Amicus Curiae Brief — Gentile v. State Bar of Nev.

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Ju the Supreme Court of the Autted States

OcTOBER TERM, 1990

DoMINIC P. GENTILE, PETITIONER

U.

STATE BAR OF NEVADA

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEVADA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

(202) 514-221 >

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QUESTION PRESENTED

Whether Nevada Supreme Court Rule 177, which

restricts extrajudicial attorney statements concerning

pending litigation, violates the First Amendment.

(1)

TABLE OF CONTENTS

Page

Interest of the United States 11 1

Statement a Ee 1

. . summary of argument 5

Argument:

I. The First Amendment permits a state to dis-

cipline an attorney who makes public comments

that are likely to prejudice a trial x

A. Lawyers have historically been — to

refrain from engaging in “trial by news-

B. A lawyer’s license to practice law carries

with it reasonable restrictions related to

serving the system of justice, including re-

strictions on speech reasonably likely to

jeopardize a fair trial 10

C. The First Amendment does not require the

State to prove actual prejudice to an on-

going — before restricting attorney

speech — 20

D. The sestetetions on an — ~ —

cial public comments imposed by Nevada

Supreme Court Rule 177 are reasonable 21

II. Nevada Supreme Court Rule 177 is neither

vague nor overbroad 0... 222... eee. 25

A. The rule is not vague ...... 1 25

B. The rule is not overbrodedaddd 27

r ũ œi ;!!! —ĩͤ·v 29

TABLE OF AUTHORITIES

cases: Page

American Communications Ass’n v. Douds, 339

r ̃ 5 “s ⁵˙ 25

Barnard v. Thorstenn, 489 U.S. 546 (198997 18

Bates v. State Bar of Arizona, 433 U.S. 350

(A)

IV

Cases—Continued : Page

Bridges v. California, 314 U.S. 252 (1941) 5, 11, 14

Broadrick v. Oklahoma, 413 U.S. 601 (19733 27

Butterworth v. Smith, 110 S. Ct. 1376 (1990) 14

Cammer v. United States, 350 U.S. 399 (1956)...... 9

Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970) 16

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

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

r ee 11, 16

City Council v. Taxpayers for Vincent, 466 US.

, . ee eee 23

City of Renton v. Playtime Theaters, Inc., 475 U. 8.

D T 24

Clark v. Community for Creative Non- Violence,

468 U.S. 288 (1984) ..... 5 8 24

Cohen v. Hurley, 366 U.S. 117 (1961) en 6

Cole, Ex parte, 6 F. Cas. 35 (C. C. D. Iowa 1879)

f TTT 8

Conduct of Lasswell, In re, 296 Or. 121, 673 P. 2d

, 20

Connick v. Myers, 461 U.S. 138 (1983 poet 18

Cox v. Louisiana, 379 U.S. 559 (1965) 8 11

Cox Broadcasting Corp. v. Cohn, 420 US. 469

IIIT enreenecensicsiehdehsieedeniacinenendamnbtitedanathtaeeenaadbtibdntt tein ita te oe 6, 11

Craig v. Harney, 331 U.S. 367 (4947) n 8 11

Disciplinary Proceeding Against Eisenberg, In re,

423 N.W.2d 867 (Wis. 1988) .. 15

Garland, Ex parte, 71 U.S. (4 Wall.) 333 (1867) 8

Globe Newspaper Co. v. Superior Court, 457 U.S.

596 (1982) 5 ie 11

Goldfarb v. Virginia State Bar, 421 U. 8. 773

(1975) ....... JJV 6

Grayned v. City of Rockford, 408 U.S. 104 (1972) 25

Hinds, In re, 90 N.J. 604, 449 A.2d 483 (1982) 11,15

Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979) 11, 15

Hughes v. State, 437 A.2d 559 (Del. 1981) * 15

Landmark Communications, Inc. v. Virginia, 435

Os de 6, 11, 12

Levine V. United States Dist. Court for the Central

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

ST FEET dlbhes etee oe, 16

Vv

Cases—Continued :

Markfield v. Association for the Bar, 49 A.D.2d

516, 370 N.Y.S.2d 82, appeal dismissed, 337

GAD GEE

McCoy V. Court of Appeals of Wisconsin, 486 US.

c y j ů—ç—ꝙ?

Middlesex Ethics Comm. v. Garden State Bar

OR

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

TTT

New York v. Ferber, 458 U.S. 747 .

Nix v. Whiteside, 475 U.S. 157 (198)

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447

—T—T—T—T—T—T—T—T—T—T—T—T————

Oklahoma Publishing Co. V. "District Court, 430

U.S. 308 (1977) . ae

Oliver, In re, 452 F.2d 111 (7th Cir. 1971)

Parker v. Levy, 417 U.S. 733 (19799

Patterson v. Colorado, 205 U.S. 454 (1907)

Peel v. Attorney Registration & Disciplinary

Comm'n, 110 S. Ct. 2281 (1990)

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

People v. Dupree, 88 Misc. 2d 780, 388 N.Y. S.2d

Jr

People ex rel. Karlin v. Culkin, 248 N. v. 465, 162

N.E. 487 (1928) .

Pickeriny v. Board of Education, 391 US. 363

TTT *

Press-Enterprise Co. v. Superior Court:

r .

478 U.S. 1 (1986) 5 6

Raggio, In re, 87 Nev. 369, 487 P.2d 499 (1971).

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555 (1980) ............ 1 5

Sawyer, In re, 360 US. 622, ( 1959)

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

(1984) ad

Sheppard v. Mar well, 384 US. 333 ( 1966) .

Smith v. Daily Mail Publishing Co., 443 U.S. 97

(1979) 8 1

Snepp v. United States, 444 US. 507 (41980)

17, 18

6, 11

VI

Cases—Continued : Page

Supreme Court of New Hampshire v. Piper, 470

r 88 18

United States v. Garcia, 456 F. Supp. 1354 (D. P. R.

17 — —— ei 16

United States v. Tijerina, 412 F.2d 661 (10th

Cir.), cert. denied, 396 U.S. 990 (1969) 15

United Stetes Civil Service Comm'n v. National

Ass'n of Letter Carriers, 413 U.S. 548 (1973) 18, 25

Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 20 (1980))0: 27

Waller v. Georgia, 467 U.S. 39 (198 ·ꝛſ-q 12

Widoff v. Disciplinary Board, 54 Pa. Commw. 124,

420 A.2d 41 (1980), aff’d, 494 Pa. 129, 430 A.2d

1151 (1981), appeal dismissed, 455 U.S. 914

— . 8 eee 15

Wood v. Georgia, 370 U.S. 375 (1962) 12

Younger v. Smith, 30 Cal. App. 3d 138, 106 Cal.

e, ↄd—. 15

Zimmerman v. Board of Professional Responsi-

bility, 764 S.W.2d 757 (Tenn.), cert. denied, 490

TR BAREIS SEE HERE Se ara ee 15

Constitution, statutes, regulation, and rules:

U.S. Const.

