|Judy Johnson, chief prosecutor for the bar's discipline system,
said more than 300 calls from judges, attorneys and the public sparked
an investigation of three members of the Los Angeles district attorney's
office and seven of Simpson's defense attorneys. The vast majority of complaints
involved attorneys' in-court statements during the course of the trial
and did not violate any bar rules.
"Many of the things people were most upset about involve conduct
protected by the right of free speech or which falls within the attorney's
role as an advocate," Johnson said.
"It is the judge who sets the proper tone and standard of professional
conduct," she added. "The judge has the power to admonish, sanction
and even cite attorneys for contempt of court. We all learned a lot about
how important it is to control a courtroom."
Bar investigated 'everything'
Johnson said the bar investigated "everything that surfaced"
during the trial which was of concern. In the end, it could prove that
only Douglas and Scheck violated either professional conduct rules or the
State Bar Act.
Prosecutors did not pursue attorneys for any statements or actions in
the courtroom, instead focusing on out-of-court activities.
"We don't want a situation in which the State Bar is trying to
regulate what goes on in courtrooms," she said. The bar should not
be in the position of being a Monday-morning quarterback, Johnson explained,
adding, "For the most part, the game has got to be called by the officials
on the scene."
Douglas allowed an illegal subpoena to be issued under his name. The
law does not permit attorneys to subpoena a witness in a criminal proceeding
to appear at an office rather than a court, nor is it acceptable office
procedure to allow someone else to sign the lawyer's name to sworn declarations
as Douglas did. The witness in question did not testify in the trial.
As part of his reproval, Douglas must complete eight hours of law office
Scheck, who was admitted to the California bar in 1974 after graduating
from Boalt Hall, went inactive in 1982. He did not return to active status
until April 1995, months after Simpson's trial began. By law, only active
attorneys are authorized to practice.
In addition to Douglas and Scheck, Los Angeles attorney Robert Tourtelot,
who represented former police detective Mark Fuhrman, received a "directional
letter" for comments he made about Fuhrman after withdrawing as his
attorney. Although Tourtelot did not breach attorney-client privilege when
he repudiated his former client's racist remarks, Johnson said, an attorney's
comments are restricted by the attorney-client privilege.
A directional letter is not formal discipline, but is intended to alert
lawyers about potential rule violations.
The bar also is continuing to investigate Simpson confidante Robert
Kardashian for comments he made in interviews after the verdict. Johnson
said Kardashian may have violated rules requiring attorneys to keep and
maintain client confidences.
In investigating attorneys involved in the notorious case, the bar first
interviewed Judge Lance Ito, who presided over the trial. It also consulted
with constitutional scholars about First Amendment questions, principally
because so many complaints involved statements made in court. Many complaints
from the public came because people either "don't understand the role
of the lawyer and the judge, or because they made arguments you or I disagree
with," Johnson said. "People fundamentally don't appreciate the
Free speech also surfaced when bar investigators looked at comments
made by Cochran outside of court, when he criticized Judge Lance Ito for
a ruling about the Fuhrman tapes that Cochran characterized as "outrageous,
specious and unspeakable."
While acknowledging that Cochran's comments were troubling and "downright
offensive," Johnson said bar investigators concluded that the remarks
were protected by the First Amendment. "The conclusion was that the
speech was principally an opinion and an attorney has a right to express
an opinion about a public official," she explained. "Mr. Cochran's
statements, no matter how egregious we thought them to be, could not be
the subject of discipline."
She noted that Ito could have dealt with Cochran's comments himself.
At the time, Rule 5-120, which limits an attorney's out-of-court statements,
had not taken effect. If Cochran made such comments now, Johnson said,
she believes they "could well be actionable."
Investigators also looked at the "offensive personality" rule
in assessing Cochran's out-of-court remarks, but again found they were
protected by the First Amendment.
"Because certain conduct is not disciplinable does not mean that
the State Bar or the legal profession condones it," Johnson said.
"Ethical behavior and professionalism should be the personal credo
of every attorney and enforced in the courtroom by every judge."
Although a public reproval is generally considered a fairly low-level
discipline, Johnson said the bar is governed by Supreme Court case law
in what punishment it metes out to miscreant lawyers. About 50 public reprovals
are issued annually.
Any punishment, she added, is a blot on an attorney's reputation. "Let's
not diminish the impact this has on a lawyer," Johnson said. "His
reputation is as important as his license to practice. Any form of public
discipline is treated as a very serious matter."
Johnson said all the attorneys who were investigated cooperated with
She said the trial, televised as an example of what goes on in a courtroom,
actually was an aberration which misled the public about how the justice
system works. "Trials . . . are not circuses," she said, pointing
to other high-profile cases which have been tried since the Simpson matter.
"For the most part, the system works well and justice is typically