dissenting.
The District XII Ethics Committee and the Disciplinary Review Board found the respondent had violated various disciplinary rules and the Disciplinary Review Board recommended a public reprimand. The facts were largely undisputed.
Respondent, an Assistant Prosecutor in Union County, represented the State in the trial of George Merritt. The conviction was affirmed on appeal and certification denied by this Court, 81 N.J. 278 (1979). However, the United States District Court granted Merritt a writ of habeas corpus and the Union County *663Prosecutor’s Office was faced with the decision of whether to retry Merritt.
Respondent, who was then in private practice, was interviewed by a reporter of the Courier-News. The interview was published. According to the article, respondent stated the case should be retried. He explained that a “ruthless murder of a police officer” was involved, that three prior juries consisting of thirty-six people had found Merritt guilty, that the courts which had reversed the prior convictions had never seen the prosecution’s key eyewitness and that it was “unfair for someone to read a cold transcript and judge from that.”
Several days later, after discussing the case with his wife, respondent drafted a press statement which he released to the Courier-News, the Daily Journal, the Bergen .Record and the Newark Star Ledger. Each paper ran articles quoting him at length. Respondent’s release stated that he had changed his mind and that the State should not retry Merritt. Respondent also advised certain reporters that Merritt had refused an offer to take a lie detector test and an offer to plead guilty to second degree murder.
The First Assistant Prosecutor who testified during the hearing before the Ethics Committee indicated that his office received many calls from community groups after respondent’s statement was published urging that the Prosecutor not try Merritt again. The First Assistant Prosecutor believed that the publicity prejudiced the possibility of a new trial. The situation thereafter is best described by the Disciplinary Board:
The Prosecutor’s office was placed in a compromising situation because of the statements made by Mr. Rachmiel since the disciplinary rules precluded the Prosecutor from making any statement regarding the case. Additionally, it made the Prosecutor’s decision as to the disposition of the matter more difficult because of the position previously outlined by the respondent. It also made it difficult to restrain other Assistant Prosecutors from making extrajudicial statements with regard to any cases they were handling. Lastly, because of the notoriety of this case the Prosecutor’s Office was desirous that the clamor by certain pressure groups subside before they made a decision. At the time of the reversal of the conviction several choices were open to the Prosecutor, namely to appeal Judge Meanor’s decision; to retry Merritt for the fourth time; not to *664retry Merritt; to apply to the Assignment Judge for dismissal of the indictment, and lastly, there was a choice of engaging Merritt in plea bargaining. As the result of the respondent’s familiarity with the case and his expressed feeling that the matter should not be retried, the Prosecutor was placed in a position where he was perhaps hampered in exercising some of the avenues previously open to him. However, the First Assistant Prosecutor stated that this did not influence the Prosecutor’s decision. Until such time as the Prosecutor’s Office officially determined whether to retry or dismiss the Merritt case, the matter remained open.
Respondent conceded that he would have not made these statements if he had been in the employ of the Prosecutor’s Office at the time the reversal occurred.
The Disciplinary Review Board found violations of DR 1-102(A)(1) and (5), DR 7-107(B)(2), (4) and (6), DR 7-107(E), and DR 4-101(B)(1). I agree with the majority that there was no violation of DR 7-107(E) which involves statements likely to affect imposition of sentence. However, the record does establish violations of the remaining cited Disciplinary Rules.
Respondent has advanced two reasons why he is not subject to discipline. He contends that he was no longer associated with the prosecution when he issued the press releases despite the fact that he had prosecuted Merritt. This claim is specious. Respondent knew or should have known that information obtained as a prosecutor fell within the traditional framework of the attorney-client privilege. The purposes of these Disciplinary Rules do not depend on the status of the attorney at the time the public communication is disseminated. Termination of the attorney-client relationship did not justify his actions.
Respondent also claims that his comments were privileged by the First Amendment to the United States Constitution. As indicated by the majority, a lawyer is not always in the same position as other citizens with respect to his right of free speech. His freedom of speech may properly be limited because he is an “officer of the Court” and has a fiduciary relationship with his client.
Respondent was charged with violations of DR 7-107(B)(1), (2), (4) and (6). Those Rules read as follows:
(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extrajudicial *665statement that he expects to be disseminated by means of public communication and that relates to:
(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused.
(2) The possibility of a plea of guilty to the offense charged or to a lesser offense.
(4) The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests.
(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.
I concur in the majority’s interpretation of these provisions requiring a showing that the communication be found to be reasonably likely to interfere with the administration of justice. I believe the record justifies such a finding. However, there is a possibility that respondent may not have produced some evidence in this respect and I would afford him that opportunity.
Moreover, I would judge respondent’s conduct under DR 1-102(A)(5) under the standard stated in my dissent in In the Matter of Lennox Hinds, 90 N.J. 610, 643 (1982), namely, whether the communications were “prejudicial to the administration of justice.”
It is incongruous that the majority dismisses this proceeding because it believes the District Ethics Committee and Disciplinary Review Board had not applied its “balancing test.” Why not remand the case for that purpose? The other basis for dismissal is that this is “the first occasion on which we have determined that DR 7-107(B)(6) applies to attorneys who are no longer officially, formally, or functionally participating in a continuing criminal trial.” Ante at 660. If we are to dismiss proceedings for this type of reason, we should be prepared to dismiss every case which is a “first occasion.” The test should be whether the attorney was forewarned that the rule was or reasonably could be applicable to him. If in doubt he could have sought the opinion of the Advisory Committee on Professional Ethics. R. 1:19-2. A reading of the Disciplinary Rules in *666advance of his communications to the public should have alerted him.
I would remand to the Ethics Committee for the parties to submit additional relevant evidence on the effect of the communications on the administration of justice.