[Thomas G. Stolpman] Thomas G. Stolpman 

Meting out justice in the O.J. affair

State Bar President Thomas Stolpman responds in this column each month to questions from bar members. To submit questions for the president, please send them to: Ask the President, California Bar Journal, 555 Franklin St., San Francisco 94102-4498; fax to 415/561-8247; or e-mail to calbarj@ix.netcom.com.

This month's question and Stolpman's response:

QUESTION: Can you explain why the State Bar recently disciplined several of the lawyers involved in O.J. Simpson's criminal trial?

STOLPMAN: The O.J. Simpson criminal trial deeply troubled many who watched it -- the lapses of civility, personal attacks, legal maneuvering and stratagems instead of sound tactics.

The courtroom play-by-play did not appear to be a search for the truth, which is what many expected to see. Hundreds of observers actually lodged complaints urging the State Bar of California to right the wrongs seen on television or read about in the news.

As a trial lawyer, I too was disturbed by some of the twists and turns of the trial, and dismayed by some of the behavior in the courtroom.

But disciplinary action by the State Bar is not -- and should not be -- the antidote for the vast majority of conduct which upset trial observers.

Just imagine the consequences of allowing State Bar prosecutors to routinely step into a trial, preempt the judge and attempt to regulate attorney conduct perceived as unprofessional or offensive, or critical of the judge.

That kind of intrusion and censorship is not the answer to whatever went wrong in the Simpson criminal trial.

The trial did, however, spark numerous complaints to the State Bar, whose investigators searched for clear-cut violations of the bar's Rules of Professional Conduct and the State Bar Act, as required by law.

Prosecutors found two cases of clearly defined misconduct in which the bar had the legal authority to prosecute.

One defense attorney abused his subpoena powers during the trial; another practiced law without having an active California license.

The State Bar's action does not in any way imply that the legal profession in general condones all of the other attorney conduct displayed in the trial.

While our formal discipline system should not and, in fact, cannot (without serious constitutional challenges) regulate most attorney speech, all attorneys should make and keep a commitment to a high standard of ethics, civility and professionalism.

However, it was clear from our investigation that some of the public outrage and perceived problems in the trial could have been avoided.

It is the trial judge who sets the rules and legal boundaries, and serves as the referee. The trial judge is in the best position to set the ground rules, evaluate the propriety of the attorneys' conduct and, if necessary, admonish, sanction, and even cite attorneys for contempt of court.

By setting the rules and establishing clear boundaries, the judge sends a clear message to all concerned.

As a trial lawyer, I myself take my cues from the judge. Jurors also are influenced by how the judge runs the courtroom -- by what is allowed, and by what is precluded.

Many of those who lodged complaints in the Simpson case criticized attorneys who were, in this trial, acting within a highly charged atmosphere, but within what the judge allowed.

Both legally and ethically, the State Bar cannot then step in, re-litigate the case and punish the lawyers for doing what the judge did not control or stop. It should be noted that the State Bar's discipline system does not have any jurisdiction over judges.

The bottom line is that the O.J. Simpson criminal trial was an aberration, the converging of many forces which unfortunately highlighted some of the human failings and weaknesses in our system.

The unprecedented, unrelenting scrutiny of TV cameras, reporters and commentators intensified that spotlight. But it did not reveal a broken system; the recent mass murder trial of Timothy McVeigh is just one of many recent examples of a system in working order.

What the O.J. Simpson criminal trial did reveal is the increasingly vital need for all attorneys to re-commit themselves to civility, professionalism and high ethical standards.

Stricter regulation is not the answer; the responsibility lies with each of us as lawyers, and with trial judges who must be vigilant in stopping attorneys who cross the lines which define appropriate, professional advocacy.

In an open system of justice, a system in which every individual has the right to an attorney advocate and a trial by jury, we must ensure that we maintain the appearance of fairness and propriety at every step.

Nothing is gained by attorney conduct which demeans the profession and lessens public confidence in attorneys or the administration of justice.

Many of us learned something from the O.J. Simpson criminal trial. But it is time to put an end to the post-trial rehashing and evaluation. To continue focusing on this anomaly of a trial and to continue looking for additional ways to assess blame or for others to punish does not serve any purpose.

The lessons are there. Now it is time for us to move on.