Robert Pelton

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.

We hope with Buck Files the State Bar will pay more attention to the criminal bar. There are over 3,000 members in the Texas Criminal Defense Lawyers Association, 600 members in the Harris County Criminal Lawyers Association, and many others in the local bar associations throughout Texas. HCCLA, under the leadership of Earl Musick, has taken action in many ways, including meeting with the Sunset Commission in Austin with Cowboy Lawyer Gary Trichter and lawyer Robb Fickman, Czar of Texas. Ever since I began practicing law, I have heard lawyers complaining, but few ever took action. That is changing with lawyers like Gary, Earl, Robb, and others. According to Buck Files, only 20% know about the State Bar hotline. That is simple to understand. It has not been properly publicized and it has banking hours. TCDLA and HCCLA hotlines never close, and we have already helped many of our fellow members.

Many years ago at a DWI seminar, we were all honored that Percy Foreman, Richard “Racehorse” Haynes, and Warren Burnett were in attendance. Charles Tessmer was there in spirit. Lawyer Haynes was bragging on Gary Trichter and telling Percy Foreman all the issues Gary and others were raising. Percy was very attentive because he, the greatest lawyer in the world, had been convicted of DWI. Warren Burnett and Charles Tessmer were known to take a drink on social occasions. Today, a DWI can bring as many issues as a murder case—like the ALR hearing, possible occupational license, possible ALR appeal, possible DWI appeal, and motions that need to be filed. Some lawyers attempt to charge a flat fee for all these things. Some lawyers charge a fee for each item. Do you want a telephone hearing or an in-person hearing? If an in-person, do the officers get subpoenas to use ALR discovery device? When going to all these hearings, remember they are all grievances waiting to happen if you miss a date. Make sure you have a calendar system or have alerts on your computer.

With Buck Files as leader, we hope more attention will be paid to the criminal bar. The bar journal is filled with many good articles if your interests are contract, real estate, civil matters, or back-patting. Leaders of the criminal bar from the Houston area like Gary Trichter, Earl Musick, Robert Fickman, Chris Tritico, and many others from around the state have and are making great strides to let the bar and judges know we take our job seriously. If we lose a case, it is not just money, but about someone being locked in a cage and being branded a criminal for life. Pay attention to the timelines on all of your cases. Get a good system set up whether on a day-planner or on your computer.

Below are subjects we will be writing about. If you have ques­tions about one of these topics, please call the hotline.

1.  How to get business/bail bondsmen/referral fees
2.  How to set and collect fees
3.  Contracts or letter of acknowledgment
4.  Contempt
5.  Conflict of interest
6.  Attorney/client privilege
7.  Gifts to judiciary
8.  Ex-parte communications
9.  Grievance process
10.  How to set up a file
11.  Investigate, polygraph
12.  Tape-recording
13.  Motions to withdraw
14.  Pretrial publicity
15.  What to say and not say to press
16.  Personal habits—alcohol/drug problems
17.  Act like a lawyer
18.  Books that will help
19.  Seminars
20.  Board certification
21.  College of State Bar
22.  Advertising
23.  Closing practice
24.  Selling practice
25.  Keep records of client conferences, jail visits, phone calls, work done, work done by attorney (even if it is a fee contract, you may have to account for fee)
26.  Be careful what you say: Be careful in elevator or hallways
27.  Keep personal business personal
28.  Be careful trading work for legal service
29.  Suing client
30.  Check on requirements of pro-bono work
31.  Have list for client: go to church, AA, NA, job, school, medical, get work records
32.  Avoid burnout
33.  Do not bad-mouth other lawyers
34.  Check out clients’ background: social study, family tree
35.  Do not tell client you are judge’s best friend—even if you are
36.  Call court if running late
37.  Facebook, Twitter, social networking
38.  Blogs
39.  Building and maintaining a website
40.  Keep your word

Being a lawyer can be a rewarding, but it is a stressful job and it is important to make sure your client’s interests are looked after. While doing this, take care of your own health and well-being. Remember no one is indispensable.

