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Legal Principle at Issue

(1) Whether a state may constitutionally prohibit an attorney from making statements to the press that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding and, if so, (2) whether the State Bar of Nevada properly applied the rule in this case.

Action

Reversed. Petitioning party received a favorable disposition.

Facts/Syllabus

A Nevada criminal defense attorney called a press conference after his client was indicted to maintain his client's innocence. He also indicated that the evidence would show that a police officer actually was guilty of the offense for which his client was charged. After his client was acquitted, the attorney was charged by the state bar association with violating Nevada Supreme Court Rule 177, which prohibits an attorney from making a statement to the press that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. A subsection of Rule 177 provides that an attorney may comment on general matters such as the nature of the defense. The Southern Nevada Disciplinary Board found that the attorney had violated Rule 177, and the Nevada Supreme Court affirmed that ruling.

Speech critical of the government and its officials generally cannot be prohibited or punished absent a compelling governmental interest. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). On the other hand, the Court has held that the speech of attorneys participating in a particular case can be regulated if the regulation is necessary to further the ends of justice. Shepard v. Maxwell, 384 U.S. 333 (1966). In any event, a regulation of speech cannot be enforced if it is so vague that it forces the regulated party to guess as to the limits of the regulation. Grayned v. City of Rockford, 408 U.S. 104 (1972).

Importance of Case

Almost all of the states have rules similar to Rule 177. In light of the freedom that prosecutors enjoy in encouraging media coverage of investigations and indictments, many see this decision as pro- prosecution and anti-defense because it likely will inhibit defense attorneys from vigorously responding to the extensive press coverage that accompanies the announcement of an indictment.

In an opinion of shifting alliances, the majority of the Court, in an opinion written by Chief Justice Rehnquist, held that the "substantial likelihood of materially prejudicing" standard in Rule 177 was constitutionally enforceable because a state has a legitimate interest in regulating attorney speech of this nature. While Justice O'Connor agreed with this holding, she disagreed with Chief Justice Rehnquist's view that Rule 177 had been properly applied in this case. Rather, she agreed with that part of the opinion written by Justice Kennedy that held that Rule 177, as it had been applied, was unconstitutionally vague.