*1 However, applied. they sanction to be should not serve as 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. 9, Argued February Decided August *3 argued Joel I. Rachmiel the cause pro se. A. Coolbaugh, argued
Colette Secretary, the cause for com- plainant Disciplinary Review Board.
The opinion of the Court was delivered HANDLER, J.
In companion this as in the case of In the Matter of *4 Lennox (1982), today, N.J. 604 also decided we must the constitutionality determine of certain disciplinary reg- rules ulating the extrajudicial speech of attorneys. primary disciplinary rule involved bars an with either associated or defense of a commenting criminal case from guilt accused, on the or innocence of the the evidence or the 7-107(B)(6). merits of case. We must now determine speech the free standards to be applied and the nature relationships required associational to invoke this rule.
I
Jersey attorney
practice
is a
admitted to
Joel I. Raehmiel
New
since 1973. From December 1973 to March
law in this State
prosecutor
an assistant
in the Union
Raehmiel worked as
capacity
prosecuted
In that
he
County Prosecutor’s Office.
Merritt,
killing
policeman during
the Plain-
George
accused of
The 1977 trial in which Raehmiel served as
field riots of 1967.
third time that Merritt had been
represented the
prosecutor
murder,
having
his first
two convictions
been
tried for
again
on
In this third trial Merritt was once
appeal.
overturned
murder,
degree
and the conviction was af
convicted of first
Merritt,
appeal.
No. _ (App.Div.1978),
v.
firmed on
State
However,
den.,
subsequent
in a
certif.
[********] Rachmiel is maintained that “because there reversal does mean that the just jury man is innocent. It is means that there additional evidence that a should consider.” Rachmiel out that the pointed courts that overturned Merritt’s three convic- tions “have never seen at trial. [the prosеcutor’s eyewitness] testify Thirty-six jurors have seen fit believe his he said. “I think is testimony entirely,” it judge unfair for someone read cold and from that.” transcript However, 25, 1980, February on Rachmiel distributed to the press editor,” stating a “letter that he was now of the view that Merritt be should not retried. He did this without consulting his employer, County former the Union Prosecutor. publications ran quoting
Several stories from the Rachmiel See, e.g., Journal, the National Law release. “Missing File Case,” 12, 1980; Newark Star-Ledg Frees Con in Murder March er, 1980; Statement,” 1, “Clarification on Daily March Journal, Trial,” 28, on Represent “Decision Due 4th Feb. reports ative of an article in the Courier-News dated these 26, 1980, entitled, February аnd “Ex-Prosecutor on Shifts Mer read, story pertinent ritt.” The in part: changed The former assistant said that while he hasn’t his belief prosecutor regarding beating Merritt’s mob of Patrolman John participation Gleason, gained pursuing he realizes “there little be is another no since, prosecution, matter what the ultimate verdict, all can claimed is a mere hollow moral one side or the other.” victory traditional needs for and deterrence, retribution reha- “Society’s punishment, longer justify bilitation can no further continuation of this Rachmiel any affair,” long suffering said. “There has too been much in the already events history since both Merritt his as well as widow, three family, children аnd and friends of Officer Gleason.” family thought caught Rachmiel said he Merritt wasn’t the criminal but was type up in the emotions of the time. “The need for if were ever rehabilitation, any ago long has been Rachmiel satisfied,” said. need not fear necessary, “Society George revenge against we Merritt, nor should seek further him. For he any during has shown his of freedom that he is anxious to return to his periods again abiding and friends and once become a and law citizen. family productive long rigors the issue, “Scholars debate but 13 and the may three trials years guilty are as much as man should have to endure, not.” *6 interviews to granted Rachmiel also period this same During Seymour Journal and Wish- Lаw of the National Larry Bodine the Merritt writing an article about man, Jersey a New Mer- Wishman that Magazine. Rachmiel told Harper’s case for his third detector test before initially requested a lie had ritt it, Merritt was offered a take and that then refused to trial but the offer. murder but declined degree second plea of statements, the Union these Rachmiel made At the time deciding retry whether to was still Prosecutor’s Office County 24, 1980, office moved to dismiss the that April On Merritt. indictment, Merritt a trial. sparing fourth decision, county prosecutor forwarded that the prior
