THE O.J. SIMPSON MURDER TRIAL : State Justices Restrict Lawyers’ Comments Out of Courtroom : Law: Effective Oct. 1, rule inspired by Simpson trial bars remarks when there is ‘likelihood’ of prejudicing a case.

In a move inspired by the media wars among lawyers in the O.J. Simpson trial, the California Supreme Court has enacted for the first time a rule that restricts the comments attorneys can make outside the courtroom.

The rule--effective Oct. 1--bars out-of-court-comments when there is a “substantial likelihood” that the remarks will prejudice a case.

The California State Bar, while opposing any rule, proposed a less restrictive regulation that would have banned out-of-court statements only when they pose a “clear and present danger” of prejudicing the outcome of a case.

The move to clamp down on lawyers’ speech was launched last year by state Sen. Quentin Kopp (I-San Francisco), who said he was very disturbed by the news conferences and other public statements by both sides in the Simpson case.

“What the Rodney King case, the Reginald Denny case and the Menendez case couldn’t accomplish, the Simpson case did--a rule that will limit lawyer speech about ongoing trials,” said Loyola Law School professor Laurie Levenson.

Kopp expressed his delight and some legal analysts expressed grudging support for the measure. But the American Civil Liberties Union and a number of attorneys said they were disturbed by what they view as unwarranted restrictions on their 1st Amendment rights, which could have negative consequences for their clients.

The rule does not prohibit all out-of-court statements. It permits prosecutors to describe what is in the public record of an indictment and other facts regarding arrests and investigations. It gives criminal defense lawyers the ability to make limited responses to indictments and other attorneys to make qualified remarks about other public attacks.

Nonetheless, in the increasingly media-genic legal world, the restriction is significant and likely to spawn litigation itself as state bar officials attempt to enforce the rule--which includes penalties ranging from private reprimand to disbarment, according to State Bar President Donald R. Fischbach.

In court Friday morning, Superior Court Judge Lance A. Ito, who has been presiding over the Simpson case, directed the lawyers in the case to study the new rule, though he acknowledged that it would only affect this proceeding if the case extends into October.

“I’m delighted and I’m particularly pleased by Judge Ito’s statement this morning because one of the arguments against my rule was that a court can issue a gag order,” said Kopp. “I made the point that in this case Judge Ito could do so but he refused to do so, which is all the more reason for a rule binding lawyers in California from out-of-court statements.” Kopp said he thought most lawyers would comply.

The rule “will not affect our media relations, but perhaps it will put a lid on some of the misinformation and manipulation of public opinion conducted by some defense attorneys,” said Dist. Atty Gil Garcetti. At a news conference earlier this week, Garcetti accused Judge Ito of being unfair and “vindictive” toward the Simpson prosecution team after the judge levied a $1,000 fine against them.

But a member of the Simpson defense team, Gerald F. Uelmen, former dean of Santa Clara University Law School, expressed serious reservations about the restrictions. “It’s not good news for the bar, particularly for the criminal defense bar, even though it says you can respond to mitigate adverse publicity,” said Uelmen.

“If you put that rule in the context of what normally goes on--and the Simpson case is a good example where there were lot of leaks by the police--you’re constantly playing catch-up,” Uelmen said. “The rule has no impact on police. Prosecutors can just leave it to the police to do all the leaking. I hope this does not have too chilling an effect, but lawyers will be speaking out at risk.” But New York University law professor Stephen Gillers said he thought the rule would provide some useful guidance for the state’s attorneys on what they can and can’t do.

“When there’s no rule, there’s a race to the cellar,” Gillers said. He said the new rule adopts the same standard as that in model rules promulgated by the American Bar Assn. He said that in most states--where rules of this type already exist--there had not been many sanctions of lawyers. There never has been a disbarment anywhere in the country as a result of violating one of these rules, Gillers said.

Loyola law professor Levenson said she regretfully concludes that the new rule is needed.

“We’ve seen remarks by lawyers in this case that are beyond the pale,” Levenson said. She cited a recent defense team news conference about the Mark Fuhrman tapes, adding that a member of the defense team had told some reporters that the statements were made in hope that they would be reported to jurors in “pillow talk” during conjugal visits.

But Levenson’s husband, Douglas E. Mirell, a volunteer ACLU lawyer, said the new rule “is an unconscionable violation of 1st Amendment rights which will adversely affect the ability of both civil and criminal attorneys to zealously represent their clients.”

In particular, Mirell said, the Fuhrman tape revelations are an example of how “high-profile trials frequently raise important public policy issues which have ramifications far beyond the courtrooms in which those cases are tried. . . . It is an affront to the free speech rights of attorneys, and a disservice to the community, to discourage those who are the most knowledgeable about the facts--the attorneys trying these cases--from addressing these larger questions in the broader public forum.”

Bar President Fischbach said he was disappointed that the state Supreme Court had not heeded the bar’s recommendation against adopting a rule. He said most lawyers in the state “strongly opposed” such a restriction, including a majority of the Bar’s board of governors.

Under the new rule, among the factors to be used in determining if an out-of-court statement violates the rule are whether the statement presents information clearly inadmissible in court, whether the statement provides information the lawyer knows is false or deceptive, whether the statement violates a lawful “gag order” or protective order, and the timing of the statement.

“Many lawyers believe that these rules are impractical and impossible to enforce,” said Gerald L. Chaleff, a prominent Los Angeles defense lawyer and former president of the Los Angeles County Bar Assn.

Chaleff is one of several critics who said the language in the new rule is too vague to give practitioners useful guidance on when they would be crossing the line from fair comment to foul play.

“This is only the first of many rules that will be promulgated, or laws that will be changed as a result of the O.J. Simpson case and most of them will be either to restrict the rights of defendants or their lawyers or will change the fundamental principles that have governed criminal trials in California,” Chaleff said. “In the long run, They will prove to cause more problems than they will solve.”