Attorney Grievance Commission v. Gansler

BATTAGLIA, Judge. Respondent Douglas F. Gansler was admitted to the Bar of this Court on December 18, 1989. On November 7, 2002, the Attorney Grievance Commission of Maryland, by Bar Counsel, acting pursuant to Maryland Rule 16-751(a), 1 filed a petition for disciplinary action, alleging that Gansler violated the following Maryland Rules of Professional Conduct (hereinafter “MRPC”): MRPC 3.1 (Meritorious Claims and Contentions), 2 ⁶⁶⁴ MRPC 3.6 (Trial Publicity), 3 MRPC 3.8 (Special Responsibili ⁶⁶⁵ ties of a Prosecutor), 4 MRPC 8.2(a) (Judicial and Legal Officials), 5 and MRPC 8.4(a) & (d) (Misconduct). 6 ⁶⁶⁶ The charges arose from numerous extrajudicial statements made by Gansler, who has served as the State’s Attorney for Montgomery County since January of 1999. By order dated November 13, 2002 and pursuant to Maryland Rules 16-752(a) and 16-757(c), 7 we referred the petition to Judge Julie R. Stevenson of the Circuit Court for Frederick County for an evidentiary hearing and to make findings of fact and conclusions of law.

During that hearing, which took place on March 10, 2003, Bar Counsel offered into evidence three videotapes of Gansler’s extrajudicial statements and the report of his expert in the case, Professor Abraham Dash. Professor Dash and Professor Lisa Lerman, Gansler’s expert, testified at the hearing. Gansler also offered his own testimony as well as that of two Deputy State’s Attorneys for Montgomery County. Judge Stevenson filed a Report and Recommendations on April 29, 2003, in which she presented findings of fact and conclusions of law.

Judge Stevenson concluded that Bar Counsel had presented clear and convincing evidence that Gansler, in one instance, had violated MRPC 3.6(a); however, in Judge Stevenson’s judgment, the evidence insufficiently supported Bar Counsel’s charges that Gansler had violated MRPC 3.6(a) in other instances and had violated other MRPC provisions. Both Bar Counsel and Gansler filed exceptions to Judge Stevenson’s findings and conclusions. We overrule Gansler’s exception and conclude, further, that he violated ⁶⁶⁷ MRPC 3.6(a) on more than a single occasion. Accordingly, as to Gansler’s extrajudicial statements in which he discussed Cook’s confession and his opinion of Cook’s and Lucas’s guilt, we sustain Bar Counsel’s exceptions.

I. Facts The undisputed facts in this case have been proven by clear and convincing evidence as required by Maryland Rule 16-757(b). Those facts demonstrate that, between 2000 and 2001, Gansler made several extrajudicial statements in connection with his office’s prosecution of various well-publicized crimes. A discussion of the circumstances of each of the extrajudicial statements follows. 8 A. The Cook Case In late January of 2001, Sue Wen Stottsmeister was found beaten and unconscious. She had been accosted while jogging along a recreational path located in the Aspen Hill area of Montgomery County.

Ms. Stottsmeister ultimately died from the injuries she suffered during that attack. Nearly six-months later, on June 4, 2001, Albert W. Cook, Jr. allegedly attacked a woman near his home. Witnesses of that attack chased and kept visual contact with Cook until police arrived and arrested him for that incident. While the police were investigating the June 4, 2001 attack, they began to focus their attention on Cook as a suspect in the murder of Stottsmeister.

In the afternoon of June 5, 2001, police officials convened the media for a press conference. Before the press conference began, a Washington D.C. television station broadcasted a report that large sneaker footprints had been found at the scene of the murder and that Cook had large feet that might fit sneakers of that size. The press conference then commenced, and the police announced that Cook would be charged with the Stottsmeister murder. ⁶⁶⁸ Gansler attended that press conference and made several statements to the media regarding the anticipated prosecution of Cook. He described Cook’s confession and the circumstances surrounding his custodial statements to police: The police were able to obtain a confession completely consistent with [Cook’s] constitutional rights, he confessed within just a few hours with incredible details that only the murderer would have known.

He was then provided the opportunity to rest and ... he slept, and where he had said was one of the best nights of sleep he had gotten in a long time. This morning at dawn, he was taken up to the crime scene, video taped by police, and went over in detail by detail every step of what he did to Ms. Stottsmeister this past January. Gansler further stated that investigators had “boot print matches and that type of thing, or actually in this case the sneaker matches, but we’re very confident, obviously more than confident that we have apprehended the right person----” After the press conference, police charged Cook with the murder of Stottsmeister. 9 The statement of charges, which was filed in the District Court of Maryland, Montgomery County, stated: “Cook provided a full and detailed account of the assault and murder of Stottsmeister.... Cook provided details about the murder that would only be known by the perpetrator of the crime.” B. The Lucas Case While asleep during the middle of the night, Monsignor Thomas Martin Wells, a revered member of the Montgomery County community, was beaten and killed in the rectory at his parish.

