Hinds, Matter of
| Decision Date | 04 August 1982 |
| Citation | 449 A.2d 483,90 N.J. 604 |
| Parties | In the Matter of Lennox S. HINDS, An Attorney at Law. |
| Court | New Jersey Supreme Court |
Morton Stavis, Hoboken, for respondent Lennox S. Hinds (Morton Stavis, Bernard K. Freamon and Alfred A. Slocum, Newark, attorneys; Lewis Myers, Jr., Oxford, Miss., a member of the Miss. and Ill. Bars, of counsel; Morton Stavis, Bernard K. Freamon and Neil M. Mullin, Hoboken, on the brief).
Colette A. Coolbaugh, Asst. Director, Ethics & Professional Services, Trenton, for complainant Dist. VIII Ethics Committee (Colette A. Coolbaugh, attorney; Harold L. Rubenstein, on the brief).
Stephen M. Latimer, Burlington, submitted a brief on behalf of amicus curiae Public Interest Lawyers of N. J. (Stephen M. Latimer, attorney; George Conk, East Orange, and Patricia Thornton, Newark, on the brief).
Elizabeth M. Schneider and Frank Askin, Newark, submitted a brief on behalf of amici curiae The American Civil Liberties Union of N. J. and The Ass'n of Black Women Lawyers of N. J.
The opinion of the Court was delivered by
This case requires us to determine the constitutional scope of rules disciplining an attorney for making out-of-court statements publicly criticizing the trial judge's conduct of an ongoing criminal trial. Lennox Hinds, the appellant, claims that as a matter of constitutional right under the First Amendment, an attorney cannot be disciplined for making such statements unless they present a "clear and present danger" to the fairness of the judicial proceeding. The primary disciplinary standard sought to be applied in this case, however, requires discipline of an attorney if his extrajudicial statements are "reasonably likely" to interfere with a criminal trial. DR 7-107(D).
We now affirm the constitutionality of the "reasonable likelihood" standard of DR 7-107(D) for restricting attorney extrajudicial speech in the specific setting of a criminal trial. We further hold that the determination of whether a particular statement is likely to interfere with a fair trial involves a careful balancing of factors, including consideration of the status of the attorney, the nature and timing of the statement, as well as the context in which it was uttered. In addition, we hold that DR 7-107(D) applies not only to an attorney of record in a criminal case but also to an attorney who cooperates with the defense on a regular and continuing basis, provides legal assistance in connection with the defense of a criminal charge, and holds himself out to be a member of the defense team. However, because this opinion represents the first time that we have interpreted the proper scope of DR 7-107(D) and the standard to be followed in applying this disciplinary rule to extrajudicial statements, we deem it appropriate to give our determination prospective effect only. Consequently, we dismiss these charges against Hinds, as well as related charges under DR 1-102(A)(5), which sanctions attorney conduct that is "prejudicial to the administration of justice."
We deal first with the procedural and factual background of the case. Hinds has been a member of the New Jersey Bar since 1973. He has been active and prominent as a lawyer in civil rights causes and has a national reputation for his work as Director of the National Conference of Black Lawyers (hereinafter "NCBL"), a capacity in which he served for five years until 1978. In 1973 Joanne Chesimard, a black woman reputed to be a militant radical, was accused of killing a New Jersey State trooper. Following her arrest, Chesimard was brought to trial after a long series of delays. Hinds represented Chesimard during this pretrial period in several federal civil actions concerning the legality and general conditions of her incarceration by the State. Hinds apparently did not, however, represent Chesimard at her criminal trial.
Chesimard finally went on trial for murder in 1977 in the Superior Court, Law Division, in New Brunswick. After observing the initial phases of the trial and while the jury was still being impaneled, Hinds called a press conference at his New Brunswick office on January 20, 1977. In an article appearing January 21, 1977, in the New York Daily News under the headline, "Joanne Loses 2 Rounds in Trial Transfer," it was reported that:
... Lenox [sic] Hinds, an attorney also representing Mrs. Chesimard, said the defense team wanted the case moved to another court because in New Brunswick "what we are seeing is legalized lynching."
He said he was speaking for the defense team because its members were "gagged" by [the trial judge] whom he accused of asking prospective jurors self-serving questions which he said were leading to "the creation of a hangman's court."
