RESPONDENT:State Bar of Nevada
LOCATION:Ray Brook Federal Correctional Institution
DOCKET NO.: 89-1836
DECIDED BY: Rehnquist Court (1990-1991)
LOWER COURT: Supreme Court of Nevada
CITATION: 501 US 1030 (1991)
ARGUED: Apr 15, 1991
DECIDED: Jun 27, 1991
Michael E. Tigar – on behalf of the Petitioner
Robert H. Klonoff – on behalf of the Respondent
Media for Gentile v. State Bar of Nevada
Audio Transcription for Opinion Announcement – June 27, 1991 in Gentile v. State Bar of Nevada
William H. Rehnquist:
The opinion of the Court in No. 89-1836 Gentile versus the State Bar of Nevada will be announced by Justice Kennedy.
Anthony M. Kennedy:
The background of this case is a rather sensational criminal trial that took place in the State Courts in Las Vegas Nevada.
The defendant was the owner of a bank vault company and he was tried for the theft of some $260,000 that was missing from the bank vault.
Apparently, the money had been used in a drug sting operation.
We are not reviewing the criminal case but in state bar disciplinary proceedings that arouse out of it because the attorney for the client, the owner of the bank vault company, was disciplined.
The petitioner in the case is Dominic Gentile, and attorney admitted to the bar of the State of Nevada who practices in Las Vegas.
Gentiles plan was indicted by a grand jury on the state criminal charges.
The indictment followed a year-long investigation which had received considerable press coverage.
They were allegations that the police themselves were implicated in the wrong doing, but the publicity just before the indictment focused on Gentiles client.
It was Gentiles position that the adverse publicity created by some 17 newspaper stories and the numerous additional televisions news stories justified Gentile in calling a press conference.
As soon as the indictment came down, the day the indictment came down, he made a prepared statement to the press at his office.
He outlined his defense and indicated that a police official was the most likely suspect in the case.
He answered some questions after his prepared statement and then declined to answer others.
Some six months elapsed between the press conference and the date of the jury trial on the criminal charges.
The jury acquitted Gentiles plans on all accounts.
After the acquittal, the Nevada State Bar brought disciplinary charges against Gentile for having made statements at the press conference in violation of rules which governs the bars of the State of Nevada.
The Disciplinary Board imposed a private reprimand and the Nevada State Supreme Court affirmed the disciplinary order.
We granted certiorari, and we now reverse the judgment of the Nevada Supreme Court.
We are issuing two opinions for the court.
One is signed by me and one by the Chief Justice.
I deliver the opinions of the court in which we reverse the judgment.
This ruling rest on the grounds that the Nevada Supreme Court rule 177 is void for vagueness.
The disciplinary rule contains a safe harbor provision, rule 177 subsection three.
It provides that not withstanding the other sections of the rule, a lawyer may state without elaboration the general nature of the defense.
This safe harbor provision misled Gentile into thinking he could give his press conference without fear of discipline.
Absent to any clarifying interpretation by the state court, the rule fails to provide fair notice to those to whom it is directed and is so imprecise that discriminatory enforcement is a real possibility.
A review of Gentiles press conference, where he made only a brief opening statement and decline to answer reporters questions seeking detailed comments, supports his claim that he thought his statements were protected.
As interpreted, rule 177 creates a trap for the weary as well as the unweary, and we reverse.
Chief Justice also delivers an opinion for the court.
In this opinion, it is concluded that the substantial likelihood of material prejudice test applied by Nevada and most other states satisfies the First Amendment.
Anthony M. Kennedy:
The court, in this opinion, concludes that speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than the clear and present danger test established for regulation of the press during pending proceedings.
Under the opinion for the court by the Chief Justice, the substantial likelihood of material prejudice standard is a constitutionally permissible balance between the rights of attorneys in pending cases and the states interest in fair trials.
The standard is designed to protect the integrity and fairness of a state?s judicial system and imposes only narrow and necessary limitations on lawyers speech.
Justices Marshall, Blackmun, and Stevens join all of my opinion and Justice O’Connor joins it in part.
Justices White, Scalia, and Souter join all of the Chief Justices opinion, and Justice O’Connor joins it in part.
The Chief Justices opinion also is in part a dissent.
Justice O’Connor has filed a concurring opinion.