Betty Blackwell

A graduate of the University of Texas Law School, Betty Blackwell has been in private practice in Austin for 30 years, limiting her practice to the defense of criminal cases. Betty has served as the chair of the Criminal Justice Section of the State Bar of Texas and of the Austin Criminal Defense Lawyers Association. She is co-author with Judge Mike McCormick of the West Publishing Texas Practice Series Volumes 7 & 8. In 2000 she was elected the first woman President of the Texas Criminal Defense Lawyers Association in conjunction with its 30-year anniversary. Among her many other honors, Betty served as Chair of the Commission for Lawyer Discipline from 2006 to 2011, the first woman and criminal defense attorney so honored, as well as being its longest-serving chair.

Ethics and the Law: Is it ethical to charge a non-refundable retainer?


The answer from the State Bar’s Texas Center for Legal Ethics is a definite “maybe”. There are several Rules of Professional conduct that cover attorney’s fees. From the State Bar’s point of view, the most important one, is that an attorney must return any unearned fee. Rule 1.15(d) of the Texas Rules of Professional Conduct. The problem for the attorney in charging a non-refundable retainer, is that the burden is on the attorney to prove that the fee has been earned.

Some jurisdictions have outlawed the practice of charging non-refundable retainers because it deprives the client of the right to change lawyers without suffering monetary penalties.

If the attorney withdraws from the case or is terminated, the amount of the fee retained must be related to the services performed, and if not, the fee may be found to be unreasonable, in violation of Rule 1.04(a) of the Texas Rules of Professional Conduct.

Criminal Defense attorneys have a particularly difficult time in drafting contracts that will allow them to get paid for the work that they perform.  Experienced attorneys know that it is virtually impossible for an attorney in our field to be paid after the case is completed. Thus, the attorney will want to be paid prior to the end of the representation. We cannot terminate out representation without approval of the court and therefore are at the whim of the judge assigned to the case.   Once we designate as attorney of record, we can be required to complete the criminal case through a jury trial and the 1st appeal of any sentence, even if unpaid by the client, if a judge refuses to approve our motion to withdraw. Rule 1.15(c)Texas Rules of Professional Conduct.

This is probably the hardest concept for most civil lawyers to understand about our profession. If they are unpaid, they can simply notify the client that they will longer do work for them. We do not have that luxury. Most of the attorneys who volunteer to serve on grievance committees come from the civil side and the concept of being paid prior to work being completed, is foreign to them.

Because of the very real possibility of having to complete a case without getting paid for our services, utilizing a contract that includes a non-refundable retainer becomes tantalizing to the criminal defense bar. But there are serious issues that can land the lawyer in trouble with the grievance system.

Opinion 391 sets out the difference between a true retainer and an advance fee. A true retainer belongs to the attorney at the time it is received because it is a fee to secure the lawyer’s services and remunerate him/her for loss of the opportunity to accept other employment. Opinion 431 says that the lawyer must substantiate that other employment will probably be lost by representing the client. Thus the burden is on the lawyer to prove it is a retainer fee. Even then, Opinion 431 goes on to say that if the client discharges the attorney before any opportunities have been lost, or the attorney voluntarily withdraws, then the attorney must refund an equitable portion of the retainer. Opinion 431 specifically says that a fee is not earned simply because it is designated as non-refundable. Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App. Austin 2007) came to the same conclusion.

The most recent opinion concerning non-refundable retainers is Opinion 611.  The question presented was whether an attorney could charge a non-refundable retainer that included payment for services up to the time of trial and then charge an additional fee for trial. The answer was a clear “NO”. This type of contract violates the Rules of Professional Conduct.  It is in fact an advance fee. That is, it is a fee for services not yet performed. That means, that the fee has not been earned by the attorney at the time it was received, and because it belongs to the client it must be deposited into a trust account, Rule 1.14(a).

The Ethics committee went on to say that there is no prohibition in the Rules from an attorney requiring a payment of a fixed fee at the beginning of the representation. The advance fee must be separated from the attorney’s and placed in a trust account and only transferred to the operating account when it is earned.

After serving 6 years on the State Bar’s Commission for Lawyer Discipline, and 5 years as the Chair, I do not recommend that criminal defense attorneys use the words non-refundable in their fee agreements. It is simply a red flag for the state bar and not worth the headache of going through the grievance process.

2011 TCDLA Lawyers of the Year

The Lawyer of the Year award is given out at the Texas Criminal Defense Lawyer’s association’s Rusty Duncan advanced criminal law course in San Antonio, Texas. This year, three outstanding women lawyers were recognized for their contributions to the defense of those accused of crimes in the state of Texas. These are truly amazing stories of exceptional women who work every day seeking justice in the state of Texas, one person at a time. They go to work in a hostile environment knowing their families and friends don’t understand, knowing that almost everyone else believes they are seeking to do the impossible. But they do it and they do it very well and for that we applaud them.

