Opposition Brief — Gentile v. State Bar of Nev.

} Supreme Court, U.S,

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No. 89-1836 ‘

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: — —

In The

Supreme Court of the United States

October Term, 1989

oo

DOMINIC P. GENTILE,

Petitioner,

v.

STATE BAR OF NEVADA,

Respondent.

—

On Petition For Writ Of Certiorari

To The Supreme Court Of Nevada

>

BRIEF IN OPPOSITION

+

Joun E. Howe

Bar Counsel

State Bar of Nevada

500 South Third St., Suite 2

Las s, Nevada 89101

(702) -0502

Counsel Of Record For Respondent

NE Oh CAL COLT a) 32a

QUESTION PRESENTED

Whether Nevada Supreme Court Rule 177, a parallel

to ABA Model Rule 3.6, is constitutionally permitted

against First Amendment challenge as a means for

advancing the state’s interest in the promotion of the

administration of justice and fairness of trials, as applied

in imposing a private reprimand upon a criminal! defense

lawyer for holding a press conference and making extra-

judicial statements found to have a substantia! likelihood

of materially prejudicing an adjudicative proceeding.

Page

QUESTION PRESENTED ..................-2.-+0+: i

TABLE OF AUTHORITIES.................--.----. iit

STATEMENT OF THE CASE..................--.-. 1

REASONS FOR DENYING THE WRIT............. 4

iii

TABLE OF AUTHORITIES

Page

Cases

Chicago Council of Lawyers v. Bauer, 522 F.2d 242

(7th Cir. 1975), cert. denied, 427 U.S. 912 (1976) .... 10

Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979)...... 10

In re John Zimmerman v. Board of Professional

Responsibility, 764 S.W.2d 757 (Tenn. 1989), cert.

denied, 109 S.Ct. 3160 (1989) .................. 10, 11

In re Rachmiel, 449 A.2d 505 (N.J. 1982) ............. 10

In re Richmond Newspapers v. Virginia, 448 U.S. 555

PU PPPUPEPEEGDESSGSSG6bsececceescccccccccccccce: 5

In the Matter of Disciplinary Proceedings Against

Alan D. Eisenberg, 423 N.W.2d 867 (Wis. 1988). .12, 13

Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423 (1982) ............. 5, 10

Sheppard v. Maxwell, 384 U.S. 333 (1966).............. 4

State of Nevada v. Grady Sanders, Case No. C 81299..... 2

Mover Rutes

ABA Model Rule of Professional Responsibility

EEE SSIES ESSE OPPETETTTET TEST 5, 12

Disciplinary Rule 7-107...................... secoem We

Nevada Supreme Court Rule 177....... 2, 3, 5, 6, 9, 11

OrHer AUTHORITIES

Hazard, Jr., The Law of Lawyering: A

Handbook on The Model Rules of Professional

Conduct, Volume I, 1987 Supplement .............. 5

No. 89-1836

+

In The

Supreme Court of the United States

October Term, 1989

—

DOMINIC P. GENTILE,

Petitioner,

v.

STATE BAR OF NEVADA,

Respondent.

+

On Petition For Writ Of Certiorari

To The Supreme Court of Nevada

o-

BRIEF IN OPPOSITION

+

The State Bar of Nevada, the Respondent, respect-

fully submits this brief in opposition to the petition for

writ of certiorari to the Supreme Court of Nevada that

was filed on May 22, 1990, by Dominic P. Gentile, the

Petitioner.

+

STATEMENT OF THE CASE

The Petitioner, Dominic P. Gentile, is a criminal

defense attorney in Las Vegas, Nevada. He was

disciplined by a private reprimand for a violation of

Nevada Supreme Court Rule 177 relating to pre-trial pub-

licity.

