In Re Hinds

Aрpellate Division’s denial experts’ of award of fees is affirmed.12 judgment Appellate

As modified the Division is af- firmed. WILENTZ,

For affirmance—Chief Justice and Justices PASHMAN, CLIFFORD, SCHREIBER, HANDLER, POL- LOCK O’HERN—7.

For reversal —None. HINDS,

IN THE MATTER OF LENNOX S. AN ATTORNEY AT LAW. Argued February Decided August 1982. remand, 12On it for may to reinstate its appropriate plaintiff request

injunctive relief should defendant be found to have failed to with the comply June 1977 consent order DEP case. companion argued Morton Stavis respondent cause for Lennox S. (Morton Stavis, Hinds Bernard K. Freamon and Alfred A. Slocum, attorneys; Myers, Jr., Lewis a member of the Mississip- pi Bars, counsel; and Illinois Stavis, Morton Bernard K. Mullin, brief). Freamon and Neil M. on the A. Coolbaugh, Director, Colette Assistant Ethics & Profession- Services, argued al complainant the cause for District VIII (Colette Ethics Coolbaugh, Committee A. attorney; Harold L. Rubenstein, brief). on the of amicus a brief on behalf Latimer submitted

Stephen M. Jersey (Stephen New M. Lawyers of Public Interest curiae Thornton, Patricia on Latimer, George Conk and attorney; brief). submitted a brief on and Frank Askin M.

Elizabeth Schneider Civil Liberties Union The American of amici curiae behalf Lawyers of of Black Women The Association Jersey and New Jersey. New delivered was opinion

The of the Court HANDLEE, J. scope of the constitutional requires us to determine

This case making out-of-court state- attorney an for disciplining rules ongoing conduct of an criticizing judge’s the trial publicly ments Hinds, that as a appellant, claims trial. Lennox criminal Amendment, First an right under the of constitutional matter making statements un- for such attorney disciplined cannot danger” to the fairness present a “clear and they present less disciplinary standard primary judicial proceeding. case, however, requires discipline of in this sought applied to be “reasonably like- extrajudicial attorney if his statements an 7-107(D). trial. DR interfere with a criminal ly” to “reasonable likeli- constitutionality of the affirm the We now 7-107(D) restricting attorney extraju- standard of hood” We setting a criminal trial. specific speech in the dicial particular of whether a the determination further hold with a fair trial involves a to interfere likely statement factors, of the sta- including consideration balancing of careful statement, timing of the as the nature and attorney, tus addition, In we which it was uttered. the context in well as attorney 7-107(D) only to an of record applies not hold that DR cooperates with attorney who but also to in a criminal case basis, provides legal continuing regular on a the defense charge, defense of a criminal with the in connection assistance team. member of the defense out to be a holds himself However, opinion represents this time we because first that interpreted 7-107(D) proper scope have of DR and to be applying disciplinary standard followed in this rule to statements, extrajudicial deem appropriate give we it our prospective determination only. Consequently, effect we dis- Hinds, charges against miss these well charges as as related 1-102(A)(5), attorney under DR which sanctions is conduct that “prejudicial justice.” to the administration

I procedural background We deal first with the and factual the case. Hinds has been member Jersey a of the New Bar since prominent 1973. He has been a lawyer active as in civil rights causes and has reputation a national for his as work Lawyers (herein- Director of the National Black Conference of “NCBL”), after a which capacity years in he served for five Chesimard, until 1978. In Joanne a black reputed woman radical, to be a killing militant was accused of New Jersey a arrest, State trooper. Following her brought Chesimard was trial a long represented after series of delays. Hinds Chesimard during pretrial period this in several federal civil actions con- cerning general legality conditions of her incarceration not, however, apparently Hinds represent State. did Chesimard at her criminal trial.

Chesimard went finally on trial for murder in 1977 in the Court, Superior Division, Law New in Brunswick. After observ- ing the initial phases of the trial jury and while the was still being impaneled, press Hinds called a conference at his New Brunswick office on January 1977. In an appearing article 21, 1977, January in the Daily New York News under the headline, “Joanne Loses 2 Transfer,” Rounds in Trial it was reported that: representing ... Lenox [sic] Hinds, also Mrs. said the attorney Chesimard,

defense team the case wanted moved to court another because New Bruns- seeing legalized lynching.” wick we “what speaking for the defense team because its members were He said he was judge] asking jurors “gagged” whom he accused of trial prospective by [the self-serving leading hang- he were to “the creation which said questions man’s court.” appearing Star-Ledger An article in the Newark on the same referred to the trial as reported date that Hinds had Chesimard quoted saying The article further Hinds as travesty.” “a judge judicial temperament trial “does not have the or the judge” in sensitivity impartial racial to sit as an Chesimard’s trial, only began began and that was after the trial that we “[i]t seeing is legalized lynching.” to have fears that what we are Also, reporter covering press a television the conference for Broadcasting (Channel 52) Jersey Authority the New Public following exchange: recorded the kangaroo—it kangaroo “We it is a will be a court unless the

Hinds: feel that judge recluses himself and that will be the minimum. [sic] very kangaroo guilty means a verdict?” “And a court Reporter: Hinds: “That’s correct.” (now the District County

The Middlesex Ethics Committee Committee) investigation an to deter- VIII Ethics authorized any statements constituted a violation of mine whether Hinds’ investigation stayed comple- rules. The was until disciplinary eventually trial. Chesimard was convicted tion of Chesimard’s mandatory degree in the first and sentenced to a of murder Thereafter, disciplinary proceed- the imprisonment. term of life renewed, investigation, of the it was ings were and as a result violating discipli- with charged recommended that Hinds be two 1-102(A)(5), prohibits attorneys which from nary rules: DR prejudicial ... to the administration of “[e]ngag[ing] in conduct 7-107(D), provides and DR which justice;” [d]uring jury a trial of a criminal cr law matter, the selection of a or lawyer with or defense of a criminal matter shall not firm associated the prosecution making extra-judicial that he to make in statement be or expects participate the trial, means of communication and that relates to disseminated by other matters that are or issues in the trial or reasonably likely parties, with a fair trial .... interfere adopted Ethics this recom- In December 1977 the Committee filing charges against the Hinds for approved mendation and 3, 1978, violating disciplinary January these rules. On Hinds charges hearing was served with the and informed that a would however, held. filed responding, Instead Hinds a suit February enjoin on seeking federal court the State disciplinary proceedings judgment declaring and to obtain a particular disciplinary these rules unconstitutional. The State stayed during were proceedings early stages then litigation. federal eventually injunc United States District Court denied complaint grounds

tion and dismissed the on of abstention. Com., Bar Garden State Ass’n v. Cty. Middlesex Ethics No. (D.C.N.J. 6,1978 13, 1979). 78-273 June appeal, Dec. On reversed, finding Third Circuit inapplica abstention doctrine procedure ble because it felt the State effectively denied Hinds right his present timely constitutional claims in a manner competent before State tribunal. Garden Bar State Ass’n Com., 119,rehearing den., Middlesex Ethics Cty. F.2d F. (3 1981) (en banc). 2d 154 Cir. Court, motion,

This on its own then ordered certification of against Hinds, 2:12-1, complaint pursuant to R. and directed record, to, including that “the entire but limited the consti- challenges 7-197(D) tutional to DR by 1-102 and DR raised respondent, be considered this granted Court.” We also leave for the American Civil Liberties Union of Jersey New Lawyers the Association of Women Black of to Jersey New the participate meantime, in case as аmici curiae. In the the Supreme granted United States Court in certiorari the federal 21, 1982, case. In a Supreme decision dated June Court Court, unanimously reversed the Circuit holding that federal courts abstain interfering should from with ongoing this State’s disciplinary proceedings. Middlesex Ethics v. Comm. Garden St. Ass’n, - U.S. -, 2515,

Bar 102 S.Ct. 73 L.Ed.2d 116. The Court reasoned that Jersey’s attorney proceed New disciplinary ings nature,” at -, “judicial considered in id. 102 at 2522, the “extremely important State has an regu- interest” in lating id., the professional attorneys, conduct of and the State’s

613 system opportunity” afforded Hinds “abundant to his raise claims, -, federal constitutional id. at 102 S.Ct. at 2523.1

II 7-107(D) Disciplinary Rule speech attorneys restricts the litigation who are associated pending with criminal sanction ing attorneys making any extrajudicial such for statement that they to be expect public disseminated and that “reason likely” ably to interfere with a fair trial.2 Appellant 7-107(D) Hinds that DR is unconstitutionally claims vague and overbroad under the First Amendment. He asserts speech the rule can applied restrict when an only attorney’s out-of-court statements present create “clear and that, danger” to the applying trial and this stan- constitutional facts, regarding dard to these his remarks conduct judge at the disciplinary Chesimard trial did not violate the rule or otherwise warrant sanction.