Just to County District Ethics Com complaint to the Union an ethics Committee).2 The commit (now District XII Ethics mittee the against Raсhmiel and held hear complaint a formal tee issued prepar that he hearings Rachmiel admitted had ings. At those press to the and had made the and distributed the release ed divulging any him. He denied confi attributed to statements information, already report claiming press that the had dential polygraph a examination and that refusal to take ed Merritt’s publicly possibility had discussed the of a prosecutor himself bargain.3 plea 30, 1980, presentment the committee filed a December
On violating Disciplinary 1-102(A) with Rules Rachmiel charging possible Rachmiel had faced sanctions for 2This was not the first time that July cursory investigation inappropriately speaking out on a case. In a ongoing concerning public during Rachmiel’s statements .as conducted investigation g jury The ethics ceased after Rachmiel and deliberations. and, ironically, prosecutor explained misquoted assured that he had been always extremely investigator had been discreet. that Rachmiel 24, 1978, September appearing Bergen in the Record on it was 3In an article (not normally says reported he’ll take a lie-detector test that “Merritt now say rejected court) prove story; prosecutors his he earlier admissible that he was told Wishman that to take a test.” Rachmiel said invitations possibility plea bargain during prosecutor had disсussed the one of their conversations. 4-101, 7-107(E). DR 1-102(A)(5), 7—107(B)(6) and (1), 1-102(A)(1) states “a lawyer that shall not ... [violate Disciplinary Rule.” 1-102(A)(5) sanctions attorneys “[e]ngag[ing] prejudicial in conduct ... administration justice.” 4-101(B)(1) lawyer states that “a shall not know [rjeveal ... ingly confidence or secret his client.”' 7-107(B)(6) reads: A or law firm with associated or defense of a criminal lawyer making extrajudicial matter shall not make or statement participate he means disseminated communication expects public guilt ...
relates to as or innocence of the [a]ny opinion accused, or the merits of the case. evidence, *7 And 7-107(E) states: After the of a trial or without trial of a matter completion disposition and the sentence, of or law firm prior imposition associated with the lawyer making extra-judicial defense shall make or in participate that he statement to be disseminated expects communication and that by public is to affect the reasonably of sentence. likely imposition appealed
Rachmiel the Disciplinary Board, State Review seeking presentment. a dismissal argued He the disciplinary proscribing attorney State’s rules out-of-court state unconstitutionally ments are vague and overbroad. He further public contended that his comments violated no client confidence (the being client this case New Jersey).4 State of July 30, 1981, Board decision, holding
On issued a 5-2 Rachmiel violation of charged recommending all rules and reprimand. public majority The refused address Rachmiel’s challenges, concluding constitutional that the Board was without authority to make such determinations. The dissent addressed the constitutional issue to extent it found it “doubtful that 7-107(B) will able to judicial scrutiny.” withstand It further found that upon Rachmiel’s had statements no effect justice administration of and were made at a when time 4Rachmiel also moved for a action on the postponement presentment until the federal courts a decision in reached Hinds’ federal State Garden Bar Association v. See Middlеsex N.J. County Ethics Committee. at 611 The -613. Review Board denied that motion. Disciplinary longer actively
Rachmiel was no associated with the case. Therefore, the dissent concluded that while Rachmiel’s conduct unwise, it did not constitute a violation of the State’s disciplinary rules. 17, 1981, December this Court
On ordered Rachmiel to show why disciplined cause he should not be for his conduct.