On June 17, 2000, the Montgomery County police arrested Robert P. Lucas and charged him with the murder of ⁶⁶⁹ Monsignor Wells. The statement of charges stated that the police had observed Lucas “wearing shoes having a shoe print consistent with the ones found on the crime scene” and that after Lucas was arrested, he “admitted breaking into the church rectory and responsibility for Well’s murder.” The police held a press conference on June 18, 2000 to announce the arrest of Lucas and the charges against him. Gansler spoke at the press conference: The Montgomery County Police ... were able to determine definitively that indeed it was Mr. Lucas who had committed the crime. They were able to do so by following him.

They conducted surveillance for over 24 hours. And then when they actually found him, he was wearing a very unique shoe, a very unique boot, and the print of that boot matched the print that was found at the scene of the crime, and then further questioning revealed, in fact, he was the person that had done it. He offered several remarks about the evidence against Lucas, which he described as “a confession from the perpetrator as well as scientific and forensic evidence to corroborate that confession.... ” Gansler then expressed his opinion that “we have found the person who committed the crime at this point” and that the case against Lucas “will be a strong case.” Additionally, Gansler commented at the press conference that “it was a violent murder” and that Lucas “has^ a criminal record which includes residential burglaries and that will be obviously something that will come out later on as well.” In fact, Lucas’s criminal record came out again later, when Deputy State’s Attorney Katherine Winfree discussed it at Lucas’s bond hearing on the Monday after the press conference. C. The Perry Case James Edward Perry was convicted in the Circuit Court for Montgomery County of first-degree murder and sentenced to death for his role in the 1993 killings of an 8 year-old quadriplegic boy, the boy’s mother, and a nurse.

Although ⁶⁷⁰ upheld on direct appeal, in post-conviction proceedings, Perry’s conviction was reversed by this Court on December 10, 1999. On January 4, 2000, the Washington Post ran an article describing Gansler’s discussions with family members of the victims of the 1993 murders. The article explained that Gansler had asked the family members whether Perry should be retried or offered a plea agreement. Quoted in the article was Perry’s attorney, William Jordan Temple, who commented that he “certainly would look forward” to a plea offer because “anyone faced with the possibility of a death penalty considers an offer of life.” While preparing for Perry’s retrial, Gansler made extrajudicial statements that the Gazette Community News published on April 5, 2000.

According to the Gazette’s report, Gansler had announced that “he has decided to offer [Perry] a plea bargain” and that, “when the offer is formally presented, Perry would have six weeks to make a decision.” The article also recounted the events of a hearing in the Perry case, held the day before, at which the court appointed new defense counsel. At that hearing, according to the Gazette, the prosecutor “did not mention the plea bargain offer” and Perry’s lawyers “declined to discuss a plea offer or any details about the case.” On or about July 6, 2000, Gansler again appeared in front of television cameras. Responding to questions from the media, Gansler remarked that “the Court of Appeals’ decision to reverse the original conviction of Mr. Perry was a completely result oriented opinion.” Gansler expressed his view that the “four tó three” opinion “was clearly an effort to overturn the death penalty in the Perry case.” D. The Bomb Threat Case On February 8, 2000, the Montgomery County Journal published an article reporting the dismissal of charges against two Montgomery County teenagers who had been accused of calling bomb threats to Wheaton High School. At the juve ⁶⁷¹ niles’ trial, the State presented evidence of two telephone calls that purportedly were the bomb threats.

One of the calls, the article stated, could not be linked to either juvenile, and the other had been made three days prior to the alleged bomb threat. The article quoted the presiding judge, who in dismissing the charges, said, “I have no idea who did this” and “I have no evidence.” The Journal account relayed Gansler’s comments that “his office will continue to prosecute youths suspected of making bomb threats, even if the case is not strong enough to warrant a conviction.” Gansler was quoted as saying, “We try hard cases.... Juveniles who phone in bomb threats will be prosecuted. It’s more important to prosecute someone and have them acquited[sic] than let them commit crimes with impunity.” 10 II.

