Reply Brief — Gentile v. State Bar of Nev.

i

APR 8

No. 89-1836

— = THE CLERK

IN THE .

Supreme Court of the United States

OCTOBER TERM, 1990

DOMINIC P. GENTILE,

- Petitioner

STATE BAR OF NEVADA,

Respondent

On Writ of Certiorari to the Nevada Supreme Court

REPLY BRIEF OF PETITIONER

MICHAEL E. TIGAR *

University of Texas School of Law

SAMUEL J. BUFFONE

TERRANCE G. REED

ASBILL, JUNKIN, MYERS & BUFFONE

CHARTERED

1615 New Hampshire Avenue, N.W.

Washington, D.C. 20009

(202) 284-9000

NEIL G. GALATZ

Las Vegas, Nevada

* Counsel of Record

WILSON - Eres PRINTING Co., Inc - 789-0096 - WASHINGTON, D.C. 20001

D

1991

Fly

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......... ii

FEES EE a 1

I. ATTORNEY SPEECH AND FAIR TRIALS

ARE NOT INCOMPATIBLE ................ 2

Il. RESPONDENT HAS FAILED TO JUSTIFY

A SPECIAL STATUS FOR ATTORNEY

SDT En Sad UE as en 9

Ill. THE RULE IS BOTH VAGUE AND OVER-

a ERSTE aE a SS NE 14

ii iii

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued

CASES Page

; MISCELLANEOUS Page

Alderman v. United States, 394 US. 165 (1969)... ABA, Alternate Draft of the Model Rules of Pro-

or State Bar of Arizona, 433 U.S. 350 . fessional Conduct (1981) eeeeeooessess 4

Bridges v. California, 314 U.S. 252 (1941) 1, 11, 13, 14 gp owe Fo me Lawyers, ABA’ Seurnal om

Cammer v. United States, 350 U.S. 399 (1956) il . Weteioen 4 MG om i ba oe on

Craig v. Harney, 331 U.S. 367 (1947)... 12, 13 : 1908). ae American Law ™

Eaton v. Tulsa, 415 U.S. 697 (1974)... 1l Sechoston Rethinking Confidentiali oe. car aay

a : harias, g Confidentiality II: Is Con-

edema fidentiality Constitutional? 75 Iowa L. Rev. 601

ay cer Neen ccesseuvenmeceons 7

Hirshkop v. Snead, 594 F.2d 256 (4th Cir. 1979) . 15 Zunker, Public Perception of the Legal Profession,

In re Little, 404 U.S. 697 (1974) .. — 1 Texas Bar Journal 78 (January 1985) 10

In re Sawyer, 360 U.S. 622 (1959) . aaai 10, rr ee we neenenencecocce

Landmark Communications, Inc. v. Virginia, 435

15 SE 8) er 14

Levine v. United States Dist. Court for the Cent.

Dist. of California, 764 F.2d 590 (9th Cir.

1985) .. - - 3

Nebraska Press Ass’? n v. Stuart, 427 US. “539

CIGD acecenncerecccccceseeenenennnenmennneneneennne 1,3

Pennekamp v. Florida, 328 U.S. 331 (1946) i 13

Procunier v. Martinez, 416 U.S. 396 (1974)... 4

Seattle Times Co. v. Rhinehart, 467 U.S. 20

(1984) . ——— 7

Stroble v. California, 343 US. 181 (1952) suena 9

Virginia Pharmacy Bd. v. Va. Consumer Council,

, 2 eS 8) a ee 5

Wayte v. United States, 470 U.S. 598 (1985) 4

Wood v. Georgia, 370 U.S. 375 (1962) 11,14

RULES AND STANDARDS

8 SS), ee passim

ABA Model Rule 3.5 _........ cumini ats 7

NY) DS 11,14

NUN 5

Standard 8-1.1(a) of the ABA Standards Relating

to the Administration of Criminal Justice ___. = 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1836

DOMINIC P. GENTILE,

Petitioner

Vv.