Se 6, 7, 13, 14, 16, 17, 18, 19, 20

f 18

Speedy Trial Act of 1974, 18 U.S.C. 3161 (c) (1)... 24

r RE REA ra 9

e ie crm 8 16

Nevada Sup. Ct. R.:

e ae nee See ae 28

ES aan 2, 3, 4, 7, 21, 25, 26, 27, 28, 29

Section 1 .................... 3, 7, 21, 22, 23, 24, 27, 28, 29

r 3, 7, 22, 27

ds eect 26

Dc. 25, 26

ae 3, 5, 7, 22, 26, 27

, 26

D TT 26

VII

Miscellaneous: Page

ABA Project on Standards for Criminal Justice,

Standards Relating to Fair Trial and Free Press

FD fat 28

ABA Canons of Ethics, Cannon 20 1908) 9, 28

ABA Model Code of Professional Responsibility

(1980), Disciplinary Rule 7-107 (1980) 5, 28

ABA Model Rules of Professional Conduct (1983) :

| RR EE ae — eer eee x 16

i as FS . 17

SESS PP 2, 6, 28

PRES Saar eee nro 28

. 17

Administrative Office of the United States Courts,

Report of the Proceedings of the Judicial Con-

ference of the United States (1988) 24

4 W. Blackstone, Commentaries on the Laws of

England (Tucker ed. 1803, 1969 reprint) . 8

H. Drinker, Legal Ethics (1953) 899, 10, 18, 28

J. Goerdt, Examining Court Delay (1989) 24

31 Report of the American Bar Ass’n (1907) 9-10

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1536

DoMINIC P. GENTILE, PETITIONER

V.

STATE BAR OF NEVADA

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEVADA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case involves the constitutionality of an ethi-

cal rule that restricts an attorney’s public comments

about pending litigation in which he is involved. The

United States has an interest in ensuring that crim-

inal trials are free from the taint of prejudicial com-

ments by the attorneys involved, and therefore has

an interest in the constitutionality of ethical rules

such as the one at issue in this case.

STATEMENT

1. Petitioner, a criminal defense attorney in Las

Vegas, Nevada, represented a client indicted on state

charges of grand larceny, drug trafficking, and rack-

eteering. In response to adverse publicity about his

(1)

client, petitioner held a press conference, attended by

the electronic and print media, the day after his client

was indicted. At the press conference, petitioner

vouched for his client’s innocence; said that his

client was a “scapegoat,” Pet. App. 8a; attacked the

credibility of potential prosecution witnesses, calling

them drug dealers and money launderers;* and ac-

cused a police detective, who he knew would be a

prosecution witness, of being a drug abuser and the

likely perpetrator of the crime.’

The trial of petitioner’s client took place approxi-

mately six months later. Petitioner’s client was ac-

quitted on all charges.

2. On December 6, 1988, the State Bar of Nevada

filed a one-count complaint against petitioner alleg-

ing a violation of Nevada Supreme Court Rule 177.

R. 8-9. That provision is identical to ABA Model

Rule of Professional Conduct 3.6, and regulates an

' Petitioner stated (Pet. App. 12a) :

I know I represent an innocent man, Allen.

The last time I had a conference with you, was with a

client and I let him talk to you and I told you that the

case would be dismissed and it was. Okay?

I don’t take cheap shots like this. I represent an inno-

cent guy. All right?

* Petitioner stated (Pet. App. 8a) :

Now, with respect to these other charges that are con-

tained in this indictment, the so-called other victims, as

I sit here today I can tell you that one, two—four of

them are known drug dealers and convicted money

launderers and drug dealers.

° Petitioner stated (Pet. App. 8a) :

There is far more evidence that will establish that De-

tective Scholl took these drugs and took these American

Express Travelers’ checks than any other living human

being.

attorney’s extrajudicial statements on pending litiga-

tion. Rule 177 is divided into three sections. Section

1 provides that an attorney shall not make comments

he knows or reasonably should know will have a “sub-

stantial likelihood of materially prejudicing an ad-

judicative proceeding.” Section 2 advises the attorney

that a comment “ordinarily is likely” to have that

effect when it relates to, inter alia, the credibility of

potential witnesses and the attorney’s opinion as to

the guilt or innocence of the accused. Section 3 says

that certain statements are permissible even if they

“ordinarily [are] likely” to materially prejudice an

adjudicative proceeding or have a “substantial like-

lihood” of so doing.*

* Rule 177 provides:

1. A lawyer shall net make an extrajudicial statement that

a reasonable person would expect to be disseminated by

means of public communication if the lawyer knows or

reasonably should know that it will have a substantial

likelihood of materially prejudicing an adjudicative pro-

ceeding.

2. A statement referred to in subsection 1 ordinarily is

likely to have such an effect when it refers to * * * a

criminal matter * * * and the statement relates to:

(a) the character, credibility, reputation or criminal

record of a party, suspect in a criminal investigation

or witness * * *.

0 * 0 * *

(d) any opinion as to the guilt or innocence of a de-

fendant * * * in a criminal case * * *;

> * * 0 *

3. Notwithstanding subsection 1 and 2 (a-f), a lawyer in-

volved in the investigation or litigation of a matter may

state without elaboration :

(a) the general nature of the claim or defense

* * * * *

(e) that an investigation of the matter is in prog-

ress, including the general scope of the investigation,

4

Following a hearing, the Southern Nevada Disci-

plinary Board of the State Bar of Nevada found that

petitioner had violated Rule 177 and recommended

that he be privately reprimanded. The Board found

that petitioner knew the detective he accused of per-

petrating the crime and abusing drugs would be a

witness for the prosecution. R. 18. It also found

that petitioner believed others whom petitioner char-

acterized as money launderers and drug dealers

would be called as prosecution witnesses. /bid. In

light of the contents, the setting, and the timing of

petitioner’s statements to the media, the Board con-

cluded that petitioner knew or should have known

that those statements would have a “substantial like-

lihood of materially prejudicing” the fairness of his

client’s trial. R. 20.

3. Petitioner appealed to the Nevada Supreme

Court, which affirmed the Board’s decision. Pet. App.