II guilty violating disciplinary Rachmiel was found four rules. clearly directly rule which most covers 7-107(B)(6), Rachmiel’s proscribes statements is which attor neys making involved in criminal cases from statements that “[a]ny opinion guilt relate to as to the or innocence of the Ra accused, evidence, or the merits of the case.”5 chmiel application 7-107(B)(6) contends that of DR to the com ments which he made about the Merritt trial would violate his right First Amendment speech. reject of free We argu these ments for the reasons set forth in Hinds. determining
In the validity of upon restrictions free speech, the constitutional analysis application calls for the two demanding tests. The first is whether a govern- substantial *8 7-107(B)
5DR as follows: provides A firm lawyer or law associated with the or defense of making extra-judicial criminal matter shall not make or participate statement that he to be disseminated means of expects by commu- public nication and that relates to: (1) (including character, The or criminal record reputation, prior arrests, charges crime) indictments, or other of of the accused. (2) guilty charged The of possibility to the offense or plea to a lesser offense. (3) The existence or contents of any confession, admission, or statement given the accused or his refusal or failure to make a statement. (4) The or results of performance examinations or tests or the refusal or failure of the accused to submit to examinations or tests. (5) The or identity, testimony, witness. credibility prospective (6) guilt as to the Any opinion accused, innocence of the the evidence, or the merits of thе case.
655
upon
mental
interest
is furthered
speech.
restriction
413,
Martinez,
396,
v.
1800, 1811,
Procunier
416
94
U.S.
40
S.Ct.
224,
(1974).
requires
L.Ed.2d
240
The second
that the restriction
greater
be
necessary
protect
no
than is
or essential
governmental
Id.
application
interest
involved.
The
of these
balancing
gravity
tests involves a
and likelihood of the
harm that would result
from unfettered speech against
degree to
speech
which free
would
if
inhibited
the restriction
Stuart,
is applied.
539,
Nebraska Press Association v.
427 U.S.
562,
2791, 2804, 49
683,
(1976),
96 S.Ct.
L.Ed.2d
699
citing United
Dennis,
201,
(2
1950) (Hand,
States v.
183 F.2d
212
J.), aff’d,
Cir.
494,
857,
(1951).
341 U.S.
71 S.Ct.
procedural 1, 17-18 (1979). Lashinsky, 81 N.J. See warning. v. quate State 566, 573, 1242, 1247, 94 39 L.Ed. Goguen, 415 S.Ct. v. U.S. Smith primari of overbreadth focuses 605, (1974). The doctrine 2d 612 articulated, restriction, clearly encom even if whether the ly on protect essential to absolutely necessary and than is passes more 618; Hinds, Gray at governmental interest. 90 N.J. ned, 2302, 115, 408 33 L.Ed.2d at U.S. at 92 at S.Ct. process due consid Thus, involves substantive overbreadth protected ar intrusion into governmental excessive erations of proc due procedural concerns of eas, vagueness implicates while 618; Hinds, 90 N.J. at warning. to fair relating ess N.J. at 17-18. Lashinsky, 81 imposes restraints at issue in this сase
The ethical rule persons—attorneys limited class of upon a persons matter. These have a pending in a defense of criminal in the administration responsibility role and unique and, therefore, extraordinary power to under have an justice justice system. efficacy of the criminal destroy the mine or 623-624; 615-616, Middlesex Ethics 90 N.J. at 2522-2523; at -, Goldfarb v. Comm., - 102 at S.Ct. U.S. 2004, 2016, 773, 792, 44 Bar, 95 S.Ct. 421 U.S. Virginia State Hinds, such 572, (1975). the reasons stated in 588 For L.Ed.2d re subject carefully tailored appropriately attorneys are speech. their free upon straints subjects particularly 7-107(B) a number of enumerates pending with a areas, attorneys associated about which sensitive supra, 90 publicly. criminal case are not to comment See N.J. 654, these restraints prohibition, at n.5. As a blanket Snead, Hirschkop would be unconstitutionally overbroad. v. 356, (en banc); (4 1979) 594 Chicago F.2d 363-68 Cir. 242, Bauer, (7 1975), 522 F.2d 251 Cir. cert. Lawyers v. Council Cunningham, v. Lawyers den., Chicago nom. Council sub However, 3201, when 49 L.Ed.2d U.S. S.Ct. 7-107, all sections of DR conjunction with the other read in *10 apply only speech which to that is which “reasonably likely” to trial, interfere with a fair proper scope provision the of this becomes clear. 7-107(B)(6)
We
imposing
construe DR
as
the reasonable
determining
likelihood test for
the
scope
nature and
of this
upon
speech. Bauer,
251,
free
restriction
at
F.2d
254-55.
interpreted,
7-107(B)(6)prohibits
So
an attorney involved in
an ongоing
making extrajudicial
criminal trial from
comments
concerning
guilt
or innocence of a criminal defendant
quality of the evidence or the merits of the case when such
are
publicly
remarks
intended to be
disseminated and are rea
sonably likely to interfere with a
By
fair trial.
articulating
particular subjects about which attorneys associated with a
comment,
rule,
effect,
criminal case should not
creates a
presumption
rebuttable
that statements
topics
on these
are
reasonably likely
Bauer,
to affect the proceedings.
