The State Bar of Nevada (Plaintiff) disciplined Gentile (Defendant) for comments he made to the press regarding a pending criminal case in which he represented the defendant
Although the speech attorneys involved in a criminal case may be more limited that that of the press at large, any such limitation must clearly give notice to the ones it is intended to affect.
Gentile (Defendant) represented a criminal defendant in a highly publicized trial.Â Trying to counteract negative publicity, Defendant held a press conference claiming that his client was innocent.Â He stated he would prove his client’s innocence by revealing that the detective involved in the case committed the crime himself.Â He made these statements after checking into the state ethics rules and concluding his remarks would not be in violation of them.Â Defendant’s client was acquitted.Â Even so, the Nevada State Bar (Plaintiff) successfully brought a disciplinary action that was upheld by the Nevada Supreme Court.Â The Supreme Court granted review
May the speech of attorneys involved in a criminal case be more limited that that of the press at large, if such limitation clearly gives notice to the ones it is intended to affect?
(Rehnquist, C.J.)Â Yes.Â The speech of attorneys involved in a criminal case may be more limited that that of the press at large if such limitation clearly gives notice to the ones it is intended to affect.Â The First Amendment rights to those participating in a criminal trial must be balanced against the defendant’s right to a fair trial.Â For this reason an attorney’s right to comment on a case he is involved in may be â€œlimited by the substantial likelihood of material prejudice to the impending trial.â€
(Kennedy, J>)Â The attempt of Model Rule 3.6 to limit speech in this way is void for vagueness as its safe harbor provision misled Gentile (Defendant) into thinking he could give his press conference without fear of discipline.Â The rule allows general comment about the nature of the defense without elaboration but does not clearly prohibit prejudicial comment on the credibility of witnesses.Â As written the rule does not give notice to those who are meant to obey the rule
The Nevada rule was largely based on ABA Model Rule 3.6.Â After the Gentile case, the ABA amended 3.6 so that it would pass constitutional scrutiny.Â Chief Justice Rehnquist wrote a separate opinion on the void-for-vagueness issue, which was joined by three other justices, where he found that the rule was not vague or overbroad.