrial of of the effects out all to able filter coverage widespread of criminal increasingly media may of undo the effects change to not suffice of venue trials, a by petitioner. has The State made as those such statements such preventing court, officers interest a substantial system judicial imposing on the lawyers, costs such litigants. and on the narrowly speech to achieve tailorеd is restraint on
The attorneys’ speech regulation lim- objectives. is The those likely substantially to only applies that is to ited—it points materially prejudicial neutral as to it is effect; have a attorneys participating in equally applying to all view, attorneys’ merely postpones com- pending it case; by supported the substan- While the trial. ments until after adjudicative prejudice preventing an to interest tial state integrity, duty protect by its proceeding have those who only speech preventing hav- its face Rule is limited on materially prejudicing that ing a substantial likelihood proceeding.
Ill extrajudicial deciding lawyer whether To assist a problematic, out statements Rule 177 sets statement is Contrary petition- prejudice. likely to cause material are evidentiary presump- improper are not contention, these er’s derived, 177 was which Rule 3.6, from Model Rule tions. categorical prohibitions designed specifically avoid the was of Profes- attorney speech in ABA Model Code contained (1981). Disciplinary See Responsibility Rule 7-107 sional Standards, Evaluation Professional ABA on Commission and Comments *39 Sheppard: in Court prejudicial many can news items the of
“The fact ag- prosecution, defense, as well as the be traced any . . . Ef- judge’s take action. gravates failure to concededly within these control of fective sources— prevented the divul- power might have well court’s — and accusations gence information, rumors, of inaccurate inflammatory publicity up .... much of the made pro- might have specifically, well trial court “More any lawyer, party, by extrajudicial statements scribed
1077 divulged prejudicial mat- which official witness, or court in- Sheppard to to submit of as the refusal such ters, any any statement tests; terrogation lie detector or take identity prospective Sheppard of officials; to made guilt testimony; probable belief their or witnesses conсerning of the merits like statements or innocence; or Duyne, 369, 389, 43 N. J. v. Van State case. See interpreted (1964), the court which 841, 204 A. 2d 852 of Canons Association’s Bar American 20 Canon prohibit such statements.” to Ethics Professional at 361. S.,U. uncon- and thus overbroad, 177is Rule claims that
Gentile applies than more to it because face, its on stitutional goals. “overbreadth” necessary The the State’s to serve is constitutionally “prohibits applies enactment if an doctrine City Grayned U. S. Rockford, 408 protected conduct.” (1972). must unconstitutional, overbreadth beTo 104, University Trustees State Board be “substantial.” (1989). no Rule 177 is 492 U. S. Fox, N. Y. v. It necessary protect interests. the State’s to than broader pending issue, case at lawyers only applies involved pending make cases can lawyers involved even those and extrajudicial long not do as such statements statements adjudi- prejudice material present risk of a substantial applies bench Rule 177 proceeding. fact that The cative likelihood overbroad, substantial it not make trials does is required the Rule violated. before prejudice is still judge is the trier rarely where met will That test to inadmissible judges access have often trial fact, since presumed able to to be are highly prejudicial information con- Rule 177is disregard reasons it. For these discount its on face. stitutional vagueness be- argues 177is void for that Rule also
Gentile adequate his comments provide notice that did cause it void-for-vagueness discipline. doctrine subject were right and ade- notice to fair defendant’s with a is concerned *40 quate warning See, runs afoul of the law. his conduct (1974); g., Goguen, 566, e. v. 572-573 Colten Smith 415 U. S. (1972). Kentucky, Rule 177 was 104, 407 U. S. provide compilation drafted with the intent to “an illustrative ordinarily posing unaccept- gives fair notice of conduct justice.” dangers Proposed able to the fair administration provides Final Draft 143. The Rule sufficient notice of the prohibited the nature of the conduct. Under circumstancеs complain petitioner notice, lack of as case, of his cannot about objective holding primary in he has that his admitted prohi- press conference was the violation of Rule 177’score prejudice upcoming influencing poten- trial bition—to clearly jurors. given notice that such tial Petitioner was likely and the list of conduct to cause forbidden, conduct was certainly prejudice, only advisory, gave while notice that the they if the Rule had the in- statements made would violate effect. tended majority agrees petitioner that he was the victim vagueness regulations unconstitutional because of (see §3 §§ relationship 1 and of Rule 177 between 1033-1034). attorney
