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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

March 2001, vol. 2, no. 2

State’s attorneys and the First Amendment

Richard Devine, State's Attorney of Cook County, et al. v. Mary Robinson, Administrator of the Attorney Registration & Disciplinary Commission, __ F. Supp. 2d __, 2001 WL 111163 (N.D. Ill., January 22, 2001). Richard Devine and nine other state's attorneys, including the president of the Illinois State's Attorneys Association, sought declaratory and injunctive relief against the Administrator of the ARDC, claiming that provisions of Rules 3.6 and 3.8 of the Illinois Rules of Professional Conduct infringed on their First Amendment rights and were unconstitutionally vague and overbroad. Judge Grady dismissed the case for failure to allege a justiciable case or controversy. As such, the court did not definitively construe the Illinois rules, but it noted that they "are fairly susceptible to an interpretation that would render them constitutional."

Rules 3.6 and 3.8 address issues of trial publicity and a lawyer's ethical duty to avoid extrajudicial statements that would pose a "serious and imminent threat" to the fairness of a judicial proceeding. Noting that the rules had never been construed by the Illinois Supreme Court and that the state's attorneys did not allege "which kinds of communications the plaintiffs wish to make but are forbidden to make," the court concluded that the challenged portions of the rules "may be fairly interpreted in a manner that complies with the First Amendment." Specifically, Rule 3.6(b), which contains an enumeration of subjects that "would pose a serious and imminent threat to the fairness of a proceeding," may reasonably be interpreted as providing examples of subjects that would be barred under the general proscription of 3.6(a) (a provision that was not challenged by the state's attorneys), rather than as an absolute prohibition of speech without regard to its capacity to pose such a threat. As to Rule 3.6(d), which provides a lawyer with the limited right to respond to statements made by others where required to protect a client from substantial undue prejudice, the court concluded that the provision seemed clearly to intend to provide attorneys "with a shield from unfair publicity, not a sword to damage their opponent's case," as the state's attorneys suggested, and it found nothing to support their conjecture that Rule 3.6(d) would apply only to non-prosecutors.

Addressing the state's attorneys' vagueness complaint regarding Rule 3.8(c), which requires prosecutors to exercise reasonable care to prevent persons assisting or associated with them from making extrajudicial statements that the prosecutors cannot make, Judge Grady explained that "ethical rules need not spell out a prosecutor's obligations to every conceivable person in every conceivable situation in order to avoid a vagueness challenge," and he pointed out that other attorneys face similar obligations to supervise assistants and associates. A rule is not vague, the court explained, "simply because it requires professionals to make the necessary effort to determine who these individuals are."

Rule 3.8(d), the other provision challenged by the state's attorneys, requires a criminal prosecutor to refrain "from making extrajudicial comments that would pose a serious and imminent threat of heightening public condemnation of the accused," with exceptions to allow the prosecutor to inform of the nature and extent of the prosecutor's action and to allow statements "that serve a legitimate law enforcement purpose." Responding to the charge that this rule is unconstitutionally overbroad, the court observed that the state's attorneys did not explain "why they believe the First Amendment guarantees a prosecutor the right to speech that heightens condemnation of the accused but neither serves any law enforcement function nor informs the public of the prosecutor's action," and the court concluded that there was, in fact, no such right.