Limits on Attorney Comments Loudly Opposed : Jurisprudence: New rule would forbid out-of-court statements likely to ‘materially prejudice’ a case. The State Bar proposal has come under strong fire.

In response to perceived excesses by lawyers in the O.J. Simpson murder trial, the State Bar of California has proposed a rule that would sharply curtail attorneys’ out-of-court comments about their cases.

The rule would forbid statements that have a “substantial likelihood of materially prejudicing” a case.

Already under fire from an array of attorneys, the proposal will be the subject of two public hearings, the first today in San Francisco and the second Thursday in Los Angeles.

State Sen. Quentin Kopp (I-San Francisco), the rule’s primary advocate, has said that he was motivated by what he considers “the staggering excesses of lawyers and witnesses in the O.J. Simpson criminal case.”

The case “has made a mockery of the judicial process and the 6th Amendment guarantee of a fair trial,” Kopp said.

The proposed rule is similar to one adopted by the American Bar Assn. in 1983 and implemented in 32 states so far. The State Bar declined to adopt the ABA rule and is expected to hear stiff opposition to the current proposal.

Among the opponents are the American Civil Liberties Union of Southern California, California Attorneys for Criminal Justice, three committees of the Los Angeles County Bar Assn. and the State Bar’s Committee on Professional Responsibility and Conduct.

“This rule is unnecessary,” said USC law professor Erwin Chemerinsky, scheduled to speak Thursday. “This is very much a reaction, and I would say an overreaction, to the O.J. Simpson case. . . . I don’t see any reason to believe the lawyer speech in the Simpson case has undermined the prospect for a fair trial.”

Walnut Creek attorney Carol M. Langford, a legal ethics specialist who said she would speak against the proposal in San Francisco today, said there is no need for such a rule. If one is adopted, she said, it should be less restrictive.

“Any rule should have a ‘clear and present danger’ test,” rather than the test that is being proposed, Langford said.

Los Angeles Deputy Dist. Atty. Roderick W. Leonard said the rule could have “a chilling effect on legitimate public comment.” Leonard, who chairs the Los Angeles County Bar Assn.’s Evaluation of Professional Standards Committee, is urging the bar to modify the proposal so that a lawyer could only be disciplined for a statement that would have “a substantial likelihood of materially and imminently influencing the impartiality” of a judge or jury.

None of the 15 scheduled speakers plan to come out in favor of the proposed rule as it stands.

Asked about the level of opposition, Ann Charles, a spokeswoman for the State Bar, said simply, “The rule was drafted at the direction of Sen. Kopp.”

Last summer, in the midst of massive publicity about the Simpson case, Kopp authored a bill requiring the State Bar to formulate a trial publicity regulation governing lawyers in criminal and civil cases. The bill passed both houses of the Legislature without a dissenting vote and was signed by Gov. Pete Wilson on Sept. 26.

The measure requires the State Bar to submit a rule on out-of-court statements by lawyers to the California Supreme Court, the final authority on lawyer disciplinary rules in the state, by March 1. The seven-member court can accept the Bar proposal, modify it or reject it. “The legal profession has systematically degraded itself,” Kopp said Monday. “The out-of-court talking contributes to further degradation. Lawyers are no longer officers of the court; they are all media mavens.”

Another Kopp-sponsored law, stemming from the outcry about witnesses selling their stories to supermarket scandal sheets and tabloid television shows, makes it illegal for witnesses to sell their accounts to the media in criminal cases and makes it a misdemeanor for a juror to sell information in a criminal case within 90 days of discharge from jury service.

In 1991, by a narrow majority, the U.S. Supreme Court ruled that greater restrictions can be placed on the speech of a lawyer handling a case than can be imposed on other people. Such restrictions are supposed to help assure a fair trial.

The basic standard set out by the high court is whether a lawyer’s comment poses “a substantial likelihood of materially prejudicing a judicial proceeding.” That is the same language used in the proposed State Bar rule.

But critics have said such language is too vague to give practitioners useful guidance on when they would be crossing the line from fair comment to foul play.

Langford said she also was troubled by the fact that the proposed rule does not comport with the ABA rule and the 1991 Supreme Court ruling, which holds that a right of reply is permissible. “If someone is going to stand up and say your client is a schmuck, you should have the right to stand up and say, ‘No, he’s not!’ ”

The proposed State Bar rule does not bar all out-of-court speech. An attorney may state: the claim, offense or defense involved and, except when prohibited by law, the identity of the people involved; the information contained in a public record; that an investigation is in process, and several other things, including issuing “a warning of danger concerning the behavior of a person involved.”

Los Angeles lawyer Douglas E. Mirell, scheduled to speak against the proposal Thursday on behalf of the ACLU of Southern California, said that those exceptions still leave the situation murky. He maintained that if there is going to be a rule, it would be more useful to lawyers to give a list of examples of the types of statements that are forbidden.

The Simpson Case: A package of photos, articles and other background information on the Simpson trial is available from TimesLink, the on-line service of the Los Angeles Times.

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