Former O.J. attorney Shapiro ripe to be sued, sanctioned
The L.A. Times and media outlets around the world last week reported on an interview conducted by Fox News’s Megyn Kelly where former O.J. Simpson lawyer Robert Shapiro finally revealed what Simpson whispered in his ear right after being acquitted of the murders of ex-wife Nicole Brown Simpson and Ron Goldman: “You had told me this would be the result from the beginning. You were right.”
The next wave of reporting on this development could come in two divergent ways: (1) when California Bar authorities decide whether or not to bring disciplinary proceedings against Shapiro — a well-known Los Angeles criminal defense attorney who is still practicing law — for his reckless breach of the attorney-client privilege and patent violation of both his ethical duties of loyalty and confidentiality to O.J. Simpson, or (2) when O.J. decides to sue Shapiro, and likely wins, for all the above.
As Sue Michmerhuizen, Associate Counsel for the Center for Professional Responsibility deftly explains in a 2007 article for the American Bar Association,Confidentiality, Privilege: A Basic Value in Two Different Applications, “the concepts of lawyer confidentiality and attorney-client privilege both concern information that the lawyer must keep private and are protective of the client’s ability to confide freely in his or her lawyer …”
Michmerhuizen explains “the principle of confidentiality is set out in each jurisdiction and in ABA Model Rule 1.6 Comment ” which reads: “A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation …. This contributes to the trust that is the hallmark of the client-lawyer relationship.”
Unlike the attorney-client privilege that applies strictly to confidential communications between lawyer and client made within the scope of the representation, Michmerhuizen notes that “[b]y contrast, the ethical duty of client-lawyer confidentiality is quite extensive in terms of what information is protected. It applies not only to matters communicated in confidence by the client but also to all information relating to the representation regardless of whether it came from the client herself, or from another source.”
Importantly for the fate of Shapiro’s law license and reputation as a lawyer (as well as his bank account should Simpson sue), Michmerhuizen points out that (1) “Confidential information is to remain confidential throughout the representation, and thereafter, even after the death of the client,” and (2) a “violation of the ethics rule may lead to disciplinary sanctions.”
During the same interview with Kelly, Shapiro was asked — after revealing that he tried on the infamous glove before the unforgettable moment when Simpson himself did at trial — if he felt he was trying on the glove of a murderer. Shapiro’s answer: “I didn’t consider it, but it’s kind of an eerie thought when you say that.”
You don’t have to be schooled in law to know this wasn’t too loyal of a thing for Shapiro to have said about his former client. But, more worrisome for Shapiro should be what the California Supreme Court thinks about it, as the final arbiter of attorney discipline. In Anderson v. Eaton, 211 Cal. 113, 116 (1930), that Court said: “It is also an attorney’s duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter’s free and intelligent consent given after full knowledge of all facts and circumstances.”
Before, during, and after the Simpson trial, Shapiro has shown himself to be a lawyer who enjoys basking in the media spotlight, but this time, like Icarus, he may have flown too close to the sun, and it’s only a matter of time before he gets burned.
Stephen Cooper is a former federal and D.C. public defender. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.