Monthly archive

November 2012

Ethics and the Law: Talk Is Cheap


Several calls to the hotline have concerned threats from prosecutors for interviewing witnesses. To properly do our job we must talk to or have someone else talk to witnesses. The better practice is to have an investigator talk and tape all interviews to keep you, the lawyer, from being accused of some impropriety. There are some very honorable prosecutors, but as we have seen, there are some who hide evidence and try to prevent justice.

As soon as you get a felony case, see if it is one where a no-bill is possible. All sorts of things can be presented that cannot at trial—such as polygraphs, letters, and your written theory of the case. Plan on getting a polygraph done on your client and refer to an article by Gary Trichter, “Putting on a Defense Before the Grand Jury” (Voice for the Defense, February 1989) about grand jury presentations.

If you get appointed or hired on a felony case before indictment, you need to immediately consider the idea of presenting a defense at the grand jury level. Many opportunities may be lost if you do not act quickly and ethically. Send a letter to the district attorney handling the case and the district attorney heading the grand jury section stating that you intend to present evidence. You can also send a letter to the grand jury foreman of a particular grand jury in session requesting that they review your case. DO NOT LET the DA BULLY you on this. Refer to Attorney General Opinion H-508 (January 28, 1975), which allows correspondence of counsel addressed to a grand jury, and a copy which is delivered to the prosecuting attorney is not prohibited as long as it contains no threat.

Some counties may give you some difficulty, so be prepared to show them the material in this article. Sad to say I have heard lawyers say they don’t want a no-bill because it keeps them from getting a fee. These people are vultures and are not real lawyers and should go turn in their bar card. If you do this right, you can charge a fee for your time in preparing your client, witnesses, and materials that you intend to present. Sometimes you will find that the DA in marginal cases would rather have a case no-billed than explain to the complaining witnesses and supervisors why they dismissed a case. Preparing all the investigation, research, and assembling documents takes many hours. Prepare a booklet for each grand juror, the prosecutor, your client, and the original for your file. Even if your case gets indicted, if grand jurors had questions, the DA may realize the case is weak and you may end up with dismissal, reduction of charges, or in a better position to strike a deal.

David Sheppard, co-chair of the Ethics Committee from Austin, helped a lawyer who needed to know if she could ethically talk to a person in jail who had a lawyer about an unrelated case. Here is what he says:

Lawyer A needs to talk to a defendant in jail who has Lawyer B. Lawyer A needs to talk to person regarding another case not related to case involving Lawyer B:

Applying Rule 4.02, it appears that your contact with the prisoner about his possible testimony in your case is not prohibited. The prohibition applies to situations in which “the lawyer knows (the person being contacted) to be represented by another lawyer regarding that subject.” The operative term, of course, is “regarding that subject.” While the prisoner did have counsel, that representation was related to another case . . . not the case against your client.

There isn’t a lot written on this issue. Of interest, though, is ABA Formal Opinion, 95-396 (July 28, 1995), at 14 & n.42, which says that if the government has indicted a defendant for one crime, the rule does not prohibit the prosecutor from communicating with the defendant, either directly or through investigators, about a different crime. This approach, of course, has been adopted by the courts: McNeil v. Wisconsin, 111 S.Ct. 2204 (1991), and Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999). So, if it’s okay for the prosecutor… it’s okay for the defense counsel.