Monthly archive

June 2012

Ethics and the Law: Raise Your Right Hand

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The past month has been busy with calls to the ethics hotline. Many calls have been regarding actions of judges and prosecutors and a few about fellow lawyers. Anytime you feel improper action is being taken by a judge or prosecutor, you are welcome to call the hotline. Lawyers are bad about just complaining and not taking any action. There are members of this organization who will help you take action. As I have mentioned before, no matter where you are, unless you do something besides talk about it, the bad behavior continues. The power given to judges and prosecutors will go unchallenged unless you take action. You may not win a popularity contest, but your client is the only one you need to be worried about. The “that’s the way we have always done it” or the “that’s the way it’s done here” won’t cut it. When you see improper behavior, report it. We have plenty of brave souls ready, willing, and able to help.

Robert Fickman, West Texas lawyer now in Houston, is one of the men who will stand up and help you. He is a real Don Quixote. He has filed and helped file several judicial complaints in the past few years. You don’t have to grin and bear it. Take action against these overbearing individuals. Call the hotline, and if we don’t have the answer, we will find someone who does. There are hard-working men and women all across the land who get up, go to work, take care of their family, and make one mistake that, depending on the severity, can change their lives forever. They get involved in the legal system, and our job is to make sure their rights are protected. Do not let them be abused because they may be poor or not the brightest light in the room. Spend time with your clients and their family. Find out what causes the misbehavior and help do something to correct it. NA or AA meetings are good places to start. One of my childhood friends has a daughter who was always making bad decisions that put her in the legal system. After years of legal problems, it was discovered she had an orange-size tumor in her brain. That went a long way to explaining the reason for the poor decisions. Get help for your clients. They are more than just dollar signs.

Some well-respected lawyers chose not to be concerned about what the judiciary thought. Warren Burnet, one of our greatest lawyers, once went to the funeral of a judge with whom he had many dealings. It was no secret there was no love lost between them. When asked why he went to the funeral, Lawyer Burnet replied, “I wanted to make sure the bastard was dead.”

The “why can’t we just get along” won’t cut it. We all can’t just get along when people ignore the Constitution. Do not sell yourself short. It takes a certain amount of intelligence to get a law degree and pass a bar exam. We can’t all be Richard “Racehorse” Haynes, but we can all do our best to represent our clients. Buck Files, one of our TCDLA members, is now President of the State Bar, and is a man with honor and integrity. He will make sure we are not like Rodney Dangerfield—not getting any respect. When you see fellow lawyers going off the deep end, don’t ignore them. The State Bar does have a few good things besides discounts on motel rooms and car rentals, one being the Lawyer Assistance Program (800-343-8527).

Reach for the brass ring and do all that you can for your client. Write an article for the bar journal, get involved in your local criminal bar association, and learn from experienced lawyers. If we work together, we can make positive changes, and the next time when we see the bar journal, we can give the 100,000 members of the bar something to read about other than obituaries and disciplinary actions. Remember, every time a judge or prosecutor ignores the Constitution, they are showing disrespect for all the men and women who served their country in the military. When you see people like Jack Zimmerman, Bobby Mims, or any other veteran, make a point of thanking them for their service to our great country.

Phone Numbers for the Hotlines:

Lawyer Assistance Program       1-800-343-8527
TCDLA Hotline                           512-646-2734
HCCLA Hotline                          713-518-1738
State Bar Lawyer’s Ethics Hotline     1-800-532-3947

The oath for lawyers is to the client and Constitution, while the oath for judges and elected/appointed officers is to the Constitution and laws. The military oath and oath for lawyers are very similar. A lawyer’s oath is to the client and Constitution, not the judge or prosecutor.

Lawyer’s Oath:

THE STATE OF TEXAS

      I, ___________, do solemnly swear that I will support the Constitution of the United States, and of this State; that I will honestly demean myself in the practice of the law, and will discharge my duties to my clients to the best of my ability. So help me God.

Oath for Judges and elected/appointed officers:

      I, ____________, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ____________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.

Military Oath:

                I, ____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

Ethics and the Law: From Loco to Laredo

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Cowboy lawyer Gary Trichter is about to ride into the sunset like all cowboys do when the job is done. He has done his best to do the job he was elected to do. All the co-chairs have helped greatly in my quest to help our members. If you do not know them, you should reach out to them because you will never meet a finer group of people. TCDLA has made great progress this year, and the hotline has at times turned into a crisis hotline for some of our members having personal issues. We must continue to band together because the State Bar has offered little help for criminal practitioners defending the underdogs and those in our world who are accused of the worst of crimes. Watch the 6 o’clock news in any of the larger cities and it is shocking to see what some members of our society do to each other. As criminal defense lawyers it is our job to do our best to defend those people who do hideous acts. One tip for you is to do a three-generation family tree, and once you see where our clients have come from, it will help explain and not excuse their behavior. Being a real serious lawyer will change your life dramatically. You have a hard time relating to what I call normal people. You find yourself dealing better with dysfunctional people. All this takes a toll on your personal life, and that is why lawyers have higher alcohol, drug, and suicide rate than other professions.