STATE BAR OF NEVADA,

Respondent

On Writ of Certiorari to the Nevada Supreme Court

REPLY BRIEF OF PETITIONER

INTRODUCTION

Respondent and amicus Solicitor General urge this

Court to find, on this record, an irreconcilable conflict be-

tween First Amendment free speech and Sixth Amend-

ment fair trial interests. They ask the Court to do here

what it has wisely refused to do in the past, “assign

priorities as between First Amendment and Sixth Amend-

ment rights, raising one as superior to the other.”

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 561

(1976).?

1 See also, Bridges v. California, 314 U.S. 252, 260 (1941) (“For

free speech and fair trials are two of the most cherished policies of

our civilation, and it would be a trying task to choose between

them”’).

2

Respondent and amicus conjure up this constitutional

collision by asserting that a special class of speakers——law-

vers—-are entirely exclided from claiming the same First

Amendment rights afforded all other speakers. By con-

trast, Petitioner asks this Court to follow its prior prece-

dent, and to reconcile the competing constitutional inter-

ests, hy upholding the traditional idea that less restric-

tive alternatives to content-based suppression of truthful

speech will protect litigants and the justice system from

unfair trials. In particular, Petitioner submits that fair

trials and free speech by lawyers can co-exist, and the

record in this ease offers ample, uncontradicted, evidence

that this is so.

Moreover, this Court’s precedent demonstrates that the

way to avoid a collision between free speech rights and

fair trial interests lies in application of the working prin-

ciples developed under the clear and present danger test.

Respondent would avoid a careful assessment of the al-

leged threat to fair trial interests claimed to exist in this

case, and would further ask this Court to ignore the tra-

ditional judicial practices which can, and did here, ensure

both trial fairness and speech rights. To create a con-

stitutional confrontation between the Sixth and First

Amendments, the State Bar and amicus ask the Court to

find that the judicial use of available less restrictive

means of preserving fair trials creates sufficient inde-

pendent harm to fair trial interests to justify speech sup-

pression. As we spell out below, the justice system pro-

vides ample constitutionally permissible devices to hold

lawvers to their oaths.

I. ATTORNEY SPEECH AND FAIR TRIALS ARE

NOT INCOMPATIBLE.

The record in this case, as acknowledged by the Nevada

Supreme Court, establishes that Mr. Gentile’s comments

caused no actual prejudice to the Sanders case. (Cert.

App. 4a). Moreover, the Bar presented no direct evidence

3

of potential prejudice flowing from Mr. Gentile’s remarks.

Even the American Bar Association, appearing as amicus

in support of its Rule, does not contend that the Rule ap-

plies to the facets of this ease. ABA Amicus Brief, at

2 n.2.

Confronted with the absence of any record basis to

sustain a finding of potential prejudice, Respondent at-

tempts to divert this Court’s attention by offering a series

of inapposite hypotheticals which it claims are the neces-

sary consequence of sustaining the First Amendment. in-

terests at stake in this case.” Respondent’s “parade of

horribles” begins with criticism of this Court’s Nebraska

Press opinion as establishing an unworkable and impos-

sibly stringent standard,” one which would force burden-

some trial management efforts upon courts to protect

against even the most egregious examples of attorney

speech. Respondent’s Brief, at 12. Respondent then

portrays Petitioner’s arguments as requiring absolute

deference to the protection of attorney speech regardless

of the consequence to the fair administration of justice.

In the process, Respondent rejects any possible compati-

bility between attorney speech and Sixth Amendment fair

2 Respondent also seeks to divert th Court's attention from the

specific factual findings made below, in which the Disciplinary

Board identified only six statements as ethical violations (JA. 2-3),

by arguing that other statements made by Mr. Gentile which were

not the subject of discipline also violated various ethical rules. See,

e.9., Respondent’s Brief, at 2, 36.