Vivian King graduated cum laude from Thurgood Marshall School of Law in 1992. Prior to becoming a lawyer, she worked as an internal auditor and operations specialist for the former Texas Commerce Bank, retiring as a Vice President in 1989 to attend law school. She was an Assistant D.A. in Houston until 1995. She has been named lawyer of the year by Harris County Defense Lawyers and was given the Unsung Hero Award in 2007.

Her string of wins is amazing. In December 2010, a jury found her client not guilty of conspiracy to commit Medicare fraud in the Southern District Court of Texas. In November 2010, a Harris County jury found her client not guilty of murder, even though there was a taped confession and the deceased had four gunshot wounds. The foreman was so moved by Vivian’s final argument, he called her the next day to check on her client. In June of 2010, she tried an enhanced possession with intent to deliver a controlled substance case, in which the jury found her client not guilty.

In 2008, Ms. King obtained a new punishment hearing for a client previously sentenced to 65 years for murder and 30 years for drug conspiracy. At the new trial, he received 10 years for the murder with the foreman saying that they felt that the defendant was not guilty of the murder but they could only decide the punishment.

In September 2010, Ms. King tried a delivery of a controlled substance case in which it was alleged that her client had handed the dope to someone who had then given it to a prostitute who, in turn, handed it to a police officer. The jury found him not guilty. In June 2010, after having her motion for a new trial granted in an injury to a child case, she took the case to a jury trial and won, even though a doctor testified that the bruises were severe.

In 2010 Vivian King had 19 serious felony charges dismissed, which was slacking off for her, since in 2009 she had over 20 such dismissals. This is especially amazing since she practices primarily in Harris County, where the prevailing juror attitude can best be described as “hang them all and let god short it out.” The award is in recognition of this amazing body of work.

Raised in the small town of Gallatin, Katherine Scardino’s life started out as hard and barren. The memories of an outdoor toilet and hand-me-down clothes would serve her well in her future; she could reflect on her previous hardships and empathize with her many poor clients. After having two children she decided to return to college and then go on to law school. Upon graduation, she began to take court appointments. In 1997 she won a “not guilty” in a capital murder death penalty case. That was something that had not happened in Houston in the previous 23 years. She went on to try 16 capital murder cases to a jury. In 10 of those cases, the state was asking for the death penalty. She obtained six life sentences, three death sentences, and one not guilty.

In September 2006, the 5th Circuit ordered a new trial for Anthony Graves. He spent 12 years on Texas death row for the gruesome murder of five children and their grandmother in Somerville, Texas. Katherine Scardino’s nemesis, Kelly Siegler, had agreed to handle the case for the prosecution. Siegler had sent 19 men to death row during her tenure as a tenacious prosecutor in Houston. She famously brought a bloodstained bed into the courtroom to demonstrate how a woman stabbed her husband to death.

Two titans of the courtroom were destined to butt heads over this explosive case. Scardino filed a motion to dismiss for prosecutorial misconduct; on appeal the Innocence Project had proven that the D.A. had failed to disclose prior to trial that the key witness and actual perpetrator of the crime had recanted and stated that he, Robert Carter, alone had committed the horrible crimes, and that Anthony Graves was not involved. However, once threatened that his wife would be prosecuted as an accomplice and then promised a life sentence if the appellate court reversed his death sentence, Robert Carter agreed to testify against Anthony Graves at his first trial.

At his execution, Robert Carter again stated that Anthony Graves was innocent and that he had lied at Anthony’s trial to save his wife. However, the judge denied the pretrial motion to dismiss and ruled that Robert Carter’s first trial testimonial would be admissible at the re-trial of Anthony Graves because Graves had been given his opportunity to cross-examine him at that time. The family of the victims was demanding a new trial, still believing that Anthony Graves was guilty.

The case had jailhouse snitches, coerced statements, threats to keep exculpatory defense witnesses off the stand, junk science about a knife that was never tied to the crime scene, and faulty witness identification. Four years of painstaking work, and the only offer made was for Anthony to plead to a life sentence. He repeatedly said that the state needed to kill him or set him free.

Then, lightning struck in November 2010. Kelly Siegler came to the same conclusion that Katherine Scardino, the Innocence Project, the 5th Circuit Court of Appeals, and every attorney who had ever represented Anthony Graves had come to: Anthony was an innocent man wrongly convicted by a prosecution team responding to a community demanding vengeance. Siegler called the original prosecution a nightmare and a travesty and dismissed the capital murder charges. Anthony Graves left prison a free man, ultimately because the prosecution did not want to lose a high profile case again to Katherine Scardino, the queen of the good ole girls.