Lydia Clay-Jackson is a lady I have known for close to 30 years, and she will bring new ideas and a lifetime of experience to TCDLA. She is also a woman who has risen to the top of her profession, and I hold her in the highest regard. She knows how to kick ass and take names and will make sure TCDLA continues to be the best bar association in the U.S.

A recent study shows that in federal court the majority of defendants are found guilty and cut deals with the government, so be wary of lawyers who make promises to defendants that cannot be met. That is the source of many grievances. From Loco to Laredo and everywhere in between, Texas has close to 100,000 lawyers. The great lawyers do not all live in Houston or Dallas, even though some think they do. We have great lawyers all across the state. On the other hand, not all lawyers behave as they should (as Don Davidson discusses in his article about Candor Toward the Tribunal, below)—and that includes prosecutors and judges. No matter where you are in Texas, do not put up with bad behavior from a judge or a prosecutor. Call the hotline or the strike force for help. And remember Texas Rules of Professional Conduct 3.09, which forbids threatening to prosecute a charge that is not supported by probable cause.

Disciplinary Rules of Professional Conduct Rule 3.03

by Don Davidson, Bedford, Texas

I can only imagine the horror the habeas attorney must have felt when he read these words in the Court of Criminal Appeals opinion:

In reaching this conclusion, we wish to remind Applicant’s habeas counsel that he is an officer of the court and is obligated under Rule 3.03 of the Disciplinary Rules of Professional Conduct not to mislead this Court. [citation omitted] In the future, we encourage habeas counsel to take greater care in his legal arguments and to be cognizant of Rule 3.03.1

Rule 3.03 of the Disciplinary Rules of Professional Conduct requires the utmost honesty and candor from an attorney toward a court or other tribunal. In his dealings with the court, Rule 3.03(a) forbids an attorney from knowingly (1) making a false statement of material fact or law; (2) failing to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) failing to disclose an unprivileged fact in an ex parte proceeding if the attorney reasonably believes the tribunal should know of that fact to make an informed decision; (4) failing to disclose authority in the controlling jurisdiction known to be directly adverse to his position, unless already disclosed by the opposing counsel; or (5) offering or using evidence known to be false.

Of course, outright deceit and dishonesty will quickly run afoul of Rule 3.03. So goes the tale of an attorney who apparently got involved in a scheme to defraud the legitimate heir of a senile, elderly lady. The attorney had the old lady sign a new will—despite a diagnosis of dementia—and when he could not get a notary public to come to the hospital to notarize the lady’s signature on the self-proving affidavit, he took the self-proving affidavit to the notary. Since a self-proving affidavit, like any affidavit, must be signed in the presence of the notary, the affidavit was clearly invalid. But the attorney nevertheless filed it with the probate court, essentially vouching for its validity. When the truth came out, he found himself disbarred.2

Inexperience and stupidity are not defenses to a Rule 3.03 violation. Thus, an attorney was sanctioned for apparently trying to protect the interests of a former client by filing bankruptcy schedules on the client’s behalf, but without the client’s knowledge or consent.3 Another attorney was sanctioned for filing papers with the court on behalf of clients he did not represent.4

Before filing any document with the court, an attorney should be aware of Comment 2 to Rule 3.03, which states that “an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or a representation of fact in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.” Thus, an attorney who sent a letter to a court stating that a bankruptcy case had been reopened, and therefore a bankruptcy stay might be in effect, was sanctioned when it was later discovered that the bankruptcy clerk had told him that the file had not been reopened, and that he had never even bothered to visit the bankruptcy court to check the file.5

An attorney’s duty to be honest and candid with the court exists even if he is acting on his own behalf as a party to a lawsuit, rather than on behalf of a client. 6 In fact, the duty applies even when the attorney is not involved in the case at all. 7

And in the case of the duties under 3.03(a)(1) and (2), those duties “continue until remedial legal measures are no longer reasonably possible.” Thus, in some cases, an attorney has an affirmative obligation to correct a prior false statement, or to disclose a previously omitted fact, “as long as there is a reasonable possibility of taking corrective legal actions before a tribunal.”8

Winning a case is fun; I’ve never met a lawyer who didn’t want to win. But Rule 3.03 makes clear that we cannot do so at the expense of our honesty and integrity. If you neglect your duty to be honest and candid with the courts, a court may one day “remind” you of that duty in one of the court’s opinions—if you’re fortunate.