* Contrary to Respondent's expressed concern that the Nebraska

Press standard is unworkabie as applied to counsel, federal courts

have issued gag orders on counsel using a clear and present danger

test. See, e.g., Levine v. United States Dist. Court for the Cent

Dist. of California, 764 F.2d 590, 595 (9th Cir. 1985). This allegedly

unworkable standard has been employed without difficulty by the

ABA and by several states. See Standard 8-1.1(a) of ABA Stand-

ards Relating to the Administration of Criminal Justice (1978) :

Respondent’s Brief, at 20 n.21 (listing states which have adopted

clear and present danger test). Indeed, California has no ethical!

rule relating to attorney speech on pending litigation.

4

trial interests. Respondent’s error lies not only in its

mischaracterization of Petitioner’s position but, more

fundamentally, in a misapprehension of this Court’s

teaching.

Where the State seeks to suppress presumptively pro-

tected speech, it must establish both that the practice in

question furthers a _ substantial government interest

and that the proposed limitations on speech are no greater

than necessary to protect the identified governmental in-

terest. See Wayte v. United States, 470 U.S. 598 (1985) ;

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 786

(1978); Procunier v. Martinez, 416 U.S. 396 (1974).

The first step in this analysis is for the State to define

the countervailing interest it seeks to protect, and to

establish its importance vis a vis speech rights.

Here, despite the repeated references in the briefs of

Respondent and the Solicitor General to the State’s in-

terest in a fair trial, their argument reveals that the

interest they seek to protect is not that of a fair trial,

but rather a more general interest in limiting speech

by attorneys. For example, the Solicitor General con-

tends that speech about pending litigation by a non-

lawyer is fully protected by the First Amendment, and

suggests that defendants can make the same statements

uttered here either directly or through non-lawyer spokes-

persons. Solicitor General’s Amicus Brief, at 7. The

Solicitor General suggests that while non-lawyers may

freely disseminate information prejudicial to fair inter-

ests, the same information cannot be uttered by lawyers.

Id. at 25. The Solicitor General even asserts that the

prosecution cannot be held accountable for speech by

its agents, including the police. Jd. at 23 n.15. Respond-

ent would also accept other potential sources of comment

on the judicial process, arguing that the press and non-

participants in the trial process are afforded full First

Amendment protection. Respondent’s Brief, at 21.

5

Such selective prohibition of speech prejudicial of fair

trial interests is incompatible not only with the justice

system’s need to preserve fair trials but also with the

State’s obligation to provide them, Hence, the willingness

of the Solicitor General and Respondent to authorize

prejudicial speech by non-lawyers demonstrates that the

State is not seeking to further fair trials, but rather its

generic interest in regulaiing attorneys. As against this

narrow State interest,‘ the First Amendment takes

precedence.®

* The nature of this interest has not been clearly articulated by

Respondent. Even the ABA, which similarly contends that trial

fairness is not the only interest justifying its Rule, see ABA Amicus

Brief, at 7, fails to clarify what this interest is. This Court has

held that the suppression of attorney speech to foster “professional-

ism” cannot withstand First Amendment scrutiny. See Bates v.

State Bar of Arizona, 433 U.S. 350, 364 (1977). Cf. Virginia Phar-

macy Bd. v. Va. Consumer Council, 425 U.S. 748, 770 (1976) (legis-

lature may not suppress informative pharmacist speech in order to

protect reputation of profession).

5 Indeed substantial doubt exists whether the Solicitor General

believes that the rules of ethics it seeks to enforce here would apply

to prosecutors. The Solicitor argues that a lawyer’s license, pre-

sumably including that of prosecutors, carries with it ethical obliga-

tions that limit speech, and offers as an example the ethical prohibi-

tion on communications with persons represented by counsel. See

Solicitor General’s Amicus Brief, at 17, citing ABA Model Rule 4.2.