For the reasons enunicated in we are satisfied that the constitutional mandate the First Amendment does compel a stricter as test such “clear and present danger” or prejudice. “serious and imminent threat” of strong The State’s society’s great concern and proper interest in the administration justice system of the overemphasized. criminal cannot be Judi fairness, cial integrity efficacy and important are sufficiently objectives speech to justify a restriction that seeks to insure that proceedings will not be frustrated or undermined. Hinds, 90 N.J. at emphasize approach any shifting 6We this does not involve proof. comрlainant prove by
ultimate burden of The would still have to clear convincing charged .party evidence that the committed an ethical viola- Pennica, 401, (1962). presumption tion. In re 36 N.J. 418-19 would simply production charged party, serve to shift the burden of who presumption. would then have come forward with evidence to rebut the Bertram, Griggs See v. 88 N.J. 366-67 that, matter, subject in terms of
There can be no doubt of purview statements fall within the Rachmiel’s 7- 107(B)(6). cannot minimize the fact We Rachmiel’s re highly improper. spoke openly guilt were He about the marks defendant, quality of the evidence and the merits of prosecutor a former assistant actually the case. As who had his stаtements were presented particularly' telling. *11 case, however, in this special difficulty posed The is whether the permits a determination that clear and convincing record reasonably likely Rachmiel’s remarks were to interfere evidence proceedings. proper determining the criminal test for with reasonably likely whether Rachmiel’s statements were to affect balancing is the we approach trial fairness which have articulat N.J. at today’s Hinds decision. in first time for the ed considered, in be All factors must 622-623. relevant statement, the context in the cluding timing the nature and of uttered, it Id. attorney’s which was and the status in the case. pro of burden has thе respondent at 622. While of ultimate burden duction, has the complainant still persuasion convincing to demonstrate clear and evidence that reasonably likely the statements were to affect trial fairness. In this case both the Ethics Committee Disciplinary and the Rachmiel violated DR Review 7-107(B)(6). Board concluded However, neither tribunal had the benefit of the applicable balancing test when it assessed the facts and reached its ulti- circumstances, decision. mate Under these we cannot assume proper balancing actually applied test was or that had invoked,- it same necessarily been result would have been Furthermore, reached. there is no indication that the lower tribunals properly presumption understood or dealt with the prejudice posited opinion which we have in our today as a component proof proceeding of the burden of in an ethics under 7-107(B)(6). Supra at 656. DR addition, Rachmiel contends that
In 7-107(B)(6) can applied longer not be to him since he was no actively participat- and, fact, ing in the ease engaged private practice law when he made his remarks. If the disciplinary rule were to be applied him, would, to argues, it Raehmiel be invalid on both vagueness grounds. and overbreadth 7-107(B)(6) does apply speech not by ordinary uttered lawyers citizens or even to in general or as a applies class. It only lawyer or law firm associated with the “[a] Hinds, or defense of a criminal matter.” In we interpreted a in phrase 7-107(D) including similar only as attorney charged of record with the representation actual party (there, defendant) any lawyer but who is associated with attorneys regular, continuing record in a cooperative and professional capacity publicly and who claims associated N.J. at 627- with the in the case. attorneys record This class of attorneys would logically sensibly include like someone Raehmiel who had been an of record in but, reason, the case longer whatever was no participating in individual, litigation. privy Such an once to confidential information about cannot later violate those confidenc- *12 merely officially es because he no longer is participating or actually otherwise “associated with” case an attorney. the as Cf. DR 7-107 (rule applies on client equal confidences with force attorney-client after a case is terminated or the relationship ceases). This especially important is in a case has that not been By previous participation concluded. virtue of his in the case as counsel one the parties, attorney of the must be deemed to long be associated with the case for as continuing as case is finally and his former client’s interests have not been adjudicat- or contrary ed resolved. It would be purpose of this rule to allow an intimately involved in an ongoing case to openly simply comment about it because his association the with matter ceases before it is concluded. we hold that DR
Accordingly, 7-107(B)(6), application in its attorneys longer of record are no actively who involved Consequently, we overbroad. vague nor is neither
ongoing
rule to
disciplinary
of this
application
reject
the claim that
under
right
speech
his
to free
violation of
constitutes a
Rachmiel
First Amendment.