2a-5a. The court found by fellear and convincing

evidence” that petitioner “knew or reasonably should

have known that his comments had a substantial like-

lihood of materially prejudicing the adjudication of

his client’s case.” Id. at 3a. The court noted that

the case was “highly publicized”; that the press con-

ference, held the day after the indictment and the

same day as the arraignment, was “timed to have

maximum impact”; and that petitioner’s comments

improperly “related to the character, credibility, rep-

utation or criminal record of the police detective and

other potential witnesses.” /d. at 4a. Although the

the offense or claim of defense involved and, except

when prohibited by law, the identity of the persons

involved“.

court found that the comments caused “no actual

prejudice in this case,” it concluded that the ab-

sence of actual prejudice does not establish that there

was no substantial likelihood of material prejudice.”

Ibid. The court rejected petitioner’s contentions that

his comments were permitted by Section 3 of Rule

177, and that the Rule violated his right to free

speech under the federal and Nevada constitutions.

Pet. App. 4a.

INTRODUCTION AND SUMMARY OF ARGUMENT

“The theory of our system is that the conclusions

to be reached in à case will be induced only by evi-

dence and argument in open court, and not by any

outside influence, whether of private talk or public

print.“ Patterson v. Colorado, 205 U.S. 454, 462

(1907) (Holmes, J.). For that reason, this Court

has condemned “trial by newspaper,” see Sheppard v.

Maxwell, 384 U.S. 333 (1966); Bridges v. Califor-

nia, 314 U.S. 252, 271 (1941), and has called for

“steps * * * that will protect [court] processes from

prejudicial outside interferences. * * * Collabora-

tion between counsel and the press as to information

affecting the fairness of a criminal trial is not only

subject to regulation, but is highly censurable and

worthy of disciplinary measures.” Sheppard, 384

U.S. at 363. In accordance with that suggestion, the

American Bar Association and a number of state

bars have adopted disciplinary rules designed to re-

strict statements to the press by attorneys involved

in pending cases." Those rules are not unconstitu-

tional.

5 Disciplinary Rule 7-107 of the ABA’s Model Code of Pro-

fessional Responsibility, which contained a prohibition against

extrajudicial commentary about pending cases, was adopted

1. The right of ordinary citizens to publish law-

fully obtained information relating to a pending pro-

ceeding may be curtailed only if publication of the

information presents a “clear and present danger”

to the fairness of a defendant's trial. See, e.g., Smith

v. Daily Mail Publishing Co., 443 U.S. 97, 101-106

(1979); Landmark Communications, Inc. ». Vir-

ginia, 435 U.S. 829, 837-845 (1978); Oklahoma Pub-

lishing Co. v. District Court, 430 U.S. 308, 310-312

(1977); Nebraska Press Ass'n v. Stuart, 427 U.S.

539, 556-570 (1976); Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 487-497 (1975). Different con-

siderations apply, however, when it is a lawyer in

the case who is the source of the information.

The lawyer stands on different First Amendment

ground than a layman or a reporter. “[L]awyers

must operate * * * as assistants to the court in

search of a just solution to disputes.” Cohen v. Hur-

ley, 366 U.S. 117, 124 (1961); see Goldfarb v. Vir-

ginia State Bar, 421 U.S. 773, 792 (1975) (law-

yers’ services “are essential to the primary govern-

mental function of administering justice“); Jn re

Sawyer, 360 U.S. 622, 668 (1959) (Frankfurter, J.,

dissenting) (A] lawyer actively participating in

a trial * * * is not merely a person and not even

merely a lawyer, * * * [but] an intimate and trusted

and essential part of the machinery of justice.”).

A lawyer’s license to practice law necessarily carries

with it obligations to the system of justice—as an

“officer of the court“ —that are not shared by his

in 1968. In 1983, the ABA promulgated the Model Rules of

Professional Conduct; Rule 3.6 of that Code governs extra-

judicial attorney commentary. That Rule has been adopted

by Nevada and 17 other States without change, and by 7 other

States with revisions.

7

client or by a reporter. One of those obligations is to

refrain from making prejudicial public comments

about a pending trial. Because of the special duty of

lawyers to ensure the fairness of judicial proceedings,

the First Amendment permits restrictions on a law-

yer’s right to comment about a case in which he is

participating, when the lawyer’s comments are rea-

sonably likely to jeopardize the fairness of the trial.

Under that standard, the restraint on speech im-

posed by Rule 177 is consistent with the First

Amendment rights of attorneys. The Rule applies

only when there is a substantial likelihood that the

speech in question will materially prejudice the trial.

Moreover, the restraint on speech is limited: it ap-

plies only to speech that can be expected to have a

prejudicial effect; it is neutral as to points of view;

and it is limited to postponing the attorney’s com-

ments until after the trial. In the meantime, the

client, counseled by his lawyer, can speak himself or

can retain a spokesman to speak on his behalf; the

restraint imposed by Rule 177 applies only to com-

ments by the lawyer himself.

2. Rule 177 is neither vague nor overbroad. The

Rule sets forth, in terms that are as specific as the

limits of language allow, the rule governing attor-

ney comments on a pending case (Section 1), the kinds

of statements that are likely to violate the Rule (Sec-

tion 2), and the kinds of statements that are per-

missible (Section 3). If a proposed statement falls

close to the line of propriety, there is no reason why

the attorney may not seek guidance from the bar

association as to whether the statement is permis-

sible. Moreover, the Rule does not subject attorneys

to strict liability. A comment on a pending case is

sanctionable only if the attorney knows or ought to

know that it is improper. Under these circum-

stances, attorneys who have familiarized themselves

with the ethical rules are likely to have a reasonably

clear idea of the kinds of statements that are for-

bidden, and attorneys are not likely to avoid per-

missible statements out of fear that those state-

ments will be found to fall within the Rule’s prohi-

bitions.

ARGUMENT

I. THE FIRST AMENDMENT PERMITS A STATE TO

DISCIPLINE AN ATTORNEY WHO MAKES PUB-

LI COMMENTS THAT ARE LIKELY TO PREJU-

DICE A TRIAL

A. Lawyers Have Historically Been Required To Re-

frain From Engaging In “Trial By Newspaper”

From the dawn of the legal profession, lawyers

have been recognized to be “officers of the court” who

owe allegiance to the system in which they play an

integral part. See Ex parte Garland, 71 U.S. (4

Wall.) 333, 379 (1867) (“Attorneys * are not

only officers of the court, but officers whose duties

relate almost exclusively to proceedings of a judicial

nature.”): Er parte Cole, 6 F. Cas. 35 (C.C.D. Iowa

1879) (No. 2.973) (attorney is officer of court over

whom court “possess[es] an inherent power to con-

trol”); People ex rel. Karlin v. Culkin, 248 N.Y. 465,

170. 162 N. E. 487, 489 (1928) (Cardozo, J.) (a

lawyer is “an officer of the court, and, like the court

itself, an instrument or agency to advance the ends

of justice”): 4 W. Blackstone, Commentaries on the

Laws of England 26 (Tucker ed. 1803, 1969 re-

int) (Catterneys “are in all points officers of the

* * courts * * * and as they have many privileges

on account of their [position], so they are peculiarly

subject to the censure * * * of the judge .