Assistant Attorney General Robert S. Mueller, who is a signatory

to the Solicitor’s brief, has taken a contrary position in other

pending federal litigation. In United States v. Lopez, Cr. 89-0687

(N.D. Cal.), Mr. Mueller filed a “Brief Of The Criminal Division

Of The Department Of Justice” on February 11, 1991 in which he

argued that this very ethical rule did not apply to federal prosecu-

tors due to the Supremacy Clause and also because the separation

of powers doctrine limits the ability of federal courts to impose

ethical rules on federal prosecutors. Respondent distances itself

from this public position of the Attorney General when it argues

that “it seems highly likely that the state bar’s ethical provisions

will be recognized as binding on federal prosecutors, as a matter of

federal common law.” Respondent’s Brief at n.33, p. 34.

6

Respondent also fails to demonstrate that the means

chosen to vindicate this asserted State interest, here the

discipline of Petitioner, is no greater an infringement on

speech rights than is necessary to protect the State's

interest. Petitioner fully agrees with the contention of

the Solicitor General that lawyers have a duty not to

make comments prejudicial to a fair trial. Solicitor Gen-

eral’s Amicus Brief, at 7. Here, no such prejudicial com-

ments were made. The narrower issue this case presents

is what the State Bar must show to punish speech that

does not prejudice fair trial rights.

Lacking evidence of actual or potential prejudice in

the record, Respondent and its amici turn to extreme

hypothetical cases to argue that lawyers can cause prej-

udice. For example, Respondent expresses concern about

lawyer commentary on inadmissible evidence, and the

Solicitor General worries that the First Amendment will

be used to justify breaches of a !awyer’s duty to main-

tain client confidences or to violate the ethical prohibi-

tion on contacting represented parties.* The concerns are

real, but the proposed response is wrong, especially under

the circumstances of -his case, where none of these con-

cerns are present.

Certainly, publication of inadmissible material, as the

police did in the Sanders case with the public announce-

ment of lie detector and drug test results, is a signifi-

cant step closer to a serious threat of prejudice, and in

appropriate circumstances may cunstitute a clear and

present danger to fair trial interests. No such speech

was made by Petitioner here. Similarly, the First Amend-

ment should offer no defense for the breach of a lawyer's

duty to maintain client confidences any more than it

shields a lawyer who discloses national security secrets

or third party privacy matters that are the subject of a

protective order. See Seattle Times Co. v. Rhinehart, 467

® But see footnote 5, supra.

7

U.S. 20 (1984); Alderman v. United States, 394 U.S.

165 (1969)." Again, no such breach of these duties is

alleged here.

Petitioner does not suggest that the First Amendment

relieves attorneys of their duties to their clients or to the

court. Petitioner parts company with Respondent, how-

ever, when it contends that the Sixth Amendment elimi-

nates the free speech rights of attorneys without proof

of actual prejudice or even a serious and imminent threat

to fair trial interests.

Respondent’s “parade of horribles” assumes that trial

judges are powerless to protect themselves with anything

but burdensome curative measures which would delay

the trial until an impartial jury could be selected. Re-

spondent’s Brief, at 23-24. Respondent has miscast our

argument as requiring such absurd results. We have

conceded the authority of the trial court to utilize case

management techniques, including practices ranging from

voir ire to gag orders and contempt findings, to main-

tain the fair administration of justice. All parties agree

that trial judges can, upon a proper showing, issue pre-

cise and specific orders to protect the fairness of trials

or the privacy interests of affected parties. See Seattle

Times Co. v. Rhinehart, 467 U.S. 20 (1984); Alderman

v. United States, 394 U.S. 165, 181-85 (1969). In addi-

7 A lawyer’s agreement to preserve client confidences is a contract-

based limitation on speech premised on a relationship of profes-

sional employment which can be enforced by contract or tort action.

Some commentators have argued that, in limited circumstances, the

First Amendment does protect an attorney’s disclosure of client

confidences from ethical prohibitions. See Zacharias, Rethinking

Confidentiality I]: Is Confidentiality Constitutional? 75 lowa L.