Dominic Gentile represented Grady Sanders in the

defense of an eleven count Clark County Grand Jury

indictment charging Sanders with grand larceny, traffick-

ing in narcotics and racketeering. On February 5, 1988, on

the day of Sanders’ arraignment, Gentile held a press

conference attended by electronic and print media. Gen-

tile made statements to the press regarding a then pend-

ing criminal case, entitled, State of Nevada vs. Grady

Sanders, Case No. C 81299.

3

6) “Now, up until the moment, of course,

that the other victims started going along with

what detectives from Metro wanted them to say,

these People were being held out as being

incredible and liars by the very same people

who are going to say now you can believe

them,” Pet., pp. 8a, 9a;

7) “I know I represent an innocent man,”

Pet., p. 12a;

8) “I'll tell you this: you’re going to learn

throughout these proceedings that the cops gave

some of the cocaine away, which is totally

unheard of, but gave away cocaine samples to

During the press conference, Gentile made the fol-

lowing comments:

1) “Grady Sanders is an innocent person

and had nothing to do with any of the charges,”

Pet., p. 8a;

2) “The person that was in the most direct

position to have stolen the drugs and the money,

the American Express Travelers’ Checks, is

Detective Steve Scholl,” Pet., p. 8a;

3) “There is far more evidence that will

establish that Detective Scholl took these drugs

and took these American Express Travelers’

Checks than any other living human being,”

Pet., p. 8a;

4) “I feel that Grady Sanders is being used

as a scapegoat to try to cover up for what has to

be obvious to people at Las Vegas Metropolitan

Police Department and at the District Attorney’s

office,” Pet., p. 8a;

5) “The so-called other victims, one, two-

four of them are known drug dealers and con-

victed money launderers,” Pet., p. 8a;

people that they were trying to set up,” Pet., p.

13a;

9) “We've got some videotapes that if you

take a look at them, I'll tell you what, he (Steve

Scholl) either had a hell of a cold or should have

seen a better doctor,” Pet. p. 14a.

Gentile knew that Detective Scholl would be a pros-

ecution witness at Sanders’ trial and he also believed that

the “other victims” would be called as witnesses by the

prosecution at trial. App., p. 4a.

The State Bar of Nevada presented a grievance to a

three member Screening Panel (two attorneys and one

laymember) who referred the matter for a formal disci-

plinary hearing. On December 6, 1988, the State Bar of

Nevada filed a one count complaint against Dominic

Gentile alleging a violation of Supreme Court Rule 177.

App., pp. la, 2a.

On April 17, 1989, a five member Hearing Panel (four

lawyers and one laymember) heard the evidence and

viewed the videotape of the press conference and later

found that Gentile violated Nevada Supreme Court Rule

177 in connection with his extrajudicial statements made

to the press. Gentile referred to the innocence of his

client. Gentile attacked the integrity of the criminal inves-

tigaiion and the credibility of prosecution witnesses. Gen-

tile also commented on subjects, including polygraph

tests, that he knew would not be admissible at the time of

trial.

The Southern Nevada Disciplinary Board recom-

mended the issuance of 2 private reprimand. Gentile

appealed to the Nevada Supreme Court. The Court

affirmed the decision by a vote of 4 to 0, Chief Justice

Cliff Young having voluntarily disqualified himself from

considering the case.

+

REASONS FOR DENYING THE WRIT

This case is not appropriate for review by this Court,

for the following reasons.

1. The Petition Attempts To Relitigate, In This

Court, Factual Issues Decided U Questions

Of State Law, Which Do Not Warrant Further

Constitutional Review.

While an attorney does not surrender the right to

freedom of speech upon admission to the Bar, the attor-

ney takes on an added responsibility, that of being an

officer of the court with a duty to assist in the administra-

tion of justice and to refrain from actions which would

result in the denial to any party of a fair and impartial

trial. This responsibility must be balanced against the

attorney’s right of free speech. As stated in Sheppard v.

Maxwell, 384 U.S. 333 (1966), “Restrictions on an attor-

ney’s speech must reflect a balance between the interests

of the public, the judiciary and the parties.”

