In re Goode

• Decision Date: 18 April 2016
• Docket Number: No. 15–30643.,15–30643.
• Citation: 821 F.3d 553
• Parties: In re William L. GOODE, Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

821 F.3d 553

In re William L. GOODE, Appellant.

No. 15–30643.

United States Court of Appeals, Fifth Circuit.

April 18, 2016.

Herbert V. Larson, Jr. (argued), Sara A. Johnson, New Orleans, LA, for Appellant.

Alysson Leigh Mills, Esq. (argued), Fishman Haygood, L.L.P., New Orleans, LA, for Special Respondent.

Before KING, JOLLY, and PRADO, Circuit Judges.

EDWARD C. PRADO

, Circuit Judge:

This appeal involves a challenge to Western District of Louisiana Local Criminal Rule 53.5 (“L. Crim. R. 53.5”), which operates as a prior restraint against attorney speech during the pendency of a criminal trial. William L. Goode, a criminal defense attorney practicing in Lafayette, Louisiana, appeals his six-month suspension from the Western District of Louisiana, which was imposed due to his violation of L. Crim. R. 53.5. For the following reasons, we reverse and remand to the district court for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Central to this appeal is the extent of Goode's involvement in the underlying criminal trial. In June 2012, Goode represented a client, Joshua Espinoza, at his initial appearance and arraignment. Goode later withdrew as counsel of record, and new counsel was appointed under the Criminal Justice Act. A superseding indictment was issued in September 2012, adding seven new defendants, including two attorneys, Daniel Stanford and Barry Domingue. Stanford and Domingue went to trial, while the remaining defendants pleaded guilty.

Stanford and Domingue proceeded to trial under an informal defense agreement and represented themselves pro se. Goode was never enrolled as counsel of record for either defendant, but both Stanford and Goode represented to the district court that Goode “would be ‘assisting’ Stanford.” In response, the Government filed a motion to determine whether Goode should be disqualified to represent Stanford “in any capacity” based on his previous representation of Espinoza. The Government moved to withdraw its motion once it was determined that Goode had “no intention to represent Defendant Stanford in any capacity,” which the district court granted.

The trial began on March 31, 2014. During the trial, Goode “sat in front of the bar and conferred with, and passed notes to, both defendants.” On April 2, 2014, Domingue suffered from a self-inflicted gunshot wound

. That morning, the district court held a hearing to evaluate its options in proceeding with the trial against Stanford. At the hearing, the Government stated it would not oppose if the court declared a mistrial. A decision on the matter was postponed until later that afternoon in order to give Stanford the opportunity to visit Domingue in the hospital before he died. When the hearing reconvened, Stanford requested a mistrial, which the district court granted.

Between the morning and afternoon hearings, Goode gave interviews to two media outlets, The Advocate and The Independent regarding Domingue. According to Goode, he spoke to the media in an attempt to “protect [his] friend's good name” and only under the belief that a mistrial would be declared. Goode claims he told the reporter for The Advocate, the first reporter he spoke with, not to publish anything until he had called back to confirm that a mistrial had been declared. But, the reporter did not abide by his request, and an article was published online before a mistrial was officially granted. Goode's statements to the media related to the following facts: Domingue had shot himself in the head with a 9 mm pistol; Domingue was Goode's friend; Domingue had to shut down his law practice and spend the majority of his time preparing for his defense; Domingue was innocent of the charges against him; and the Government's case was “made up.” Goode's two interviews that day ultimately resulted in the publication of five articles.

By the afternoon hearing, the district court had become aware of and expressed its displeasure with Goode's statements to the media. The Government moved for sanctions and a protective order barring Goode from further speaking to the press. The court refrained from ruling on the issue at that time and directed the Government to file a motion for sanctions instead. But, the Government never filed such a motion, and on May 23, 2014, the district court sua sponte issued an order directing Goode “to show cause why sanctions should not be imposed based on allegations of inappropriate, extrajudicial commentary to news media during the course of this proceeding, and most significantly, during the time immediately surrounding the recent mistrial granted on April 2, 2014.”