We note at the that the freedom engage outset in robust debate is at the heart of the very First Amend 176, 200-201 Jersey Monthly, ment. Maressa v. New 89 N.J. See (1982); 62, News, Kotlikoff 89 73 Community v. N.J. (1982). The Constitution guarantees unquestionably right citizens to public officials, criticize including judges. Brown States, 148, United 153, 356 622, 625, U.S. 78 S.Ct. 2 L.Ed.2d 589, (1958); 596 Craig v. Harney, 67 S.Ct. 1249, 1255, In our 91 L.Ed. constitutional expressional activity democracy, enjoys the fullest and firmest 1As the Court Supreme observed Middlesex Ethics Comm. v. Cardan St. - Bar Assn., U.S. - at -, at S.Ct. 2515 73 L.Ed.2d (1982), charged we amended our court rules to allow a in a recently party proceeding before to move this Court review of disciplinary interlocutory 1:20-4(d)(i). challenge a constitutional to a rule. See R. disciplinary 7-107(A) also trials, 2DR 7-107 to other of criminal see DR applies aspects through (E), juvenile proceedings, 7-107(F), as well as DR disciplinary 7-107(G), hearings, 7-107(H). DR actions, civil and administrative 614

protection. Brandenburg Ohio, See v. 444, 395 U.S. 89 S.Ct. 1827, 23 (1969); L.Ed.2d 430 Bridges California, v. 252, 314 U.S. 190, 62 S.Ct. 86 (1941). L.Ed. 192

A speech restriction on free can judicial survive scrutiny under the First only Amendment if certain fundamental and First, stringent conditions are satisfied. the limitation must “further an important governmental or substantial interest un suppression related to the of expression.” Procunier v. Mar tinez, 396, 413, 1800, 1811, 416 94 224, U.S. S.Ct. 40 L.Ed.2d 240 Second, (1974). the restriction greater must be “no than is necessary or protection essential to the particular govern mental interest involved.” Id. These two conditions are in terrelated in the sense that the restriction only must not further governmental substantial interest suppression unrelated to the speech but it go must also no further than is necessary and protect essential to governmental substantial interest. The judicial inquiry into whether these conditions have been met involves a balancing process. The court must weigh the gravity and probability of the harm by caused freely allowing the expression against the extent to speech which free rights would inhibited оr circumscribed suppressing the expression. Stuart, Nebraska See Press Association v. 539, 562, 427 U.S. 96 2791, 2804, 683, (1976), S.Ct. 49 L.Ed.2d 699 citing United States Dennis, 201, (2 183 F.2d 1950) (Hand, J.), aff’d, 212 Cir. 341 494, 857, 71 S.Ct. 95 L.Ed. 1137 citizens,

Like other attorneys are entitled to the full protection Amendment, of the First even participants as in the justice. administration of R.M.J., - U.S. -, -, 102 929, 935-38, S.Ct. (1982); L.Ed.2d 70-75 Konigsberg v. Bar, 252, 273, 722, 733, 1 State 353 U.S. S.Ct. L.Ed.2d (1957). Cf. Richmond Newspapers, v. Virginia, Inc. 448 U.S. (1980) 65 L.Ed.2d 973 (reaffirming right trials). access to purports Since 7-107 to restrict the free speech rights attorneys, its validity upon turns the application of conventional First Amendment standards. Under these de-

615 tests, we manding impor- must first examine the nature governmental ‍‌​​​​‌​‌​‌​‌‌​‌‌‌​​​​‌​‌‌‌‌‌​‌‌​‌‌​‌​‌‌‌​​‌‌‌‌​​‍assertedly by tance of the interest advanced the restriction.

There can be no doubt the that State has a substantial ensuring judicial interest in the of proceedings. fairness See State v. Kavanaugh, 7, den., 52 N.J. cert. 924, 393 89 U.S. S.Ct. 254, (1968); 21 L.Ed.2d 259 v. 43 Duyne, State Van N.J. 369 den., (1964), 987, 1359, cert. 380 85 U.S. S.Ct. 14 L.Ed.2d 279 ; (1965) Maxwell, 333, v. 384 Sheppard 1507, U.S. 86 16 S.Ct. (1966); Singer States, 24, 36, L.Ed.2d 600 v. United 380 U.S. 85 790, 783, 630, 638, 646-47; S.Ct. 13 L.Ed.2d Sawyer, In re 360 622, 666, 1397, 1376, 1473, 79 (1959) 3 1499 L.Ed.2d J., (Frankfurter, dissenting); Snead, Hirschkop 356, v. 594 F.2d (4 1979) (en banc); Chicago 366 Cir. Lawyers Council v. Bauer, (7 1975), den., 242 522 F.2d Cir. cert. Chicago sub nom. Lawyers Cunningham, 912, 3201, Council of 427 U.S. 96 S.Ct. (1976); 661, 49 L.Ed.2d 1204 412 Tijerina, United States v. F.2d (10 1969). 667 Cir. This does belong interest to the defend ant alone. The also an trial has interest in a fair that imperiled cannot be or diminished assertions by out-of-court or prosecution lawyers. Kavanaugh, either defense See 52 N.J. 19-20; 389; Carter, at Duyne, Van 43 at N.J. State v. 143 405, N.J.Super. (App.Div.), 408 grounds, rev’d on other 71 N.J. (1976). Thus, recognized 348 restricting courts have extra-judicial attorneys statements of criminal defense relates government’s to the preserving proper substantial interest in justice judicial integrity administration and the basic 790, process. Singer, 380 U.S. at S.Ct. at L.Ed.2d at 638.

Attorneys occupy special a perform status essential justice. attorneys function in the administration of Because are court” with special responsibility protect “officers of the justice, recognized administration of have the need for courts speech upon imposition of some reasonable restrictions attor- neys. regulating lawyers interest “The of the states in especially great lawyers gov- since essential to the primary administering justice, ernmental function of and have historical ” ly been ‘officers of the courts.’ Virginia Goldfarb v. State Bar, 773, 792, 421 U.S. 95 S.Ct. 44 L.Ed.2d Relating Press, Cf. to Fair Standards Trial and Free Project ABA on Minimum Standards for Criminal Justice at 82 (hereinafter (1968) Project”) “ABA (lawyers have “fiduciary Thus, obligation courts”). to the resolving Hinds’ federal action, Supreme recently Court noted that State of “[t]he Jersey New an extremely important has maintaining interest in assuring and the professional conduct of the attorneys it licens Comm., - at -, es.” Middlesex Ethics U.S. 102 S.Ct. at 2522. unique

In their special capacity judicial officers, as law- yers differ ordinary from aptly expressed citizens. This was by Justice Frankfurter in his dissent in In re Sawyer. Of a a course, is and he too has a lawyer constitutional freedom of person castigate utterance and exercise it to courts and their may administration of

justice. participating But a in a lawyer actively trial, an emotional particularly charged criminal is not a ly prosecution, and not even a merely person merely .... He is an intimate and trusted lawyer and essential part machinery justice, compelling an “officer of the court” in the most sеnse. U.S. at [360 79 S.Ct. at 3 L.Ed.2d at 666, 1397, 1499-1500]. Stewart, that.case, Justice concurring agreed that an attorney who uses a public justice forum to obstruct and interfere with a fair trial protection cannot invoke the of the First Amendment to disciplinary 646, avoid 1388, sanctions. 360 atU.S. 79 at S.Ct. 3 L.Ed.2d at 1489.

This interest in trial is fairness particularly acute in the There, criminal context. the problem of preserving the basic integrity fairness and proceeding is of constitutional dimension because right the defendant’s guaran- to a fair trial is teed in the Sixth Amendment of the federal Constitution. Some courts, including Supreme Court, have even held that criminal right defendant’s constitutional to a fair trial must take precedence See, over speech. free e.g., Texas, Estes v. 381 U.S. 532, 540, 1628, 1632, 85 S.Ct. (1965) 14 L.Ed.2d (defend- 549 right ant’s to a fair trial is “the most fundamental of all

617 248; freedoms”); Bauer, 667; Tijerina, 522 F.2d at 412 F.2d at Hirschkop Virginia Bar, v. F.Supp. 1137, State 421 1146-47 (E.D.Va.1976). Co., Cf. DePasquale, Gannett Inc. v. 443 U.S. (1979) (press 99 S.Ct. 61 L.Ed.2d 608 may sometimes be excluded from pretrial hearings case); in a Branz criminal 665, 92 burg Hayes, (1972) U.S. L.Ed.2d 626 (journalists have no absolute First right Amendment refuse to to disclose their or other sources confidential when information asked to do so grand jury). More than in other any context, the setting criminal trial requires diligent our most effort ensure that the truth emerges and that the right result Farber, is reached. See In re N.J. 259 A criminal highest case involves the of stakes because the defendant stands his precious lose most personal liberty—if freedoms—his integral convicted. fairness of the trial just reaching Therefore, proper result. there compelling reasons every preserve making effort to trial fairness in the criminal Comm., - at -, context. See Middlesex Ethics S.Ct. at 2522. 7-107(D) clearly

DR seeks important to effectuate this governmental substantial interest in trial fairness. The difficult question is disciplinary whether this rule broader than neces- sary protect governmental or essential to that interest. 7-107(D)

Hinds contends constitutionally exceeds permissible grounds vagueness limits on of both and over- similar, breadth. While these doctrines are somewhat there important be distinctions to made between them. A prohibition

upon speech may be void for vagueness if it is clearly potential To defined. avoid the effect chilling speech on free rights, regulation susceptible must be in objective “terms measurement.” v. Cramp Instruction, Board of Public 368 U.S. 286, 280, 278, 275, 285, 82 (1961). S.Ct. 7 291 L.Ed.2d As the Supreme Rockford, Court in explained Grayned City of v. 408 104, 108-09, 2294,2299, 222, (1972), U.S. 92 S.Ct. 33 L.Ed.2d 228 vague law is one that: 618 sensitive areas of basic First ‘abut[s] upon Amendment . .. freedoms,’ [and] meanings to inhibit exercise freedoms.’