A few weeks ago, I was forced to temporarily surrender control of my faculties under the lull of general anesthesia for back surgery. Sitting in a hospital reception room and getting pre-admitted for surgery is like a defendant being debriefed on a federal case. What about your family history? What has happened to you before? Do you know where you are now? What medicines do you currently take?

Routine questioning becomes more serious. Do you have a living will? Who is your emergency contact? Do you have a DNR (Do Not Resuscitate) form? Of course, once the nurse got to that question, I POLITELY told her that, “I am NOT AFRAID TO DIE. I just do not want to be there when it happens, and I am not answering any more questions. I walked INTO this Hospital and I will be walking OUT!” She looked shocked and for a few minutes said nothing. As she looked like she would continue, I looked her in the eye and she said, “That’s all the questions I have, and good luck on your surgery.” Thanks to my Creator and good doctors, all went well. Medical procedures, hospitals, and the like force us to consider our mortality, evaluate how we have spent our time, and face cold hard facts.

Every month, what do most of us do when the Bar Journal comes in? We flip to the back to see who died and who got into trouble. There is always someone we know who has either gone away or has had disciplinary problems. This is life in the legal world, and it is far from perfect. That is the reason TCDLA started the hotline for its members. We cannot keep the Grim Reaper away, but we hope we can help lawyers stay out of trouble. We have survived the year end, and the extra stresses that the holidays bring. The Ethics Committee is made up of lawyers who want to help. Keep the calls coming. We are always available to our members to answer questions, and it is very important to each committee member that we give the correct advice. Reach out for help if you need it. Co-chair Ray Fuchs commented at our weekly conference, “We are not always right, but we are never wrong.” And co-chair David Sheppard’s mantra is “it is not that we are vain or egotistical—it’s just that we have nothing to be modest about.” Where there is no counsel, the people perish, but in the multitude of counselors, there is safety.

Lend a colleague a hand and if warranted, use these important numbers for referral:

TLAP—Texas Lawyers Assistance Program: 800-343-8527
AA—Alcoholics Anonymous & Narcotics Anonymous: 800-262-4944

In the Harris County Criminal Justice Center there is a plaque on the seventh floor displaying the names of criminal lawyers who have gone away. This past year, it seemed a large number of names were added. When a life ends, there is great sorrow for some and little fanfare for others. How do you want to be remembered? What memory are you leaving in the spot where you stood? What have you done to make the world a better place? Watch the movie “It’s a Wonderful Life” with James Stewart, or the movie “Will Penny” with Charlton Heston.

From the movie “Will Penny”:

Will Penny: That’s always the way, ain’t it?
Alex: What’s always the way?
Will Penny: Let a man die, right away he’s “good, old Claude.” How was he before he bucked out?

Oh, and by the way, at the hospital when the nurse said this may hurt a little, she meant it. My IV was in place and I was ready to roll into the operating room. All sorts of thoughts ran through my mind: Will I really get out of here? Will I be able to walk? I wondered if I would hear the horse snicker… I want to make sure the horse does not snicker.

The Lawyers Know Too Much

—Carl Sandburg (1878–1967)

THE LAWYERS, Bob, know too much.
They are chums of the books of old John Marshall.
They know it all, what a dead hand Wrote,
A stiff dead hand and its knuckles crumbling,
The bones of the fingers a thin white ash.
The lawyers know
a dead man’s thoughts too well.

In the heels of the higgling lawyers, Bob,
Too many slippery ifs and buts and howevers,
Too much hereinbefore provided whereas,
Too many doors to go in and out of.

When the lawyers are through
What is there left, Bob?
Can a mouse nibble at it
And find enough to fasten a tooth in?
Why is there always a secret singing
Where a lawyer cashes in?
Why does a hearse horse snicker
Hauling a lawyer away?

