Attorney's contempt conviction for talking to media upheld

VIRGINIA–In late February, a federal judge in Richmond upheld the contempt conviction of an attorney who, in violation of a local court rule, spoke with the news media about a client he was representing in a pending criminal matter.

District Judge Robert Payne held that Local Rule 57, which forbids any attorney appearing in an ongoing criminal matter to make public statements that could interfere with a fair trial, did not violate the First Amendment rights of attorney Joseph Morrissey.

Payne held Morrissey in criminal contempt last year for speaking with a reporter about his client, Joel Walker Harris, and holding a press conference, during which he played a videotape of a government witness recanting his testimony depicting Harris as a drug user. Payne sentenced Morrissey to 90 days in jail and suspended his license from practicing law in federal court for two years.

Payne noted that the U.S. Supreme Court in Gentile v. State Bar of Nevada observed that attorney speech can be regulated more than the speech of others because lawyers’ extrajudicial comments pose a particular threat to the fairness of pending proceedings, because of their unique access to information through discovery and client communications.

Morrissey argued that Rule 57, which limits any statements presenting a “reasonable likelihood” of interfering with a fair trial, did not comport with Gentile’s holding that restrictions on attorney speech pass constitutional muster only if they prohibit comments that present a “substantial likelihood” of materially prejudicing an ongoing proceeding.

Payne, rejecting Morrissey’s interpretation of Gentile, said that restrictions on attorney speech can withstand constitutional scrutiny if they are “narrowly tailored” — directed toward speech that is substantially likely to have a materially prejudicial effect — and are content-neutral, are applied equally to all attorneys, and “merely postpone” attorney comments until after the trial. Payne held that Rule 57 was narrowly tailored, and made clear the type of speech restricted by it. (In re: Joseph Morrissey; Counsel: Pro se)