For more than a century the legal profession has

recognized that lawyers’ obligations to the court and

to the system of justice justify restricting their

extrajudicial commentary about pending cases. The

first official code of legal ethics promulgated in this

country, the Alabama Code of 1887, warned attor-

neys to “Avoid Newspaper Discussion of Legal Mat-

ters,” and stated that “[n]ewspaper publications by

an attorney as to the merits of pending or antici-

pated litigation * * * tend to prevent a fair trial in

the courts, and otherwise prejudice the due adminis-

tration of justice.” H. Drinker, Legal Ethics 23, 356

(1953). That provision was quickly adopted by 10

other States, and became the basis for Canon 20 of

the American Bar Association’s Canons of Ethics,

promulgated in 1908.“ See 31 Report of the Ameri-

®*Cammer v. United States, 350 U.S. 399 (1956), is not to

the contrary. That case held that lawyers are not “officers”

of a court for purposes of the federal contempt statute, 18

U.S.C. 401(2), which authorizes a court to punish “its offi-

cers” for misbehavior “in their official transactions.” The

term “officers” in that statute was construed to refer only to

court officials, and not to include “officers of the court” such

as attorneys, who are not employed by the court but have

ethical duties with respect to court functions.

Canon 20 stated:

Newspaper publications by a lawyer as to pending or

anticipated litigation may interfere with a fair trial in

the Courts and otherwise prejudice the due administra-

tion of justice. Generally they are to be condemned. If

the extreme circumstances of a particular case justify a

statement to the public, it is unprofessional to make it

anonymously. An ex parte reference to the facts should

10

can Bar Ass’n 696-697 (1907). By 1914, 31 state

bar associations had adopted the ABA Canons. H.

Drinker, supra, at 25. Thus, from the time the or-

ganized legal profession began to police its own

ethics, the type of behavior in which petitioner en-

gaged was widely regarded as a proper subject of

prohibition.

B. A Lawyer’s License To Practice Law Carries With

It Reasonable Restrictions Related To Serving The

System Of Justice, Including Restrictions On Speech

Reasonably Likely To Jeopardize A Fair Trial

Lawyers are licensed by States to play important

roles in the administration of justice. In granting a

license to practice law, States typically impose re-

strictions on the lawyer’s conduct relating to the ex-

ercise of the functions the State has licensed him to

perform. Where those restrictions are reasonably re-

lated to the proper performance of the lawyer’s li-

censed functions, they are not unconstitutional in-

fringements on the lawyer’s personal freedoms. The

State “has an extremely important interest in main-

taining and assuring the professional conduct of the

attorneys it licenses, * * * [and] * * * traditionally

ha[s] exercised extensive control over the professional

conduct of attorneys.” Middlesex Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 434 (1982).

That control is vital not only to ensure fair trials,

but also to preserve public confidence in the workings

of the justice system, “part of the very foundation of

not go beyond quotation from the records and papers on

file in the court; but even in extreme cases it is better to

avoid any ex parte statement.

11

our constitutional democracy.” Cox v. Louisiana, 379

U.S. 559, 562 (1965).

The restriction on extrajudicial comments regard-

ing pending litigation is a reasonable condition on the

State’s extension of the privilege of practicing law.

Courts have recognized that “restricting the extra-

judicial statements of criminal defense attorneys re-

lates to the government’s substantial interest in pre-

serving the proper administration of justice and the

basic integrity of the judicial process.” In re Hinds,

90 N.J. 604, 615, 449 A.2d 483, 489 (1982). As the

court stated in Chicago Council of Lawyers v Bauer,

522 F.2d 242, 250 (7th Cir. 1975), cert. denied, 427

U.S. 912 (1976), “public justice is no less important

than an accused’s right to a fair trial.“ See Hirsch-

kop v. Snead, 594 F.2d 356, 366 (4th Cir. 1979) (en

banc).

Although a newspaper is ordinarily free to publish

any information it lawfully obtains about a pend-

ing judicial proceeding, the cases enunciating that

rule have all addressed the relationship between the

judicial system and outsiders to that system.“ With

See Bridges v. California, 314 U.S. 252 (1941) (contempt

charge against newspaper for criticism of court’s handling of

case) ; Pennekamp V. Florida, 328 U.S. 331 (1946) (same) ;

Craig v. Harney, 331 U.S. 367 (1947) (same); Landmark

Communications, Inc. v. Virginia, 435 U.S. 829 (1978) (news-

paper convicted for publishing name of judge under ethics

investigation); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975) (press has right to report rape victim’s name);

Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (press

has right to publish information learned at criminal trial) ;

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)

(press has right of access to criminal trials); Globe News-

paper Co. v. Superior Court, 457 U.S. 596 (1982) (press has

right of access to testimony of minor victims of sexual of-

12

respect to inside information, the press has no right

of access to speech that an attorney is unwilling or

unauthorized to share. See Landmark Cmmunica—

tions, 435 U.S. at 845 (holding that newspaper could

publish lawfully obtained, albeit secret, information,

but recommending “careful internal procedures” to

prevent disclosure of such information in the future) ;

Sheppard, 384 U.S. at 363 (courts have obligation to

“prevent prejudice at its inception”). Nor does the at-

torney’s client have the right to require his attorney

to speak or otherwise represent him in ways for-

bidden by the code of ethics. See Nix v. Whiteside,

475 U.S. 157, 174-175 (1986). Because of the law-

yer’s special status as a licensed officer of the court,

the rules that allow a lawyer’s client or the press to

comment publicly on a pending trial do not authorize

the lawyer to speak for his client in the same man-

ner.

Restrictions on an attorney’s extrajudicial com-

ments are proper even in the absence of a “clear and

present danger” to the fairness of an adjudicatory

fenses); Press-Enterprise Co. v. Superior Court, 464 U.S.

501 (1984) (press has right of access to jury selection) ;

Waller v. Georgia, 467 U.S. 39 (1984) (press has right of

access to suppression hearings) ; Press-Enterprise Co. v. Su-

perior Court, 478 U.S. 1 (1986) (press has right of access to

preliminary hearings).

The only case that even arguably involved a non-third-party

was Wood v. Georgia, 370 U.S. 375 (1962), where a county

sheriff was held in contempt for publicly criticizing instruc-

tions given by a judge to a grand jury. Although the sheriff

was technically an “officer of the court” by virtue of his posi-

tion, the Court determined that his statements were made in

his capacity as a private citizen, with no connection to his

official duties. Jd. at 393. The same cannot be said about peti-

tioner, whose statement was made in the course of and in

furtherance of his role as defense counsel.