Following a show cause hearing, the district court found that Goode violated both the local rules for the Western District of Louisiana and Louisiana's Rules of Professional Conduct, and it referred the matter to the Chief Judge of the Western District “for the appropriate suspension of practice from the Western District.” Goode was permitted to file a brief before the Chief Judge in which he argued that the applicable local and professional rules violated his free speech rights afforded by the United States Constitution and the Constitution of the State of Louisiana. Specifically, Goode cited the Supreme Court's decision in Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991)

, in support of this argument.

On January 30, 2015, the Chief Judge of the Western District of Louisiana, Chief Judge Drell, issued an opinion and order sanctioning Goode pursuant to Local Rule 83.2.10 for violating L. Crim. R. 53.5. The rule states:

During the trial of any criminal matter, including the period of selection of the jury, no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial, for dissemination by any means of public communication, except that the lawyer may quote from or refer without comment to public records of the court in the case.

In his order, Chief Judge Drell found that a sanction was appropriate under the rule because Goode was an attorney “associated” with the defense. In support of his conclusion, Chief Judge Drell noted that: 1) Goode helped Stanford in both preparing for the case and during the two days of trial; 2) Goode “sat in front of the bar (where lawyers who are participating in court proceedings sit)”; 3) and Goode “passed notes and made comments” to both defendants during the two days of trial. In response to Goode's briefing, Chief Judge Drell agreed that Gentile controlled but found that the application of L. Crim. R. 53.5 was constitutional, explaining that Goode's statements “involved a substantial likelihood of prejudice in the pending case” because “[i]f a mistrial had not been declared, there was a significant likelihood that even the empaneled jury could be prejudiced simply because the news of suicide by defendant was such big news, it would have been difficult to contain even for those empaneled jurors.”

Based on his violation of L. Crim. R. 53.5,¹ Goode was suspended from practice in the Western District of Louisiana for a six-month period. Following this period, Goode could petition to be readmitted to the Western District pursuant to Local Rule 83.2.10. Goode appealed the sanction, and the district court stayed its suspension pending appeal.

II. DISCUSSION

The Rules Enabling Act provides the Western District of Louisiana with the power to “prescribe rules for the conduct of [its] business.” 28 U.S.C. § 2071(a)

; see also Fed.R.Civ.P. 83(a)(1) (“After giving public notice and an opportunity for comment, a district court, acting by a majority of its district judges, may adopt and amend rules governing its practice.”). This Court has jurisdiction over this appeal under 28 U.S.C. § 1291.

On appeal, Goode makes three primary arguments. As a preliminary matter, he disputes whether his conduct during Domingue and Stanford's trial falls within the scope of L. Crim. R. 53.5. Next, he argues that if his conduct is covered by the rule, the district court failed to make a necessary finding of bad faith, which was required in order to impose sanction. Finally, he brings both an as applied and facial challenge to the constitutionality of L. Crim. R. 53.5.

A. The Scope of L. Crim. R. 53.5

Goode argues that he does not fall within the scope of L. Crim. R. 53.5 as he was not “ ‘a lawyer associated with the ... defense.’ ” Goode urges this Court to adopt a “bright-line rule” in interpreting L. Crim. R. 53.5 that limits its scope to “trial participants,” specifically counsels of record. Appellee² counters that, by its terms, the rule is not limited to counsels of record and urges a broader interpretation of the rule that focuses on an attorney's “unique access to information,” not his or her official status in the underlying trial.

Goode does not dispute any of the facts underlying his sanction and does not argue that the district court abused its discretion in imposing a particular sanction. He only challenges whether his conduct violates L. Crim. R. 53.5, which is a legal conclusion subject to de novo review. See United States v. Nolen, 472 F.3d 362, 371 (5th Cir.2006)

.

Goode argues that the Supreme Court's opinion in Gentile and our opinion in United States v. Brown, 218 F.3d 415 (5th Cir.2000)

, demonstrate that prior restraints on attorney speech, such as L. Crim. R. 53.5, apply only to counsels of record. But, neither Gentile nor Brown can be read to require such a limitation. In Gentile, the Supreme Court held that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press.” 501 U.S. at 1074, 111 S.Ct. 2720 (emphasis added). From this holding, Goode asks us to infer that no attorney speech may be regulated unless the attorney is a “lawyer[ ] representing clients,” which he appears to define as counsels...