The Hearing Judge’s Conclusions of Law The hearing judge concluded that Gansler committed a single violation of MRPC 3.6 by making extrajudicial statements about his decision to offer a plea agreement in the Perry case. The judge determined that those statements clearly violated the general proscriptions of MRPC 3.6(a) as well as the specific provisions of MRPC 3.6(b)(2) limiting extrajudicial references to plea agreements. Furthermore, in the hearing judge’s estimation, Gansler’s plea agreement remarks found no safe harbor under MRPC 3.6(c), which provides that certain types of statements are permissible even though, under MRPC 3.6(a), those statements might have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” ⁶⁷² The hearing judge found no violations with respect to Gansler’s other extrajudicial statements. The judge concluded that Gansler’s references to the physical evidence against Cook and Lucas fell under the safe harbor provision of MRPC 3.6(c)(2), which allows a lawyer to state, “without elaboration,” “information contained in a public record” notwithstanding the strictures of MRPC 3.6(a) or MRPC 3.6(b).

In the hearing judge’s view, the “public record” safe harbor suffered from First Amendment vagueness concerns because it was susceptible of multiple and widely varying interpretations. Lacking a precise definition, the judge indicated that the terms “without elaboration” and “public record” fail to provide lawyers with adequate guidelines for determining when “remarks pass from protected to prohibited.” The hearing judge, however, conveyed concern over Gan-sler’s comments regarding the Cook and Lucas confessions, which, she stated, “clearly do no fall under [the safe harbor provision of MRPC] (c)(2),” violated “the spirit of [MRPC] 3.6” and “could create a substantial likelihood of materially prejudicing an adjudicative proceeding.” Nevertheless, the judge found no violations of MRPC 3.6 in these comments because she determined that, due to their timing, no material prejudice actually flowed from them. 11 The judge examined Gansler’s extrajudicial criticism of this Court’s reversal of Perry’s conviction in light of MRPC 8.2. The judge agreed with Bar Counsel’s expert, who considered Gansler’s comments “a lawful and appropriate expression of opinion protected under the First Amendment of the United States Constitution.” Consequently, the hearing judge determined that Gansler had not violated MRPC 8.2. Finally, the hearing judge concluded that Bar Counsel had not demonstrated that Gansler violated MRPC 3.1 or MRPC 3.8(a) by making comments regarding his intended prosecution of youths suspected of making bomb threats.

The judge ⁶⁷³ was persuaded by Gansler’s hearing testimony that “his intent was not to prosecute in bad faith” but, rather, to stress that “the State often must try cases difficult to prove.” Specifically finding Gansler’s testimony credible, the hearing judge concluded that Bar Counsel had not presented clear and convincing evidence that Gansler intended to prosecute without probable cause in violation of MRPC 3.1 and MRPC 3.8(a). As we noted earlier, both parties filed exceptions to the hearing judge’s conclusions. Bar Counsel maintained that the hearing judge’s finding of a single violation was in error and that the evidence clearly and convincingly supported a conclusion that Gansler violated MRPC 3.6 on numerous occasions. In addition, Bar Counsel argued that Gansler intended to prosecute without probable cause, in violation of MRPC 3.1, MRPC 3.8, and MRPC 8.4(d).

Bar Counsel, however, took no exception from the hearing judge’s conclusion that Gansler did not violate MRPC 8.2. Gansler found no fault with most of the hearing judge’s findings and conclusions, except, however, for her determination that his comments regarding the plea offer to Perry had violated MRPC 3.6.

III

Standard of Review Our recent opinion in Attorney Grievance Comm’n v. Zdravkovich, 375 Md. 110, 126 , 825 A.2d 418, 427 (2003), iterated our well established and frequently recognized standard of review in attorney disciplinary matters: This Court exercises “ ‘original and complete jurisdiction for attorney disciplinary proceedings in Maryland,’ and conducts ‘an independent review of the record.’ ” Attorney Grievance Comm’n v. Blum, 373 Md. 275, 293 , 818 A.2d 219, 230 (2003) (quoting Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 492 , 813 A.2d 1145, 1160 (2002) (citations omitted)). “In conducting that review, we accept the hearing judge’s findings of fact as prima facie correct unless shown to be ‘clearly erroneous,’ and we give due regard to the hearing judge’s opportunity to assess the credibility of witnesses.” Attorney Grievance Comm’n v. Wallace, 368 Md. 277, 288 , 793 A.2d 535, 542 (2002) (citation ⁶⁷⁴ omitted). “As to the hearing judge’s conclusions of law,” however, “ ‘our consideration is essentially de novo.’ ” Attorney Grievance Comm’n v. Dunietz, 368 Md. 419, 428 , 795 A.2d 706, 711 (2002) (quoting Attorney Grievance Comm’n v. Thompson, 367 Md. 315, 322 , 786 A.2d 763, 768 (2001) (quoting Attorney Grievance Comm’n v. Briscoe, 357 Md. 554, 562 , 745 A.2d 1037, 1041 (2000))).