Rev. 601 (1990). Obviously, the Court is not called upon to resolve

this issue in this case. Similarly, any er parte contact of a sitting

juror by an attorney does not seek to inform the public and carries

a high risk of prejudicing jurors; it can be prohibited by a gag

order or by Rule, see ABA Model Rule 3.5, and it merits punish-

ment under an actual prejudice or clear and present danger test.

8

tion, trial lawyers, no strangers to the doctrine of waiver,

will not create prejudicial publicity in the vain hope that

a court will be sympathetic to a request to cure a prob-

lem of the lawyer’s making."

Finally, if an inflammatory press conference is held

by the prosecution or defense on eve of trial, it may

result in swift and certain punishment by contempt

either because it violates a gag order or because it con-

stitutes misconduct. In this electronic age, the evidence

of such misconduct would be near at hand, and it would

readily be used to sustain a finding of a clear and

present danger to the proceedings.

Indeed this case provides a cogent example of how

Respondent has overstated the problem, and trivialized

the available remedies that do not infringe the right of

free speech. Neither the state prosecutor nor the trial

court raised any claim of prejudice in the Sanders case.

Hence, those with the greatest interest in identifying

actual or potential prejudice from Mr. Gentile’s remarks

claimed none. The trial court simply engaged in tradi-

tional voir dire, which it employed with no adverse effect

on trial fairness or efficiency. Faced with a record bar-

ren of any prejudice, Respondent substitutes for such

evidence the speculation that the timing of Mr. Gentile’s

comments renders them especially likely to prejudice pro-

spective jurors. This argument also lacks merit.

Mr. Gentile’s comments occurred on the day of his

client’s arraignment, the same day that Mr. Gentile

learned of the scheduling of a trial date some six months

in the future. Respondent, and the Nevada Supreme

Court, have inferred from the timing of Petitioner’s

statements that it was chosen to maximize the potential

prejudice because of alleged increased public attention

to the case at the time of arraignment. To the contrary,

* See also, Petitioner's Brief, at 39 (describing tactical reasons

why defense attorneys are reluctant to speak about pending

matters).

9

and as the record bears out, Mr. Gentile’s comments were

timed to nave the least possible impact on fair trial

interests.

As Mr. Gentile testified below,’ after researching the

issue, he relied on this Court’s prior precedent sustain-

ing the fairness of a capital trial because six weeks was

a sufficient time to dissipate any potential prejudice from

the prosecution’s public disclosure of the defendant’s in-

criminating confession. See Stroble v. California, 343

U.S. 181 (1952). Here, Mr. Gentile knew that the trial

would take place at least six months after the date of

arraignment, a far more substantial period of time for

the dissipation of any potential prejudice. Moreover, the

press accounts of the Sanders case bear out this assess-

ment: most of the media attention is clustered around

either the early police disclosures or the Sanders trial.

See J.A. 84-134. Mr. Gentile’s comments were made

when trial was not imminent. Accordingly, Mr. Gentile’s

remarks were appropriately timed not to pose a risk of

potential prejudice.

Il. RESPONDENT HAS FAILED TO JUSTIFY A SPE-

CIAL STATUS FOR ATTORNEY SPEECH.

Lacking proof of prejudice from Mr. Gentile’s com-

ments, the State Bar and the Solicitor General offers a

more general argument that attorneys enjoy unique cred-

ibility with the public, and argue therefore that attorney

speech always represents a special danger of causing

prejudice in all circumstances. Of course, they offer no

empirical or other evidence to support this conclusion.

Nor has the State Bar or supporting amici responded to

the uniform conclusion of researchers, as cited in Peti-

tioner’s opening brief," that the general risk of juror

prejudice from all extrajudicial speech, including attor-

* J.A. 59-60.

1 Petitioner's Brief, at 29-30.

10

ney speech, is negligible. Before an attorney can be be-

lieved he must be heard, and the voir dire in this case,

as well as the available research, indicate that there is no

substantial risk of prospective juror exposure to lawyer

speech.

Respondent posits that the public attaches greater cred-

ibility to attorney speech than that of all other speakers.

