A Sledgehammer to Swat a Fly : Court should reject rule curbing lawyers’ comments about pending trials

The State Bar, at the direction of the Legislature, is trying to fix a problem that occurs so infrequently that it may be best left unsolved.

Motivated by what he considers “the staggering excesses of lawyers and witnesses in the O. J. Simpson criminal case,” state Sen. Quentin L. Kopp (I-San Francisco) authored a bill last summer requiring the State Bar to draft a trial publicity regulation governing lawyers in criminal and civil cases. The bill passed the Legislature without a dissenting vote and was signed by Gov. Pete Wilson in September.

In its current draft form, the rule severely limits what lawyers may say outside the courtroom about a pending case without running afoul of the bar’s code of professional conduct. It would forbid statements that have a “substantial likelihood of materially prejudicing” a case. The proposed rule is similar to one adopted by the American Bar Assn. in 1983 and implemented in 32 states so far--though not in California.

Kopp’s legislation requires the bar to submit its rule to the California Supreme Court, the final authority on lawyer disciplinary rules in the state, by March 1. The justices can approve the draft regulation, modify it or reject it.

We urge rejection. Have there been excesses in the Simpson case? Absolutely. We agree with Kopp that some lawyers have not covered themselves or their profession with glory in this case. But even so, is this rule the answer? We think not.

Of the more than 1 million cases filed in California’s trial courts during the last fiscal year, a mere handful attracted public notice. And only a microscopic fraction of those generated the sort of attorney grandstanding over which Kopp is righteously angry.

The heated nature of high-publicity cases means there is little reason to think that gagging lawyers would eliminate risk to Sixth Amendment guarantees of a fair trial. If adopted by the Supreme Court, the rule would indeed temper public statements by attorneys. But what about comments by the litigants themselves? By family members, friends or enemies? The proposed rule does not restrain these individuals, nor could it without infringing on their First Amendment rights. And such a prohibition is unlikely to curb leaks to the press by lawyers or their surrogates.

This week, after the first of two public hearings, State Bar officials appeared to be moving away from the strict language of the draft rule and toward a more flexible standard. But no rule at all makes even more sense.