IV

Discussion A. MRPC 3.6 This case serves as this Court’s first opportunity to consider the application of MRPC 3.6, the rule of professional responsibility governing trial publicity. More significant than the case’s novelty, however, are the balance and interplay of the numerous interests, rights, and responsibilities involved. To provide, the proper context for understanding the important issues presented, we begin with a historical discussion of the regulation of trial publicity. We then proceed to dissect Maryland’s present rule and apply it to the extrajudicial statements in controversy. 1.

Origins of the MRPC 3.6 Criminal justice must be carried out in the courtroom. 12 As Justice Holmes declared in Patterson v. Colorado, 205 U.S. 454, 462 , 27 S.Ct. 556, 558 , 51 L.Ed. 879, 881 (1907), “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in' open court, and not by any outside influence, whether of private talk or public print.” The constitutional underpinnings for this concept reside in the Sixth Amendment’s right to a fair trial, made applicable to our State through the Fourteenth Amendment. 13 Ristaino v. Ross, 424 U.S. 589 , 595 n. 6, 96 ⁶⁷⁵ S.Ct. 1017, 1020 n. 6, 47 L.Ed.2d 258 , 263 n. 6 (1976) (“A criminal defendant in a state court is guaranteed an “impartial jury” by the Sixth Amendment as applicable to the States through the Fourteenth Amendment.”) (citing Duncan v. Louisiana, 391 U.S. 145 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968)); see Estes v. Texas, 381 U.S. 532, 540 , 85 S.Ct. 1628, 1632 , 14 L.Ed.2d 543, 549 (1965) (describing the right to a fair trial as “the most fundamental of all freedoms”). Article 21 of the Maryland Declaration of Rights also guarantees the right to a fair trial in all criminal prosecutions. 14 The text of the Sixth Amendment makes clear that a fair trial consists of numerous components, including, but certainly not limited to, the rights of an accused to a public trial and impartial jury. These components alone, of course, do not necessarily ensure a fair trial, as Chief Justice Warren explained: It has been held ... that the fundamental conception of a fair trial includes many of the specific provisions of the Sixth Amendment.... But it also has been agreed that neither the Sixth nor the Fourteenth Amendment is to be read formalistically, for the clear intent of the amendments is that these specific rights be enjoyed at a constitutional trial.

In the words of Justice Holmes, even though “every ⁶⁷⁶ form [be] preserved,” the forms may amount to no “more than an empty shell” when considered in the context or setting in which they were actually applied. Id. at 560 , 85 S.Ct. at 1641 , 14 L.Ed.2d at 560 (Warren C.J., concurring). Thus, even where a court has observed all of the Sixth Amendment formalities, it is possible for a defendant to be deprived of a fair trial if circumstances occurring outside the courtroom taint the proceedings. See Rideau v. Louisiana, 373 U.S. 723 , 83 S.Ct. 1417 , 10 L.Ed.2d 663 (1963) (holding that a defendant’s fundamental due process rights had been violated because a local television station had broadcasted his confession, and he was denied a change of venue).

One outside circumstance that may affect a defendant’s right to a fair trial and, specifically, his right to an impartial jury, occurs when an attorney makes a publicized, out-of-court statement about the defendant’s case. This is particularly true because attorneys occupy a special role as participants in the criminal justice system, and, as a result, the public may view their speech as authoritative and reliable. Attorneys involved in a particular case have greater access to information through discovery, the ability to converse privately with knowledgeable witnesses, and an enhanced understanding of the circumstances and issues. Their unique role and extensive access to information lends a degree of credibility to their speech that an ordinary citizen’s speech may not usually possess.

Comments by prosecuting attorneys, in particular, have the inherent authority of the government and are more likely to influence the public. When such seemingly credible information reaches the ears or eyes of the public, the jury pool may become contaminated, greatly diminishing the court’s ability to assemble an impartial jury. The defendant’s right to a fair trial, thus, may be compromised. See Joan C. Bohl, Extrajudicial Attorney Speech and Pending Criminal Prosecutions: The Investigatory Commission Meets A.B.A. Model Rule 3.6, 44 Kan.