‘operates Uncertain [those] lead citizens to ‘steer far wider of the unlawful inevitably zone ... than if the boundaries of the forbidden areas were marked.’ clearly [citations omitted]. Thus, “void-for-vagueness” procedural doctrine involves due process considerations of adequate fair notice and warning. See 1, Lashinsky, (1979); State v. 81 N.J. 17-18 v. Goguen, Smith 566, 572-73, 1242, 1246-1247, 415 605, U.S. 94 S.Ct. 39 L.Ed.2d (1974); Bullitt, 360, 611-12 Baggett 372, v. 377 U.S. 84 S.Ct. 1316, 1322, 377, (1964). 12 L.Ed.2d 385 upon speech

Prohibitions can also be void if they are too broad reaching scope. and far “A precise clear and may enactment nevertheless be ‘overbroad’ if in its reach prohibits it constitu protected tionally conduct.” Grayned, 114, 408 U.S. at 92 S.Ct. 2302, at 33 L.Ed.2d at 231. “Because First Amendment free survive, doms need breathing spacе government may regulate only in the area with narrow specificity.” Button, NAACP v. 415, 433, 328, 338, 9 371 405, U.S. 83 S.Ct. L.Ed.2d (1963). 418 In final analysis: though governmental legitimate [E]ven purpose substantial, cannot be means that purpose stifle pursued by fundamental broadly personal liberties when the legisla end can be more achieved. The breadth of narrowly abridgement light tive must be viewed in the achieving of less drastic means for v. the same basic [Shelton Tucker, U.S. 364 S.Ct. 247, 252, purpose. 81 479, 488, 5 L.Ed.2d (1960)]. 237 231, Thus, vagueness while implicates notions of procedural due process as to the adequacy fairness and warning, overbreadth involves substantive due process considerations concerning ex governmental cessive protected intrusion into areas. Lashinsky, 81 N.J. at Gasparinetti Kerr, 17-18. See 568 (3 Cir.), F.2d 311 den., 903, 2232, cert. 436 U.S. 98 (1977); S.Ct. 56 L.Ed.2d 401 Landry v. Daley, F.Supp. 938, 280 (N.D.Ill.1968), 951-52 appeal dismissed, 89 S.Ct. (1968), L.Ed.2d 392 rev’d on grounds, other Boyle sub nom. v. Landry, 401 U.S. 27 L.Ed.2d

Ordinarily, speech restrictions will withstand constitu scrutiny tional only they if are limited to prohibiting speech that which present creates a “clear danger” and of threatening some

619 governmental substantial interest to suppression unrelated the expression. 444, Brandenburg, of 1827, See 395 U.S. 89 S.Ct. 33 430; 252, 190, L.Ed.2d 314 Bridges, U.S. 86 S.Ct. L.Ed. 192. However, extrajudicial attorney speech the criminal trial setting presents special concerns. guidance regard

Some in this is furnished the Supreme concerning prejudicial landmark decisions trial publicity. Court’s Maxwell, 333, Sheppard 1507,16 86 S.Ct. L.Ed.2d Texas, (1966); Estes v. 381 U.S. 85 S.Ct. 14 L.Ed. 2d 543. Estes,

In Supreme paramount the Court stressed the impor protecting tance of right the defendant’s to fair trial. The opinion always noted: “We have held that the atmosphere to preservаtion essential the of a fair trial—the most fundamen tal all freedoms—must be all maintained at costs.” Id. at 85 S.Ct. at 14 L.Ed.2d at 549. Sheppard, Supreme In the Court observed: power—might Effective control of within the court’s well [counsel]—concededly divulgence have the of inaccurate information, and accusa- prevented rumors, tions that made much .... up inflammatory publicity prejudicial ... there is a reasonable likelihood that news [W]here trial prior judge, will a fair should the case trial, continue until the threat prevent or transfer it to with abates, another so .... If county permeated publicity during proceedings threatens the fairness of the a new publicity trial, trial should be ordered. must But we remember that reversals are but palliatives; prejudice the cure lies in those measures remedial that will at its prevent regulation The courts must take such rule that will inception. steps by prejudicial their from outside protect interferences. Neither processes prosecu- counsel for staff tors, defense, accused, court nor enforcement witnesses, coming jurisdiction officers under the of the court should be permitted frustrate its function. Collaboration between counsel and the as to press affecting subject information fairness of a criminal trial is not only regulation, highly but is censurable measures. worthy disciplinary [384 U.S. at (dictum)]. 16 L.Ed.2d at at 361-63, 1521-1522, 619-620 Thus, the Supreme targeted public speech Court the evil as that “a prevent[ing] creates reasonable likelihood . .. a fair [of] Id. trial.” similarly recognized extrajudicial

This Court has speech by attorneys participating in a criminal is not absolutely case

620 protected under the First if Amendment it will have a deleteri impact upon ous the fairness and integrity proceeding. of the strongly Duyne, In a worded statement in Van expressed we 20, predecessor 7-107(D), view that Canon to DR proscribed attorney extrajudicial statements capacity have the interfere with a fair trial.3 We noted: right imperiled by of the to a fair trial State cannot be or diluted [an

attorney’s] subject out-of-court assertions ... to news media on the of his place client’s innocence. The courtroom is the to settle the issue and comments during capacity potential before or the trial which have the to influence or jurors possibleprejudice impermissible. actual to the of the State are N.J. at [43 389] Many upheld courts have validity constitutional limiting “reasonable likelihood” standard for lawyer extrajudi See, during cial comments criminal e.g., Hirschkop, trials. 594 _F.2d 368-70; 667; Tijerina, at Younger Smith, 412 F.2d at v. 30 138, Cal.App.3d (1973); 106 Cal.Rptr. People 225 Dupree, v. 88 780, (Sup.Ct.1976). Ross, Misc.2d 388 203 N.Y.S.2d Cf. State 185, App.2d 36 Ohio 304 N.E.2d 396 (Ct.App.1973), appeal dis missed, 904, 1397, 415 (1974) (court 94 S.Ct. 39 L.Ed.2d 461 grant attorney permission appear refused to pro hac vice in attorney criminal trial because the said he would only limit his ‍‌​​​​‌​‌​‌​‌‌​‌‌‌​​​​‌​‌‌‌‌‌​‌‌​‌‌​‌​‌‌‌​​‌‌‌‌​​‍public comments to those creating a “clear present danger” proceedings); to the Board, Widoff v. Disciplinary (1980), 420 A.2d 41 aff’d sub nom. v. Dis Pa.Cmmw.Ct. Cohen dismissed, Board, ciplinary (1981), appeal 494 Pa. 430 A.2d 1151 -, (1982) (“rea- 102 S.Ct. L.Ed.2d 454 -U.S. applied in sonable likelihood” standard context of administrative Report of the Judicial Conference hearing). аlso Revised Jury System . on the “Free Operation of the ommittee on the provided: 3Canon 20 of the old ABA Canons of Professional Ethics lawyer Newspaper publications pending anticipated litiga- as to or may prejudice tion with interfere a fair trial the courts and otherwise justice. Generally they the due administration of are to be condemned. particular justify If the extreme circumstance of a case a statement to the public, unprofessional anonymously. parte it is to make it An ex refer- beyond go quotation ence to the facts should not from the records and court; papers file in on but even in the extreme cases it is better to any parte avoid ex statement. Issue, (1980); Press—Fair Trial” F.R.D. 528-24 Cole and Spak, “Defense Counsel and the First Amendment: A Time Silence, Keep Speak,” and a Time to 6 Mary’s (1974); St. L.J. 347 Note, “Professional Ethics Trial Publicity: What All The About,” Is (1976); Note, Talk 10 Suffolk L.Rev. 654 “Chicago Gag of Lawyers Council Bauer: Rules—The First Amend- Amendment,” v. The ment Sixth 30 (1976). S. W.L.J. 507 rejected Other courts have the “reasonable likelihood” test applied and have a traditional First analysis, Amendment hold- ing protects the Constitution an attorney’s right to make statements, extrajudicial except when those comments create present danger” “clear or a “serious and imminent threat” See, justice. Bauer, to the of e.g., administration 522 at F.2d 249; Oliver, In re (7 1971); 452 F.2d 111 Cir. Robson, Chase v. (7 1970); Garcia, 1059 435 F.2d Cir. United States v. 456 F.Supp. (D.P.R.1978); 1354 Municipal Berkeley- Hamilton v. Court District, Albany Cal.App.2d 797, 168, Judicial 270 Cal.Rptr. 76 den. cert. 24 (1969). L.Ed.2d 449 Conduct, also Model Rules of Professional ABA of Commission Evaluation of (Alt. Profеssional Standards at Draft 1981) (recommending change in proscribe standard to only those comments that have “substantial materially likelihood of prej- udicing” trial, the with change incorporate intended to “clear test); present danger” (recom- ABA Standards supra mending change to “clear and present danger” and suggest- test ing constitutional invalidity present standard); Note, of “Pro- Responsibility—Trial fessional Publicity—Speech Restrictions Drawn,” Must Be Narrowly 54 Texas L.Rev. 1158 addressing In issue prejudicial the of out-of-court statements by attorneys Sawyer, Supreme in Court refused to endorse There, present danger clear and test. an attorney was practice suspended from the for making law an out-of-court speech allegedly maligned which she judge before whom appearing she was as defense pending counsel in a conspiracy Although case. five members of Court voted to overturn suspension because of insufficient of professional evidence misconduct, dissenting justices, joined by concurring Justice four Stewart, present questioned applicability of the clear and extraju- make involving attorneys test to situations who danger ongoing they partici- cases in which are dicial statements about pating. present danger