ante, Section 3 allows to state notwithstanding general “the nature of the claim or defense” § prohibition examples in 1 contained and the contained § majority points out, 2. It as the that the true, is course “general” “elaboration” are word and the word both terms of § they degree. But are the first sentence combined they convey very proposition definite that the authorized allegations must not the sort of detailed statements contain petitioner made at his conference. No sensible following “general” person could think that the were state- a claim made “without elaboration”: “the ments of or defense position person to have that was the most direct stolen money drugs Scholl”; and the ... is Detective Steve “there is far evidence that will establish that Detective Scholl more Express drugs American Travel- took these and took these living being”; “[Detective than other human ers’ checks *41 Scholl] either had a hell cold, of a or he should have seen a better and doctor”; “the so-called other victims . . . one, drug two—four of them are known dealers and convicted money exception provi launderers.” 3, Section anas to the §§1 light prohi sions of and 2, must be in read examples bitions contained thе first two sections. It obviously negate prohibitions was not intended to or the examples simply provide wholesale, but intended to a “safe might harbor” where there as to be doubt whether one of the examples proposed provisions covered conduct. These were vague petitioner not as to the which conduct for was disci plined; “[i]n determining sufficiency of the notice a stat necessity light ute must of be examined of the conduct charged.” with which a defendant is United States v. Na (1963). Dairy Corp., tional Products 372 U. S. strongest arguments Petitioner’s are that the statements were made well trial, advance of and that the statements jury panel. Supreme did not in fact taint the But the Court pointed petitioner’s of Nevada out that statements were not only highly inflammatory they portrayed prospective gov- — drug money
ernment witnesses as dealers, users and and as launderers —but statements were timed to have maxi- impact, public mum when interest in the case was at its height immediately Reviewing after Sanders was indicted. independently Pennekamp the entire record, see Florida, petitioner’s 328 U. S., 335, we are convinced that state- “substantially likely prejudice” ments were to cause material proceedings. pro While there is evidence and con on point, persuasive we find it that, his own admission, petitioner express purpose called the conference for the influencing the venire. It is difficult to believe that he trouble, went to such risk, and took such a if there was no substantial likelihood that he would succeed.
While in a case such as this we must review the record for highest ourselves, when the court of a State has reached a give respectful determination “we most attention to its rea- Nevada, Bar The State Ibid. soiling conclusion.” Supreme Court findings, factual its own made which findings, a far better were upheld those Nevada, which petition- likely effect appreciate the position are than we panel jury in a potential members on statements er’s and the Ne- board this. publicized highly case such apply statements list of Supreme did Court vada spe- presumptions, but prejudice as likely material to cause prejudice the petitioner intended had cifically *42 found and upon of the statements nature the that based trial,6 likely substantially cause to they timing, in fact were their the upon review our cannot, prejudice. We material United they See mistaken. were that conclude record, 394-396 364, Gypsum 333 U. S. Co., States v. United States (1948). Kennedy no material can be there that to contend appears 6 Justice publicity favorable response to in publicity is lawyer’s the
prejudice when Kennedy find would Justice Ante, 1041-1043. other side. the to be itself publicity cannot prejudicial designed to counter publicity it jurors, unless influencing potential despite its likelihood prejudicial, affirmatively in biased jurors to be as to cause go so far actually would be diffi would place, such test first In the lawyer’s the client. favor fundamentally, it misconceives more apply. But cult, impossible, to if not “ lay ‘juror can juror impartial an test for the constitutional —whether pre evidence on the render verdict opinion and impression or his aside (1975) 794, (quoting Florida, 800 421 U. S. v. Murphy in court.’” sented may have (1961)). juror who been 717, A Dowd, 723 U. v. 366 S. Irvin pros to the favorable