L.Rev. 951, 973-74 (1996) (discussing how attorney speech differs from the speech of other individuals). ⁶⁷⁷ Limiting extrajudicial attorney speech to preserve a fair trial, however, can be accomplished only in a way that is consistent with the fundamental right to free expression under the First Amendment. In general, the First Amendment applies equally to an ordinary citizen and an attorney, as long as the attorney “plays no lawyerly role in the matter under comment.” See Charles W. Wolfram, Modern Legal Ethics at 632 (1986). On the other hand, when the attorney has some professional relationship to a matter, the attorney’s freedom to speak about it is not as broad. For instance, inside the courtroom, the rules of evidence and principles of relevance place rigid restrictions upon what an attorney may say, and when and how he or she may speak.

Even outside the courtroom, the speech of a lawyer may be curtailed to an extent greater than an ordinary citizen’s. In the arena of attorney advertising, the Supreme Court has upheld a state’s thirty-day waiting period for solicitation letters by plaintiffs’ personal injury lawyers, see Florida Bar v. Went For It, Inc., 515 U.S. 618 , 115 S.Ct. 2371 , 132 L.Ed.2d 541 (1995), and a state’s ban on in-person attorney solicitations, Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 , 98 S.Ct. 1912 , 56 L.Ed.2d 444 (1978). In 1908, the American Bar Association first attempted to control the ill effects of attorney-generated trial publicity through the development of professional standards entitled “Canons of Professional Ethics” (hereinafter the “ABA Canons”). Many states adopted the ABA Canons, including Canon 20, which “|’g]enerally ... condemned” newspaper publications “by a lawyer” regarding a pending case because such publications “may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice.” 15 See ⁶⁷⁸ Gentile v. State Bar of Nevada, 501 U.S. 1030, 1066 , 111 S.Ct. 2720, 2740 , 115 L.Ed.2d 888, 918 (1991); Alberto Bernabe-Riefkohl, Silence is Golden: The New Illinois Rules on Attorney Extrajudicial Speech, 33 Loy.

U. Chi. L.J. 323 , 331 (2002) (hereinafter Bernabe-Riefkohl). The Maryland State Bar Association formally adopted the ABA Cannons in 1922. Canons of Ethics, Adopted by the Maryland State Bar Association, Annual Session 1922 at 1.

Despite the widespread adoption of the ABA Canons, trial publicity continued to affect defendants’ Sixth Amendment rights and, consequently, gained the attention of the Supreme Court during the 1950s and 1960s. The Court dealt with the detriments of excessive media involvement in cases by reversing a number of criminal convictions on the ground that excessive trial publicity deprived the defendants of due process. Estes v. Texas, 381 U.S. 532 , 85 S.Ct. 1628 , 14 L.Ed.2d-543 (1965) (holding that a defendant had been denied due process because a pre-trial hearing had been televised live and then rebroadcast, and because the court proceedings had been disrupted by the presence of the media); Rideau v. Louisiana, 373 U.S. 723 , 83 S.Ct. 1417 , 10 L.Ed.2d 663 (1963) (reversing a conviction after the defendant had been denied a change of venue even though a local television station had broadcast his recorded confession three times, and 106,000 of the estimated 150,000-person community viewed the broadcast); Irvin v. Dowd, 366 U.S. 717 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961) (reversing a conviction where pre-trial publicity distributed in the vicinity of the trial included, inter alia, media accounts of the defendant’s juvenile record, the confessions to several murders, and previous court-martial proceedings); Marshall v. United States, 360 U.S. 310 , 79 S.Ct. 1171 , 3 L.Ed.2d 1250 (1959) (reversing a conviction because seven of twelve jurors had been exposed to news accounts of evidence that was not admitted at trial). ⁶⁷⁹ The leading case during this era, which identified the need for trial publicity reform and shaped the American Bar Association’s (hereinafter “ABA”) remedial measures, was Sheppard v. Maxwell, 384 U.S. 333 , 86 S.Ct. 1507 , 16 L.Ed.2d 600 (1966). There, the Court, on due process grounds, reversed the murder conviction of Sam Sheppard, whose high-profile trial had been preceded and pervaded by a media frenzy.

Id. at 363 , 86 S.Ct. at 1522-23 , 16 L.Ed.2d at 621 . Newspapers had documented Sheppard’s alleged refusal to cooperate with investigating officials and had published articles discussing incriminating evidence that was never admitted at trial. Id. at 338-41 , 86 S.Ct. at 1509-11 , 16 L.Ed.2d at 606-08 . During trial, members of the media frequently moved in and out of the courtroom, causing so much noise and confusion that it became difficult to hear lawyers and witnesses.

