Vol. 10, No. 6, Pg. 14. Restraints on Extrajudicial Comment: Who Can Say What, When and Where?.

• Author: By Jay Bender

South Carolina Lawyer

1999.

Vol. 10, No. 6, Pg. 14.

Restraints on Extrajudicial Comment: Who Can Say What, When and Where?

14Restraints on Extrajudicial Comment: Who Can Say What, When and Where?By Jay BenderEdna Smith Primus met with a potential plaintiff in connection with a suit the American Civil Liberties Union (ACLU) sought to bring to seek damages for women on welfare who had been sterilized as a condition of receiving public assistance. Following the meeting Primus wrote to the prospective plaintiff to explain that free legal assistance was available from the ACLU. The potential plaintiff declined the offer of assistance. For her efforts, a disciplinary proceeding was commenced against Primus and she received a public reprimand from the Supreme Court of South Carolina.

Dominic Gentile, a Las Vegas criminal defense lawyer, held a press conference on the day one of his clients was indicted, stating at the press conference that the evidence demonstrated his client's innocence and that the likely offender was a police detective. At trial the client was acquitted on all counts of the indictment, but Gentile received a private reprimand from the Nevada Supreme Court for making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication ". . . [where] the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding."

A U.S. District Court in Texas issued an order in a class action employment discrimination suit prohibiting all communications concerning the case from parties or their counsel to potential or actual class members.

A plaintiff's issuance of press releases during a trial was cited by a South Carolina Circuit Court as a ground for concluding that the plaintiff should be subjected to sanctions in the amount of $548,317.38 under the state's Frivolous Civil Proceeding Sanctions Act, S.C. Code Arm. § 15-36-10 et seq. (1995 Supp.).

This article will examine some of the relevant cases, rules and principles to see if the free speech provisions of the U.S. Constitution have a role to play in extrajudicial comment. The ultimate issues are "Who can say what, when and where?"

If you as a lawyer think that you risk injury to your license to practice by relying on the free speech guarantee of the First Amendment, take heart. The sanctions on speech in the Primus and Gentile cases were reversed directly by the U.S. Supreme Court on First and Fourteenth Amendment grounds in In re Primus, 436 U.S. 412 (1978) and Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), respectively.

The restrictions on communication with members and potential members of a class were struck down on grounds that the District Court had not...