No. 83-110
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1984
I N THE MATTER O F ROBERT S. KELLER,
a n a t t o r n e y and c o u n s e l o r a t l a w .
O R I G I N A L PROCEEDING :
COUNSEL O F RECORD:
Appearances:
R o b e r t S. K e l l e r , K a l i s p e l l , M o n t a n a
G e n e A. P i c o t t e argued, C l a n c y , M o n t a n a
A t t o r n e y for R e s p o n d e n t
D o u g l a s J . Wold a r g u e d , P o l s o n , Montana
Special Prosecutor
Hon. Mike Greely, A t t o r n e y General, Helena, Montana
Clay S m i t h , A s s t . A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
Amicus C u r i a e
Submitted: S e p t e m b e r 11, 1 9 8 4
Decided: N o v e m b e r 1, 1 9 8 4
Filed:
Clerk
Mr. Justice Frank B. Morrrison, Jr. delivered the Opinion of
the Court.
The Commission on Practice, an arm of this Court charged
with investigating and hearing ethical complaints against
Montana lawyers, filed a complaint against respondent Robert
S. Keller alleging violation of the Canons of Professional
Ethics, Disciplinary Rules Nos. DR 7-107 (E) and DR 7-107 (H) .
Respondent filed a motion to dismiss for the reason that the
disciplinary rules were i~nconstitutionally broad and that
they violated his rights of free speech. An answer brief was
filed by Douglas Wold as Special Prosecutor for the
Commission on Practice. Thereafter, we entered an order
directing the Attorney General to appear amicus curiae. The
Attorney General's brief was filed. The case is before us on
respondent's motion to dismiss the complaint filed by the
Commission on Practice.
Respondent Robert S. Keller is an attorney in Kalispell,
Montana, who was retained to represent a Kalispell dentist
with respect to certain criminal charges. Keller's client
was charged with sexual assault. During the pendency of the
action Keller, as counsel for his client, wrote a letter to
the client's patients and friends. The letter attacked the
credibility of the State's case and presented the merits of
the defense. The first paragraph of the letter states its
purpose :
"The media has been merciless to Jim Paisley ...
in fact, 'savage' would be a more accurate
description. This is not uncommon, but whether I
like it or not, I'm accustomed to it. Jim is not.
He penned a press release, to give his side of the
story, but I advised him that it would be an
exercise in futility. I told him that if he wanted
to do anything, an explanation should be given to
his friends and patients, for they've stood by him,
and there are too many to explain the situation to
individually. The purpose of this letter is to
help keep open the minds of the people whom he
cares about amidst the flurry of one-sided
reporting and rumors. As such, I'm writing this
letter to you, with the intention of reproducing
it, and having Jim put in the addresses and names."
There follows a detailed description of the weaknesses
in the State's case. There is no question but what Keller,
in the letter, attacked the State's credibility and presented
the merits of the defense.
For purposes of this appeal we need not examine all of
the language of the disciplinary rules. We find it
dispositive to quote DR ?-I07 (R):
"A lawyer or law firm associated with the
-
prosecution or defense of a criminal matter shall
not, from the time of filing of a complaint,
information, or indictment, the issuance of an
arrest warrant, or arrest until the commencement of
the trial or disposition without trial, make or
participate in making an extrajudicial statement
that a reasonable person would expect 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.
" (3) The existence or contents of any
confession, admission, or statement given by
the accused or his refusal or failure to make
a statement.
" (4) The performance or results of any
examinations or tests or the refusal or
failure of the accused to submit to
examinations or tests.
" (5) The identity, testimony, or credibility
of a prospective witness.
" (6) Any opinion as to the guilt or innocence
of the accused, the evidence, or the merits of
the case."
The law is clear that the disciplinary rules cannot be
literally applied. Chicago Council of Lawyers v. Bauer (7th
Cir. 1975), 522 F.2d 242; Markfield v. Association of the Bar
of the City of New York (1975), 49 A.D.2d 516, 370 N.Y.S.2d
82, appeal dismissed, 37 N.Y.2d 794, 337 N.E.2d 612, 375
N.Y.S.2d 106. Per se violations of the disciplinary rule
quoted above cannot form the basis of an ethical charge
without interferring with free speech rights. The question
in the case is whether the disciplinary rules should be
interpreted so as to make them constitutional and, if so,
what kind of limiting stand.ards should be applied.
Respondent Keller argues that the disciplinary rules
cannot be interpreted. They are clear on their face. The
rules are unconstitutional- in that they (1) interfere with
free speech rights and (2) are overbroad and vague. On the
other hand, the Commission argues that implicit within the
disciplinary rule is the "reasonable likelihood" standard.
The Commission would have us interpret the rule so that its
terms would be violated if there was a dissemination which
had a "reasonable likelihood" of interferring with the
administration of justice. Hirschkop v. Snead (4th Cir.