We are satisfied that the clear and for subject constitutionally compelled when the mulation is extrajudicial speech attorneys participat is the the restriction present danger The clear and test is ing in criminal trials. meaning nor more certain in than is the precise neithеr more danger present likelihood test. While the clear and reasonable standard, may be stricter than the reasonable likelihood test import precision imply greater does not more or strictness test, generated linguistic equiva its own clarity. As a it has threat,” lents, Bauer, such as “serious and imminent or “sub trial,” materially prejudicing the ABA stantial likelihood of 1978,supra. present danger The clear and standard Standards self-revealing than self-defining any is no more or of these Thus, standpoint from the of verbal alternative formulations. danger presents test clarity, present many the clear and as the reasonable likelihood standard. difficulties as assertions, Contrary to the reasonable stan Hinds’ likelihood objective susceptible expressed dard is measurement. It is in language, terminology in straightforward commonly frequently Younger, Cal.App.3d used in communications. at 163-64, 106Cal.Rptr. particular at 241-42. Whether a utterance affecting creates a reasonable likelihood of trial fairness will depend upon special circumstances of each case. This in quiry balancing involves a careful and consideration of all Landmark, 842-43, relevant factors. at at Cf. 1543-1544, (such balancing required 56 L.Ed.2d at 13 in a “free press” situation). These factors can include such as the matters statement, statement, timing nature of the of the the extent publicized, to which the information has been the nature of the influence, proceeding vulnerability prejudicial and its case, attorney’s lawyer’s unique position in the status as an case, informed and accurate source of information in the and the effect of unrestricted comment on the interest litigants of the and the integrity proceeding.4 Note, See “A Constitu tional Assessment of Court Rules Restricting Lawyer Comment on Pending Litigation,” 65 Cornell (1980); L.Rev. 1120-21 1981, supra Model Rules at 275-76.

In terms of whether the reasonable likelihood standard is overbroad, agree we with Hinds that this test is not as narrow charges 4We note that Hinds faced these because of his association with the attorney counsel, in defense a criminal trial. The status of an as defense as opposed prosecutor, imposing speech is a relevant factor to consider restrictions. There are clear differences between the two that affect their respective proceedings through extrajudicial abilities to influence the state- ments. suggested attorneys Several commentators have that criminal defense subject speech prosecutors. should to the same strict limitations as See, e.g., Starwood, Expres Freedman and “Prior Restraints on Freedom of Attorneys: sion Defendants and Defense Ratio Decidendi v. Obiter Dictum,” Hirst, (1977); Orders—Preserving 29 Stan.L.Rev. 607 “Silence Expression by Lawyers,” Political Defendants and Their 6 Harv.Civ.Rts.— 595, 604, Isaacson, (1976); Civ.Lib.L.Rev. 606-08 “Fair Trial and Free Opportunity Coexistence,” (1977); Press: An 29 Stan.L.Rev. 568-70 Kaplan, Bathwater,” (1977); “Of Babies and 29 Stan.L.Rev. 625 n.13 Comment, Publicity: “Professional Ethics and Trial Another Constitutional Snead,” 7-107—Hirschkop Attack on DR 14 U.Rich.L.Rev. 225-236 essentially These commentators reason that the constitutional guarantee alone, belongs prosecution. of a fair trial defendant not the U.S.Const., IV, V, Thus, regulations restricting Amends. VI. free speech in this context should be tailored to advance the defendant’s consti- tutionally protected Moreover, they point interest in a fair trial. out that justice weighed extraordinarily heavy against “the scales of ... are Bauer, 250, quoted accused after his indictment.” 522 F.2d at in Freedman Starwood, Therefore, they 29 Stan.L.Rev. at 611. conclude that the stigma defendant and his counsel need access to the to combat the an indictment. extrajudicial attorneys prohibited, When statements of defense are sought protected simply right interest to be is not of the accused to a attorneys government’s fair trial. are also Defense silenced because of the justice” “integrity interest in the “fair administration of and basic of judicial processes.” Hirschkop, noted, 594 F.2d at 376. As we have significant justifies speech attorneys is this a interest which restrictions on danger standard. present and reach as the clear limited in its or than however, this test is broader decide, not whether must We than whether it is no broader standard but possible another governmental protect the substantial and essential to necessary involved. interest permissible test to be a likelihood find the reasonable

We special in this context. We restricting speech free standard the nature of the because of both impelled to this conclusion the status and role of attor- interest involved and governmental important Society interest. has an effectuating that neys in justice. of criminal The proper in the administration stake of intersecting values in the administration reconciliation society’s an accused and needs for justice—the rights of criminal of the most difficult and one safety protection—constitutes concern for government. tasks of State’s sensitive justice effective, efficient, system of criminal fair and balanced high priority in terms It has been accorded a unquestioned. significance citizens. The responsibility to its government’s obligation justifies scrupulous and consci- governmental this to assure its fulfillment. entious measures Furthermore, attorneys perform unique service in the crimi- Supreme emphasized, Court has justice system. As the nal attorneys conduct of professional interest in the state’s “[t]he justice special of criminal is of in the administration involved Comm., - at -, Ethics U.S. importance.” Middlesex justice is the administration of criminal at 2522. While S.Ct. through responsibility, accomplished it cannot be governmental functioning depends proper methods. Its fiat or authoritarian process. Sheppard, 384 at participate who in the upon all 1521-1522, 361-62, L.Ed.2d at 619-20. It utilizes at adversarial, techniques. Lawyers in criminal inquisitorial, conflicting They interests. represent opposing parties cases case, with the whether as or defense counsel. prosecutor associated supra at 615. must, therefore, discharge professional their responsibilities ethi- They cally skillfully. according as well as do must so to careful- ly prescribed rules within a procedural framework designed to process assure due and fairness to both the accused and the public. objective system The justice. sole of this is to secure The is reaching just benchmark of its success aof result solely properly competent based on adduced* evidence that is relevant to the truth of the charges. criminal considerations, view,

These in our require ethical constraints upon attorneys. These must include reasonable restrictions upon extrajudicial speech their to discourage prevent and extra being neous matters from into insinuated a criminal case. Such influences, unchecked, outside if left could divert search for machinery justice truth wreck intricate of the criminal in DR 7- system. The expressed reasonable likelihood test 107(D) necessary and essential to the achievement of these and, therefore, objectives does not suffer from constitutional overbreadth.5 analysis necessarily 5An overbreadth also involves consideration of whether government’s adequately protected through substantial interest could be speech some other than means a restriction. If an alternative form of regulation danger infringing upon would combat the without First Amend- rights, speech and, therefore, unnecessary ment then a restriction would Verner, 398, 1790, unconstitutional. See Sherbert v. 374 U.S. 83 S.Ct. variety attorney speech L.Ed.2d 965 A of alternatives to restrictions trial, protecting including: (1) exist for fair exclusion of the from hearings during jury; (2) continuances; (3)

those trial held in the of absence venue; waiver; (4) jury dire; change (5) searching (6) jury of voir of selection locality coverage; (7) sequestration from outsidе area of extensive news jury; (8) jury reports relating trial; (9) admonitions to to avoid news to cautionary regarding matters; (10) instructions media critical examination jurors regarding possible exposure prejudicial during trial; information mistrial, (11) (12) Alien, declaring granting newa trial. Cf. State v. (1977) (court attempt protective N.J. 160-61 should other devices before imposing “gag” press). on order options, singly together, preclude imposi- These other taken or do not because, attorney speech tion free restrictions in the criminal trial setting, overriding obligation “prevent prejudice courts have ... at its inception,” Sheppard, 384 U.S. at 86 S.Ct. at 16 L.Ed.2d at were is whether Hinds’ remarks presented next question they with a fair trial such that to interfere reasonably likely 7-107(D). ques this ultimate of DR On the standard violated developed. The adequate factual record there has been no tion hearing any a on this or never conducted Ethics Committee developed Moreover, federal district court while the other issue. it, the concern in that proceedings in the before lengthy a record whether Hinds’ statements created reasona case was not with trial, finding affecting a fair nor was there a to likelihood of ble effect.6 that below, including the federal court