An article appearing in the Newark Star-Ledger on the same date reported that Hinds had referred to the Chesimard trial as "a travesty." The article further quoted Hinds as saying that the trial judge "does not have the judicial temperament or the racial sensitivity to sit as an impartial judge" in Chesimard's trial, and that "[i]t was only after the trial began that we began to have fears that what we are seeing is a legalized lynching."
Also, a television reporter covering the press conference for the New Jersey Public Broadcasting Authority (Channel 52) recorded the following exchange:
Hinds: "We feel that it is a kangaroo--it will be a kangaroo court unless the judge recluses [sic] himself and that will be the very minimum.
Reporter: "And a kangaroo court means a guilty verdict?"
Hinds: "That's correct."
The Middlesex County Ethics Committee (now the District VIII Ethics Committee) authorized an investigation to determine whether Hinds' statements constituted a violation of any disciplinary rules. The investigation was stayed until completion of Chesimard's trial. Chesimard was eventually convicted of murder in the first degree and sentenced to a mandatory term of life imprisonment. Thereafter, the disciplinary proceedings were renewed, and as a result of the investigation, it was recommended that Hinds be charged with violating two disciplinary rules: DR 1-102(A)(5), which prohibits attorneys from "[e]ngag[ing] in conduct ... prejudicial to the administration of justice;" and DR 7-107(D), which provides that
[d]uring the selection of a jury or a trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extra-judicial statement that he expects to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial ....
In December 1977 the Ethics Committee adopted this recommendation and approved the filing of charges against Hinds for violating these disciplinary rules. On January 3, 1978, Hinds was served with the charges and informed that a hearing would be held. Instead of responding, however, Hinds filed a suit in federal court on February 10, 1978, seeking to enjoin the State disciplinary proceedings and to obtain a judgment declaring these particular disciplinary rules unconstitutional. The State proceedings were then stayed during the early stages of the federal litigation.
The United States District Court eventually denied the injunction and dismissed the complaint on grounds of abstention. Garden State Bar Ass'n v. Middlesex Cty. Ethics Com., No. 78-273 (D.C.N.J. June 6, 1978 and Dec. 13, 1979). On appeal, the Third Circuit reversed, finding the abstention doctrine inapplicable because it felt the State procedure effectively denied Hinds the right to present his constitutional claims in a timely manner before a competent State tribunal. Garden State Bar Ass'n v. Middlesex Cty. Ethics Com., 643 F.2d 119, rehearing den., 651 F.2d 154 (3 Cir. 1981) (en banc).
This Court, on its own motion, then ordered certification of the complaint against Hinds, pursuant to R. 2:12-1, and directed that "the entire record, including but not limited to, the constitutional challenges to DR 1-102 and DR 7-197(D) raised by respondent, be considered by this Court." We also granted leave for the American Civil Liberties Union of New Jersey and the Association of Black Women Lawyers of New Jersey to participate in the case as amici curiae. In the meantime, the United States Supreme Court granted certiorari in the federal case. In a decision dated June 21, 1982, the Supreme Court reversed the Circuit Court, unanimously holding that the federal courts should abstain from interfering with this State's ongoing disciplinary proceedings. Middlesex Ethics Comm. v. Garden St. Bar Ass'n, ---U.S. ----, 102 S.Ct. 2515, 73 L.Ed.2d 116. The Court reasoned that New Jersey's attorney disciplinary proceedings are considered "judicial in nature," id. at ----, 102 S.Ct. at 2522, the State has an "extremely important interest" in regulating the professional conduct of attorneys, id., and the State's system afforded Hinds "abundant opportunity" to raise his federal constitutional claims, id. at ----, 102 S.Ct. at 2523. 1
Disciplinary Rule 7-107(D) restricts the speech of attorneys who are associated with pending criminal litigation by sanctioning such attorneys for making any extrajudicial statement that they expect to be disseminated to the public and that is "reasonably likely" to interfere with a fair trial. 2
Appellant Hinds claims that DR 7-107(D) is unconstitutionally vague and overbroad under the First Amendment. He asserts that the rule can be applied to restrict speech only when an attorney's out-of-court statements create a "clear and present danger" to the trial and that, applying this constitutional standard to these facts, his remarks regarding the conduct of the judge at the Chesimard trial did not violate the disciplinary rule or otherwise warrant sanction.
We note at the outset that the freedom to engage in...
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