by publicity open-mindedness swayed from initially fa by publicity by being bombarded for service fit rendered is not ecution system legal is that our premise of The basic defendant. to the vorable Bridges v. See, g., court, e. in the media. tried be should lawsuits (1941); ex rel. Attor 252, Patterson Colorado California, S. 314 U. (1970). bemay A defendant Colorado, 205 U. S. ney General of of, prosecution police, by, in favor publicity protected from and, instructions, in extreme venue, dire, jury change of through voir remedy prosecutorial for grounds. The cases, process on due reversal similarly prej self-help the form of not in lies violate the rulе abuses prosecutor. counsel, disciplining but by defense comments udicial argue requires amici that the First Amendment Several judicial proceeding prejudice be- the State to show actual to a attorney may disciplined extrajudicial for state- fore Supreme the board and the Nevada Court ments, since prejudice, petitioner should not have been found no actual way stating disciplined. simply But this is another applied stringent of Nebraska Press should be standard lawyer pending case, of a and for the given adopt An we decline to it. added reasons heretofore applied lawyer objection the stricter standard when adopted, participants if is that it were even comments more flagrant petitioner could not serve than those made wholly independent disciplinary action for if, the basis for proceedings. they An no effect on the attor- reasons, had ney prejudicial who made comments would be insulated from discipline government, if reasons unrelated to charges, plea or if a comments, decided dismiss bar- equally culpable attorney gain reached. An whose cli- were discipline. subject trial ent’s case went to would be Constitution does not mandate such a fortu- United States itous difference. *43 practice petitioner was admitted to law before the
When “I the oath which he took recited that will courts, Nevada by support, abide and follow the Rules of Professional Con- may adopted by Supreme the duct as are now or hereafter be (1991). Supreme 73, Court. . . .” Rule Nevada Court Rules obliga- him First Amendment does not excuse from that The by discipline imposed upon him tion, nor should it forbid the Supreme Court of Nevada. Supreme I affirm the of the Court of would decision Nevada. O’Connor, concurring.
Justice agree opinion. In I with much of The Chief Justice’s may by particular, agree regulate speech I law- that a State readily yers pending representing than clients in cases more Lawyers may regulate press. are оfficers of the court it precepts subject to ethical may legitimately be such, and, as might engaging otherwise in what keep them that Sawyer, 360 speech. In re constitutionally protected See result). concurring (1959)(Stewart, J., 646-647 U. S. lawyers First forfeit their course, that mean, of This does ap- demanding standard only rights, less that a Amendment the “substan- that agree plies. Justice The Chief I prejudice” standard articulated material tial likelihood join Accordingly, I passes muster. constitutional Rule opinion. II of Parts I and Justice’s Chief Kennedy’s III of in Part set out reasons For the Justice void for Rule is Nevada’s opinion, I that however, believe provi- (3) 177is a “safe harbor” vagueness. of Rule Section prohibitory “notwithstanding” lan- states sion. It lawyer involved Rule, “a guage elsewhere located may elaboration litigation investigation state without Gentile defense.” general claim or [t]he nature . . . stay of this the boundaries within effort a conscious made gave conference, Gentile In his brief “safe harbor.” present intended only rough he the defense sketch of Grady stole Sanders, Scholl, not e., that Detective at trial —i. provide asked When checks. traveler’s the cocaine stating explicitly the ethical declined, he details, more Nevertheless, Ante, 1049. compelled do so. him to rules view, because, in its disciplinary Gentile sanctioned board permitted scope beyond what was went his remarks disciplinary have valid board and the Both Gentile the Rule. support the view serves to arguments side, but this on their guidance. As Justice provides insufficient Rule that the vague the Con- points Kennedy law offends correctly out, give it is to those fair notice fails to it because stitution discriminatory possibility of creates the deter and intended *44 Haslip, 499 v.Co. Ins. Mut. See enforcement. Life Pacific join (1991) dissenting). Parts I J., 421,S.U. (O’Connor, reversing opinion Kennedy’s of Justice III and VI Supreme that basis. on Court judgment Nevada Conduct, Notes Professional Model Rules of 1981) (Proposed May (Proposed Draft, Final 143-144 Draft). likely mate- to cause listed as statements Final closely this list outlined prejudice a similar track rial