Id. at 344 , 86 S.Ct. at 1513 , 16 L.Ed.2d at 610 . Furthermore, reporters had crowded the defense table at trial, making it very difficult for Sheppard to have private discussions with his counsel. Id. Despite the chaotic conditions, the trial judge refused to allow a change of venue and failed to take steps to control the adverse effects of the publicity.

Id. at 354 n. 9, 358-59, 86 S.Ct. at 1518 n. 9, 1520, 16 L.Ed.2d at 615 n. 9, 618. The Supreme Court admonished the trial court in Sheppard for its failure to control the extrajudicial publicity: The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge’s failure to take any action. Effective control of these sources — concededly within the court’s power — might well have prevented the divulgence of inaccurate information, rumors, and accusations that made up much of the inflammatory publicity.... Id. at 361 , 86 S.Ct. at 1521 , 16 L.Ed.2d at 619 .

The Court suggested how the trial judge could have minimized the prejudicial publicity, including proscribing extrajudicial statements by lawyers and other trial participants, requesting local officials to implement regulations with respect to the dissemination of trial information, and warning news media about the impropriety of publicizing material not introduced at the pro ⁶⁸⁰ ceeding. Id. at 361-62 , 86 S.Ct. at 1521-22 , 16 L.Ed.2d at 619-20 . Emphasizing the prejudicial effect of news media on fair trials, the Court iterated: Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.... [Wjhere there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue until the threat abates, or transfer it to another county not so permeated with publicity.

Id. at 362-63 , 86 S.Ct. at 1522 , 16 L.Ed.2d at 620 . Moreover, the Court recognized that repeatedly reversing convictions would not suffice as a long-term remedy for the harm of trial publicity. The Court recommended an alternative solution: But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.

Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming'under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but it is highly censurable and worthy of disciplinary measures. Id. at 363 , 86 S.Ct. at 1522 , 16 L.Ed.2d at 620 . In response to Sheppard and as a culmination of four years of meetings by a committee appointed by the ABA to develop standards to regulate the criminal justice system, the ABA in 1968 introduced Standards Relating to Fair Trial and Fair Press (hereinafter the “ABA Standards”).

ABA Standards for Criminal Justice Fair Trial and Free Press ix (3rd ed.1991). ABA Standard 1-1, which merely set aspirational ⁶⁸¹ goals for lawyers, stated that it was a “duty” of a lawyer to prevent the “release” of information for “dissemination” that is reasonably likely to interfere with a fair trial. 16 In addition, the ABA included a disciplinary rule related to trial publicity in its newly proposed Model Code of Professional Responsibility of 1969 (hereinafter “ABA Model Code of 1969”). Bernabe-Riefkohl at 337. Disciplinary Rule 7-107 of the ABA Model Code of 1969 established a detailed set of mandatory guidelines to be used by lawyers considering the propriety of extrajudicial statements.

Id. The guidance of Rule 7-107 differed depending on the stage of the case and the nature of the proceeding, but it generally banned all extrajudicial statements that had a “reasonable likelihood” of interfering with a trial or prejudicing the administration of justice. In 1970, Maryland adopted the ABA Model Code of 1969 verbatim and in its entirety. In 1983, the ABA again proposed a new model code in an effort to address concerns that the “reasonable likelihood” standard of ABA Standard 1-1 and Disciplinary Rule 7-107 might not meet the requirements of the First Amendment.

See Chi. Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir.1975), cert. denied sub nom., Cunningham v. Chi. Council of Lawyers, 427 U.S. 912 , 96 S.Ct. 3201 , 49 L.Ed.2d 1204 (1976) (holding that a local criminal rule nearly identical to ABA Standard 1-1 and similar to Disciplinary Rule 7-107 violated the First Amendment as a vague and overbroad restriction on speech). Rule 3.6 of the Model Rules of Professional Conduct (hereinafter the “ABA Model Rules”) attempted to regulate trial publicity in a way that constitutionally balanced the lawyers’ right to free expression and an accused’s ⁶⁸² right to a fair trial. 17 MRPC 3.6, which first appeared in the Maryland Rules in 1986 and presently governs trial publicity in Maryland, is identical to this initial version of ABA Model Rule 3.6. 2.

