On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
The opinion of the Court was delivered by Handler, J. Schreiber, J., dissenting.
[90 NJ Page 649] In this case, as in the companion case of In the Matter of Lennox Hinds, 90 N.J. 604 (1982), also decided today, we must determine the constitutionality of certain disciplinary rules regulating the extrajudicial speech of attorneys. The primary disciplinary rule involved bars an attorney associated either with the prosecution or defense of a criminal case from commenting on the guilt or innocence of the accused, the evidence or the merits of the case. DR 7-107(B)(6). We must now determine the free speech standards to be applied and the nature of the associational relationships required to invoke this disciplinary rule.
Joel I. Rachmiel is a New Jersey attorney admitted to practice law in this State since 1973. From December 1973 to March 1979, Rachmiel worked as an assistant prosecutor in the Union County Prosecutor's Office. In that capacity he prosecuted George Merritt, accused of killing a policeman during the Plainfield riots of 1967. The 1977 trial in which Rachmiel served as prosecutor represented the third time that Merritt had been tried for the murder, his first two convictions having been overturned on appeal. In this third trial Merritt was once again convicted of first degree murder, and the conviction was affirmed on appeal. State v. Merritt, No. (App.Div.1978), certif. den., 81 N.J. 278 (1979). However, in a subsequent federal action the United States District Court granted Merritt a writ of habeas corpus because the State had failed to inform the defense of the existence of a police report that contradicted the trial testimony of the State's only eyewitness to the killing. United States v. Hicks, No. 79-2194 (D.N.J. Feb. 20, 1980).
By that time the case of George Merritt had attracted national, even international, attention.*fn1 The Union County Prosecutor's Office was faced with the difficult decision of whether to retry Merritt for an unprecedented fourth time. It was at this point that Rachmiel, by then in private practice, chose to speak out about the case and the desirability of a fourth trial.
Immediately after Merritt's conviction was overturned, Rachmiel was contacted by a reporter from the Courier-News. Rachmiel told the reporter that he thought Merritt should be retried. In an article dated February 22, 1980, and entitled, "Profs: Retrial of Merritt questionable," the Courier-News gave the following account of Rachmiel's remarks:
Former Union County Assistant Prosecutor Joel Rachmiel, who prosecuted the state's case against Merritt in the third trial in 1977, said yesterday he believed the state should go for a fourth trial. "This involved the ruthless murder of a police officer," Rachmiel said.
Rachmiel maintained that "because there is a reversal does not mean that the man is innocent. It just means that there is additional evidence that a jury should consider."
Rachmiel pointed out that the courts that overturned Merritt's three convictions "have never seen [the prosecutor's eyewitness] testify at trial. Thirty-six jurors have seen fit to believe his testimony entirely," he said. "I think it is unfair for someone to read a cold transcript and judge from that."
However, on February 25, 1980, Rachmiel distributed to the press a "letter to the editor," stating that he was now of the view that Merritt should not be retried. He did this without consulting his former employer, the Union County Prosecutor.
Several publications ran stories quoting from the Rachmiel release. See, e.g., the National Law Journal, "Missing File Frees Con in Murder Case," March 12, 1980; Newark Star-Ledger, "Clarification on Statement," March 1, 1980; the Daily Journal, "Decision Due on 4th Trial," Feb. 28, 1980. Representative of these reports was an article in the Courier-News dated February 26, 1980, and entitled, "Ex-Prosecutor Shifts on Merritt." The story read, in pertinent part:
The former assistant prosecutor said that while he hasn't changed his belief regarding Merritt's participation in the mob beating of Patrolman John Gleason, he realizes "there is little to be gained in pursuing another prosecution, since, no matter what the ultimate verdict, all that can be claimed is a mere hollow moral victory for one side or the other."
"Society's traditional needs for punishment, deterrence, retribution and rehabilitation can no longer justify any further continuation of this affair," Rachmiel said. "There has already been too much suffering in the long history of events since 1967, both by Merritt and his family, as well as by the widow, three children and family and friends of Officer Gleason."
Rachmiel said he thought Merritt wasn't the criminal type but was caught up in the emotions of the time. "The need for rehabilitation, if any were ever necessary, has long ago been satisfied," Rachmiel said. "Society need not fear George Merritt, nor should we seek any further revenge against him. For he has shown during his periods of freedom that he is anxious to return to his family and friends and once again become a productive and law abiding citizen.
"Scholars may long debate the issue, but 13 years and the rigors of three trials are as much as any man should have to endure, guilty or not."
During this same period Rachmiel also granted interviews to Larry Bodine of the National Law Journal and Seymour Wishman, a New Jersey attorney writing an article about the Merritt case for Harper's Magazine. Rachmiel told Wishman that Merritt had initially requested a lie detector test before his third trial but then refused to take it, and that Merritt was offered a plea of second degree murder but declined the offer.
At the time Rachmiel made these statements, the Union County Prosecutor's Office was still deciding whether to retry Merritt. On April 24, 1980, that office moved to dismiss the indictment, sparing Merritt a fourth trial.
Just prior to that decision, the county prosecutor forwarded an ethics complaint to the Union County District Ethics Committee (now the District XII Ethics Committee).*fn2 The committee issued a formal complaint against Rachmiel and held hearings. At those hearings Rachmiel admitted that he had prepared and distributed the release to the press and had made the statements attributed to him. He denied divulging any confidential information, claiming that the press had already reported Merritt's refusal to take a polygraph examination and that the prosecutor himself had publicly discussed the possibility of a plea bargain.*fn3
On December 30, 1980, the committee filed a presentment charging Rachmiel with violating Disciplinary Rules 1-102(A)(1),
1-102(A)(5), 4-101, 7-107(B)(6) and 7-107(E). DR 1-102(A)(1) states that "a lawyer shall not . . . [v]iolate a Disciplinary Rule." DR 1-102(A)(5) sanctions attorneys for "[e]ngag[ing] in conduct . . . prejudicial to the administration of justice." DR 4-101(B)(1) states that "a lawyer shall not knowingly . . . [r]eveal a confidence or secret of his client." DR 7-107(B)(6) reads:
A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extrajudicial statement that he expects to be disseminated by means of public communication and that relates to . . . [a]ny opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.
After the completion of a trial or disposition without trial of a criminal matter and prior to the imposition of sentence, a lawyer or law firm associated with the prosecution or defense shall not make or participate in making an extra-judicial statement that he expects to be disseminated by public communication and that is reasonably likely to affect the imposition of sentence.
Rachmiel appealed to the State Disciplinary Review Board, seeking a dismissal of the presentment. He argued that the State's disciplinary rules proscribing attorney out-of-court statements are unconstitutionally vague and overbroad. He further contended that his public comments violated no client confidence (the client in this case being the State of New Jersey).*fn4
On July 30, 1981, the Board issued a 5-2 decision, holding Rachmiel in violation of all the rules charged and recommending a public reprimand. The majority refused to address Rachmiel's constitutional challenges, concluding that the Board was without authority to make such determinations. The dissent addressed the constitutional issue to the extent that it found it "doubtful that DR 7-107(B) will be able to withstand judicial scrutiny." It further ...