The hard reality is to the contrary. See L. Friedman, A

History of American Law 303-05 (2d ed. 1985) (de-

tailing low esteem in which lawyers held by American

public beginning in colonial period) ."'

Wholly apart from the issue of lawyer credibility gen-

erally, the publie is equally if not more likely to discount

the speech of lawyers as that of a partisan advocate of a

client.'* This public reaction is especially likely when

an attorney is an advocate against the amassed institu-

tional credibility of the State and its agents.

Most significant for constitutional purposes, the posited

“special impact” of lawyer speech upon the public is com-

pletely conjectural, and is not supported either by the

record in this case or by any supporting empirical study.’’

"! See also, Curtin, “Killing” All the Lawyers, ABA Journal 8

(September 1990) (describing low public image of lawyers);

Zunker, Public Perception of the Legal Profession, Texas Bar Jour-

nal 78 (January 1985) (lawyers will never win popularity contest

because every lawsuit has a loser, and delays inherent in judicial

process; lawyers “need to recognize and accept certain realities

about .. . how the public perceives us.” )

12 See Friedman, supra, at 304. (“At various points in history,

the lawyer has been labeled a Tory, parasite, userer, land speculator,

corrupter of the legislature, note shaver, panderer to corporations,

tool of the trusts, shyster, ambulance chaser, and loan shark. Some

of his bad odor is due to his role as hired hand. The rich and

powerful need lawyers and have the money to hire them.”’).

'" This brand of speculation is similar to that rejected in Jn re

Sawyer, 360 U.S. 622 (1959), where the government sought to

justify attorney discipline by arguing that attorney claims of

11

In fact, neither the drafters of ABA Model Rule 3.6, nor

the ABA’s Amicus Brief, mention lawyer credibility as a

reason for the suppression of lawyer speech.

In constructing its novel “special status” argument,

Respondent attempts to sidestep this Court’s precedent

applying the clear and present danger test to speech con-

cerning pending litigation by arguing that these cases

only dealt with press rights,‘ while the Solicitor General

tries to avoid these cases by arguing that they involved

only the speech rights of non-participants in the pending

litigation."* Neither contention is accurate. In addition,

Respondent simply ignores this Courts’ prior holding in

Wood v. Georgia, 370 U.S. 375 (1962), a case that re

jected Respondent’s principal argument that a speaker’s

status as an “officer of the court” eliminates his First

Amendment rights."

That this Court’s free speech precedent protects speech

about pending litigation by speakers other than the press

is established by several cases. See, e.g., Bridges v. Cali-

fornia, 314 U.S. 252, 276 (1941) (telegram by union

representative to Secretary of Labor about pending union

case); Wood v. Georgia, (letter from county sheriff to

sitting grand jury) ; Eaton v. Tulsa, 415 U.S. 697 (1974)

(speech by witness in criminal trial); Jn re Little, 404

U.S. 697 (1974) (speech by defendant in criminal! trial).

judicial error cause public doubt about judicial integrity. In the

judgment of this Court, “We can indulge in no involved speculation

as to petitioner’s guilt by reason of the imaginations of others.”

Id. at 635.

'* Respondent's Brief, at 12-13.

5 Solicitor General's Brief, at 11 (cases enunciating clear and

present danger principle “have all addressed the relationship be-

tween the judicial system and outsiders to the system.”’)

16 The Wood case involved a county sheriff, an acknowledged officer

of the court. In Cammer v. United States, 350 U.S. 399 (1956),

this Court, held that, unlike bailiffs and marshals, lawyers are not

“officers” of the court “within the conventional meaning of that

term.” Jd. at 405.

12

In each of these cases, this Court employed the same test

that the Court has applied to speech by the press. See,

e.g., Craig v. Harney, 331 U.S. 367 (1947). Similarly,

these cases refute the Solicitor General’s contention that

this Court has only provided full First Amendment pro-

tection to speakers who are not participants in pending

litigation. See also Petitioner’s Brief, at 16-18 (colonial

tradition of Jawyer commentary on pending litigation).

