Case appealed to Supreme Court could set standard for attorney speech

Friday, May 14, 1999

The U.S. Supreme Court could clarify the standards courts should use in determining whether attorneys can be sanctioned for out-of-court statements if it decides to review the case of a Richmond, Va., criminal defense attorney.

Joseph Morrissey, a well-known lawyer and former chief prosecutor for the commonwealth of Virginia, was convicted of two counts of criminal contempt for statements he made while defending a client in a politically charged, high-profile criminal case.

The U.S. District Court in Richmond charged Morrissey with one count of contempt of court for holding a news conference and playing the videotape of an interview with a potential prosecution witness. The court also charged him with another contempt count for stating in a newspaper interview that the charges against his client “never should have been filed” and that if the charges had been made while he was head of the state prosecutor's office, “we would have laughed [the case] out of court.”

According to the federal judge, Morrissey violated a court rule which provides that a lawyer may not speak about “potential or imminent criminal litigation … [if] … there is a reasonable likelihood that such dissemination would interfere with a fair trial or otherwise prejudice the due administration of justice.”

Morrissey argued he could not be convicted of criminal contempt in part because the court rule violated the First Amendment guarantee of free speech. However, the judge ruled in February 1998 that the rule “strikes a permissible balance” between society's interest in a fair trial and attorney free-speech rights.

On appeal, the 4th U.S. Circuit Court of Appeals affirmed the district court's decision in February 1999. The appeals court wrote that the court rule “is aimed at securing the right to a fair trial by an impartial jury and avoiding conduct that imposes unnecessary costs on the judicial system.”

Morrissey has now taken his case to the U.S. Supreme Court. He argues that the “reasonable likelihood” standard does not adequately protect the speech of attorneys who have an ethical duty to defend their clients zealously.

Morrissey also says that the “reasonable likelihood” standard approved by the 4th Circuit conflicts with the 1991 U.S. Supreme Court decision in Gentile v. State Bar of Nevada.

In Gentile, the U.S. Supreme Court ruled constitutional by a 5-4 vote a Nevada state bar rule prohibiting attorneys from making statements to the press that they know would have a “substantial likelihood of materially prejudicing an adjudicative proceeding.”

Chief Justice William Rehnquist, writing for the court, noted: “We agree with the majority of the States that the 'substantial likelihood of material prejudice' standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State's interest in fair trials.”

Morrissey argues that the high court's adoption of the “substantial likelihood of material prejudice” standard means that any lower standard — such as the “reasonable likelihood” standard — must be unconstitutional.

Morrissey contends in his petition to the Supreme Court that the court in Gentile saw the “reasonable likelihood standard as a distinctly lower standard than substantial likelihood of material prejudice.'”

His attorneys insist that the difference between the two standards is “more than mere verbiage.”

Rod Smolla, First Amendment expert and law professor at Richmond University, drafted the petition for Morrissey, asking the Supreme Court to review the 4th Circuit's decision.

“There is a practical difference between the 'reasonable likelihood' standard and the 'substantial likelihood' standard because of the lax interpretation the word 'reasonable' tends to have in legal matters,” he said. “Almost any innocuous statement by a lawyer might conceivably result in disciplinary action or contempt citation under the 'reasonable likelihood' standard.”

“It is not realistic to prevent attorneys from fighting back; they have an ethical duty to do so,” Smolla said.

Smolla notes with approval Justice Anthony Kennedy's comment in Gentile that “in some circumstances press comment is necessary to protect the rights of the client and prevent abuse of the courts.”

The Gentile case did not specifically state that the “reasonable likelihood” standard was unconstitutional, though Kennedy in his opinion in Gentile referred to it as “less protective of lawyer speech” than the “substantial likelihood” standard. The 4th Circuit in its decision in In Re: Morrissey wrote that the Supreme Court in Gentile did not “make any attempt to evaluate the constitutionality of any test other than the 'substantially likely' standard as presented in that case.”

Smolla hopes the high court will wade into the troubled waters of attorney speech again and restore calm. “The Supreme Court could clarify Gentile and bring many federal courts into compliance with the First Amendment,” Smolla said.

The U.S. Attorney's Office in Richmond would not comment to the First Amendment Center about the case, citing a policy of not speaking about pending litigation.