Even if the record factfindings, for capable being were of canvassed proceedings, this issue could not have known resolve the Ethics Committee for the balancing test that we have enunciated by applying the opinion. time in this at 622-623. We supra first balancing process determining for when an that this reiterate extrajudicial reasonably likely are to affect a attorney’s remarks careful consideration of such factors as fair trial entails statement, attorney, the nature and content of status statement, the context in which it was timing of the requires showing standard The reasonable likelihood uttered. attorney’s extrajudicial that an by convincing clear and evidence fairness, jeopardized trial a determination that can speech truly Hirsch rather than to wait until after the fact to remedial action. attempt change measures, venue, of these such as of 594 F.2d at 365. Certain kop, searching dire, voir are not effective alternatives. continuances and simply might impinge resort to these alternative other Moreover, ready steps upon right guarantees, such as the defendant’s to a trial or speedy constitutional jury. Thus, at 366-67. while alternative approaches trial 594 F.2d prejudicial dealing exist, do not obviate with the of problem publicity they extrajudicial of for fashioned restrictions on the speech the need properly participating in criminal trials. attorneys willing 6Although were on they rely the parties apparently stipulated proceeding factfinding, for the record in the federal developed purposes We find that record to be Hinds now the effect of that stipulation. questions making case, factual determinations in this which involves insufficient raised in the federal action. different from those questions very only by thoroughly reached all balancing relevant considera- tiоns.

Ill deciding In whether case, a remand is necessary this we only speech must consider not whether Hinds’ offended the reasonable likelihood standard but also the extent to which Hinds was associated with the defense in this criminal trial. questions implicated These combined in the application 7-107(D), and the need for a remand should take into account both matters. attorney’s

The status highly in the case is may relevant and indeed be on question determinative of whether he has 7-107(D). prohibition violated DR DR 7-107(D) does not apply speech unless the is by attorney made an “associated with” criminal trial. Hinds contends that aspect this rule also suffers vagueness from constitutional and overbreadth. dealing

In with this contention as a facial upon attack rule, accept we by restricting extrajudicial notion speech attorneys, 7-107(D) of DR adopted was “stop in order to prejudice ... inception,” Sheppard, at its 384 U.S. at at at prevent L.Ed.2d 620. The rule seeks to attorneys special with a in the making status case from disclo- piejudicial sures that are to the trial process. of

Attorneys clearly record fall within the class lawyers of special have who connection with the case. Such attorneys have direct for responsibility representation parties of and the actual conduct of a They trial. are individuals who have confidential information and an intimate knowledge of the prosecution. merits partic- Their views are invested with credibility weight Hence, ular in light positions. and of their relating statements likely their to the triаl be considered knowledgeable, reliable and true. question remains whether an attorney who is not an

attorney of but closely record is “associated with” the trial in

other ways subject can be to the rule’s sanctions. While the local Ethics apparently Committee believed that Hinds was not attorney of record in the criminal trial spoke about which he publicly, it him with violating DR 7- charged nevertheless 107(D). It apparently believed that there was sufficient infor- indicating mation that he was “associated with” the Chesimard trial, purposes at least for lodging charges against him. satisfied that DR

We are 7-107(D) was intended to be applied to attorneys who have such an association with the extrajudicial defense of a criminal trial that statements made proceedings them about the unique have a capacity prejudi for impact upon cial process. the trial Accordingly, we now hold that under 7-107(D) an attorney cooperates who with the prosecution defense of a criminal regular on a continuing and basis, provides legal assistance in connection with the defense of charge, a criminal and holds himself out to be a member of the defense team is to be considered “associated with” the defense purposes invoking this disciplinary rule. interpreted, we

So conclude that the rule is neither vague nor overbroad. While the rule does not define the term with,” “associated it is not an expression. esoteric or abstruse It fairly imports a meaning common sense susceptible to simple interpretatiоn in accordance with common experience ordinary understanding. is, therefore, The term adequate attorneys inform and forewarn potentially may who be sub ject to the strictures of the Consequently, rule. the rule is not impermissibly vague application in its attorneys associated with the defense of a criminal case.

Extending coverage the of the rule only to include not attor- neys of record but also attorneys associated with the defense of a criminal prosecution does not overreaching. constitute Attor- neys falling categories possess special into both knowledge and relating information to the criminal action. They readily perceived persons as authoritative whose carry remarks the. reliability, mark of authority accuracy. and Comments made ongoing such about attorneys carry significant trials can weight in the minds of public, including potential members the jurors, may witnesses and others who a play have role to in the upon attorneys’ trial. Restrictions freedom to comment are necessary about case to assure that the fairness of the jeopardized. criminal trial will not be We are thus satisfied that 7-107(D) applied DR is constitutional as to this class of individu- als.

ÍV Although 7-107(D) we determine that DR is constitu tional, case, under the circumstances of this we conclude that Hinds should not be found in violation of the rule. We do so for First, two reasons. there is sufficient doubt as to the underly ing regarding facts Hinds’ relationship with the Chesimard to prevent defense an ultimate being conclusion from drawn on important this issue. question factual was never cоnclu That sively resolved. The Ethics Committee conducted no hearing on the issue of Hinds’ connection with fact, the defense. In it Moreover, hearing conducted no whatsoever. the federal dis trict court this required that reviewed case was not to determine whether Hinds was “associated with” the Chesimard defense expressly Bar, and declined to do so. Garden No. State 78-273 Therefore, at 2. the extent of Hinds’ association with the entirely defense team is not or clear ‍‌​​​​‌​‌​‌​‌‌​‌‌‌​​​​‌​‌‌‌‌‌​‌‌​‌‌​‌​‌‌‌​​‌‌‌‌​​‍free from dispute.7 issue, particular significant 7While we are unable to resolve this it is to note following aspects case, which, salient of Hinds’ with association if test, properly weighed balancing strongly established in the militate in finding purposes favor of a that he was “associated with” the defense for 7-107(D). applying represent separate Hinds did iif Chesimard federal Although civil action while she was under criminal indictment for murder. claims he Hinds that was not actual member Chesimard defense team, on at least three occasions Hinds was named in official court records as attorneys. Moreover, videotapes one of Chesimard’s defense of the court proceedings directly that show Hinds sometimes sat behind the main defense railing, position usually counsel table front of the courtroom separates general public parties. from interested Hinds also acknowl- 630

Our second and primary DR refusing reason for apply 7-107(D) in this instance is based on elementary fairness. This is the first time we have addressed question of whether an attorney position in Hinds’ would be considеred “associated purposes with” a case for of falling within the coverage. rule’s Furthermore, out, as already pointed this decision also consti tutes the explained first time we have balancing test to be applied determining for whether the extrajudicial speech of an attorney ongoing associated with an criminal trial is reasonably likely to interfere supra with a fair trial. See at 622-623. that appropriate We therefore deem it 7-107(D) applied prospectively only given and that Hinds be the benefit this of Smock, ruling. Compare In re 86 N.J. 426 with In re (1981), Wilson, Burstein, 81 N.J. 451 Cf. State v. 85 N.J. (1981) (first judicial interpretation of otherwise clear provision of wiretapping applied statute prospectively only).

In propriety sanctions, terms of the we engaged are not the enforcement of the Rather, State’s criminal laws. we are addressing disciplinary governing rules professional conduct attorneys. major Our concern is the ethics lesson to be extracted from this case prophlylaetic and the effect of our decision in explaining the appropriate principle. ethics Our purpose is punish enlighten but improve profession for the Baron, See In re public. benefit of the N.J. (1957). Furthermore, we are dealing here not with unethical bespeaks conduct which corruption, fraud, breach of trust, professional negligence or some form criminality. problematic conduct in this case is speech, an activity protected under the First Amendment. While speech may such under limited unprofessional conduct, circumstances constitute we edged allowing that he aided the defense in several ways, the defense team to providing pleadings use his office and he copies had previously in the federal civil on prepared action Chesimard’s behalf for inclusion in the defense’s unsuccessful motion to have Chesimard’s criminal trial removed to federal court. He also himself to be the represented spokesperson defense when he made his statements. impose should not rush to upon sanctions expressional activity unless that course of action is clear and unavoidable. In this instance we imposition find the punishment unnecessary to promote and, our therefore', ethical aims refrain doing from so.

V we Since have determined 7-107(D), that DR as by construed decision, us in this given is to be prospective and, effect only therefore, applied Hinds, should not be the question arises whether he can punished nevertheless be under DR 1-102(A)(5). This disciplinary rule sanctions attorney conduct that “preju- dicial to the justice.” administration of Hinds contends that application of that rule to these facts would constitute a viola- tion of his speech rights free under the First Amendment because the impermissibly rule is vague and overbroad. 1-102(A)(5)

DR is framed in language broad gives appearance aspirational standard, of an rather than a discipli nary rule. Courts have held that a broad disciplinary rule may acquire constitutional certitude when light examined in of tradi profession tions in the patterns and established applicatiоn. 733, Parker Levy, 2547, See v. 417 94 U.S. S.Ct. 41 L.Ed.2d 439 Ruffalo, (1974); In re 390 88 117 L.Ed.2d (1968); In re Bithoney, (1 1973) 486 F.2d 319 (dictum). Cir.