The work of a bricklayer goes to the blue.
The knack of a mason outlasts a moon.
The hands of a plasterer hold a room together.
The land of a farmer wishes him back again.
Singers of songs and dreamers of plays
Build a house no wind blows over.
The lawyers—tell me why a hearse horse snickers hauling a lawyer’s bones.

Historically, there have been fee disputes between lawyers and clients. Abraham Lincoln had a fee dispute and ended up suing for a $5,000 fee. Percy Foreman, whom I had the honor of talking to several times, and who with Allen Isbell co-wrote an article appearing in the HCCLA magazine, was sued several times over what clients claimed were excessive fees. Percy took money, stocks, bonds, cars, gas, motorcycles, furniture, and anything that was of value. He told me he would take everything a client had or could get for his fees. At the time of his death, $5,000,000 in bearer bonds was found in a sports coat he had hanging in his hotel room.

One reason for the 611 opinion is outlaw lawyers—lawyers who charge a lot of money and do nothing. I have met too many of those people and I am sure you have too. A lawyer in Houston is under federal indictment for taking a large sum of money in exchange for a promise to get a case fixed. Garth Bates, a criminal district judge in Houston, was sent to prison for taking bribes to fix cases. Historically, some prosecutors have taken money to make sure a case will not be filed. As stated many years ago by TCDLA, gunfighters do not charge by the bullet. Each case is different and each lawyer is different. Some lawyers may be able to get something done in a quick manner because of their experience and expertise, while others would lollygag forever and not get the job done. A lawyer might get a case no-billed because of a fast draw, while other lawyers complain when a case is no-billed because they state that then they cannot charge a fee. It is a disgusting idea, but there are bad apples in every barrel. We are in a big barrel. Who does the client want to hire? John Wesley Hardin, the fast-draw lawyer, or Rance Stoddard, the lawyer who was thought to have killed Liberty Valance but really did not.

A lawyer-client communication is the key to this whole dilemma. Make sure there is a clear understanding about what your fee will be for the services you are providing. Some of us have been blessed to charge a substantial fee just to be hired on a case. I call it a consultation fee. That is my fee for meeting with a client, investigating a case, and then giving a list of what I think I can do for him/her. The only promise that I can make is that I will do my best and do everything ethical to represent a client. After the consultation, I set a fee based on what I believe can be done.

The problem with fees arises in 2 ways. First, the client is a fool and complains work has not been done or the proper result was not achieved. NEVER MAKE GUARANTEES OR PROMISES, never tell the client you have special connections with the judge or prosecutor, and never take illegal proceeds or stolen property. Second, the lawyer does not do his/her job. Unfortunately, there are lawyers who take money and then laugh all the way to the bank. These lawyers are the ones who cause the dialogue about fees. To avoid this problem, make notes of every phone call, every jail visit, every client meeting, all work you do, and all of the work your investigator and assistant do.

Do not overreact to this advisory opinion. The issue has come up many times before. Do your job and follow your oath and remember the men and women who have, and are, fighting and dying to preserve our Constitution. The TCDLA Ethics Committee is continuing to work on this important issue, and when we get all facts and an answer, it will be announced. Unless you are independently wealthy, you need to be paid for your services. Make sure you do what you took an oath to do; otherwise, go to work for the government or be an insurance salesman, car salesman, or stock broker.

Meanwhile, when you get a client in an ethical manner, quote your fee, explain the fee, and when the client says they have no money, take the case on a pro bono basis or do what I do. If the client has no money, ask about stocks, bonds, coin collections, cars, guns, or motorcycles. The last case I took on I was representing a former police officer. He said he had nothing, just an old ski boat. I said bring it to my office and he did. It was a nice boat and now it is for sale.

The opinion issued September 2011 has raised a lot of concern among criminal defense attorneys over non-refundable fees. The 611 opinion is advisory only. All of the ethics committee co-chairs, along with myself and other lawyers, are trying to comprehend the 611 opinion and prepare our members on what to do. The Ethics Committee is like Las Vegas. It is open and available 24/7, 365 days a year. We never close. Our team has helped many members with ethical issues that have arisen and will continue to do so.

