Gentile v. State Bar of Nevada/Concurrence O'Connor

Justice O'CONNOR, concurring.

I agree with much of THE CHIEF JUSTICE's opinion. In particular, I agree that a State may regulate speech by lawyers representing clients in pending cases more readily than it may regulate the press. Lawyers are officers of the court and, as such, may legitimately be subject to ethical precepts that keep them from engaging in what otherwise might be constitutionally protected speech. See In re Sawyer, 360 U.S. 622, 646-647, 79 S.Ct. 1376, 1388-1389, 3 L.Ed.2d 1473 (1959) (Stewart, J., concurring in the result). This does not mean, of course, that lawyers forfeit their First Amendment rights, only that a less demanding standard applies. I agree with THE CHIEF JUSTICE that the "substantial likelihood of material prejudice" standard articulated in Rule 177 passes constitutional muster. Accordingly, I join Parts I and II of THE CHIEF JUSTICE's opinion.

For the reasons set out in Part III of Justice KENNEDY's opinion, however, I believe that Nevada's rule is void for vagueness. Subsection (3) of Rule 177 is a "safe harbor" provision. It states that "notwithstanding" the prohibitory language located elsewhere in the rule, "a lawyer involved in the investigation or litigation may state without elaboration . . . [t]he general nature of the claim or defense." Gentile made a conscious effort to stay within the boundaries of this "safe harbor." In his brief press conference, Gentile gave only a rough sketch of the defense that he intended to present at trial-i.e., that Detective Scholl, not Grady Sanders, stole the cocaine and traveler's checks. When asked to provide more details, he declined, stating explicitly that the ethical rules compelled him to do so. Ante, at 1049. Nevertheless, the disciplinary board sanctioned Gentile because, in its view, his remarks went beyond the scope of what was permitted by the rule. Both Gentile and the disciplinary board have valid arguments on their side, but this serves to support the view that the rule provides insufficient guidance. As Justice KENNEDY correctly points out, a vague law offends the Constitution because it fails to give fair notice to those it is intended to deter and creates the possibility of discriminatory enforcement. See Pacific Mutual Life Insurance Co. v. Haslip, --- U.S., , 111 S.Ct. 1032, 1056, 113 L.Ed.2d 1 (1991) (O'CONNOR, J., dissenting). I join Parts III and VI of Justice KENNEDY's opinion and would reverse the judgment of the Nevada Supreme Court on that basis.