Attorney disciplinary long rules have been framed in general, sweeping rather language. legal The profession’s cardinal ethi cal appearance edict—“to avoid even the of impropriety”—sug gests lawyer that a should refrain from acting if there is any basis for suggesting that his might questioned. conduct be f Canon 9 of the Code o Professional Responsibility. As one explained

court affirming in constitutionality of DR 1- 102(A)(5): rule was written lawyers. “[T]he language of setting guidelines a rule for members of the bar need not precise meet the clarity might standards of required Keiler, of rules of for laymen.” conduct In re 380 A.2d (D.C.1977). Martindale, See State 215 Kan. P.2d 703 7-107,

Moreover, rarely ap which has been unlike DR disciplinary in 1-102(A)(5) regularly has been invoked plied, DR pattern applying Jersey cases disclose actions. The New 1-102(A)(5) conjunction specific discipli with other more See, e.g., re attorney misconduct. In nary rules to sanction 6-101, 9-102); Clark, (1980) (also violating DR 83 N.J. 458 Wilson, 9-102). (also violating DR And on those few 81 N.J. 451 has served as the sole basis for disci occasions when the rule applied only involving it has been in situations conduct pline, See, accepted professional e.g., In flagrantly violative of norms. Schleimer, (1978) (false Thus, swearing). N.J. 317 the re 78 language proscribing “prejudicial acts to the admin rule’s broad justice” pass istration of takes on sufficient definition to consti muster, given prior judicial these determinations nar tutional egregious rowing scope particularly its to conduct.8 See Com Durham, (Iowa Ethics v. 279 N. W.2d 280 mittee on Professional 1979). against militate the DR applicatiоn

Several considerations 1-102(A)(5) under the circumstances of this case. Such a deter- require inquiry mination would a factual similar to that involved 7-107, application primary of DR the governing in the rule extrajudicial attorney speech. impact The effect or of the attorney’s speech upon attorney’s the criminal case and the determining in the case would also be relevant in status whether attorney’s prejudicial conduct was to the administration of justice 1-102(A)(5). under DR Because record in this case is inadequate to demonstrate whether Hinds was “associated with” reasonably the Chesimard case or whether his remarks were likely purposes apply- to interfere with the criminal trial for 7-107(D), ing similarly DR we are satisfied that the record is 1-102(A)(5). purposes applying deficient for DR 8The latest version of the Model Rules of Professional Conduct would do away 1-102(A)(5), apparently appears with DR because the rule redundant. However, supra See Model Rules at 10-14. the mere that this rule fact constitutionally is somewhat redundant does not make it infirm. that, quite It seems certain in separate application of this rule, disciplinary the First Amendment would require higher standard than the reasonable likelihood formulation of DR 7- application 107. critical distinction in the of the two disciplinary hinges upon rules attorney status of the whose speech subject scrutiny. shown, As already attorney who is with an specially ongoing connected criminal trial under may subject DR 7-107 to the broader restraints contrast, 1-102(A)(5) reasonable likelihood standard. In attorney come play would into when is not or particularly specially pending connected with in a or involved criminal context, In appear matter. there would be no reason cognizable First principles distinguishing under Amendment for an attorney attorney such from other citizens. An with no supervening professional responsibilities in a pending criminal seemingly enjoy speech rights any case would the same free as - U.S. at - - -, R.M.J., other citizen.9 S.Ct. at suggest 9Inconsistencies in the case law also need for a strict standard. jurisdictions wildly divergent deciding in other Courts have reached in results one, impose whether sanctions in situations such as this where the attorney’s speech judges. imposing consisted of mere criticism of For cases see, criticizing Boardman, judges, e.g., Eisenberg F.Supp. sanctions (D.Wis.1969) (attorney designed judge); circulated statement to humilate Lacey, (S.D.1979) (attorney quoted press saying In re 283 N. W.2d 250 as incompetent downright crooked”); courts “state were and sometimes In re 369, Raggio, (1970) (attorney magazine 87 487 Nev. P.2d 499 wrote article criticizing judges terms). Friedland, intemperate in In See also re 268 Ind. 536, (1978) (attorney suspended referring paternity 376 N.E.2d 1126 for to “ordeal,” hearing “travesty,” biggest seen”); as and “the farce I’ve ever In re Paulsrude, 303, (1979) (attorney 311 Minn. 248 N.W.2d 747 disbarred for remarks, calling judge in-court which included a “horse’s ass” after an ruling labelling proceedings “kangaroo court”). adverse and For cases attorneys see, disciplining criticizing Nelson, judges, e.g., not v. State 210 637, (1972) (no discipline imposed attorney 504 211 Kan. P.2d where made only general speaking losing litigation); party aсcusations and was in as Erdmann, 559, Appellate 426, Justices of Division v. 33 N.Y. 2d 301 N.E.2d 347 N.y.S.2d (1973) (attorney subject discipline though 441 to even he called madams,” appellate judges only “whores who become and claimed that the way judge politics buy it”); to become a was “to be or to State Bar Semaan, (Tex.Civ.App.1974) (no discipline imposed against 508 S. W.2d 429 634 70-75;

935-38, Konigsberg, at 77 71 L.Ed.2d at 353 U.S. 825; 366; 733, 1 Hirschkop, at 594 F.2d at id. at at L.Ed.2d S.Ct. Butzner, J., J., dissenting); (Winter, concurring and Texas, (N.D.Texas F.Supp. 787-88 Polk v. Bar of State 1974). 1-102(A)(5) attorney to an in his applies

Because DR citizen, ordinary invoking the standard for capacity as against speech sanctions should be that of a “clear and rule’s or, formulation, danger” to use an alternative a “serious present integrity threat” to the fairness and and imminent judicial recognize adequate we the absence of an system. While case, presented in this the facts that have thus far been record suggest Hinds’ statements created a do not “clear and present danger” prejudicing justice the administration of that he could be found to have committed an ethical such upon proposition, violation. If we were called to address that guard against confusing we would have to “be on offenses to jus with sensibilities obstruction to administration of [our] Brown, at at 2 L.Ed.2d at tice.” 596.

We need not further discuss the need for additional significant question of whether the First proceedings or the requires application of a stricter standard than Amendment 1-102(A)(5). test under DR The rea the reasonable likelihood reaching us sons which have deterred from determination of charges 7-107(D) DR posed by apply thе issues under as well 1-102(A)(5). ruling meaning to DR our on the Since 7-107(D) given prospective only, of DR will be effect application unwarranted, unnecessary, attempt discipline it is if not 1-102(A)(5). Hinds under attorney newspapers judge’s qualifications letters to critical of a who wrote “Attorney’s office). generally of Judicial Acts

hold Annot. Criticism as Action,” Disciplinary 12 A.L.R.3d 1408 Ground for

VI Thus, we that the conclude reasonable likelihood standard of 7-107(D) applied extrajudicial is constitutional as to the attorney statements of an who associated awith criminal trial, where the statements are about the trial intended to be publicly. disseminated

We holding only. limit to the this criminal context With the personal liberty of defendant at stake and to the need reach vital, right so presents unique prob result a criminal case lems compel step possible of trial fairness that us to take every Therefore, protect integrity to process.10 of that our deci today sion not be as interpreted approving should of the reason able to in attorney speech any likelihood standard restrict other context but a criminal trial. decline, however,

We any find Hinds violation ethical First, rule. We do for several so reasons. because the District case, hearing Ethics Committee conducted no on this we are presented inadequate with an factual record on which to base a Second, decision. application because this case involves the precept law, ethical rather than criminal we view the decision explanation itself as sufficient of the responsi- ethical bility attorneys Third, and find for punishment. no need noted, previously preservation and, significant 10As of trial fairness is a indeed, supra compelling State interest in the context. at 615- criminal However, very present 617. civil cases different Civil considerations. years complete actions sometimes take and often involve crucial issues of Bauer, importance. Hirschkop, 371-72; 594 F.2d at 522 F.2d at Moreover, by lawyers 257-58. there is far less evidence statements prejudice proceedings. Hirschkop, involved in civil can trials such 594 F.2d Therefore, 373-74. the two federal Circuit Courts which have addressed this issue have found the “reasonable likelihood” standard unconstitutional as applied attorneys Hirschkop; associated with a civil case. Bauer. (A) (E), through provisions In addition to sections DR 7-107 also contains trials, actions, dealing (G), (H), disciplinary with civil administrative ac- tions, (F), juvenile hearings, (F). we are this Since faced in case with a situation, constitutionality criminal trial we need not consider doing “reasonable likelihood” test in these other contexts and refrain from so. opinion represents

because this the first opportunity we have of DR proper had to define the scope 7-107(D), primary the disciplinary sought case, rule applied in this we deem it appropriate give prospective that rule only. effect Finally, being present there no basis for imposing discipline under DR 7-107(D), under charges the related 1-102(A)(5) should likewise be dismissed.

Accordingly, charges against the Hinds are dismissed. PASHMAN, J., concurring.