And remember, as Professor Ray Moses at South Texas College of Law would say, only 3 things work for free: mules, tools, and fools.

Growing up in West Texas, you might find that a case of whiskey around the holidays was better than a pot of gold. Abilene, in Taylor County, was a dry county at that time. From the courthouse to the junkyards, many a deal was made and the wheels were greased with a quart of whiskey. Most times it was unethical and sometimes illegal, but it happened a lot. All professions have a code of ethics that prohibit gift giving for personal gain. The holidays are here and you will see a lot of gift giving at the courthouse. Under Canon 4D (4)(b) of the Texas Code of Judicial Conduct, a judge may only accept a gift from a friend for a special occasion and only if the gift is fairly commensurate with the occasion and relationship. Advisory Opinion No. 194 on Judicial Ethics includes court staff in that rule. Canon 4D(4)(c) holds that a judge or family member may not accept any gift from a person whose interests have come or are likely to come before the judge. Last year in one of the larger cities of our state, a delivery truck was backed up to the back door of the courthouse and cases of booze were unloaded and taken inside. It went unreported. To stay out of trouble it is always better to follow the rules, or report it when you see it under Rule 8.03 of the Texas Rules of Professional Conduct.

There are close to 90,000 lawyers in the state, and like all people, some have some serious problems. As this paper is being written, several lawyers are in trouble—like the judge in Aransas County for spanking his child, a Houston lawyer for spanking his private parts in front of his neighbor and secretary, and another for allegedly participating in a plot to kill his wife. Some of our hotline calls have been from desperate lawyers who were in bad situations. The TCDLA hotline has been there as a resource for them to use to help them follow the rules and to resolve personal issues.

In Abilene, B Western movies were shown every Saturday at the Metro Theatre. As youngsters, we would spend the day watching our cowboy heroes—Gene Autry, Roy Rogers, Hopalong Cassidy, and Lash LaRue to name a few. These movies were morality plays with crooked ranchers, judges, sheriffs, and cattle rustlers. Never wavering and never compromising, the cowboy heroes always saved the day and road off into the sunset. Western heroes had their own cowboy code of ethics.

The original “king of the cowboys,” Gene Autry was a true patriot. At the height of his movie fame, Gene volunteered for the Army during World War II, sacrificing his career over service to his country. During this holiday season, you will probably hear many Christmas songs written by Gene and his famous rendition of “Rudolph the Red Nosed Reindeer.” Gene’s Cowboy Code—simplistic and old-fashioned—rings just as true today as it did over 60 years ago:

Gene Autry’s Cowboy Code

1. The cowboy must never shoot first, hit a smaller man, or take unfair advantage;
2. He must never go back on his word, or a trust confided in him;
3. He must always tell the truth;
4. He must be gentle with children, the elderly and animals;
5. He must not advocate or possess racially or religiously intolerant ideas;
6. He must help people in distress;
7. He must be a good worker;
8. He must keep himself clean in thought, speech, action, and personal habits;
9. He must respect women, parents, and his nation’s law;
10. The cowboy is a patriot.

If you are having an ethical dilemma, call the TCDLA hotline to get “Back in the Saddle Again.”

We are getting an excellent response to the ethics hotline. Please be assured that no matter where you are in the great State of Texas, the ethics committee is here to help you. For those of you who practice in Houston, Austin, San Antonio, Dallas, and Fort Worth, there is a whole different legal world in some of the other 254 counties. Growing up in West Texas, I saw many injustices done to the underdogs in our society. It still happens. Once many years ago, one of my Houston clients had a son in trouble in Palo Pinto County and hired me to defend him. I got Ron Goranson and Norman Maples to help me. The judge in Palo Pinto County was a snuff-dipping judge who asked me what all those books on the counsel table were. I told him, “Judge, it’s the code of Criminal Procedure,” and he said, “I don’t care what it is, get it off the jury table.” I did what he told me because I did not want to spend the night in Palo Pinto. Norman Maples was cross-examining the officer straight out of a TCDLA book. The judge was not impressed. He revoked our client’s probation and gave our client 4 years. Ron and I were happy just to leave town. This was before any strike force, hotline, or anything of the sort. Now there are 3,193 people to help. Do not be afraid to ask for help. You are not alone.