13

proceeding in which the attorney is involved. The

argument that a lawyer is just like any other member

of the public ignores the special impact that a law-

yer’s extrajudicial comments about a case are likely

to have. The lawyer’s special role in the case—which

he enjoys because of his state-conferred license—make

him more likely to be believed. By the same token, it

is the attorney’s special status that can make his in-

flammatory remarks especially inimical to the fair-

ness of the judicial proceedings on which he is com-

menting.’

A lawyer’s extrajudicial commentary on a pending pro-

ceeding is on especially weak First Amendment ground when

the information he seeks to disseminate was gained through

his role as a lawyer. For example, Seattle Times Co. v.

Rhinehart, 467 U.S. 20 (1984), held that a newspaper could

be prevented from publishing information that it had ob-

tained through pretrial discovery. The newspaper’s special

access to information led the Court to conclude that “judicial

limitations on a party’s ability to disseminate information

discovered in advance of trial implicates the First Amend-

ment rights of the restricted party to a far lesser extent than

would restraints on dissemination of information in a differ-

ent context.” Jd. at 34.

Snepp v. United States, 444 U.S. 507 (1980), also suggests

that special access to information may constitutionally carry

with it a limitation on the right to disseminate that informa-

tion. Id. at 509 n.3. Upon joining the Central Intelligence

Agency, Snepp promised “not to publish any information

relating to the Agency without submitting the information

for clearance.” Jd. at 511 (emphasis in original). When

Snepp violated that obligation, this Court enforced it even

though Snepp’s book divulged no classified information. The

Court reasoned that Snepp could be held to “reasonable re-

strictions” on the dissemination of information potentially

undermining the Agency's activities. Id. at 509 n.3, 511. An

attorney’s status as a member of the bar imposes an analogous

ethical duty on him in handling information that comes to him

because of his special status, such as information gained in

14

This Court has recognized the crucial difference

between attorney and non-attorney speech. In Jn re

Sawyer, 360 U.S. 622 (1959), a lawyer who was ac-

tively involved in a pending criminal case was dis-

ciplined for making a speech condemning the prosecu-

tion of her client. A majority of the Members of this

Court agreed that ethical precepts can require attor-

neys to abstain from what would otherwise be

constitutionally protected speech. /d. at 646 (Stewart,

J., concurring) (“A lawyer belongs to a profession

with inherited standards of propriety and honor,

which experience has shown necessary in a calling

dedicated to the accomplishment of justice. He who

would follow that calling must conform to those

standards.“); id. at 668 (Frankfurter, J., dis-

senting) ([A] lawyer actively participating in a

trial * * * is not merely a person and not even merely

a lawyer. * * * Legal trials are not like elections, to

be won through the use of the meeting hall, the radio,

and the newspapers.”) (quoting Bridges v. Califor-

nia, 314 U.S. 252, 271 (1941)). State regulation of

an attorney’s comments implicating the fairness of

his client’s trial is also consistent with this Court’s

repeated recognition of trial judges’ broad latitude

to restrain lawyers’ statements regarding trials over

which they preside:

[Oln several occasions this Court has approved

restriction on the communications of trial partie-

plea bargaining, or criminal discovery material. See Butter-

worth v. Smith, 110 S. Ct. 1376, 1383 (1990) (Scalia, J., con-

curring) (no First Amendment problem with restriction on

newspaper reporter's disclosure of grand jury proceedings at

which the reporter has testified, because reporter acquired

knowledge not “on his own” but “only by virtue of being made

a witness”).

15

ipants where necessary to ensure a fair trial for

a criminal defendant. See Nebraska Press Assn.

v. Stuart, 427 U.S. 539, 563 (1976); id., at 601

and n. 27 (Brennan, J., concurring in judg-

ment); Oklahoma Publishing Co. v. District

Court, 430 U.S. 308, 310-311 (1977); Sheppard

v. Maxwell, 384 U.S. 333, 361 (1966). “In the

conduct of a case, a court often finds it necessary

to restrict the free expression of participants, in-

cluding councel, witnesses, and jurors.” Gulf Oil

Co. v. Bernard, 452 U.S. 89, 104, n. 21 (1981).

Seattle Times Co. v. Rhinehart, 467 U.S. at 33 n.18.

We submit that the proper balance between a law-

yer’s duty to the justice system and his right to speak

freely is struck at the point where there is a reason-

able likelihood that his statements will prejudice a

pending proceeding in which he is involved. Most

courts that have addressed the issue have struck the

balance at that point. See, e.g., Hirschkop v. Snead,

594 F.2d 356 (4th Cir. 1979) (en banc); Hughes v.

State, 437 A.2d 559 (Del. 1981); In re Hinds, 90

N.J. 604, 449 A.2d 483 (1982); Widoff v. Discipli-

nary Board, 54 Pa. Commw. 124, 420 A.2d 41

(1980), aff'd, 494 Pa. 129, 430 A.2d 1151 (1981),

appeal dismissed, 455 U.S. 914 (1982); Zimmerman

v. Board of Professional Responsibility, 764 S.W.2d

757 ‘Tenn. ), cert. denied, 490 U.S. 1107 (1989): Jn

re Disciplinary Proceeding Against Eisenberg, 423

N.W.2d 867 (Wis. 1988); cf. United States ».

Tijerina, 412 F.2d 661, 667 (10th Cir.) (apply-

ing “reasonable likelihood” test in reviewing trial

court “gag” order), cert. denied, 396 U.S. 990

(1969); Younger v. Smith, 30 Cal. App. 3d 138, 106

Cal. Rptr. 225 (1973) (same); People v. Dupree,

16

88 Misc. 2d 780, 388 N.Y.S.2d 203 (1976) (same).”

The Department of Justice has also determined that

a “reasonable likelihood” of prejudice is the appropri-

ate standard for restricting its own lawyers’ com-

mentary. See 28 C.F.R. 50.2(b)(2). Although a

lawyer must be a zealous and partisan advocate for

his client, he must litigate his cases in courts of law,

not in the court of public opinion.