I concur with the majority’s conclusion that the “reasonable 7-107(D) likelihood” test of DR doеs not violate the constitution- ally protected speech free rights attorneys they while participating in criminal I trials. do so majority because the has construed this require standard to a “showing by clear and convincing evidence that an attorney’s extrajudicial speech truly Ante at 626. jeopardized trial fairness....” pre- This test cludes the Court from disciplining an attorney based on the vague feeling that his statement could possibly, or even foresee- ably, Rather, have affected the trial. discipline before may be imposed, the Court must have a firm conviction that the state- ment created an immediate danger of jeopardizing the fairness Moreover, of the trial. speech restriction on is narrowly attorneys limited to associated with the prosecution or defense trials; criminal trials. It does not extend to civil nor does it encompass attorneys who are not associated with the case.

I agree also with majority’s conclusion “attorney that an with no supervening professional responsibilities in a pending criminal ease seemingly would enjoy the same speech rights free as any other citizen.” Ante at I 633. therefore concur that prohibits discipline Constitution of attorneys for exercis- ing right their speech to free when they are not directly associ- ated with a speech criminal trial unless that creates a clear and present danger prejudicing justice. administration of Ante at 634. justification

I write because I believe that applying present danger the clear and attorneys test not associated with a criminal requires case fuller elaboration. I also think application ‍‌​​​​‌​‌​‌​‌‌​‌‌‌​​​​‌​‌‌‌‌‌​‌‌​‌‌​‌​‌‌‌​​‌‌‌‌​​‍present that the of that clear and danger test to this requires greater case discussion so that our decision today does protected speech not chill by attorneys. notes, majority

As the protects the First Amendment speech government. critical of the “The Constitution unques- tionably guarantees right of citizens to criticize public officials, including judges.” Ante (citations at 613 omitted). The freedom of our citizens to say they what public think of officials is our government firmest check on tyranny. This Court has stated that speech freedom of government

fosters the criticism of official conduct is to make necessary to citizens. That is democracies do responsive not inaccurate why punish speech. v. New (1982) 89 N.J. 176 at [Maressa Jersey Monthly, 201 ] Judges public are part officials. As of government, the state they subject public are to In re any criticism like other official. Sawyer, 622, 666, U.S. 1376, 1397, 360 79 S.Ct. 1473, 3 L.Ed.2d (1959) (Stewart, J., 1499 concurring). Public debate about courts, and even the performance specific judges, of long has part political legal been of our and system. citizens,

Like other attorneys are entitled speak freely. to right guaranteed This by the First Amendment to the Consti - tution. Ante R.M.J., -, at 614-615. U.S. -, S.Ct. 929, 935-38, 102 Konigsberg v. (1982); L.Ed.2d 70-75 Bar, State 353 252, 273, 722, 733, 1 77 L.Ed.2d courts, attorneys Since are officers of the they may be constitutionally subject to certain speech limitations on their protect fairness of see ante at 615 -616. trials, criminal However, attorneys when are not participаnts direct in the little, criminal proceedings any, justification there is if for imposing greater speech limits on their than those limits that apply general public. I believe that the Constitution demands such Lawyers possess any a result. do not inside they information about a trial in which participating; are not they speak any parties. only nor do difference general public and the attorneys attorneys between such is that trials conduct may specific judges. know more about and the of knowledge, this their more may Because of statements valua- greater impact a public opinion. ble to the or have on However,'their itself expertise by does not create an increased prejudice danger of fairness of the trial. distinguished Stewart between lawyers actively

Justice has trials participating criminal and those who are not. In re Sawyer, 360 U.S. at S.Ct. at 3 L.Ed.2d at 1499 (concurring opinion). suggested that the He Constitution did permit attorneys not same restrictions on immediately course, engaged litigation. lawyer person in the “Of a is a he too has constitutional may freedom utterance and to castigate exercise it courts their jus- administration of agree tice.” I Id. with this distinction.

Ordinarily, prohibited on speech restrictions Consti- they speech tution unless are limited to that creates a “clear and danger” present harming compelling state interest unrelat- suppression speech. ed to the See ante 618-619; at Ohio, Brandenburg 444, 1827, v. 395 U.S. 89 S.Ct. 33 L.Ed.2d 430 California, (1969); Bridges v. 86 L.Ed. This is the only appropriate standard for one deter- mining whether this may discipline attorney Court аn for state- ments critical of a criminal trial when judge attorney that is not directly associated with the case. See ante at 633-634. Attorneys disciplined 1-102(A)(5) cannot be DR under for out- of-court speech presents statements unless their a clear and present danger interfering of with the justice administration of harming or otherwise a compelling state interest. case,

In a press this Hinds called conference to state that the trial of Joanne “legalized Chesimard was lynching,” “traves ty,” “kangaroo and a judge court.” He claimed that the lacked “racial sensitivity.” Ante at 610-611. not make Hinds did his statements inside He the courtroom. did not address it to nothing witness. His statement had to do any juror potential or spoke as Director of specific merits of the case. Hinds with Lawyers of Black about a case which the National Conference these significance. had national I do not believe that state present danger threatening of posed ments a clear and question trial. There is no that fairness of Joanne Chesimard’s free to make these ordinary absolutely citizen would be any lawyer think can be forbid public. statements in I do not if he is not associated with making den from such statements encompassed type the case.1 This is not the of conduct that is prohibition against prejudicing the administration justice. pose statements did not a clear and Because these justice, danger prejudicing the administration of present 1-102(AX5). Hinds did not violate course, judges might criticism of recognize, I criticism, respect legal system. This and the reduсe for may sometimes be undeserved. Yet the possible respect, loss of citizens, permit including us to coerce Constitution does not acquiesce they deplore. in official acts that attorneys, silently Jersey Monthly, supra: v. New As we stated Maressa statements will hurt. Sometimes will turn out to be Sometimes published they regrettable must to the need for untrue. those Nevertheless, yield consequences N.J. at an informed citizenry. [89 200] legal citizens for our Preventing potential respect by loss of government interest sufficiently compelling institutions is not a California, v. speech. Bridges restrictions on 314 U.S. justify lawyer’s 86 L.Ed. at 207. The role as at 62 S.Ct. at the fairness of trials. While protect officer of the court is to ensuring public confi- attorneys responsibility also have some public image cannct be legal system, system’s dence in the shielding judges from criticism. As protected at the cost of California, Bridges supra: Justice Black stated in 1The of Hinds’ association with case different presents question possible 1-102(A)(5), applying of DR we assume However, for purpose problems. the case. that he is not associated with judiciary shielding judges that for the can be won assumption respect by wrongly from criticism the character of American published appraises public privilege although For it is a American to one’s not opinion. mind, prized speak good with on all taste, institutions. And an enforced always perfect public preserving dignity however in the name of silence, limited, solely engender bench, would and much more resentment, probably suspicion, contempt than it would enhance U.S. at respect. 270-71, S.Ct. at 86 L.Ed. [314 197-198, at 207] possible judges It is also that of may criticisms turn out to so, If public deserved. this is then will fact improve, criticism prejudice, justice. rather than the administration of It will judges they remind that are officials of the state and that their actions, officials, like those of other will be reviewed and judged by the citizenry. There is no reason to public believe that judges, statements about the official behavior of even when not accurate, ability system reduce the legal of our protect rights justice. every and do There is public reason believe that scrutiny about public and debate the conduct of officials is a our necessary system government. element of See Shattuck Byers, “An Egalitarian Interpretation of the First Amend- ment,” 16 Harv.C.R.—C.L.L.Rev. 379-81 Unlike governments authoritarian that stifle participation both in poli- debate, public tics and system government our encourages speak citizens to their minds on public importance. issues of We do fear criticism of officials. We welcome it and we expect vigorous forthright. it to be We want active and informed citizens, subjects. not timid

Attorneys knowledgeable are more than other citizens about judges. Preventing the official conduct of attorneys from criti- cizing judges go way would a long insulating toward judges from scrutiny. This is not a result a democracy that could tolerate.

