Pre-Trial Publicity, the First Amendment, and "The Fugitive" - Part Two, Gagging the Lawyers

Judge Walton's gag order in the Rogers Clemens perjury case directed the lawyers for the "parties and witnesses" to "refrain from making any further statements about this case to the media or in public settings outside the courtroom that are 'substantially likely to have a materially prejudicial effect' on this case. Gentile v. State Bar Nev., 501 U.S. 1030,1076 (1991)." By citing Gentile, Judge Walton raises the question of whether the lawyers needed to be covered by the gag order, because if they are licensed in a jurisdiction that has adopted ABA Model Rule of Professional Conduct 3.6, they already have an ethical obligation not to make any out of court statement that will have a "substantial likelihood of materially prejudicing an adjudicative proceeding."

I am very familiar with the Gentile case, as it was one of the cases where the ABA submitted an amicus brief while I was its General Counsel. Dominic Gentile was a Nevada lawyer who held a press conference the day after his client, Grady Sanders, was indicted for the theft of cocaine and money that was being used in an undercover operation. Mr. Gentile read from a prepared statement, and then responded to questions. The gist of Mr. Gentile's statements were that his client was being used as a scapegoat to try to cover up for police misconduct, since the person who most likely stole the drugs and money was a Las Vegas police detective.

Six months after his indictment, a jury acquitted Mr. Sanders of all charges. Subsequently, the State Bar of Nevada filed a complaint against Mr. Gentile, alleging that the statements he made during the press conference violated Nevada Supreme Court Rule 177, which prohibited Mr. Gentile from making out of court statements to the media that he knew or reasonably should have known would have a "substantial likelihood of materially prejudicing" Mr. Sanders' trial. The Southern Nevada Disciplinary Board found that Mr. Gentile violated Rule 177 and recommended that he be privately reprimanded. The Nevada Supreme Court affirmed, rejecting Mr. Gentile's argument that Rule 177 violated his right to free speech.

Nevada Supreme Court Rule 177 was identical to ABA Model Rule of Professional Conduct 3.6, which, at the time Gentile was decided, had been adopted - either verbatim or with insignificant variations, by 32 States. Therefore, when the case reached the United States Supreme Court, the ABA filed an amicus brief arguing that Rule 177 did not unconstitutionally infringe on Mr. Gentile's right to freedom of speech. Although a fractured Supreme Court reversed the judgment that Mr. Gentile had violated Rule 177, the Court did hold that the "substantial likelihood of material prejudice" standard did not violate the First Amendment:

The restraint on speech is narrowly tailored to achieve [the State's] objectives. The regulation of attorneys' speech is limited - it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys' comments until after the trial. While supported by the substantial state interest in preventing prejudice to an adjudicative proceeding by those who have a duty to protect its integrity, the Rule is limited on its face to preventing only speech having a substantial likelihood of materially prejudicing that proceeding.

Gentile, 501 U.S. at 1076. Since the Supreme Court decided that lawyers can be disciplined for making out of court statements that are "substantially likely to have a materially prejudicial effect," one wonders whether it was necessary for Judge Walton to cover the lawyers in his gag order. Considering that Judge Walton's order provides that "[f]urther action in violation of this admonition will be confronted with the full authority of the Court," it appears that he wanted to make the lawyers subject to the court's contempt powers in addition to any possible disciplinary proceeding.

Notwithstanding the Supreme Court's decision on the First Amendment issue, a majority of the Justices agreed with the following statement of Justice Kennedy, wherein he concluded that sometimes a lawyer is obligated to advocate for the client "in the court of public opinion:"

An attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.

Gentile, 501 U.S. at 1043. In consideration of Justice Kennedy's statement, the ABA amended Model Rule 3.6 to add the following provision:

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.