ABA Chief Questions Starr Tactics

Some of Independent Counsel Kenneth Starr's tactics in his investigation of an alleged presidential affair and coverup are being questioned by the head of the nation's largest lawyers' organization.

"Our ethical codes call for careful observance of the attorney-client privilege. There is reason to believe that that privilege is being whittled away," American Bar Association Association President Jerome Shestack said Thursday during a symposium on the independent counsel law at Georgetown Law School.

Shestack did not mention Starr by name, but said, "If polls and press are indicative, it seems that the public is questioning the impartiality and motivation of the independent counsel."

Shestack said ethical rules also bar prosecutors from discussing immunity from prosecution or plea-bargains with someone whose attorney is not present. "That too seems to be whittled away," he added.

He criticized the "incessant appearance" in the media of lawyers on both sides, as well as leaks of information, as violating professional standards.

The law that creates the process for appointing independent counsels came under sharp criticism during the day-long meeting sponsored by the Georgetown Law Journal and the ABA.

"The independent counsel act creates terrible incentives for the prosecutor himself," University of Chicago law professor Cass Sunstein said. "It creates an incentive toward zealotry that is very hard to resist."

"We ought to scrap the whole thing," said Norman Ornstein of the American Enterprise Institute. "We have created a vast scandal machine in this country," partly by giving independent counsels unlimited budgets and time to pursue a case.

But Samuel Dash, a Georgetown law professor and chief counsel to the Senate Watergate Committee, said a suggestion to let the attorney general decide not to refer minor cases to an independent counsel would create a "larger political backlash and loss of confidence in government."

Other panel members were Donald Smaltz, the independent counsel currently investigating former Agriculture Secretary Mike Espy; Lawrence Walsh, the Iran-Contra independent counsel; Former federal prosecutor Joseph diGenova; and Former Attorney General Benjamin Civiletti.