Ethics and the Law: Mayday - By Robert Pelton

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Tuesday, June 4th, 2019

Mayday took over in the age of direct voice communications. Whenever a ship and its crew find themselves in a dangerous situation, they can lead every message with either two or three calls for mayday! This tells all listeners that the following message will contain urgent, life-or-death information and that they have to drop everything to provide assistance to this distraught crew.

Mayday provides in two sounds a clear and distinct message about the status of a ship, her crew, and the urgency of their situation. Similar vocal codes exist to share other kinds of information, such as “Pan-Pan,” which also signals distress. But unlike mayday, a ship signaling Pan-Pan is telling the world that they are experiencing difficulties, but that these problems are not life and death. It may mean a mechanical breakdown or a non-serious medical situation. Mayday, on the other hand, is the naval equivalent of dialing 911. Anybody who broadcasts a mayday is telling the world to come running, there are lives in danger.

The TCDLA Hotline has become a mayday for lawyers. We get calls from despondent lawyers, some on the verge of going off the deep end with worry about how to handle an ethical dilemma.

I am happy to report since I created the Ethics Hotline in 2011, many lawyers have called and their issues have been resolved in a satisfactory manner. If you have a mayday situation, call (512)646-2734. Put this number on your phone, and remember: We operate 24/7.

Below are some examples of the calls we get.

The Hotline gets many calls about discovery and what a lawyer should do when the issue of sharing an offense report arises. The lawyer is in control. The lawyer must make the decision on who can review a copy of the offense report. Read 39.14 carefully to avoid any ethical problems. This and an actual call are discussed below.

(e)   Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article unless:

(1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or

(2) the documents, evidence, materials, or witness statements have already been publicly disclosed.

(f)    The attorney representing the defendant, or an in­ves­tigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may al­low a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this article, the defendant may not be the agent for the attorney representing the defendant.

Here’s the synopsis:

Client is charged with a misdemeanor and our office is appointed to represent her on the criminal case. Discovery is made available to us, which includes several body-cam videos, etc. After a bit, we are contacted by a local attorney who does both criminal defense and civil rights. He asks if there is any video in the criminal discovery that shows an assault against the client by the cop. We responded that we would be happy to identify the specific video and timestamp for him, but that my reading of 39.14 precludes us from providing actual copies absent a court order. His response is that he can be “consulting legal counsel” and share the videos, specifically mentioning this is how they’ve worked with 39.14 in the past.

I would love to give him ALL the video—this cop is a wrongful shooting waiting to happen. Serious anger issues . . .  But I read 39.14 to be “consulting legal counsel” in the criminal case.

Can I give him copies of the videos?

(1) His response is that he can be “consulting legal counsel.”

Hi, Lawyer!

As for (1), my response for (2) below assumes that the client contacted him first and retained him. If he cold-called you and the client doesn’t know, be careful. Make certain you aren’t unintentionally getting yourself involved in a backdoor type of barratry situation merely because you’re trying to help your client.

As for (2), that’s my understanding of the law. This is not a smokescreen. He is in fact consulting on the criminal case since he will need to communicate with you to give his opinion on whether any possible plea deal (or evidence you may want to present) could harm his civil case, giving his opinion and advice on any issues he spots on the criminal case. Plus, you need information from him to make sure he is not doing anything in the civil case that could hurt your client’s position in the criminal case. Protecting the client and making sure the client obtains relief if a civil rights violation occurred takes cooperation and coordination between the client’s attorneys.

Michael Mowla
Attorney

Let me just add: Confirm with client that client has hired civil-rights attorney, for if client has not, do not share 39.14 discovery with requesting civil attorney; (2) document your file with answer to (1) and send letter to client describing client’s answer to your question; and provide video to civil-rights attorney, if client answers (1) in the affirmative. Affirmatively document in writing the taking of each above step in case anyone files a misconduct or grievance against you personally. CYA prevention now is bettering than those you help now later replying “I don’t remember it that way,” when you and your law license are the BULLSEYES being hunted for by others seeking to do injustice to you!

Joseph A. Connors III
Lawyer in McAllen, Texas

I completely endorse what Michael said. Lawyer, please be so very careful. Just a reminder.

Keith S. Hampton
Attorney at Law

Another caller had an issue about affidavits filed in a Motion for New Trial. After consulting with the lawyer and another smart lawyer, we were able to answer the questions. Thanks to the lawyer calling the Hotline, we were able to assist in a small way in the granting of a Motion for New Trial in a felony case. All parties were happy.

Thanks to Michael Mowla, Keith Hampton, Joseph Connors, and Terry Gaiser.