Robert Kardashian, friend and lawyer to O.J. Simpson, has alienated other members of the "dream team." He's strained relations with his old chum. He may have damaged the defense in Simpson's upcoming civil trial.
But in sharing his doubts about Simpson's innocence on prime-time television, Kardashian may have also brought some serious ethics problems on himself. Last week, the California State Bar confirmed that it had launched an investigation into whether Kardashian has breached the attorney-client privilege in violation of state law.
In a statement released last week, Judy Johnson, the chief trial counsel of the bar, said the probe is "at an early stage" and that there "has been no finding of wrongdoing."
A state bar spokeswoman declines to say whether Kardashian's appearance earlier this month on ABC News' "20/20" program triggered the probe.
Of course, Kardashian is not the first member of the dream team to go public with an inside account of Simpson's 1995 acquittal on murder charges. Nor is he the first to be investigated for possible misconduct by bar authorities.
More than a year ago, the bar announced that it was investigating attorney conduct in the Simpson criminal case. No specific lawyer, however, has been identified as a target.
But unlike Robert Shapiro, Johnnie Cochran Jr., and Alan Dershowitz, who wrote books afterwards, Kardashian has come under fire for possibly disclosing confidential attorney-client information.
Unless he was given permission by Simpson to talk, which is unlikely but not out of the question, legal ethics specialists say Kardashian appears to have grossly violated the most basic bond between an attorney and client.
If Kardashian did so, he may face disciplinary action by the bar, which could include disbarment. He could also be sued by Simpson for malpractice.
"It would be a serious breach of attorney-client privilege if there was no permission," says L. Harold Levinson, who teaches legal ethics at Vanderbilt University School of Law.
As a defense lawyer, "you've got to keep the ranks closed," adds San Francisco attorney and professional responsibility expert Richard Zitrin. Kardashian's revelations are likely considered "confidences and secrets of a client, and all that is confidential."
Although only Simpson can reveal whether he gave Kardashian the green light to talk, the lawyer can be investigated by the bar without a formal complaint being filed. California bar authorities refused to say whether Simpson lodged a complaint against Kardashian.
Kardashian did not respond to a faxed request for an interview.
Kardashian's half-hour interview on Oct. 11 with the "20/20" program helped promote American Tragedy: The Uncensored Story of the Simpson Defense, a book co-written by journalists Lawrence Schiller and James Willwerth for which Kardashian was a paid source. (On the program, Kardashian refused to reveal any details about his financial arrangement with Schiller.)
REVEALING ON TV
During the broadcast, a remorseful Kardashian unburdened himself as Barbara Walters gently prodded him to say more and more.
Kardashian told Walters that the defense team hired an attorney just to sit with Simpson in jail every day. The lawyer claimed that Shapiro had his own theory of the murder: That Simpson may have gone over to his ex-wife Nicole's house to slash her tires, but she caught him and he killed her.
Kardashian also said that Simpson miserably failed a lie detector test taken at the behest of his lawyers; that both Shapiro and Cochran had doubts about Simpson's innocence; and that before the predominantly African-American jury visited Simpson's estate, members of his defense team did some strategic redecorating -- adding a print of a key moment in civil rights history, for example, and replacing a nude photo of his former girlfriend Paula Barbieri with a picture of his mother.
Kardashian also bragged about saving Simpson "several times" from committing suicide and related how Simpson looked around Kardashian's home for a place to kill himself.
"We walked around to maybe five locations on the premises," Kardashian told Walters. "And I was exasperated because O.J. kept saying 'I'll do it here, I'll do it there,' and everywhere he said, he didn't."
It is comments like these, say legal ethics experts, that appear to breach Kardashian's duty to keep his client's confidences, unless the privilege was waived by Simpson.
California has some of the most stringent lawyer-client confidentiality rules in the country. Instead of putting the strictures in a legal ethics rule, as many states do, California embeds them in a statute, giving them the force of law.
"It is the duty of an attorney . . . to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client," the statute reads.
Ethics specialists say that the "secrets" provision is what makes the California rules so stringent.
"Secrets are generally defined as anything you learn through the course of the representation which could be embarrassing to the client," says Zitrin, who in addition to his practice teaches ethics at two San Francisco law schools.
Just about all of Kardashian's remarks on "20/20" can reasonably be construed to be an embarrassment to Simpson, says Zitrin.
Kardashian ducked a question from Walters about whether his interview violated Simpson's confidences.
"I am on the witness list for the civil trial, and that is something the court will have to determine at that time," Kardashian said.
Indeed, Kardashian may be subpoenaed to testify in that trial. The conditions of his testimony, if it is allowed at all, will likely provoke a major battle. (Earlier this year, Kardashian sat for two days of depositions and refused to answer most of the plaintiffs' lawyers' questions, saying that to do so would violate Simpson's attorney-client privilege.)
Even if Kardashian's interview and help with the book breached his duty to keep private Simpson's confidences, that does not mean that he can be compelled to testify about them in court, ethics experts say. The attorney-client privilege belongs to the client, not the lawyer.
"A lawyer who reveals [information] unethically cannot waive the privilege by himself," says Stephen Gillers, an ethics specialist at New York University School of Law. "Simpson can say, 'It's not my fault that he did this.' "
Complicating matters is the fact that Kardashian is Simpson's close friend and has also been his attorney from time to time. Trial junkies know Kardashian as the man who went to meet Simpson in his driveway after he returned from Chicago and who ended up leaving with Simpson's garment bag before police could look in it. While many speculated that the bag contained bloody clothes or the murder weapon, Kardashian says he never opened it.
Kardashian is also the man who, after Simpson fled the Los Angeles police who were coming to arrest him, read the "suicide note" on television and begged him to come home.
Although Simpson and Kardashian had some financial dealings together over the years, Kardashian was not his personal lawyer. In fact, Kardashian, who long ago gave up the practice of law for the world of business, reactivated his bar membership shortly after the murders.
While their friendship blurs the lines of Kardashian's representation of Simpson, there is no doubt that an attorney-client relationship existed between the two, at least in the early stages of the criminal case.
While being deposed for his civil trial, Simpson said he consulted with Kardashian "almost immediately" after returning from Chicago the day after the murders.
"I didn't have to contact him -- he came. He came to the house," Simpson said in the deposition. "I kinda relied on him a little bit from that point on."
It is possible that Simpson released Kardashian from his privilege so that Kardashian could help with the book. Simpson could have granted a waiver as partial payment for legal services or because the two are close friends. Simpson himself could be profiting from the book.
Simpson was asked during his deposition for the civil trial whether he had released Kardashian from his attorney-client privilege. Not surprisingly, Simpson declined to answer the question, citing the privilege.
However, if Simpson did waive the privilege, he risks giving up his right to block Kardashian from testifying at the civil trial -- which could prove disastrous for Simpson.
Thus far, most of what Kardashian has revealed would be inadmissible hearsay or opinion in the civil trial. Some lawyers say Kardashian's statements could hurt Simpson by tainting the jury. The information also provides a more detailed picture for the plaintiffs' lawyers to draw upon as they make their case.
However, Kardashian's comments pertaining to Simpson's flirtation with suicide might be admissible as possible evidence of Simpson's consciousness of guilt.
Ultimately, Judge Hiroshi Fujisaki will decide whether and to what extent Kardashian will be allowed to testify in the civil trial.
"Much of what [Kardashian] has said is not admissible," says Professor Paul Rothstein of Georgetown University Law Center, who has closely followed Simpson's criminal and civil proceedings. "But there is still material there that could hurt O.J."
Legal Times is an affiliate of Court TV.
Copyright © 1996 American Lawyer Media