The disciplinary rules have been designed to provide

a balancing test for these frequently competing interests

of fair trial and free sp-ech. Nevada Supreme Court Rule

177 was closely tailored to ABA Model Rule 3.6, which

replaced DR7-107 in addressing the question of trial pub-

licity. The Law of Lawyering: A Handbook on the Model Rules

of Professional Conduct, Hazard, Vol. |, 1987 Supplement,

p. 393.

Under the old provisions of DR7-107, the rule listed

statements which were prohibited and statements which

were permitted at various stages of the iegal proceedings.

It generally attempted to prohibit statements that were

reasonably likely to interfere with a fair trial. The old

standard was criticized by some courts as being vague or

overbroad under the First Amendment. In drafting a new

rule, ABA Model Rule 3.6, an attempt was made to meet

this criticism. The first paragraph is designed to be analo-

gous to a clear and present danger test. The Law of Lawyer-

ing, id. at 395. It prohibits statements that the lawyer

reasonably should know “will have a substantial likeli-

hood of materially prejudicing an adjudicative proceed-

ing.” In the case of In re Richmond Newspapers v. Virginia,

448 U.S. 555 (1980), this Court said: “Courts must take

such steps by rule and regulation that will protect their

processes from prejudicial outside interferences.”

In Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423 (1982), the Court invoked the

abstention doctrine so that a State Bar disciplinary hear-

ing could be held involving attorney Hinds against inter-

ference by the Federal Courts.

At the start of a criminal trial, Hinds, a New Jersey

attorney, took part in a press conference, making state-

ments critical of the trial and of the trial judge’s judicial!

temperment and racial insensitivity. Hinds referred to the

criminal trial as a “travesty,” a “legalized lynching,” and

“a kangaroo court.” This Court held: “The State [of New

Jersey] has an extremely importatt interest in maintain-

ing and assuring the professional conduct of the attor-

neys it licenses. ... The State’s interest in the

professional conduct of attorneys involved in the admin-

istration of criminal justice is of special importance.”

Nevada Supreme Court Rule 177, adopted on March

28, 1986, promotes the trial of cases in the courtroom

rather than in the airwaves. The Rule reads:

Rule 177.

Trial Publicity.

2. A statement referred to in subsection 1

erdinarily is likely to have such an effect when

it refers to a civil matter triable to a jury, a

criminal matter, or any other proceeding that

could result in incarceration, and the statement

relates to:

7

(a) the character, credibility, reputation or

criminal record of a party, suspect in a crim-

inal investigation or witness, or the identity

of a witness or the expected testimony of a

party or witness;

(b) in a criminal case or proceeding that

could result in incarceration, the lity

of a plea of guilty to the offense or the

existence or contents of any confession,

admission, or statement given by a defen-

dant or suspect or that person’s refusal or

failure to make a statement;

(c) the performance or results of any

examination or test or the refusal or failure

of a person to submit to an examination or

test, or the identity or nature of physical

evidence expected to be presented;

(d) an > & & Ge aes a tae

conee of @ endant or suspect in a criminal

case or proceeding that could result in

incarceration;

(e) information the lawyer knows or rea-

sonably should know is likely to be inad-

missible as evidence in a trial and would if

disclosed create a substantial risk of preju-

dicing an impartial trial; or

(f) the fact that a defendant has been

charged with a crime, unless there is

inc!uded therein a statement explaining that

the charge is merely an accusation and that

the defendant is presumed innocent until

and unless proven guilty .. .

The petition asserts that Gentile’s statements were

protected speech. Pet., pp. i, 8. An analogy to the speech

of public officials and to lawyer advertising is made for

the purpose of suggesting that Gentile’s statements

~

should be afforded the same measure of constitutional!

protection.