The restraint on extrajudicial commentary is not

the only restriction on lawyer speech that the ethical

rules impose. Other restrictions serve equally im-

portant purposes, and the justice system would be

seriously impaired if those restrictions were found

to offend the First Amendment. For example, ethical

rules forbid a lawyer from discl sine confidential in-

formation related to him by his client unless the

client consents after consultation. See ABA Model

Rule of Professional Conduct 1.6. Under the analy-

sis proposed by petitioner and his amici, however,

the rule protecting client confidences would appear

to violate the First Amendment. Clients often di-

vulge information to their lawyers that relates to

matters of public interest. If petitioner’s constitu-

A few courts have chosen other balancing points. See

Markfield v. Association of the Bar, 49 A. D 2d 516, 370

N. V. S. 2d 82 (“clear and present danger” test), appeal dis-

missed, 337 N.E.2d 612 (N.Y. 1975) ; United States v. Garcia,

456 F. Supp. 1354 (D.P.R. 1978) (“serious and imminent

threat” test). The Seventh Circuit has applied a “serious and

imminent threat” standard to review both disciplinary rules,

see Chicayo Council of Lawyers v. Baver, 522 F.2d at 249:

In re Oliver, 452 F.2d 111, 114 (7th Cir. 1971), and trial

court gag orders, see Chase v. Robson, 435 F.2d 1059, 1061

(7th Cir. 1970): see aleo Levine v. United States Dist. Court

for the Cen'val Dist. of Colifornia, T64 F.2d 590, 596-598 (9th

Cir. 1985) (applying “serious and imminent threat” test in

reviewing trial court “gag” order).

17

tional analysis is correct, a lawyer would apparently

have a First Amendment defense to the imposition

of sanctions for revealing those confidences to the

press or the public.

There is plainly no constitutional flaw in the rule

barring disclosure of such confidences. The proper

functioning of the legal process mandates that a

lawyer bear the burden of not disclosing client con-

fidences as a condition of being a lawyer." To argue

that the lawyer may not reveal confidences because

of his duty to represent his client begs the question.

The lawyer has that duty because of the ethical

canors and the nature of his role as a lawyer. Those

are the same sources of authority that justify re-

strictions on other aspects of the lawyer’s conduct,

such as making extrajudicial comments on pending

cases.

The lawyer’s license to practice carries with it

other Firet Amendment burdens as well. His free-

dom of speech and association are limited by a pro-

hibition on direct communication with persons rep-

resented by counsel, ABA Model Rule 4.2, and by the

duty of candor to the court, ABA Model Rule 3.3.

which requires the lawyer to speak even if he would

prefer to remain silent and even if speaking would

adversely affect his client." And the lawyer’s free-

The same reasoning would apply to the lawyer who wants

to tell the press that his client is guilty. In many cases that

would be information of the highest public concern, yet it is

absurd to think that the lawyer's First Amendment rights

give him the liberty to make such a statement.

This constraint is illustrated in McCoy v. Court of Ap-

peals of Wisconsin, 486 U.S. 429 (1988). In that case, ap-

pellate counsel for an indigent defendant believed his client's

arguments on appeal were frivolous. He therefore prepared

a brief that advanced several arguments for reversal but

18

dom of association is further limited by his duty to

represent indigent defendants when he is appointed

to do so. See Barnard v. Thorstenn, 489 U.S. 546

(1989) ; Supreme Court of New Hampshire v. Piper,

470 U.S. 274, 287 (1985); H. Drinker, supra, at 62

(lawyers have had duty to represent indigents

“[f]rom the earliest times”). While these restraints

on the freedom of speech and association would raise

serious First Amendment concerns if imposed on pri-

vate parties, there is no question that they can be

imposed on lawyers.“

Petitioner relies on this Court’s cases dealing with

advertising by lawyers, arguing that those cases

stand for the proposition that lawyers are held to no

then advised the court that those arguments were frivolous.

Id. at 432. The state court directed counsel to submit, in

accordance with state law, “a discussion of why the issue[s]

lack I] merit,” rather than just a statement that they do. Id.

at 430, 432. This Court held that the requirement did not

violate MeCoy's Sixth Amendment right to counsel. The

Court determined that the lawyer's ethical duty of candor to

the court outweighed the client’s interest in litigating his

appeal. Although the case did not address the First Amend-

ment, its message is clear: ethical obligations may require

attorney speech in certain circumstances, and are not incon-

sistent with other constitutional guarantees, even where the

attorney’s speech disadvantages his client.

The principle that justifies imposing special burdens on

an attorney's speech because of the attorney's relationship to

cases in which he serves as counsel is analogous to the burden

on a public employee's freedom of speech. A ‘public employee

is not deprived of his right to speak on matters of public

interest, but his free speech rights are qualified in a manner

that would not apply to an ordinary citizen. See Connick v.

Myers, 461 U.S. 188, 150-151 (1983); United States Civil

Service Comm'n v. National Ass'n of Letter Carriers, 413

U.S. 548, 564-567 (1973) Pickering v. Board of Education,

391 U.S. 563, 568 (1968).

19

higher First Amendment standard than others. Pet.

Br. 32-33. In fact, however, those cases stand for

just the opposite proposition. From Bates v. State

Bar of Arizona, 433 U.S. 350 (1977), to Peel v.

Attorney Registration & Disciplinary Comm'n, 110

S. Ct. 2281 (1990), this Court has carefully con-

sidered the reasonableness of state bar regulations

governing solicitations by attorneys. The Court has

never suggested that lawyers are entitled to adver-

tise in the same fashion as any other vendor, or even

members of any other profession. Instead, in each

case the Court has engaged in a balancing process,

weighing the State’s interest in the regulation of

particular conduct against the lawyer’s First Amend-

ment interest in the kind of speech that is at issue.

Unlike in First Amendment cases involving mem-

bers of the general public, the interest in free ex-

pression by attorneys does not routinely trump the

state’s interest in regulating the legal profession.

In Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447

(1978), for example, this Court upheld a ban on

in-person solicitation by lawyers, and held that

state interests in regulating lawyers “are particu-

larly strong because] the State bears a spe-

cial responsibility for maintaining standards among

members of the licensed professions.” Jd. at 460.

Under the same reasoning, the state interest in reg-

ulating ‘lawyers’ extrajudicial comments about pend-

ing cases is very strong and should be found to out-

weigh the individual lawyer's interest in unre-

stricted free expression regarding those cases.

C. The First Amendment Does Not Require The State

To Prove Actual Prejudice To An Ongoing Pro-

ceeding Before Restricting Attorney Speech

Pet itioner's amici contend that the First Amend-

ment requires the State to show actual prejudice to

a judicial proceeding before an attorney may be dis-

ciplined for his extrajudicial commenis. That con-

tention is insubstantial. Courts have uniformly held

that an attorney may be disciplined for his extra-

judicial comments based on the likelihood of preju-

dice to pending judicial proceedings at the time the

comments were made; no court has suggested that

actuai prejudice must be proved. See Jn re Conduct

of Lasswell, 296 Or. 121, 126, 673 P.2d 855, 858

(1983) (the disciplinary rule “deals with purposes

and prospective effects, not with completed harm”).

