Justices Take Up Lawyers’ Right to Discuss Cases Outside of Court

The Supreme Court agreed Monday to rule for the first time on whether attorneys have a right to discuss their cases outside of court.

The issue concerns one of the most familiar of courthouse scenes: A lawyer stands on the courthouse steps and tells reporters that his client is innocent.

However, 24 states have rules that prohibit lawyers from making any “public communication” that might prejudice a pending court matter. Specifically, lawyers are barred from giving “any opinion as to the guilt or innocence of a defendant . . . in a criminal case.”

California does not have such a restriction, but judges in highly publicized cases often issue “gag orders” forbidding attorneys to discuss the case.

In February, 1988, Las Vegas lawyer Dominic P. Gentile ran afoul of Nevada’s rules when he called a press conference to denounce the indictment of his client for allegedly stealing money and drugs from a safe-deposit box used by the Las Vegas police.

“I know I represent an innocent man,” Gentile declared. “I feel that Grady Sanders (his client) is being used as a scapegoat . . . .”

Five months later, Sanders was acquitted of all charges.

Afterward, Gentile was reprimanded by the state bar association and the state Supreme Court for having spoken out. His comments created “a substantial likelihood of material prejudice” to the trial, the Supreme Court said.

In appealing to the U.S. Supreme Court, Gentile argued that the 1st Amendment’s guarantee of freedom of speech gives lawyers a right to speak out about matters of public concern, including trials.

The high court said it would hear arguments in the case (Gentile vs. Nevada, 89-1836) in the spring.

In other actions, the court:

--Refused to block enforcement of a new ban on outside income earned by federal employees (NTEU vs. United States, A-504). In an attempt to prevent conflicts of interest by government workers, Congress in the Ethics Reform Act of 1989 banned employees from taking money for writing articles or giving speeches. The rule took effect Jan. 1.

Although the Supreme Court refused to issue an emergency order to block enforcement of the law, a challenge to the law is pending in a federal appeals court here. The high court may well hear the issue after the lower courts rule.