Petitioner claims that he held a public press confer-

ence about police misconduct, in which he had a sound

factual basis for the allegations. Pet., p. 9. This statement

confuses the real issue in that the press conference's

principal purpose was not about police misconduct or

corruption but rather about Gentile’s upcoming trial pre-

sentation and Grady Sanders’ professed innocence.

Indeed, it was more analogous to a forum for advancing a

lawyer’s personal interests in fame and notoriety than in

exposing police misconduct.

Gentile’s admitted purpose for calling the press con-

ference was (i) to counter public opinion which he per-

ceived as adverse to Mr. Sanders, (ii) to attempt to refute

certain matters regarding his client which had appeared

in the media, (iii) to fight back against the perceived

efforts of the prosecution to poison the prospective juror

pool, and (iv) to publicly present Sanders’ side of the

case. App., p. 4a.

Gentile could have utilized alternate forums for pur-

suing his grievance against police misconduct. The police

department's internal affairs division or the City Council

would have been appropriate reviewing bodies for Gen-

tile’s complaint. Even discussions with the media after

the conclusion of the Sanders litigation would have

avoided the threat of prejudicial influence to Sanders’

criminal trial. There is nothing more than an unsupported

suggestion that Gentile’s motive for holding the February

5, 1988, press conference was to expose police miscon-

duct.

9

2. The Nevada Supreme Court's Unanimous Deci-

sion Is Sound On The Merits And Does Not

Conflict With Other Cases Requiring This

Court's Exercise Of Discretionary Jurisdiction.

The Nevada Supreme Court correctly held that

Supreme Court Rule 177 is constitutional by having

rejected the Petitioner’s constitutional challenges under

either the federal or Nevada constitutions. The court

found that Mr. Gentile’s comments to the press “had a

substantial likelihood of materially prejudicing the adju-

dication of his client’s case.” Pet., p. 4a.

The petition asserts that because there was no actual

prejudice to the criminal proceeding, there was no harm

caused by his comments. Pet., p. 8. The Nevada Supreme

Court countered ‘his position by indicating that “absence

of actual prejudice does not establish that there was no

substantial likelihood of material prejudice.” Pet., p. 4a.

A reasonably prudent standard is used in the context

of Supreme Court Rule 177. The “knows or reasonably

should know” standard relates to that which a person of

reasonable prudence and intelligence ought to know

given the like conditions and circumstances. Herein, Gen-

tile, after having researched the ethical issues, should

have known that his comments were substantially likely

to prejudice the criminal proceedings. Especially, in light

of the notoriety of Mr. Sanders’ criminal case, a reason-

able attorney would have taken appropriate precautions

to guard against making virulent and vituperative

remarks that in and of themselves tend to sway public

opinion by instilling a prejudicial influence.

The petition claims that the different standards used

by state courts and licensing authorities leave lawyers

uncertain about their ethical obligations. Pet. p. 9. The

three standards often used are: clear and present danger,

serious and imminent threat, and reasonable iikelihood of

interference.

Although the language used is different, the conflict

created is more semantical than real. The two cases cited

by the Petitioner, Chicago Council of Lawyers v. Bauer, 522

F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976)

(“serious and imminent threat”) and Hirschkop v. Snead,

594 F.2d 356 (4th Cir. 1979) (“reasonable likelihood”)

arose on pre-enforcement review of DR7-107, a type of

review that this Court discouraged in Middlesex County

Ethics Committee v. Garden State Bar Association, 457 U.S.

423 (1982). There was no disciplinary hearing held in

either the Chicago Council or Hirschkop case, which is

distinguishable from the present case

In the case of In re John Zimmerman v. Board of Profes-

sional Responsibility, 764 S.W.2d 757 (Tenn. 1989), cert.