Respondent’s search for some explanation why this

Court should abandon the “working principles” fashioned

over the last half century to accommodate both free

speech and fair trial interests ultimately comes to rest

upon the dissenting and concurring opinion in In re

Sawyer, 360 U.S. 622 (1959), while ignoring the actual

holding of that case."”

In the Sawyer case, an attorney had been disciplined

for making a public speech about a pending Smith Act

trial in which she was defense counsel. The attorney’s

comments ranged from criticism of the trial proceedings

to challenging the testimony of government witnesses,

with a general characterization of the proceeding as

shocking and unfair. Five Justices joined in a judgment

of the Court holding that the disciplinary authorities did

not, as a factual matter, prove that the attorney’s com-

ments impugned the integrity of the trial court, the

charge for which discipline was imposed. Id. at 625. In

the words of Justice Brennan, “Speculation cannot take

over where the proofs fail.” Jd. at 628. Most significant

for this case, the Court held:

Since no obstruction or attempt at obstruction of the

trial was charged, and since it is clear that the find-

'* Respondent chides Petitioner for not citing Sawyer. Respond-

ent’s Brief, at 14 n.12. In fact, Petitioner cited and quoted from the

Sawyer opinion in the petition for certiorari and correctly noted

that the Court declined to rule upon the constitutional issue raised

in this case. Pet. at 6 n.1.

13

ing upon which the suspension rests is not support-

able by the evidence adduced, we have no occasion to

consider the applicability of Bridges v. California,

314 U.S. 252 (1941); Pennekamp v. Florida, 328

U.S. 331 (1946); or Craig v. Harney, 331 U.S. 367

(1947), which have been extensively discussed in the

briefs. We do not reach or intimate any conclusion

_on the constitutional issues presented.

Id. at 626-27 (emphasis added; parallel citations omitted).

Accordingly, the Sawyer opinion did not resolve the

constitutional issue raised here, although the Court did

acknowledge that it reviewed the facts under the same

vigorous standard of review applicable to First Amend-

ment claims.'* More important, the Sawyer opinion iden-

tified the very cases Petitioner has previously cited as

relevant to this case—Bridges, Pennekamp, and Craig—

as pertinent authority for the resolution of this reserved

constitutional issue.

To claim that five Justices in Sawyer voted for its view

of the law, Respondent stitches Justice Stewart’s concur-

rence together with the opinions of four dissenters. This

argument evaporates when one reads Justice Stewart’s

words: he began with a justified encomium to lawyer’s

ethics, and he then noted that a professional obligation to

keep client confidences could not be overcome by a claim

of free speech. While we agree, this statement does not

support Respondent’s broad view. Finally, Justice

Stewart noted, as had the plurality, that the case would

be different if it involved an “attempt to obstruct or prej-

udice the due administration of justice.” Because that

18 360 U.S. at 640. The Respondent attempts to conceal the sig-

nificance of the Sawyer opinion’s plenary review by suggesting that

the Court’s searching factual review was prompted by the territorial

jurisdiction of the Hawaii courts, not by the Court’s constitutional

precedent. Compare Respondent's Brief, at 13 n.11 with Sawyer,

360 U.S. at 640.

14

case did not, as the present case does not, Justice Stewart

declined to join what he termed the “dissenting opinion.”

Ill. THE RULE IS BOTH VAGUE AND OVERBROAD.

The briefs of the State Bar and amici serve to

strengthen Petitioner’s contention that Rule 177 is both

vague and overbroad. None of the responding briefs of-

fers any reconciliation between the categories of speech

proscribed in Rule 177(2) and the simultaneous protec-

tion offered such speech in Rule 177(3). Nor has Re-

spondent or amici attempted to explain what is meant by

Rule 177(3)’s authorization of otherwise prohibited

speech as long as it is “without elaboration.” As Peti-

tioner explained in his testimony below, one section of

the Rule appears to prohibit precisely what the other

section approves. (J.A. 59). Unfortunately, in determin-

ing the proper limits of his speech, Petitioner could not,

as have Respondent and supporting amici, simply ignore

the apparent ambiguities in the Rule.”

