Bar reproves 2 Simpson attorneys

           By Nancy McCarthy Staff Writer          

          ... Continued from frontpage

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 management courses.

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 First Amendment."

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 the bar.

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 done."