violation of
Nevertheless,
to find Rachmiel in
we decline
we have had
opportunity
case is the first
7-107(B)(6). This
DR
that must be
balancing
presumption
test and the
explain
7-107(B)(6).
DR
determining
speech
what
violates
invoked in
which
the first occasion on
today constitutes
Also,
opinion
our
7-107(B)(6) applies
attorneys
DR
determined that
we have
formally,
functionally participat
longer officially,
are no
who
engaged
are
here not in
trial. We
ing
continuing criminal
in a
shaping
in the
of
laws but
the enforcement
public
rules,
protect
of which is to
purpose
disciplinary
rather than to
legal profession,
edify
improve
and to
speech,
the casе involves
just
important,
as
And
punish.
should, only with
solicitude that
strong
of
constitutional
matter
sanctions.
reluctance,
subject
disciplinary
of
be the
utmost
Hinds,
See
We
only.
given prospective effect
today,
us
be
interpreted by
Smock,
90 N.J. at
In re
Compare
628-630.
N.J.
(1981),
Wilson,
with In
re
Ill Rachmiel Board also found Disciplinary Review extrajudi 7-107(E). prohibits That rule guilty violating sentencing likely to affect the reasonably are cial comments that *13 what other effects Aside from proceeding. criminal phase of a George of Mer upon disposition had statements Raсhmiel’s during the sentenc- case, not uttered these comments were ritt’s ing phase. Rachmiel of expressed When his views Merritt’s conviction had been reversed. possible Merritt faced retrial, DR sentencing. Hence, 7-107(E) inapplicable not is this instance. was of DR
Rachmiel also found in violation 4-101(B)(1), prohibiting an “[r]eveal[ing] from a confidence or secret Specifically, of his client.” Rachmiel is said to have told a reporter that Merritt refused to take lie test detector and was plea bargain offered a which he refused.7 Under circum stances, we decline to find guilty violating Rachmiel of this disciplinary Both supposed rule. of these ap confidences had Bergen Record, parently been already publicly. revealed See September 24, (“Merritt now he’ll says take a lie-detector prosecutors say test ... rejected he earlier invitations take a test”). Rachmiel testified was by attorney-writer that he told prosecutor Wishman openly that the possibili had discussed the ty plea bargain. The State bears the of proving burden In re convincing infraction clear and evidence. Pennica, 36 N.J. The 418-19 evidence in this case does convincing proof not constitute clear and ethical Therefore, violation. we find that Rachmiel did DR violate 4-101.