The Structure and Operation of MRPC 3.6 MRPC 3.6 has three subsections, which all operate together to give the rule its full meaning. Subsection (a) announces a general prohibition against lawyers making extrajudicial statements that “the lawyer knows or reasonably should know ... will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” This prohibition applies, however, only to those statements that a reasonable person “would expect to be disseminated by means of public communication.” Subsection (b) provides examples of the types of extrajudicial statements that would have “a substantial likelihood of materially prejudicing an adjudicative proceeding.” Under subsection (b), statements are prohibited that “ordinarily [are] likely” to include references to criminal matters that relate to, among other things, the criminal record of a party, the possibility of a plea of guilty, the existence or contents of any confession, admission, or statement by a defendant, or any opinion as to the guilt or innocence of a defendant. ⁶⁸³ Subsection (c) states, however, that circumstances exist where an attorney, without risking discipline, may make extrajudicial statements that fall under subsections (a) and (b). The provisions under subsection (c) are known as “safe harbors.” See Gentile, 501 U.S. at 1033 , 111 S.Ct. at 2723 , 115 L.Ed.2d at 897 (describing the provisions of Nevada Supreme Court Rule 177(3), which are substantively identical to MRPC 3.6(c), as “safe harbors”). For example, an attorney may disclose, through extrajudicial statements and “without elaboration,” “the scheduling or result of any step in litigation,” even if that information, in some way, would have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” MRPC 3.6(c)(4).

Another such “safe harbor” permits attorneys to comment outside the courtroom and without elaboration on “information contained in a public record.” MRPC 3.6(c)(2). 3. Gansler’s Extrajudicial Statements Applied to MRPC 3.6 In the case before us, Bar Counsel argues that Gansler violated MRPC 3.6 by making extrajudicial statements related to the Cook, Lucas, and Perry cases. Gansler asserts, however, that his statements in these cases fall under the “public record” exception under the safe harbor provisions of MRPC 3.6(c). In addition, Gansler claims that the safe harbor provisions do not provide sufficient guidance as to what information is contained in the “public record,” so he was incapable of determining which statements actually would constitute violations.

The issues in this case are similar to those discussed by the Supreme Court in Gentile . In a fractured opinion, the Court held that Nevada Supreme Court Rule 177, a rule substantively identical to MRPC 3.6, had been unconstitutionally applied to discipline a defense lawyer for making extrajudicial statements that professed his client’s innocence in a criminal case. Id. at 1033 , 111 S.Ct. at 2723 , 115 L.Ed.2d at 897 . Chief Justice Rehnquist authored the portion of the majority opinion analyzing the “substantial likelihood of material prejudice” ⁶⁸⁴ standard of Rule 177, and Justice Kennedy represented the majority of the Court in striking down Nevada’s application of Rule 177 as unconstitutionally vague.

Nevada’s rule, like Maryland’s, prohibited an attorney from making extrajudicial statements that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Gentile, the Nevada attorney challenging the rule, argued that this standard infringed upon an attorney’s right to free speech as guaranteed by the First Amendment to the United States Constitution. The State Bar of Nevada, arguing in favor of the standard, emphasized the State’s interest in maintaining fair trials that are decided in the courtroom and not through the use of “the meeting-hall, the radio, and the newspaper.” Id. at 1070 , 111 S.Ct. at 2742 , 115 L.Ed.2d at 920 (quoting Bridges v. California, 314 U.S. 252, 271 , 62 S.Ct. 190, 197 , 86 L.Ed. 192, 208 (1941)). In analyzing the parties’ arguments, the Court acknowledged that the First Amendment permitted States to regulate attorney speech more stringently than the speech of an ordinary citizen. Id. at 1071, 111 S.Ct. at 2743 , 115 L.Ed.2d at 921 .

The Chief Justice explained the State’s particular interest in restricting speech of a lawyer involved in a pending case: Lawyers representing clients in pending cases are key participants in the criminal justice system, and the State may demand some adherence to the precepts of that system in regulating their speech as well as their conduct. As noted by Justice Brennan in his concurring opinion in Nebraska Press, which was joined by Justices Stewart and Marshall, “as officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice.” Because lawyers have special access to information through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative. ⁶⁸⁵ Id. at 1074 , 111 S.Ct. at 2744-45 , 115 L.Ed.2d at 923 (citation omitted). The Court concluded 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.” Id. at 1075 , 111 S.Ct. at 2745 , 115 L.Ed.2d at 923 (internal quotations omitted). The Court also subjected the “substantial likelihood” standard under Rule 177 to traditional First Amendment scrutiny, requiring that content-based speech regulation be necessary to achieve a legitimate state interest.

Id. The Court stated: The “substantial likelihood” test embodied in Rule 177 is constitutional under this analysis, for it is designed to protect the integrity and fairness of a State’s judicial system, and it imposes only narrow and necessary limitations on lawyers’ speech. The limitations are aimed at two principal evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found. Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by “impartial” jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.

Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious costs to the system. Extensive voir dire may not be able to filter out all of the effects of pretrial publicity, and with increasingly widespread coverage of criminal trials, a change of venue may not suffice to undo the effects of statements such as those made by [Gentile]. The State has a substantial interest in preventing officers of the court, such as lawyers, form imposing such costs on the judicial system and on the litigants. Id. at 1075 , 111 S.Ct. at 2745 , 115 L.Ed.2d at 923-24 (citations omitted).

The Court concluded that the “substantial likelihood” standard was narrowly tailored to protect these State interests. Id,, at 1076, 111 S.Ct. at 2745 , 115 L.Ed.2d at 924 . This was so because the restraint on attorney speech was ⁶⁸⁶ limited — “it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys’ comments until after trial.” Id. In addition to upholding the “substantial likelihood” standard on its face, the Gentile Court also considered the constitutionality of Nevada’s application of Rule 177.

The Nevada Supreme Court had imposed a sanction against Gentile for making extrajudicial statements labeling the alleged victims in the criminal case as “drug dealers” and “money launderers,” blaming the alleged crime on the police, calling into question the police’s motives for levying the criminal charges against his client, and proclaiming the innocence of his client. Id. at 1078-79 , 111 S.Ct. at 2747 , 115 L.Ed.2d at 925-26 . Gentile had testified at his disciplinary hearing that he believed his statements were protected by Rule 177(3)(a), one of Rule 177’s “safe harbors,” which allowed an attorney to comment outside of the courtroom and “without elaboration” on the “general nature of the ... defense,” even if the lawyer “knows or reasonably should know that [the statement] will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” Id. at 1048-49 , 111 S.Ct. at 2731 , 115 L.Ed.2d at 907 . A majority of the Justices, led by Justice Kennedy, decided that, “[a]s interpreted by the Nevada Supreme Court, [Rule 177] is void for vagueness ... for its safe harbor provision, Rule 177(3), misled [Gentile] into thinking that he could give his press conference without fear of discipline.” The Court described its reasoning: Given [the Rule’s] grammatical structure, and absent any clarifying interpretation by the state court, the Rule fails to provide “fair notice to those to whom [it] is directed.” Grayned v. City of Rockford, 408 U.S. 104, 112 , 92 S.Ct. 2294, 2301 , 33 L.Ed.2d 222, 230 (1972).

A lawyer seeking to avail himself of Rule 177(3)’s protection must guess at its contours. The right to explain the “general” nature of the defense without “elaboration” provides insufficient guidance ⁶⁸⁷ because “general” and “elaboration” are both classic terms of degree. In the context before us, these terms have no settled usage or tradition of interpretation in law. The lawyer has no principle for determining when his remarks pass from the safe harbor of the general into the forbidden sea of the elaborated.

Id. at 1048-49, 111 S.Ct. at 2731 , 115 L.Ed.2d at 906-07 . The Court further declared that, without providing sufficiently precise guidance, Rule 177 “creates a trap” even for the lawyers who study the rule and make a conscious effort to comply with it. Id. at 1051 , 111 S.Ct. at 2732 , 115 L.Ed.2d at 908 . Finally, Rule 177(3)(a) was “so imprecise” that, in the Court’s view, it created an “impermissible risk of discriminatory enforcement.” The case before us involves the application of a different safe harbor, MRPC 3.6(c)(2), which refers to “information contained in a public record.” This provision suffers from constitutional infirmities similar to those of Nevada’s Rule 177(3)(a). 18 The text of MRPC 3.6(c)(2) provides that an attorney may make extrajudicial statements “without elaboration” concerning “information contained in a public record.” These protections lack a clarifying interpretation by this Court, and the term “elaboration,” a classic term of degree, has no settled usage or tradition of interpretation in law.

The phrase “information contained in a public record” also does not provide sufficient guidance for determining which statements were protected under MRPC 3.6(c)(2). As evidenced by the widely disparate meanings for “public record” that the parties’ experts in this case have advanced, the term, standing alone, can be subject to multiple interpretations even ⁶⁸⁸ by lawyers well educated on this specific principle of professional responsibility. Gansler and Professor Lerman define “information in a public record” broadly as “anything that has been filed in court ... and anything that has been otherwise made public.” Bar Counsel and Professor Dash offer a narrower interpretation, suggesting that “the public record exception applies to that formal information in the public domain that exists prior to, or separate from, the investigation and prosecution of the subject criminal matter.” (emphasis added). Bar Counsel, however, has provided no