Ms. Scardino is currently handling seven capital murder cases, though only one has been designated a death penalty case. She states that her secret to successful capital litigation is to develop a team that works well together and trusts each other. She has an investigator, a mitigation specialist, and a mental health expert appointed immediately to get to work at once.

Shirley Baccus-Lobel graduated from UT law school in 1970 and moved to Washington, D.C., to take a position with the Justice Department. In 1977 she transfered to the U.S. attorney’s office in the Northern District of Texas, where she served as the first assistant criminal chief deputy until 1985. Husband Michael Lobel is a teacher of government at Brookhaven Community College; son Sam Lobel is a graduate of Cordoza Law School in New York and a film producer there (; daughter Hannah Lobel is a 3L at UT Law School, where she serves as editor-in-chief of the International Law Journal; and granddaughter Frieda is 2½ years old.

In 1985 she went into private practice, specializing in complex federal trials and appeals, including federal investigations of business crimes. She has been named in Best Lawyers in America, named super lawyer in white-collar crime by Texas Monthly, and deemed one of the best lawyers in Dallas by D Magazine.

So, no one was surprised when she and Billy Ravkind took on the defense of capital murder defendant Richard Winfrey Jr. His father and sister had both already been convicted in the brutal murder of a janitor. The D.A. in San Jacinto County reported that he hoped that Richard Jr. would opt for a deal instead of a trial since his father and sister had already been convicted. Much to his chagrin, Shirley had no intention of recommending a plea deal to her client since the vast majority of the evidence against Richard was in the form of a dog scent lineup. The controversial dog scent evidence had been admitted in the previous two trials and resulted in a 75-year sentence and a life sentence. So obviously the evidence had a powerful effect on those previous jurors.

Shirley went to work on Deputy Pickett’s methodology and immersed herself in the science of dog scent. In these cases, the dog is given the scent of an object from the murder scene that the police believe the perpetrator touched or handled. Then the dog is asked to pick out that scent in a lineup of potential suspects. The Innocence Project of Texas had been investigating Deputy Pickett for years, suggesting that there were tremendous problems with his results and his subsequent testimony. He failed to use the double-blind method, he lacked any documentation of his methods, and he also failed to follow the minimal guidelines created for this kind of forensic technique. Furthermore, two people tied to crime scenes by Deputy Pickett’s dog scent lineup were later exonerated, one by DNA testing.

Shirley went to work to prove that the dog scent method, as conducted by Deputy Pickett, amounted to little more than junk science. She and Billy attacked the science, the method, and the results of the lineup evidence in Richard Winfrey Jr.’s trial. It resulted in a 13-minute not guilty.

Next, Shirley took on the PDR of Richard’s dad. The court-appointed attorney had not objected to the dog scent lineup evidence, so any error in the admission of the evidence had been waived. The Court of Appeals had upheld the conviction, but Shirley was able to get a PDR granted from the Court of Criminal Appeals. With all the knowledge she had acquired, she attacked Mr. Winfrey’s conviction, alleging there was insufficient evidence in the case to uphold the conviction.

Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App.), decided September 2010, set out in the opinion what exactly had transpired. Deputy Pickett testified about a “scent lineup” that he conducted nearly three years after the murder in August 2007. He used his three bloodhounds—Quincy, James Bond, and Clue. This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including appellant. The dogs were “pre-scented” on the scent samples obtained from the victim’s clothing. The dogs then walked a line of paint cans containing the scent samples of the six white males. All three dogs alerted on the can containing appellant’s scent sample.

The Court of Criminal Appeals reviewed the dog scent lineup evidence and numerous scientific articles calling into question the reliability of this evidence. The Court reversed and acquitted Mr. Winfrey Sr. The Court stated, “We conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.” None of this surprised Shirley, as she had had the family polygraphed by renowned former FBI polygraph examiner Don Ramsey. Upon completion of the polygraph, he looked Shirley’s clients right in the eye and said, “You people had nothing to do with this murder.”

In the course of her dedicated advocacy for the Winfrey family, Shirley Baccus-Lobel both exposed junk science and debunked bogus methodology. As a result of her efforts, an innocent person was released from prison. This is truly an amazing feat by a determined, intelligent, and amazingly committed attorney. In April 2011 the Beaumont court of appeals affirmed the life sentence of Megan Winfrey even though they knew the Court of Criminal Appeals had reversed and acquitted her father. Shirley has agreed to handle the petition for discretionary review. Hold on Megan: Shirley is on the way.