Rachmiel also found guilty violating discipli- other two nary rules, 1-102(A)(5) and 1-102(A)(1). proscribes [by former “conduct an attorney] prejudicial to justice.” administration of We also this rule addressed
Hinds. We noted that since 1-102(A)(5) is not limited in its application attorneys officially who are participating in or meaningfully ongoing trial, associated with an such an divulgences 7-107(B)(2), 7These could be as construed violative of DR prohibiting attorneys publicly discussing plea “possibility from a offense,” charged 7-107(B)(4), prohibiting offense to a lesser and of DR attorneys commenting “performance from on the or results of examina- tions or tests or the refusal or failure of the accused to submit to examina- tions or tests.” *14 seem to speech the rule to wоuld application of unrestricted test “reasonably likelihood” than require a stricter standard at 632- 90 N.J. First Amendment. under the pass muster the same no- Nevertheless, we are satisfied to find that convinced us judicial policy of fairness and tions 7-107(B)(6) impel us to find also Rachmiel of no violation 1-102(A)(5). no violation of DR DR 1- that Rachmiel violated determination Finally, finding that Ra- in the absence 102(A)(1) cannot survive rule, which disciplinary rule. This some other chmiel violated [vjiolate Disciplinary lawyer sháll not .. . provides “[a] independent It has no substantive Rule,” purely is derivative. disciplinary sanctions provide and cannot the basis strictures we have separate no ethical infractions. Since if there are other did not violate concluded that Rachmiel 1-102(A)(1) instance, must also the violation of DR in this rules set aside. IV Disciplinary Review determination Accordingly, 1-102(A)(1), Disciplinary Rules violated Board that Rachmiel 7-107(E) and the 4-101, 7-107(B)(6) and is reversed 1-102(A)(5), is with ethical violations dis- charging Rachmiel presentment missed. J.,
SCHREIBER, dissenting. Disciplinary Re- Ethics Committee and The District XII discipli- had violated various respondent found the view Board Review Board recommended Disciplinary and the nary rules undisputed. largely The facts were public reprimand. County, repre- Prosecutor in Union Respondent, an Assistant George Merritt. The conviction in the trial of sented State Court, certification denied this appeal on was affirmed However, District Court the United States 81 N.J. corpus County and the Union writ of habeas Merritt a granted Prosecutor’s Office was faced with the decision of whether to retry Merritt.
Respondent, private practice, who was then in was inter- *15 by reporter viewed a Courier-News. The interview was article, published. to the According respondent stated the case explained should be retried. He that a “ruthless murder of a involved, police officer” prior juries three consisting of thirty-six people guilty, had found Merritt that the courts which prior prosecu- had reversed the convictions had seen the never key eyewitness tion’s and that it was “unfair for someone to transcript judge read cold and from that.” later, after days discussing wife, Several the case with his respondent press drafted a statement which he released to the Courier-News, Daily Journal, Bergen and the .Record Newark Each Ledger. paper quoting Star ran articles him at length. release Respondent’s changed stated that he had his mind retry and that the should not Respondent State Merritt. reporters also advised certain that Merritt had refused an offer to take a lie and an plead guilty detector test offer to to second degree murder.
The First during Assistant Prosecutor who testified the hear- ing before the Committee Ethics indicated that his office re- many community groups respondent’s ceived сalls from after published urging statement was the Prosecutor not try again. Merritt The First Assistant believed Prosecutor that the publicity prejudiced possibility of a new trial. The situation by thereafter is the Disciplinary best described Board: compromising The Prosecutor’s office was in a situation because of the placed statements made Rachmiel since Mr. rules precluded making regarding Prosecutor from statement the case. any it Additionally, made the as to the Prosecutor’s decision of the matter more difficult disposition because of the outlined It also made it position previously respondent. making extrajudicial difficult to restrain other Assistant Prosecutors from regard handling. statements with cases were to because of the they Lastly, of this case the Prosecutor’s Office was desirous that the notoriety clamor by groups certain subside before At the pressure made decision. time of the they reversal of the choices conviction several were to the to Prosecutor, open namely Judge to decision; time; Meanor’s Merritt for the fourth appeal retry Judge Assignment dismissal of the indictment, Merritt; apply retry bargaining. engaging As the Merritt in a choice of plea there was and lastly, feeling with the case and his expressed of the familiarity result respondent’s in a the Prosecutor was position should not bе