Koresh Lawyers in Delicate Position : Impasse: Two Houston attorneys assume roles as mediators. They say they are not messengers for the FBI.

Two Houston lawyers are venturing into hazy legal territory as they conduct the latest delicate round of mediations aimed at ending the 45-day-old standoff between impatient federal agents and the erratic Branch Davidian sect leader David Koresh.

Talking Tuesday over a secure phone line with Koresh’s deputy, Steven Schneider, in an attempt to set a definitive date for the cult’s surrender, attorneys Dick DeGuerin and Jack Zimmerman have assumed roles as mediators that have at times appeared to clash with their traditional roles as defense attorneys.

As a client, Koresh swings moodily between silence and confessionals in freewheeling late-night talks with FBI agents. He hectors them with stern Bible lessons as “the lamb of God,” then bemoans his plight “in this stinking compound.”

In a five-hour talk with FBI agents Monday morning, Koresh even morosely lamented his idled black Chevy Camaro. And on Tuesday night, Koresh declined to talk by telephone with DeGuerin, telling Schneider that he was too busy writing another message.

Yet as they minister to his prickly legal needs--and those of Schneider--the two lawyers say that they are pursuing “parallel interests” with the government and with the 94 other devoted Branch Davidian followers bottled up inside the barricaded compound.

“We don’t see any conflicts in our role,” Zimmerman said Tuesday at a lull in the negotiations. “We do what we do based on the sound legal principles we’ve followed all along.”

Legal ethicists and other attorneys who have acted as mediators in prison riots say that DeGuerin and Zimmerman can only succeed by proceeding with extreme caution. Some experts predict that the two lawyers may be disqualified from representing their clients in the trial stage because of their involvement as mediators.

“When you do something like this, you find yourself winging it,” said Gary Leshaw, an immigration attorney who in November, 1987, mediated between FBI agents and Cuban inmates who held 94 hostages in a federal penitentiary in Atlanta. After 11 days, the riot ended without fatalities.

“It is a remarkably fragile situation,” said Stephen Gillers, a professor of law at New York University. “They have to be careful only to give advice and transmit information and not help their clients strategize at the expense of others in the compound or do anything that might prolong the standoff.”

DeGuerin and Zimmerman are experienced attorneys, steeped in trial work and comfortable in the public spotlight. DeGuerin, 52, is reserved and athletic, a protege of Texas defense legal legend Percy Foreman and a jury charmer who wears ostrich skin boots under Brooks Brothers suits. Zimmerman, 51, is a garrulous, square-jawed legal veteran who worked with Richard (Racehorse) Haynes, another fixture of Houston’s showcase murder trial circuit.

The lawyers insist they want the siege to end so that Koresh and his disciples can begin their legal defense and challenge what they describe as the illegal and botched Feb. 28 raid by the U.S. Bureau of Alcohol, Tobacco and Firearms that led to the deaths of four federal agents and six cult members. The agents were seeking illegal weapons in the compound.

“It’s critical that David and the others understand I won’t become a messenger for the FBI, just as it’s essential for the agents to know that I’m not here strictly as a negotiator for David,” DeGuerin said.

DeGuerin and Zimmerman have moved to protect the rights of Koresh and all the Branch Davidian defendants by limiting the detail of information that they share with federal agents and demanding assurances from the FBI that their phone conversations with Koresh and other cult members are not taped or monitored.

Such assurances are essential in protecting a lawyer’s right to confidential conversations with a client, legal experts say.

Despite taking those precautions, Gillers and other experts expect that DeGuerin and Zimmerman may end up disqualified by a judge from representing their clients because of the conflict that might arise if the government attempts to call them as prosecution witnesses.

“All conversations with Koresh may be privileged,” Gillers said, “but what they see inside the compound is not. Any description of what they see or even evidence of the tone of their conversations with Koresh are the kinds of information that prosecutors would dearly like to use.”

DeGuerin disagrees, insisting that “what I see is just as privileged as what I hear from my client.” Viewing the evidence at a crime scene, he said, “is part of my trying to determine what has happened. A lawyer who does that is (also) protected.”

FBI Special Agent Bob Ricks said the agency agreed to the mediation arrangement with the two lawyers because “we believed it was necessary to bring in a third-party intermediary.” DeGuerin was more blunt, indicating the level of the government’s desperation: “Nothing was working,” he said.

For now, FBI officials and the lawyers express a grudging satisfaction with each other’s efforts. But Ricks and other FBI officials recently vented growing frustration with the lawyers’ slowness in winning a surrender date.

Despite statements Tuesday by DeGuerin and Zimmerman that there are further legal matters to iron out, Ricks insisted that “all the legal issues have been resolved.”

Ricks has also said several times recently that the lawyers will only be allowed back into the compound if they are making “sufficient progress.”

DeGuerin said Tuesday night that he hoped to talk to Koresh today at 10 a.m. A timetable for a surrender, he said, is still not in sight. But he added that when the lawyers next return to the compound, it will be “a matter of hours or overnight before they all come out.”