Matter of Keller

Citations: 693 P.2d 1211; 213 Mont. 196Docket: 83-110

Court: Montana Supreme Court; October 31, 1984; Montana; State Supreme Court

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The Supreme Court of Montana reviewed a complaint filed by the Commission on Practice against attorney Robert S. Keller for alleged violations of the Canons of Professional Ethics, specifically Disciplinary Rules Nos. DR 7-107 (E) and (H). Keller moved to dismiss the complaint, claiming the disciplinary rules were overly broad and infringed on his free speech rights. The case arose from Keller's representation of a dentist accused of sexual assault; during the case, he sent a letter to the dentist's patients, defending his client and challenging the credibility of the state's evidence.

The letter's purpose was to counteract negative media coverage and clarify the situation for supporters, detailing perceived weaknesses in the state's case. The court noted the relevant disciplinary rule, DR 7-107 (B), which prohibits attorneys involved in a criminal matter from making extrajudicial statements that could be disseminated publicly regarding the case's specifics, including the character and credibility of the accused, plea options, and evidence. The court ultimately considers the implications of Keller’s actions in relation to these rules.

Disciplinary rules cannot be applied literally as they may infringe upon free speech rights, as established in cases like *Chicago Council of Lawyers v. Bauer* and *Markfield v. Association of the Bar of the City of New York*. Respondent Keller contends that the rules are clear and unconstitutional due to their interference with free speech and their vagueness. In contrast, the Commission argues for an interpretation that includes a 'reasonable likelihood' standard, which would allow for ethical charges when there is a significant risk of interfering with justice. This interpretation is supported by *Hirschkop v. Snead*, where the Fourth Circuit upheld a similar rule's constitutionality by confirming it served a substantial governmental interest (the right to a fair trial) without unnecessarily infringing on First Amendment rights. The Commission claims that the preamble to Montana’s DR 7-107 provides a measurable standard against statements that undermine the integrity of the judicial system. However, Keller warns against implying standards not explicitly written, arguing that this lack of guidance is problematic for attorneys. The excerpt concludes that while the literal application of the disciplinary rule conflicts with First Amendment rights, such rights can be limited when they threaten Sixth Amendment rights to a fair trial and Fourteenth Amendment due process. The Seventh Circuit has previously indicated that a more precise standard—only prohibiting comments that pose a 'serious and imminent threat' to justice—is constitutionally acceptable.

The formulation referenced aligns more closely with Supreme Court principles than the local district court rules. A stricter standard requiring lawyers to assess comments based on a "serious and imminent threat" to fair trial rights is deemed clearer than the vaguer standard of "reasonable likelihood" of interference. In Markfield v. Association of the Bar, discipline was warranted only when statements posed a "clear and present danger" to justice. Three standards for imposing disciplinary rules are identified: 1) "reasonable likelihood" of impairment to justice, 2) "serious and imminent threat" to fair justice, and 3) "clear and present danger" to fair trial rights. The court finds that DR 7-107 (B) and (H) unconstitutionally infringe on free speech without establishing a clear standard for attorney conduct. The court refrains from endorsing any specific test and suggests a reevaluation and drafting of new disciplinary rules. Consequently, DR 7-107 (B) and (H) are declared void, and the complaint against the respondent is dismissed with prejudice. The decision includes dissenting opinions from Justice Weber.