1979), 594 F.2d 356, in support.
In Hirschkop, supra, the 4th Circuit Court of Appeals
upheld the constitutionality of a similar disciplinary rule.
In testing constitutionality, the Court adopted an approach
which required the satisfaction of two requirements. First,
the Court found that the disciplinary rule furthered a
substantial governmental interest, i.e., the right to a fair
trial. Secondly, the Court determined that the rule did not
restrict first amendment rights any more than was necessary
to protect the dominant right of a fair trial. Having
decided that the two requirements for constitutionality were
satisfied, the Court then considered whether the Canon was
unconstitutionally vague because it did not specify any
objective standard. The Court adopted the "reasonable
likelihood" test and held that this standard was implicit
within the disciplinary rule itself.
In the case at bar, the Commission on Practice
buttresses Hirschkop, supra, by arguing that the preamble to
Montana's DR 7-107 contains an adequate, measurable standard.
The preamble, says the Commission, when read in conjunction
with DR 7-107, expressly prohibits extra-judicial statements
which do not maintain "absolute confidence in the integrity
of the bar and the efficient and impartial administration of
justice . . . [and] . . . merit the approval of all just
men. "
Respondent Keller cautions this Court against implying a
standard. With persuasive force, respondent argues that
standards not written, but rather implied by the courts, give
no guidance to attorneys. Therefore, the d.isciplinary rule
must rise or fa.11 on its express language.
There can be little argument that the disciplinary rule,
literally applied, interferes with First Amendment rights of
free speech. On the other hand, First Amendment rights can
he abridged if they come in direct conflict with Sixth
Amendment rights to a fair trial and Fourteenth Amendment
rights of due process. This conflict was described by the
Seventh Circuit Court of Appeals in Chicago Council of
Lawyers v. Bauer, supra, 522 F.2d at 248:
"Consequently, when irreconcilable conflicts do
arise, the right to a fair trial, guaranteed by the
Sixth Amendment to criminal defendants and to all
persons by the Due Process Clause of the Fourteenth
Amendment, must take precedence over the right to
make comments about pending litigation by lawyers
who are associated with that litigation if such
comments are apt to seriously threaten the
integrity of the judicial process."
In the Bauer case, the 7th Circuit Court of Appeals
found that the "reasonable likelihood to interfere with a
fair trial" language was overbroad and did not meet
constitutiona.1 standards. The Court said:
"Instead, we think a narrower and more restrictive
standard, the one formulated in Chase v. Robscn,
435 F.2d 1059, 1061-62 (7th Cir. lF70), and
reaffirmed in - - Oliver, 452 F.2d 111 (7th Cir.
In Re
1971), should apply: Only those comments that pose
a 'serious and imminent threat' of interference
with the fair administration of justice can be
constitutionally proscribed. Given the objectives
of clearness, precision, and narrowness, we are of
the view that this formulation is more in keeping
with the precepts announced by the Supreme Court to
which we have alluded than the one used by the
local rules of the district court. A lawyer is put
on stricter notice if he must gage [sic] his
intended comments by a test that ,-imits only
comments which are a serious and imminent threat of
interference with a fair trial than if his
statements were governed by the more amorphous
phrase: 'a reasonable likelihood that such comment
will interfere with a fair trial. "' 522 F.2d at
249.
In Markfield v. Association of the Bar, supra, the Court
found that discipline should only be applied where it was
found that the statements attributable to counsel presented a
"clear and present danger" to the fair administra.tion of
justice.
We have three possible standards for a disciplinary
rule. Although First Amendment rights cannot be abrogated
without reference to some standard, the courts recognize
those rights can be constitutionally impinged under one of
three standards:
(1) Where there is a "reasonable likelihood'' that
the administration of justice will be impaired.
(2) Where there is a "serious and imminent threat"
to the fair administration of justice.
(3) Where there is a "clear and present danger"
that fair trial rights will be abridged.
We hold that DR 7-107 (B) and (H) unconstitutionally
abridge free speech rights without creating a clear standard
by which attorneys can gauge their conduct. This Court has
the power to imply a standard but as a matter of policy feels
that unwise. Neither do we at this time express a preference
for one of the three tests adopted by others. The appropriate
test t o be applied s h o u l d be c o n s i d e r e d . anew and a n o t h e r
disciplinary rule drafted. W e t h e r e f o r e d e c l a r e DR 7-107 ( B )
and (H) t o be v o i d . The c o m p l a i n t a g a i n s t r e s p o n d e n t is
dismissed with prejudice.
W concur:
e
Chief J u s t i c e V
Justices
# '
,
> I
Honbrable Leonard H . ~ a n q g n ,
D i s t r i c t Judge, s i t t i n g i n p l a c e
o f M r . J u s t i c e L. C. Gulbrandson
Mr. J u s t i c e Fred J . Weber:
I dissent.