On May 20, 1976 the trial judge issued an amended order setting bail upon conditions and limiting public comment on this case by "defendants, all attorneys, associates of the attorneys preparing this case for trial, agents, servants and employees." Defendants thereupon filed a motion for leave to appeal to this court from the portion imposing restraints. They then applied to a single judge of the court for a stay of the order. That application was denied, and the motion for leave to appeal was set down for argument before this Part of the court on July 19, 1976. Counsel were informed that if the court decided to grant leave to appeal, it would at the same time hear argument on and consider the merits of the appeal. R. 2:11-2. Defendants then petitioned a single Justice of the State Supreme Court for a temporary stay of the amended order. R. 2:9-8. The matter was referred to the entire court. The application for a stay, pending determination of the issues in this court, was denied. We granted leave to appeal and heard argument on the merits.
There presently exists ample authority for the issuance by a trial court of an order limiting pretrial public comment by the parties and their attorneys. Nebraska Press Ass'n v. Stuart , U.S. , 96 S. Ct. 2791, 48 L. Ed. 2d , 44 L.W. 5149 (1976); Sheppard v. Maxwell , 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); State v. Kavanaugh , 52 N.J. 7 (1968); State v. Van Duyne , 43 N.J. 369, 389 (1964), cert. den. 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965); Hamilton v. Municipal Court , 270 Cal. App. 2d 797, 76 Cal. Rptr. 168, 33 A.L.R. 3d 1029 (D. Ct. App. 1969), cert. den. 396 U.S. 985, 90 S. Ct. 479, 24 L. Ed. 2d 449 (1969); Annotation, "Validity and construction of state court's pretrial order precluding publicity or comment about pending case by counsel, parties or witnesses," 33 A.L.R. 3d 1041 (1970). Initially, it should be noted that the concept of a fair trial applies both to the State and to the defense. United States v. Tijerina , 412 F.2d 661, 666 (10 Cir. 1969), cert. den. 396 U.S. 990, 90 S. Ct. 478, 24 L. Ed. 2d 452 (1969).
Comments before or during a trial which have the capacity to influence potential or actual jurors to the possible prejudice of the accused or the State are impermissible. State v. Van Duyne, supra.
In Nebraska Press Ass'n v. Stuart, supra , Chief Justice Burger in his opinion for a majority of the court notes (at U.S. , 96 S. Ct. 2791, 44 L.W. 5153) the warning given by the Supreme Court in Sheppard v. Maxwell, supra , 384 U.S. at 363, 86 S. Ct. at 1522, that "the cure" for an unfair trial
Justice Brennan, in his concurring opinion in Nebraska Press Ass'n , pointed out that
A significant component of prejudicial pretrial publicity may be traced to public commentary on pending cases by court personnel, law enforcement officials, and the attorneys involved in the case. In Sheppard v. Maxwell, supra , we observed that "the trial court might well have proscribed extraordinary statements by any lawyer, party, witness, or court official which divulged prejudicial matters." 384 U.S. , at 361 [86 S. Ct. 1507 at 1521]. See also id. , at 360 [86 S. Ct. 1507 at 1521] ("the judge should have sought to alleviate this problem [of publicity that misrepresented the trial testimony] by imposing control over statements made to the news media by counsel, witnesses, and especially the Coroner and police officers."); id. , at 359, 363 [86 S. Ct. at 1521, 1522]. 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. It is very doubtful that the court would not have the power to control release of information by these individuals in appropriate cases, see In re
Sawyer , 360 U.S. 622 [79 S. Ct. 1376, 3 L. Ed. 2d 1473] (1959), and to impose suitable limitations whose transgression could result in disciplinary proceedings. Cf. New York Times Co. v. United States, supra , 403 U.S. 713 at 728-730 [91 S. Ct. 2140, 29 L. Ed. 2d 822] (Stewart, J., with whom White, J., joins, concurring). Similarly, in most cases courts would have ample power to control such actions by law enforcement personnel. [ U.S. at , 96 S. Ct. , 2823 44 L.W. at 5167-5168, n. 27]
Attorneys, including those permitted to speak pro hac vice, R. 1:21-2, are subject to the Disciplinary Rules of the Code of Professional Responsibility of the American Bar Association, as amended by our Supreme Court. In essence, the restraints imposed by the trial judge in the amended order are substantially similar to those imposed by Disciplinary Rules 7-107 (B), (C) and (D) upon lawyers associated with the prosecution or defense of criminal matters. See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press , § 1.1 (approved draft 1968). There is, however, one substantial difference. The amended order would preclude "discussion of all prior proceedings including but not limited to the prior trial in State v. Carter and Artis," while the pertinent Disciplinary Rule would not preclude a lawyer "from announcing 'Quotations from or references to public records of the court in the case.'" DR 7-107(C)(9). We find no sound basis for the failure to allow this exception provided by the rule.
Beyond this, there is an absence of appropriate findings of fact by the trial court necessary to support the issuance of the order. Neither the amended order nor the opinion which precedes it contains adequate specific findings of prejudicial pretrial publicity emanating from defendants or their attorneys. While, in his opinion, the ...