Monthly archive

March 2018

Ethics and the Law: Forked Tongue

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The phrase “speaks with a forked tongue” means to deliberately say one thing and mean another—or to be hypocritical or act in a duplicitous manner. In the longstanding tradition of many Native American tribes, “speaking with a forked tongue” has meant lying, and a person was no longer considered worthy of trust once he had been shown to speak with a forked tongue. This phrase was also adopted by Americans around the time of the Revolution, and may be found in abundant references from the early 19th century—often reporting on American officers who sought to convince the tribal leaders with whom they negotiated that they “spoke with a straight and not with a forked tongue” (as for example, President Andrew Jackson told the Creek Nation in 1829). According to one 1859 account, the native proverb that the “white man spoke with a forked tongue” originated as a result of the French tactic of the 1690s, in their war with the Iroquois, of inviting their enemies to attend a Peace Conference only to slaughter or capture them.

 

A recent call from one of our members concerned prosecutors he was dealing with who he believed were lying. The caller also had to deal with a client making demands that he file frivolous motions. Word was sent out to our committee members, and several excellent suggestions were made to the lawyer.

The past month we have received many calls about difficult clients or clients who make unrealistic demands.

I would direct the attorney to 1.02: A lawyer has to abide only as to plea to be entered, whether to waive jury, and whether client testifies. Comment 1 explains that while clients have ultimate authority to determine the objectives, they are subject to the lawyer’s professional obligations—which includes not bringing a baseless or meritless motion.

When dealing with difficult clients, remember to document all calls and correspondence. Always get a waiver of the attorney/client privilege before talking with family members or friends of your client. Many calls have come in where the caller is complaining that the court-appointed lawyer will not talk to the mother or other concerned family members. Unless there is some real reason not to talk to your client’s family, get your client to sign a waiver. An example follows.

You ever get that feeling that something you’re doing might be . . .  unethical? Stop right there! There’s an app for that—or, rather, a TCDLA committee. The Ethics Committee will get back to you within 24 hours. Save the number in your phone: (512)646-2734 or 888-ETHICS4 (888-384-4274). Reminder: Don’t post ethical dilemmas on the listserve or on social media, as you never know who’s looking.

Several years ago, while preparing a sentencing memo for a felony case, I asked my client to bring all his diplomas, letters of recommendation, and resume so I could put it in the memo. The memo was filed and included in the documents the client brought to me. The client was granted probation partly based on the contents of the memorandum I presented to the court. Ten years later, when the client and his sisters were fighting over assets in their mother’s estate, the probate lawyer got a copy of the memo I had filed and was able to prove all the diplomas from college were fake. Be wary when presenting documents without checking them out yourself. My client had spoken with forked tongue, and, luckily, he had finished his probation. It happens often so be wary.

The form on the facing page can be found on the TCDLA website in the Members Only section (Brief, Motion & Memo Bank/Voice Motions).

The following missive was in response to a request for advice from the Ethics Committee:

“To you and the TCDLA Ethics Committee, thank you all so very much for your help with my DA disqualification issue and helping me work through it. A special thanks to Michael Mowla, Brent Mayr, Keith Hampton, and Pat Metze for prompt written responses. What an incredible breadth of knowledge we all have at our beck and call. And, Robert, thanks so much for always answering that phone of yours on practically the first ring. The Texas criminal defense bar is in such good hands.”

Ethics and the Law: Nunca Sabes

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To ethically represent an accused citizen, you must be sure they know the consequences of a plea or finding of guilt. Judge Herb Ritchie, formerly a partner in the law firm of Ritchie and Glass, recently was a guest speaker at the Wednesday Appellate Update class in Houston. Greg Glass shared some of the forms and agreements used by the law firm. They are included in this article. In the law practice these days it is very important to correspond in person, by phone, by letter, or in a jail visit. Failure to communicate is one of the leading causes of a grievance. These forms may help you stay out of that trap. Get a good fee agreement or at least a letter of acknowledgment when you are hired. To be safe, document every phone call or visit or action you take on your client’s behalf. Nunca sabes.

The hotline has been busy as lawyers call with their headaches and heartaches. Some of the problems are easy to solve and some not. It is important to remind our members about the hot/help line. Several have called after not hearing from the state bar hotline for days. Hopefully, the new state bar president can improve that feature of our membership. All the CLE events and meetings are important, but nothing is more important than helping a fellow lawyer in need.

Some of the same questions are repeatedly asked. One such: The statute of limitations on a grievance is four years. You’d be advised to keep the file or a copy for at least this long. All the calls we get are confidential, so there is no worry about your business being put out on the street.

Joseph Connors, one of our first selections to be on this committee when it was started in 2011, recently was in charge of presenting the Hidalgo Bar Association annual meeting. It was a delightful event. After my presentation, a local judge came and introduced himself and asked me if I knew there were judges in the room. He was concerned that some disparaging comments were made about judges. Since we were in the Rio Grande Valley, I answered “nunca sabes.” For the gringos and gringas in our organization, it means “you never know.” Such as you never know what the future holds. About a week later I got an email from the judge advising me that one off his brethren judges had been arrested by the Feds and accused of taking bribes. Some of the good deals lawyers were getting were allegedly the result of some greasing of the palm of the accused judge.

Another issue frequently raised involves lawyer advertising. A lot of beginning lawyers get a website and then it begins. Pay a few hundred dollars and start becoming a member of all the companies that are inviting you to be one of the top 100 best lawyers in Texas. Pretty soon you can put all those seals on your website hoping to impress potential accused citizens. Then after a while you can start listing all the cases you have won or got a favorable result. Remember when this is done, the state bar advertising review committee has to approve the ad. The lawyers who are claiming to have all those great results need to be aware that a disclaimer may be needed stating that you cannot promise all those great results in all your cases

Remember your stock and trade: time and advice. The following forms may help you make sure you get paid for your time. Always advise your client about consequences of a plea or conviction. Nunca sabes and primero dinero.

With thanks to Joe Connor, Ramon Villagomez, Judge Herb Ritchie, and Gregg Glass.

Note: These motions are available for members on the website in the Members Only section (Brief, Motion & Memo Bank/Voice Motions).