If a showing of actual prejudice were required,

even manifestly unethical attorney comments having

every prospect of prejudicing pending proceedings

could not serve as the basis for disciplinary action

whenever it turned out—even for wholly fortuitous

reasons—that the attorney's misconduct had no ef-

fect on the proceedings. For example, a defense at-

torney who made blatantly improper and prejudicial

comments might be immune from punishment merely

because the government, for reasons unrelated to the

comments, decided to dismiss the charges, whether

because the attorney's client subsequently chose to

enter a guilty plea, or because the government ulti-

mately obtained a conviction despite the prejudicial

publicity engendered by the comments. That arrange-

ment would put attorneys in a preferred First

Amendment position compared to their clients, the

press, and the general public, for the standard that

governs those speakers does not require actual prej-

udice to be shown. Yet, as we have argued, the

21

status of lawyers in the legal system subjects them

to more, not fewer, restrictions on their right to

speak freely regarding cases in which they are serv-

ing as counsel."

D. The Restrictions On An Attorney's Extra judicial

Public Comments Imposed By Nevada Supreme

Court Rule 177 Are Reasonable

For the reasons set forth above, we submit that a

State may limit an attorney's comments that pose a

“reasonable likelihood” of prejudice to a pending

judicial proceeding. It follows a fortiori that Nevada

Supreme Court Rule 177 is constitutional, for it pro-

hibits only those comments that create a “substantial

likelihood” of prejudice—a higher standard than the

Constitution requires.

Despite petitioner’s protestations to the contrary,

Rule 177 is not a categorical or prophylactic ban on

speech, and it does not presume prejudice. Section 1

of the Rule—the only Section that states what the

attorney “shall not” do—forbids the attorney from

making extrajudicial, public comments that he knows

lt is no answer that in some instances the potentially

prejudicial effect of attorney comments may be cured by a

change of venue, by increased attention to jury selection, or

by careful jury instructions. At best, those remedies are un-

happy alternatives to avoiding the problem in the first place

They are not always successful, and it is not always possible

to determine whether they have had the desired effect. More-

over, a change of venue or a greatly expanded jury selection

process imposes significant costs on the justice svstem and may

accused, are “ordinarily” likely to have a prejudicial

effect. That Section, however, does not erect a “pre-

sumption” of prejudice, as petitioner claims. State-

ments of the sort listed in Section 2 are not for-

bidden as such; those statements are separately speci-

fied te provide guidance as to the kinds of statements

that pose a particular risk of violating the prohibi-

tion in Section 1. Section 3 then provides assurance

that certain kinds of statements are permissible even

if they “ordinarily [are] likely” to materially preju-

dice an adjudicative proceeding or have a “sub-

stantial likelihood” of so doing. Rather than being

rigid and categorical, the Rule endeavors to provide

deed “substantially likely to prejudice the proceed-

ings.” It found that “[t}he case was highly pub-

licized, and the press conference was held the day

after the grand jury indictment and the same day

as the arraignment—a time when the intensity of

public interest in a notorious case is at its peak.”

Pet. App. 4a. “[T]hese comments were timed

have maximum impact.” /hid. As applied, then, the

Rule imposed no prophylactic ban on particular cate-

8

23

gories of speech; instead, the court carefully ana-

lyzed the nature and context of the statements at

issue before finding that they violated the Rule.

Petitioner argues that his conduct was justified

because it came in response to misconduct by the

prosecution. A lawyer, however, is not entitled to

exempt himself from ethical obligations merely be-

cause he thinks the prosecutor or the police made

improper statements about a case. If petitioner be-

lieved that the prosecutor committed ethical viola-

tions, the proper course of action would have been

to enlist bar disciplinary authorities to stop, and to

sanction, the prosecutor’s behavior.“ If petitioner

had held his press conference before there had been

any adverse publicity concerning his client, the pros-

ecutor certainly would not have been authorized to

respond in kind.

In assessing the constitutionality of Rule 177, it

is important to note that the Rule does not bar at-

torney speech altogether, but merely restricts that

speech during the pretrial period. This Court has

held that a State may regulate the timing or method

of expression when the regulation is designed to fur-

ther important state interests and is neutral with

respect to viewpoint. In City Council v. Taxpayers

for Vincent, 466 U.S. 789 (1984), for example, the

Court upheld a prohibition on posting political cam-

paign materials on telephone wires and poles on the

As demonstrated by In re Raggio, 87 Nev. 369, 487 P.2d

499 (1971), the Nevada Bar is not hesitant to discipline

prosecutors for making prejudicial extrajudicial comments.

There is no allegation, however, that the prosecutor in this

case violated ethical guidelines; the information to which

petitioner claims he was responding was released by the

police.

24

ground that the city’s interest in advancing aes-

thetic values was sufficient to justify the viewpoint-

neutral rule. Likewise, in Clark v. Community for

Creative Non-Violence, 468 U.S. 288 (1984), the

Court upheld as a valid “time, place, and manner”

restriction a Park Service rule prohibiting sleeping

on designated park lands, even though the respond-

ents wished to engage in political protest by sleeping

on the designated property.

Like the regulations at issue in those cases, Rule

177 is justified by the State’s vital interest in main-

taining the integrity of the trial process and by the

lawyer’s pivotal role in that process. The Rule is not

intended to censor or suppress ideas or information

of which the State disapproves. It applies equally to

all lawyers involved in a case, and it does not single

out certain categories of favored or disfavored

speech.

Moreover, Rule 177 is narrowly tailored to the

purposes it serves; it merely postpones potentially

prejudicial comments until after the risk of preju-

dice has passed. See City of Renton v. Playtime

Theaters, Ine, 475 U.S. 41, 47 (1986) (a law that

regulates only adult theaters, and not others, is “nar-

rowly tailored” to combat a problem associated solely

with those theaters). In general, that period is a

short one. In the federal system, the Speedy Trial

Act of 1974, 18 U.S.C. 3161(¢)(1), requires trial to

begin within 70 days of the indictment, and 95 per-

cent of criminal trials begin by that deadline. Ad-

ministrative Office of the United States Courts, Re-

port of the Proceedings of the Judicial Conference

of the United States 18 (1988). In state courts, the

median time from indictment to sentencing in felony

cases is 86 days. J. Goerdt, Examining Court Delay

54-55 (1989).

25

Even during the pretrial period, a lawyer may

make any statements that are not proscribed by the

Rule. Once trial begins, the lawyer may make open-

ing and closing statements, cross-examine witnesses,

and argue motions, all within the hearing of the

press, and all of which reveal information. Once the

case is over, the lawyer is free to discuss any aspect

of the case with whomever he pleases; he is thus free

to “translate the work of our courts for an interested

public.” Pet. Br. 36. Furthermore, the client himself

may at any time speak to the press, or may engage a

(non-lawyer) spokesman to do so on his behalf. In

sum, Rule 177 is reasonable because it is a carefully

tailored restriction that seeks to protect the judicial

process without restricting the attorney’s right to

speak where that speech would not pose a serious

risk to the integrity of court proceedings.