retried, placed that the matter exercising some of the avenues previously where he was hampered perhaps Prosecutor stated that this did not the First Assistant to him. However, open as the Prosecutor’s Office Until such time the Prosecutor’s decision. influence the matter or dismiss the Merritt case, whether to determined retry officially remained open. these statements if he had that he would have not made conceded Respondent the time the reversal occurred. Prosecutor’s Office at in the been employ found violations of DR 1- Disciplinary Review Board DR (4) (6), 7-107(E), and (5), 7-107(B)(2), and 102(A)(1) majority that there was no 4-101(B)(1). agree I with the likely to of 7-107(E) which involves statements violation However, the record does estab sentence. imposition affect Rules. remaining Disciplinary cited lish violations of the why subject he is not advanced two reasons Respondent has *16 with longer he was no associated He contends that discipline. despite releases the press when he issued the prosecution the specious. Merritt. This claim is prosecuted he had fact that have known that information knew or should Respondent within the traditional framework of prosecutor as a fell obtained purposes Disciplinary The of these attorney-client privilege. the the at the time depend on the status of Rules do not disseminated. Termination of the public communication is the relationship justify did not his actions. attorney-client by privileged that his comments were Respondent also claims As to the United States Constitution. the First Amendment lawyer always a is not in the same majority, indicated speech. respect right with to his of free position as other citizens he is an speech may properly be limited because His freedom of fiduciary relationship has a with his “officer of the Court” and client. of 7-107(B)(1), charged with violations
Respondent read as follows: (2), (4) and Those Rules (B) or of A or law firm associated with the defense lawyer making extrajudicial or criminal matter shall not make participаte statement he to be that disseminated means of expects communica- public tion and that to: relates (1) (including character, The or record reputation, prior arrests, crime) charges other of or of the accused. indictments, (2) guilty charged The of or offense to a lesser possibility plea offense. (4) The or results of examinations or or the performance tests refusal or failure of the to accused submit to examinations or tests. (6) guilt as to the or of innocence Any opinion or accused, evidence, the merits case. I concur majority’s interpretation in the provisions of these requiring showing that the communication found to be reasonably to likely justice. interfere with the administration I justifies However, believe the a finding. record such there is a possibility respondent that may produced have some evi- respect dence in this and I would afford him opportunity. Moreover, conduct under judge respondent’s I would 1-102(A)(5) under the stated in my dissent in In standard Matter Lennox 90 N.J. (1982), namely, “prejudicial whether the communications were adminis- justice.” tration of
It is incongruous majority proceeding dismisses this because it believes the District Ethics and Discipli- Committee nary Review applied Board had not its test.” “balancing Why not remand case purpose? for that basis other for dismissal is that this is “the first occasion оn which we have 7-107(B)(6) applies attorneys determined that who are no longer officially, formally, functionally participating in a continuing criminal trial.” Ante at 660. If to dismiss we are reason, proceedings this type prepared we should be *17 dismiss every case which is a “first occasion.” test should be whether the rule was forewarned that was or reasonably applicable him. could If doubt he could have sought Advisory of the opinion Committee on Professional Ethics. R. A reading Disciplinary 1:19-2. Rules in public of his communications to the should have alerted
advance him. parties the Ethics Committee for the
I would remand to relevant evidence on the effect of the commu- submit additional justice. on the administration of nications MASTRANGELO, INC., CORP., IMPAC, A. A. AVON LANDFILL INC., CORP., SERVICE, HAULAGE INTERCITY INDUSTRIAL INC., COMPANY, INC., UNITED CARTING AND WASTE DIS POSAL, INC., APPELLANTS, v. COMMISSIONER OF THE DE PARTMENT OF ENVIRONMENTAL PROTECTION AND DE PROTECTION, PARTMENT OF ENVIRONMENTAL RESPON DENTS. UNION, THE THE CITY COUNTY OF OF ELIZABETH AND THE KENILWORTH, APPELLANTS, BOROUGH OF v. COMMIS THE DEPARTMENT SIONER OF OF ENVIRONMENTAL PRO JERSEY, THE OF NEW TECTION OF STATE RESPONDENT. KENILWORTH, APPELLANT, THE BOROUGH OF v. COMMIS OF THE DEPARTMENT OF SIONER ENVIRONMENTAL PRO TECTION OF THE STATE OF NEW AND THE DE JERSEY PARTMENT OF ENVIRONMENTAL PROTECTION OF THE JERSEY, STATE OF NEW RESPONDENTS. ELIZABETH, APPELLANT, CITY OF v. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEW AND THE JERSEY DEPARTMENT OF ENVI RONMENTAL PROTECTION OF THE STATE OF NEW JER SEY, RESPONDENTS. 14,
Argued Decided August December