denied, 109 S.Ct. 3160 (1989), the Tennessee Supreme

Court found no constitutional problem with a state disci-

plinary rule that bars lawyers in criminal proceedings

from making public comments on matters such as the

accused's guilt or innocence, the evidence, and/or merits

of the case. In Zimmerman, supra, the conduct of a pros-

ecutor in discussing trial matters was not done with any

malicious intent nor done with the intent to interfere with

the right to a fair trial of any of the defendants. In

upholding a private reprimand, the court cited In re

Rachmiel, 449 A.2d 505 (N.J. 1982), which held that attor-

neys are appropriately subject to carefully tailored

11

restraints on their free speech. The prohibition applied

only to speech that is reasonably likely to interfere with

or affect a fair trial. “Lawyers have an obligation to

maintain the highest standards of ethical conduct,” Zim-

merman, at p. 761. Mr. Gentile had an equally compelling

ethical obligation, which he ignored.

The Petitioner also suggests that courts have

remedies such as extensive voir dire, change of venue,

jury sequestration, or trial postponement to resolve the

conflict between free speech and fair trial interests. Pet..

p. 13. This proposition does not lend itself to judicial

economy and the effective administration of justice if

courts must make extensive inquiry as to the harm

caused to each case on the docket due to pre-trial or trial

press conferences.

Courts that are often confronted with the dilemma of

changing venue or postponing trials in criminal matters

do so to insure that the accused is given a fair trial. The

Gentile matter, however, is a state disciplinary case,

which attempts to enforce ethical standards that have

been established to avoid these problematic areas. With

the explosion of litigation, relaxation of the trial publicity

regulation would only foster additional! layers of work for

courts that are presently overly burdened.

Lastly, the petitioner maintains that Nevada Supreme

Court Rule 177 is vague and overbroad. Pet., pp. 14-17. A

statute that is vague is generally confusing or nebulous

so that an average person does not realize that the con-

duct he or she is engaging in is prohibited. A reasonably

prudent person standard is applied in this case, which is

+.

12

widely recognized and applied in the criminal and civil

setting.

In the Matter of Disciplinary Proceedings Against Alan

D. Eisenberg, 423 N.W.2d 867 (Wis. 1988), the Supreme

Court of Wisconsin upheld the constitutionality of a simi-

lar rule patterned after ABA Model Rule 3.6. Eisenberg

represented a woman charged with arson and the murder

of her husband. Following the filing of a criminal com-

plaint and prior to trial, Eisenberg held four separate

interviews with reporters wherein “he felt compelled to

help what he called a beautiful person who was also an

abused woman and whose husband was a known hell-

raiser, an alcoholic, and a wife beater, and I'll tell the jury

what a rotten no-good son-of-a-bitch he was!” Mr. Eisen-

berg did not limit his attacks to the victim but also

against the court, opposing counsel and a state trooper/

witness.

The court in Eisenberg at p. 871 rejected a claim that

the disciplinary rule in question acted as a “blanket pro-

hibition” on pre-trial statements. The rule included

explicit standards with a list of prohibited statements.

Wisconsin's rule SCR 20:3.6 is indentical to Nevada

Supreme Court Rule 177.

Disciplinary problems arose in the Gentile case not

because the statute is vague or overbroad but because Mr

Gentile misapplied the rule or failed to distinguish advo-

cacy from potential prejudicial interference Mr Gentile

was afforded sufficient consideration of th: mitigating

effect of his research efforts prior to the press conference

by both the disciplinary board and the Nevada Supreme

Court who imposed a private reprimand; whereas in

13

Eisenberg, supra, Mr. Eisenberg was given a two year

suspension.

—~>

CONCLUSION

For these reasons, the Court should deny the petition

for writ of certiorari.

