# Opposition Brief — Gentile v. State Bar of Nev.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 1030

## Text

} Supreme Court, U.S,

FILE®
Z

+ ue 17 1980
No. 89-1836 ‘

ice pr F @warrou JR.
oe ce oo O71
: — —
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0757%3A03. Public record. Not legal advice.