II. NEVADA SUPREME COURT RULE 177 IS NEITHER

VAGUE NOR OVERBROAD

A. The Rule Is Not Vague

A statute or rule may be void for vagueness if it

fails to give “fair notice to those to whom [it] is di-

rected.” Grayned v. City of Rockford, 408 U.S, 104,

112 (1972) (quoting American Communications

Ass'n v. Douds, 339 U.S. 382, 412 (1950)). Statutes

and rules must be capable of being understood and

applied by “the ordinary person exercising ordinary

common sense.” United States Civil Service Comm’n

v. National Ass’n of Letter Carriers, 413 US. 548,

579 (1973).

Petitioner argues that Rule 177 is vague in two

respects. First, he contends that Section 2(d), under

which it is ordinarily improper for an attorney to

offer the press an “opinion as to the guilt or innocence

of a defendant,” is contradicted by Section 3(a),

which permits attorneys to state “without elaboration

the general nature of the claim or defense.”

Pet. Br. 46. Even if it had merit, however, this claim

would not help petitioner, since the Nevada Supreme

Court found his comment to fall within Section 2(a)

of the Rule, which covers comments on the credibility

of witnesses, rather than on the basis of Section 2(d).

In any event, an attorney can state the general na-

ture of his client’s defense without extolling its

merits, arguing the weaknesses of the government’s

case, and questioning the good faith of the govern-

ment in bringing it. Nothing in the Rule bars an

attorney from stating that his client denies the

charges and intends to contest them, which is quite

different from vouching for his client’s innocence.

Second, petitioner claims that Section 2(a) of the

Rule, which states that it is ordinarily improper for

an attorney to comment to the press on the credibility

of a witness, is inconsistent with Section 3, which

permits unelaborated statements on “the general na-

ture of the claim or defense,” “information contained

in a public record,” and “the general scope of [fan]

investigation, the offense or claim or defense involved

and, except when prohibited by law, the identity of

the persons involved.” The short answer is that noth-

ing in Section 3(c) can reasonably be construed as

authorizing comment on the credibility of witnesses.

To be sure, an unelaborated statement of the defense

might imply that the government’s evidence should

not be credited. But that is a far ery from directly

attacking the credibility of individual witnesses,

which is what the Rule prohibits and what petitioner

was found to have done.

Rather than suffering from vagueness, Rule 177

achieves a remarkable level of precision in address ag

27

an inherently difficult definitional task. The drafters

of the Rule made every effort to provide guidance to

attorneys not only by stating a rule in Section 1, but

also by setting forth the specific categories of state-

ments that would be likely to be sanctionable (in See-

tion 2) and those that may safely be made (in Sec-

tion 3). Rule 177 did not leave petitioner in doubt as

to whether the statements he intended to make at his

press conference would violate his ethical obligations.

But petitioner went ahead with his remarkable press

conference, apparently disregarding the risk that he

would be sanctioned as a result.

B. The Rule Is Not Overbroad

Overbreadth doctrine “is predicated on the sensi-

tive nature of protected expression: ‘persons whose

expression is constitutionally protected may well re-

frain from exercising their rights for fear of * * *

sanctions by a statute susceptible of application to

protected expression.“ “ New York v. Ferber, 458

U.S. 747, 768 (1982) (quoting Village of Schaum-

burg v. Citizens for a Better Environment, 444 U.S.

620, 634 (1980)). This Court has warned that the

doctrine “must be carefully tied to the circumstances

in which facial invalidating of a statute is truly war-

ranted,” Ferber, 458 U.S. at 769, for “Ta]pplication

of the overbreadth doctrine is * * * strong medicine.

It has been employed by the Court sparingly and only

as a last resort.” Broadrick v. Oklahoma, 413 U.S.

601, 613 (197%). As such, “overbreadth of a statute

must not only be real, but substantial as well, judged

in relation to the statute’s plainly legitimate sweep.”

Ferber, 458 U.S. at 770; Parker v. Levy, 417 U.S.

733, 760 (1974).

Petitioner and his amici argue that Rule 177 is

overbroad because it applies to civil litigation and

might cover, for example, a public interest lawyer’s

statement about the nature of a case. That is clearly

wrong. The "ule states that a lawyer may discuss

“the general nature of the claim,” as well as “the

information contained in the public record.” Thus,

a lawyer may discuss the allegations, both factual and

legal. of his complaint. Petitioner also argues that

the Rule “presumptively prohibit[s]” certain cate-

gories of speech and that the Rule is overbroad as a

result. Pet. Br. 48. As we note above, however, Rule

177 simply does not ban any category of speech. See

pp. 21-22, supra."

That Rule 177 applies to both jury trials and bench trials

does not render it overbroad, since for any statement to be

sanctionable it must be substantially likely to prejudice the

proceeding. Obviously, it will be much harder to prejudice a

bench trial than a jury trial, but that does not mean that

statements outrageous enough to prejudice even the hardiest

judge should be protected.

Petitioner's argument that Nevada Supreme Court Rule 177

applies to non-practicing lawyers, such as attorney-journalists,

is mistaken. Rule 177 is identical to ABA Model Rule 3.6,

which the Nevada Supreme Court adopted at the same time

that it adopted the rest of the ABA Model Rules of Profes-

sional Conduct. Within the ABA Model Rules, Rule 3.6 is

located in the section entitled “Advocate,” which contains

those rules regulating the lawyer's conduct in that role. The

comment to Rule 3.6, see Nevada Supreme Court Rule 150

(comments to ABA Mode! Rules guide interpretation of the

Nevada Rules), indicates that it is based upon the ABA Model

Code, whose Disciplinary Rule 7-107 was “limited in its ap-

plication to those attorneys participating in the case“ Ameri-

can Bar Association Project on Standards for Criminal Jus-

tice, Standards Relating to Fair Trial and Free Press at 93

(1968). The predecessor to DR 7-1 7, ABA Canon 20, was

likewise interpreted by its drafters to apply only where the

speaker is counsel in a case. See H. Drinker, supra, at 296.

[Continued }

CONCLUSION

The judgment of the Supreme Court of Nevada

should be affirmed.

Respectfully submitted.

KENNETH W. STARR

Solicitor G ;

Rosert S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

STEPHEN J. MARZEN

Assistant to the Solicitor General

Joe. R. Marcus

Attorney

MARCH 1991

“ [Continued] -

Finally, Rule 177 does not forbid a lawyer's prejudicial

comments on pending litigation when made “without inte. +

to prejudice the fairness of trials.” Pet. 49. The Rule’s only

prohibition is contained in Section 1, and that Section forbids

comments only if the lawyer “knows or reasonably should

know” that they are substantially likely to prejudice the fair-

ness of a trial.

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