Respectfully submitted,

Joun E. Howe, Bar Counsel

State Bar of Nevada

500 South Third Street, Suite 2

Las Vegas, Nevada 89101

(702) -0502

Counsel Of Record For Respondent

APPENDIX

la

CASE NO. 88-43-82

STATE BAR OF NEVADA

SOUTHERN NEVADA DISCIPLINARY BOARD

STATE BAR OF NEVADA,

Complainant,

vs. ) COMPLAINT

DOMINIC P. GENTILE, ‘

Respondent. ‘

TO: DOMINIC P. GENTILE

302 E. CARSON AVE. #600

LAS VEGAS, NEVADA 89101

PLEASE TAKE NOTICE that pursuant to Supreme

Court Rule (SCR) 105.2 a response to this complaint must

be filed with the Southern Nevada Disciplinary Board

Chairman, Donald J. Campbell, Esq., 300 S. 4th Street,

Suite 1009, Las Vegas, Nevada 89101, and a copy must be

served on John E. Howe, Esq., Bar Counsel, State Bar of

Nevada, 500 S. 3rd Street, Suite 2, Las Vegas, Nevada

89101, both within twenty (20) days of service of this

Complaint.

Complainant, State Bar of Nevada, by and through its

Bar Counsel, John E. Howe, alleges that Respondent,

Dominic P. Gentile, is now and at all times pertinent

herein was, a licensed and practicing attorney in the state

of Nevada, having his principal place of business for the

practice of law in Clark County, Nevada, and that he

engaged in acts of misconduct warranting the imposition

of professional discipline as set out herein:

2a

COUNT 1: On February 5, 1988, Respondent held a

press conference attended by television and newspaper

reporters. Respondent made statements to the press regard-

ing a then pending criminal case in which he was attorney of

record for defendant, Grady Sanders. Respondent's state-

ments on the pending criminal case were of a nature which

he knew, or reasonably should have known, would have a

substantial likelihood of materially prejudicing the adjudica-

tive proceedings in the case of the State of Nevada v. Grady

Sanders. Respondent's said conduct was in violation of

Supreme Court Rule (SCR) 177.

WHEREFORE, Complainant prays as follows:

1. That a hearing be held pursuant to Nevada

Supreme Court Rule (SCR) 105;

2. That Respondent be assessed the costs of the

disciplinary proceeding pursuant to Supreme Court Rule

(SCR) 120.1; and

3. That pursuant to Supreme Court Rule (SCR) 102,

such disciplinary action be taken by the Disciplinary

Board for the Southern District of Nevada against

Respondent as may be deemed appropriate under the

circumstances.

DATED this 6th day of December, 1988.

STATE BAR OF NEVADA

By: E. Howe

Bar Counsel

500 S. 3rd Street #2

Las . Nevada 89101

(702) -0502

3a

STATE BAR OF NEVADA

SOUTHERN NEVADA DISCIPLINARY BOARD

STATE BAR OF NEVADA, )

)

Cc inant,

ee ) Case No.

ve. 88-43-82

DOMINIC P. GENTILE,

)

)

)

Respondent. )

)

FINDINGS AND RECOMMENDATION

FINDINGS OF FACT

The Respondent, Dominic P. Gentile (“Gentile”) was

retained to represent Grady Sanders in late 1987 in con-

nection with alleged criminal activity by Mr. Sanders. Mr.

Sanders was indicated by the Clark County Grand Jury

on February 4, 1988 on charges relating to the theft of a

large quantity of cocaine and travellers checks. On Febru-

ary 5, 1988 — the day following the indictment of Mr.

Sanders - Gentile held a press conference which was

attended by members of the electronic and print media. A

complete videotape and verbatim transcript of the press

conference were introduced into evidence in this matter

At the press conference Gentile made the following state-

ments:

(i) “ . . . the evidence will prove not only

that Grady Sanders is an innocent and

had nothing to do with any of the charges that

are being levelled against him, but that the per-

son that was in the most direct position to have

4a

stolen the drugs and the money, the American

Express Traveller's checks, is Detective Steve

Scholl.”

(ii) “There is far more evidence that will

establish that Detective Scholl took these drugs

and took these American Express Traveller's

checks than any other living human being.”

