An Outside Voice

Kudos to the bar for impartiality
by Erwin Chemerinsky

During the criminal trial of O.J. Simpson, there was a particularly unpleasant moment when Johnnie Cochran and Chris Darden said that their side was filing charges of unethical conduct with the State Bar against their adversary lawyers. In fact, the State Bar received more than 300 complaints against the various attorneys from the public and the judiciary.

To the surprise of many, the State Bar's recently released report found no serious ethical violations by the attorneys in the Simpson case and imposed only minor discipline for two relatively insignificant infractions. Although some commentators have sharply criticized the lack of significant disciplinary actions, the bar should be applauded for its restraint.

The complaints against the lawyers in the Simpson case primarily concerned three types of offenses: intemperate statements to the press, violations of discovery rules and inappropriate conduct during the trial.

As to the former, there is no doubt that the attorneys on both sides of the Simpson case often made angry public statements about Judge Lance Ito. After Judge Ito excluded almost all of the tapes of statements by Detective Mark Fuhrman to Laura Hart McKinney, defense attorney Johnnie Cochran said that the ruling "is outrageous, is specious and is unspeakable." He called the decision "doctored, tortured reasoning." Less than two weeks later, when Judge Ito sanctioned prosecutor Marcia Clark for coming late to court, the Los Angeles County district attorney lambasted the ruling saying it "was outrageous, it was vindictive, it was petty, it was uncalled for."

First Amendment protection

The State Bar, however, was correct in finding that these statements, though intemperate, were protected by the First Amendment. Judges are public officials and the Supreme Court long has ruled that it is essential that there be open and robust debate about the conduct of those holding public office.

The 9th U.S. Circuit Court of Appeals followed exactly this reasoning in its 1995 decision Standing Committee on Discipline v. Yagman, where it held that a lawyer cannot be disciplined for speech critical of a judge, no matter how vituperative, unless the attorney knowingly makes false statements of fact. If the State Bar had disciplined the attorneys in the Simpson case for their statements to the press, it rightly could have been criticized for ignoring the First Amendment and it likely would have been reversed on appeal.

A second set of complaints against the lawyers concerned alleged discovery violations. Unfortunately, discovery abuses are an all-too-common part of many civil and criminal cases and many occurred during the Simpson criminal trial. In fact, on several occasions, Judge Ito imposed sanctions on the attorneys for their violations of discovery orders.

Ito actions

At the outset of the trial, Judge Ito granted the prosecution an unprecedented additional opening statement because of the failure of the defense to disclose witness statements as required by the law and court order. Later in the trial, Judge Ito imposed sanctions on the defense attorneys for their failure to disclose the existence of a taped interview with witness Rosa Lopez. The prosecution, too, was sanctioned for discovery abuse, such as when it was denied use of important evidence about the uniqueness of fibers from Simpson's vehicle that matched those found at the crime scene.

The bar acted appropriately in not imposing discipline for these discovery abuses. The bar concluded that there was not clear and convincing evidence that any statements were made to the court "with knowledge of their falsity or with intent to deceive." More important, the trial court monitored the discovery process and imposed sanctions where appropriate. Additional bar discipline was unnecessary.

Ethical abuses

Likewise, as to the third category of complaints, abuses that occurred during the trial, the bar made the right decision in not using these as grounds for discipline.

Each side, at times, acted in a manner that was ethically suspect. The prosecution's use of Mark Fuhrman as a witness, when it had strong reasons for believing that he was lying in the denial of his use of racial epithets, was disturbing. Johnnie Cochran's claims in opening statements and closing arguments that Simpson was chipping golf balls at the time of the murders were inappropriate because there was nothing in the record to support the assertion. Both sides engaged in unpleasant, even sometimes vicious, statements about their opponents.

But the appropriate remedy for such conduct is through the trial judge during the course of the trial.

The trial judge can exclude evidence, uphold objections, impose sanctions, and devise needed remedies. None of this conduct warranted additional bar discipline.

Investigation ongoing

The potentially most serious ethical violations are still under investigation by the State Bar: whether lawyers in the Simpson case improperly revealed confidential information in connection with the publication of books, such as Lawrence Schiller's "American Tragedy."

However, as to the other charges, it is clear that the State Bar engaged in a lengthy and careful review and came to exactly the right conclusions.

As time goes by and memories of the Simpson trial fade, there is a tendency to forget that the case was presided over by a judge who was unfailingly conscientious and sometimes imposed sanctions on the lawyers. There is a temptation to remember only the ugly and to forget the often brilliant lawyering on both sides.

It would have been easy for the State Bar to fall prey to this and respond to the public's dissatisfaction with the trial with disciplinary sanctions. The State Bar should be applauded for resisting these pressures and serving, as it is supposed to, as a careful and impartial evaluator of whether disciplinary rules have been violated.

Erwin Chemerinsky is the Legion Lex Professor of Law at the University of Southern California and was consulted by the State Bar during the disciplinary investigation of lawyers involved in the Simpson criminal trial.