1° The ABA’s amicus brief has disclosed a more basic ambiguity

in the standard applied in this case. The ABA’s brief asserts, without

citation, that the “substantial likelihood” of prejudice test of Rule

177(1) is different from, and less speech protective than, the clear

and present danger test. ABA Amicus Brief, at 12. Accord, Re-

spondent’s Brief, at 27 n.26. The drafters of Model Rule 3.6, how-

ever, indicated that they chose this standard because it was equiva-

lent to the clear and present danger standard. ABA, Alternate

Draft of Model Rules of Professional Conduct 275 (1981) (language

of what would become Rule 3.6 “incorporates a standard approxi-

mating clear and present danger” test and requires a “serious and

imminent threat” of prejudice, citing Landmark Communications,

Inc. v. Virginia, 435 U.S. 829, 844 (1978); Wood v. Georgia, 370

U.S. 375 (1962); Bridges v. California, 314 U.S. 252, 273 (1941) ).

The Solicitor General has also previously asserted that the “substan-

tial likelihood” test of Model Rule 3.6 was equivalent to a clear and

present danger test. Pet. Amicus Brief of Solicitor General, at 10.

When the authors and supporters of a Rule cannot agree on its

meaning, it can hardly be considered pellucid. This persistent uncer-

tainty as to what, precisely, is the standard articulated in Rule

15

In addition, Respondent offers no response to Petition-

er’s overbreadth challenge *’ other than to deny that Peti-

tioner has challenged the Rule on overbreadth grounds,

and to assert that the categories of speech identified in

the Rule are sufficiently narrow. Respondent’s Brief, at

31-32. The Solicitor General, in turn, denies that the

Rule prohibits categories of speech. Solicitor General’s

Amicus Brief, at 28. Neither offer any suggestion as to

how Petitioner’s speech violated the Rule other than to

repeat that it fell within one of the proscribed categories

of speech.

Finally, Respondent suggests that the Rule is not over-

broad because its broad language will not be literally en-

forced.*' Respondent and amici strive mightily to offer

narrow, if contradictory,” interpretations of the Rule.

For example, the applicability of Rule 177(2)’s prohibi-

tions to bench trials are justified solely because they will

rarely be invoked.** The extensive breadth of the Rule

cannot be justified by giving unbridled discretion to its

enforcers to pick and choose the targets of its enforce-

ment. The attorney discipline in this case teaches that

lesson.

177(1), both underscores it vagueness and offers yet another reason

not to depart from the longstanding working principles of the clear

and present danger test.

20 See Petitioner’s Brief, at 48-49.

21 See, e.g., Respondent’s Brief, at 31 n.31, 32 n.32.

22 For example, Respondent argues that intent is not an element

of an ethical violation, while the Solicitor General believes it is.

Compare Respondent’s Brief, at 32 n.32 with Solicitor General’s

Brief, at 7, 29 n.16.

*3 Respondent’s Brief, at 32 n.32; Solicitor General’s Brief, at 28

n.16. But see Hirshkop v. Snead, 594 F.2d 356, 371-72 (4th Cir.

1979) (en banc) (disciplinary rule prohibiting extrajudicial attorney

speech in bench trials unconstitutional after Pennekamp).

16

CONCLUSION

For the foregoing reasons, the judgment of the Nevada

Supreme Court should be reversed.

Respectfully submitted,

MICHAEL E. TIGAR *

University of Texas School of Law

SAMUEL J. BUFFONE

TERRANCE G. REED

ASBILL, JUNKIN, MYERS & BUFFONE

CHARTERED

1615 New Hampshire Avenue, N.W.

Washington, D.C. 20009

(202) 234-9000

NEIL G. GALATZ

Las Vegas, Nevada

* Counsel of Record

i.