Discriminatory Regulation of Trial Publicity: A Caveat for the Bar

In Gentile v. State Bar of Nevada the United States Supreme Court declared unconstitutional a widely adopted professional regulation covering attorney discussion of pending criminal cases. The Court's conclusion was based in large part on a perceived risk of discriminatory enforcement against defense counsel. This article demonstrates that the Court's concern about discriminatory enforcement is supported by the empirical evidence. Extensive studies of disclosures in criminal cases demonstrate that an attorney trial publicity problem exists, and is substantially one of improper prosecutorial publicity.

Nevertheless, the attention of the organized bar and its enforcement of disciplinary rules on trial publicity have focused almost exclusively on criminal defense attorneys, and have manifested an excessively deferential attitude toward prosecutorial publicity.