CLIFFORD, J., concurring in result. The Court concludes the “reasonable likelihood” standard 7-107(D), dealing phase with publicity, one of trial is the appropriate lawyer’s extrajudicial standard which test a is intended to be disseminated to speech where the comments majority to the extent that the agree. only I It is public. the whether Hinds violated that determination on holds back from a thoughtful opin- depart from Justice Handler’s standard that I ion. repeating: part of the Rule bears pertinent During jury law trial of a criminal or matter, the selection of a or a lawyer of a criminal matter shall not with the or defense

firm associated prosecution extra-judicial making statement that he to be or in expects make participate any communication and that relates to the trial, disseminated means of by the other matters that are or issues in trial or reasonably likely parties, ** trial *. interfere with a fair deplorable profes- were in their absence of Hinds’s remarks they have reasonably likely is it that could sionalism. But how They solely were directed at the “interfered with a fair trial”? commented, any impact on “I don’t think it had judge, trial who whatsoever,” degree thereby displaying a desirable the trial is no haven for the trial courtroom epidermal impenetrability: thin-skinned, judge. or as There was lawyer either as the likely that was to influence nothing respondent in what said being which was still selected. Had judge jury, or a either announced, confession had been say, that a defendant’s he brutality, then a situa- enforcement officials’ extracted law presented. have been But fraught prejudice with would tion remarks, judge’s alleged the trial racial insensi- these critical of in the case. I upon any not touch substantive issues tivity, did so that thе bench and bar will say today, think we should that pour what kind of content we would into Disci- understand plinary Rule. being L. said that trouble with tolerant

Merle Meacham “[t]he problem.” understand the I people you is that think don’t just get I refuse to exercised about problem. understand the lapse sloganeering. into uncivil respondent’s SCHREIBER, J., dissenting. following filed the County Ethics Committee

The Middlesex Lennox Hinds: charge against respondent during At a on conference conducted selection 20,1977, of a press January jury speaking the Joanne Chesimard criminal as member trial, Judge he team, defense termed trial before Theodore to be a Appleby Judge judicial he stated “does have the “travesty”; Appleby tempera- judge”; ment racial sit or as an he that “it stated was sensitivity impartial began began seeing after trial that we fears we have that what only legalized lynching”; a stated he that the members of the Joanne Cheismard “gagged” Judge Judge defense team had been he that stated by Appleby; jurors asking self-serving was he which said were Appleby prospective questions leading hangman’s to “the creation of and he “it court” stated that will be a kangeroo judge kangeroo court the [sic] unless recluses himself” and that a [s/c] guilty court means a verdict. [sic] The respondent Committee asserted that the had violated DR and DR 1-102(A)(5) 7-107(D). attorney investigating

The the matter the Committee had requested that Hinds confer with him to offer any information explanation might or which assist the determining Committee in R. proceed. 1:20-2(h) (k). whether to Hinds refused. The subsequently Committee instituted formal prоceedings by approving the charge recited above.

The Committee has never been permitted to a hearing. hold no There is record. Court The certified this case to consider the to DR and DR challenges 1-102(A)(5) 7-107(D). constitutional I doing submit we erred in so.1 should,

It is an principle established that a court whenever feasible, decide a grounds. case on nonconstitutional That feasi- bility parties exists here. The sharply contested whether the respondent defense,” was “associated with ... the a condition violation of precedent to 7-107(D). If the respondent pre- respect vailed in this that charge would have been dismissed. 1Our certification to requested Hinds brief the respondent question of findings argued whether further factual were His brief necessary. none were needed because the Rules were Disciplinary unconstitutional facially because there was a in the record United District States Court. The brief filed the Ethics and Professional took the by Services that the Court position 1-102(A)(5) could consider the and, facial constitutional if DR issue and DR 7-107(D) were found to be constitutional, the matter should remanded to the District Ethics Committee. propriety Moreover, have had an effect on finding that could prejudi- conduct 1-102(A)(5)concerning charge under DR possible it was justice. Thus to the administration cial reaching without may have been decided controversy entire constitutional issues. 7-107(D) is constitutional. majority that DR agree with the I repeating: The Rule bears jury During trial of a criminal or a matter, of a or the lawyer the selectiоn of a criminal matter shall or defense

law firm associated with prosecution extra-judicial making to statement that he make expects or participate and that relates to the trial, communication be disseminated means public other matters that are issues in the trial or reasonably likely or parties, from or refer without that he trial, may quote interfere with fair except in the case. records of the court comment Rule is that the defend Disciplinary this policy underlying The have a fair trial. are entitled to and should and the State ant He completely prohibited. is not attorney’s right speak in the courtroom. appropriate argument make See State may denied, (1964),cert. 43 N.J. Duyne, Van (1965). may He after the case has 14 L.Ed.2d 279 S.Ct. may What he comment on the matter. completed properly been to the statements intentionally is disseminate not do interfere “reasonably likely to relating to the trial which with a fair trial.” charge the should be dismissed majority contends that it that its reasons, is valid. First claims neither of which

two concept. I 7—107(D)involves some new DR interpretation of likely test—reasonably stated to application of the submit that any new or unfore trial—does not involve interfere with a fair the “balancing test” referred dogma. The so-called seen 626, nothing ante at is majority, weighing more than the usual evaluating facts to reach a must do when any which fact finder any respondent. unfairness to the Nor do I foresee conclusion. Keiler, In re 380 A. “by lawyers.” and for The Rule was written language that case: “The (D.C.1977). As stated in 126 2d of the bar need not guidelinеs for members setting a rule might required that clarity precise meet the standards laymen.” Id. at 126. conduct for rules of 644

(cid:127) The reason is even It second advanced more curious. is that charge dispute should be dismissed because the factual concerning respondent’s relationship to defendant has the respondent successfully never been resolved. Thus has hearing to evaded a resolve whether he was “associated with the by instituting ... defense” a constitutional attack—which the Court finds is unsuccessful. disagree it Lastly, majority’s opinion I with the that seems quite require applica- certain that the First Amendment would danger” present tion of a “clear and standard to conduct under 1-102(A)(5). That rule reads as follows: DR 1-102 Misconduct (A) A shall not: lawyer

(5) engage prejudicial justice. in conduct that to the administration of added.] [Emphasis Disciplinary requires This Rule on its face that the conduct must prejudicial. be shown to be There must be clear and convincing hinder, evidence did attorney’s that conduct in fact block or justice. envisage obstruct I administration of no constitu impediment Assuredly tional standard. attorneys that directly whether related or to an ongoing trial should not be permitted Maxwell, Sheppard to frustrate fair trial. See 1522, 16 L.Ed.2d 333, 363, attorney In truth it is conceivable that an who is not associated may standing with the defense community have such in the may impact his words have a substantially greater on the fairness of a than the attorney trial those of of record.3 This is agree 2I . also do not with the definition Court’s restrictive of what very (1) “associated with” means. It has limited who concept any attorney regular (2) continuing with cooperates basis, the defendant on a and provides legal (3) assistance and holds to be a himself out member of the defense team. Ante eliminating at 627. An could the effect of the rule attorney escape by any one condition. majority 3The that an not opines attorney connected with a professionally pending seemingly enjoy rights criminal case “would the same free speech as courts, say attorneys may not to that not criticize judges, their decisions, judicial system. and the There proper is a time and place for such criticism.

We shall not know whether respondent’s conduct was “prejudicial to the administration justice respon- of or whether DR dent was 7-107(D)” associated with the defense and violated improper due to the aborting proceeding. of this Innovative arguments support advanced in that a contention rule has not been may violated at times be relevant in determining the any majority Ante at 633. other citizen.” The relies on four decisions in support proposition. apropos. Koenigsberg of this Two are not v. State Bar California, (1957), of 353 U.S. 77 S.Ct. 1 L.Ed.2d 810 related to the rejection plaintiff applicant of as an for the bar because of his refusal to questions ‍‌​​​​‌​‌​‌​‌‌​‌‌‌​​​​‌​‌‌‌‌‌​‌‌​‌‌​‌​‌‌‌​​‌‌‌‌​​‍membership Party. answer as to in the Communist In the Matter R.J.M., - U.S. -, (1982), 102 S.Ct. 71 L.Ed.2d 64 concerned the validity Supreme regulating advertising of a rule of the Missouri Court attorneys. advertising misleading The issue was whether the was or whether any justification regulation. there was other for its There was no discussion impact ongoing or consideration of the issue involved in this case—the on an third, Snead, Hirschkop (4th 1979), The trial. 594 F.2d 356 Cir. held that lawyers subject disciplinary are officers of the court sanctions to which non-lawyers subject, they rights are not that have First Amendment of free speech, they others, many privileges enjoyed by but that also have not and privileges responsibilities including compliance that these with come with case, Texas, professional codes of conduct. fourth Polk v. Bar State (N.D.Tex.1974), F.Supp. is a district court case which assumes very scope attorneys’ may there is a limited of areas in which standards be prescribed: (1) inability represent competently honestly (2) clients ongoing direct with interference trial. Moreover, 1-102(A)(5) applies attorney acting to an who is as a citizen, ordinary majority member of the bar and not as an as the states. majority previous attorneys Ante at 634. The overlooks its statement capacity judicial ordinary in their as officers “differ from citizens.” Ante at 622, 636, Sawyer, 616. Justice Brennan observed in In re 360 U.S. 79 S.Ct. 1376, 1383, 1473, 1483(1959): L.Ed.2d lawyer acquire any things A does not license to do these of a [criticisms judge’s integrity] by being presently They engaged in a case. equally currently engaged litigation serious whether he before the judge ground whereby pendency or not. We can conceive no litigation might thought attorney’s to make an out-of-court remarks censurable, they might more other than that tend to obstruct the adminis- justice. tration of However, applied. they

sanction to be should not serve as disciplinary vehicles to evade due proceedings. I would remand process the matter to the District VIII Ethics Committee complaint proceed pursuant to R. 1:20-2. RACHMIEL,

IN THE MATTER OF JOEL I. AN ATTORNEY AT LAW. Argued February Decided August 1982.

Case Details

Case Name: In Re Hinds

Court Name: Supreme Court of New Jersey

Date Published: Aug 4, 1982

Citation: 449 A.2d 483

Court Abbreviation: N.J.