(iii) “Now, with respect to these other

charges that are contained in this indictment,

the so-called other victims, as I sit here today |

can tell you that one, two - four of them are

known drug dealers and convicted money laun-

derers and drug dealers; three of whom didn’t

say a word about anything until after they were

ne og sare by Metro and after they were

already in trouble and are trying to work them-

selves out of something.”

(iv) “Now, up until the moment, of course,

that [the other victims] started going along with

what detectives from Metro wanted them to say,

these people were being held out as being

incredible and liars by the very same people

who are going to say now that you can believe

them.”

(v) “I think Grady Sanders was indicted

because he — he was a scapegoat the day they

opened the [safe-deposit] box.”

(vi) “We've got some video oo that if you

take a look at them, I'll tell you what, he [Detec-

tive Scholl] either had a hell of a cold or he

should have seen a better doctor.”

Gentile knew that Detective Scholl would be a pros-

ecution witness at Mr. Sanders’ trial and he also believed

that the “other victims” would be called as witnesses by

the prosecution at that trial.

5a

Gentile’s admitted purpose for calling the press con-

ference was (i) to counter public opinion which he

perceived as adverse to Mr. Sanders, (ii) to attempt to

refute certain matters regarding his client which had

appeared in the media, (iii) to fight back against the

perceived efforts of the prosecution to poison the pro-

spective juror pool, and (iv) to publicly present Sanders’

side of the case. As such, there was a substantial likeli-

hood that the statements would materially prejudice the

Sanders trial, which had been scheduled for August,

1988.

Prior to holding the press conference, Gentile con-

ducted research on the question of what statements, if

any, he was ethically permitted to make at the press

conference. During the press conference, Gentile refused

to comment on certain matters because he did not believe

it ethically proper to do so.

On or about December 6, 1988 the State Bar of Nev-

ada filed a complaint against Gentile alleging that the

statements made by him at the February 5, 1988 press

conference violated Supreme Court Rule 177. Gentile

answered the complaint on January 13, 1989 denying that

his actions violated the rule, and alleging several affirma-

tive defenses.

CONCLUSIONS OF LAW

Supreme Court Rule 177 provides, inter alia, as fol-

lows:

1. A lawyer shall not make an extrajudicial

Statement that a reasonable person would

6a

expect to be disseminated by means of public

communication if the lawyer knows or reasona-

bly should know that it will have a substantial

likelihood of materially prejudicing an adjudica-

tive proceeding.

2. A statement referred to in subsection 1

ordinarily is likely to have such an effect when

it refers to a civil matter triable to a jury, a

criminal matter, or any other proceeding that

could result in incarceration, and the statement

relates to:

(a) the character, credibility, reputation or

criminal record of a party, suspect in a criminal

investigation, or witness, or the identity of a

witness, or the expected testimony of a party or

witness;

(d) any opinion as to the guilt or inno-

cence of a defendant or suspect in a criminal

case or proceeding that could result in incarcer-

ation;

The statements made by Gentile violated SCR 177(1),

(2)(a) and (2)(d) in that they were statements which Gen-

tile knew would be disseminated by means of public

communication; which (i) relatecdt to the character, cred-

ibility, reputation and criminal record of witnesses in the

trial of Mr. Sanders, and (ii) contained an opinion of the

guilt or innocence of Mr. Sanders; and were known or

should have been known by Gentile to have a substantial

likelihood of materially prejudicing the Sanders trial.

SCR 177 does not violate either the United States or

the Nevada constitution. The State Bar has not engaged in

any unequitable conduct, nor has it applied SCR 177 in a

selective manner.

7a

Gentile’s statements at the press conference went

beyond the scope of the statements permitted by SCR

177(3).

RECOMMENDATIONS

The Southern Nevada Disciplinary Board recom-

mends that Gentile be issued a private reprimand.

DATED this 12th day of May, 1989.

Southern Nevada Disciplinary Board,

DONALD J. CAMPBELL, Chairman

/s/ Dennis L. Kennedy

DENNIS L. KENNEDY,

Chairman of

Disciplinary Panel