In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from apparent conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest. The Texas Disciplinary Rules of Professional Conduct prescribe terms for resolving such tensions. They do so by stating minimum standards of conduct below which no lawyer can fall without being subject to disciplinary action. Within the framework of these Rules many difficult issues of professional discretion can arise. The Rules and their Comments constitute a body of principles upon which the lawyer can rely for guidance in resolving such issues through the exercise of sensitive professional and moral judgment. 

Under Rule 3.09 of the Texas Rules of Professional Conduct, if you see unethical behavior, report it. If a prosecutor is unethical, report it. Last year in Houston alone, three jurists were convicted and two went to jail. Even as this article is being written, several judges in the Houston area are under investigation. A lawyer is under indictment for taking money for allegedly telling clients he could fix their case, and two Houston prosecutors are in danger of being held in contempt of court. In Shelby County, the district attorney is being looked at for taking money instead of prosecuting.

We all want to be on the six o’clock news, but be careful when you have a high-publicity case. Read Rule 3.07 of the Texas Rules of Professional Conduct on trial publicity. This is especially true in small towns where the case will be tried. If it is a case where there is no doubt of your client’s guilt, or if it is a close call, get your client to express remorse publicly as long as you do it according to Rule 3.07. Potential jurors will see this on television or in the newspaper. Even if your client does not testify, viewers will remember what your client said, not what you said. Remember, the famous Russian philosopher Robb Fickman said, “Don’t let your alligator mouth overload your hummingbird ass.”

Remember, wherever you can get help (Rule 1.01—Competent & Diligent Representation) to make sure your client is getting a fair deal, use it. To keep myself out of trouble, I will not mention some of those counties where to see the district attorney, you have to wait hours and then watch him swat flies while talking to you. The judge does what the district attorney wants because he was the district attorney before he ascended to the bench. To read the Motion to Disqualify the District Attorney by Lawyer William “Dangerfield” McCoy, please click on the link below. He is a man of courage and is taking his oath seriously, the way we all should.

Motion to Disqualify the District Attorney (PDF)

Since the beginning of American history, there has been a fight for democracy and freedom. We, as Americans, have the Constitution and Bill of Rights to guide us. Thousands of men and women have died on the battlefield, or have been emotionally or physically wounded to defend our way of life. Criminal defense lawyers are in the law enforcement business, just as are police officers, deputies, federal agents, and all other members of the constabulary. Our job as criminal defense lawyers is to make sure the state and federal laws are followed. When cases are dismissed because of legal errors, some people claim they got off on legal technicalities. That is not true. They got off because someone did not follow the law. Many of the cases we win are not because we are legal geniuses but because the judge, prosecutor, or constabulary did not follow the law. When these individuals lie, cheat, or hide evidence, they are dishonoring all the veterans who served this great country. It should make you mad when they do these dishonorable acts. There was a high profile case in Houston a few weeks ago where the prosecutor took it upon himself to tell a jury, after a not guilty verdict, of all the bad acts he could not present during trial because of the judge’s ruling. There were allegations that the prosecutor violated Texas Disciplinary Rules of Professional Conduct Rule 3.06. The following motion, shared with me by a fellow attorney, should be filed if you have concern:

CAUSE NO. 1745634

STATE OF TEXAS § IN THE COUNTY COURT

1. §AT LAW NO. 5 OF

JOHN DOE § HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION TO PROTECT THE FAIRNESS OF FUTURE JURIES

TO THE HONORABLE JUDGE OF SAID COURT:

1. The Defendant in this case has a prior criminal history which will not be admissible in the guilt/innocence part of this criminal trial absent the Defense opening the door; which it will not do. Defense Counsel is concerned, should this case end in a “not guilty” verdict or with a discharge of a hung jury, that the prosecutors may improperly attempt to share their knowledge of the Defendant’s prior criminal history with discharged jurors in an attempt to adversely influence future actions against other defendants. A prosecutor can easily do so by telling discharged jurors defendant’s prior criminal history; that during the guilt/innocence part of the trial a jury cannot be told of that criminal history; that the defendant’s history shows a disrespect for the law; that defendant shows a predisposition to break the law; and defendant this predisposition is evidence that committed the crime he was charged with. Of course, the fear here is that the discharged jurors will leave believing that all criminal defendants have hidden prior criminal histories. In support hereof, Counsel for the Defendant would show:
2. Texas Disciplinary Rule 3.06 of Professional Conduct is entitled “Maintaining Integrity of Jury System.” Section 3.06(d) provides in pertinent part:

After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not . . . make comments to a member of that jury that are calculated merely to harass or embarrass a juror or to influence his actions in future jury service [emphasis added].

3. Comment 1 of Rule 3.06 provides, in pertinent part, that:

[to] safeguard the impartiality that is essential to the judicial process, . . . jurors should be protected against extraneous influences . . . after the trial, communication by a lawyer with jurors is not prohibited by this Rule so long as he refrains from . . . making comments that intend to harass or embarrass a juror or to influence action of the juror in future cases [emphasis added].

4. Comment 1 for Rule 3.09 provides in pertinent part that:

special responsibilities of a prosecutor provides first and foremost that “a prosecutor has a responsibility to see that justice is done and not simply to be an advocate. This responsibility carries with it a number of specific obligations among these is . . . [that] a prosecutor is obliged to see that the Defendant is accorded procedural justice [and] that the Defendant’s guilt is decided upon the basis of sufficient evidence . . . [and not evidence of predisposition].”

5. Accordingly, where a case ends in a not guilty finding or where a jury is discharged because it is hung, and, where a Defendant had a prior criminal history, it is a violation of the Texas Disciplinary Rules of Professional Conduct for a prosecutor to disclose, intentionally or recklessly, that a defendant had a criminal history because it will create a presumptive predisposition in the minds of those jurors that any future criminal defendant likely has a criminal history too, and, that the future defendant was likely pre-disposed to commit the crime in issue.
6. Comment 4 to Section 3.06(d) is clear that a violation of the aforementioned rule is a serious matter. It says, in pertinent part, that:

[b]ecause of the extremely serious nature of any actions that threaten the integrity of the jury system, the lawyer who learns of improper conduct . . . towards . . . a juror . . . should make a prompt report to the court regarding such conduct. If such improper actions were taken by . . . a [prosecuting] lawyer, either the reporting lawyer or the court normally should initiate appropriate disciplinary proceedings [emphasis added].

7. Hence, it is equally clear that where a prosecutor makes such a disclosure that both the defense lawyer and the judge are obligated to initiate a disciplinary proceeding. Here it is far more comfortable to avoid the problem all together by having the court issue a precautionary order to maintain the integrity of the jury system by protecting future jurors. Moreover there is no harm to the State by the issuance of the requested order.

PRAYER

8. WHEREFORE PREMISES CONSIDERED, should this case end in a “not guilty” or discharge of a hung jury, this Honorable Court is respectfully asked to instruct the prosecutors herein not disclose the Defendant’s prior criminal history. The Court is also asked to order the prosecutors to instruct their fellow prosecutors, agents, and employees not to make this same disclosure.

Respectfully Submitted,

THE THIESSEN LAW FIRM

By: _____________________________

MARK THIESSEN

SBN 24042025
1017
Heights Boulevard

Houston, Texas

Tel: (713) 864-9000

Fax: (713) 864-9006

We have had several calls through the TCDLA hotline where members were faced with prosecutors threatening to file additional charges if the defendant did not plead. When faced with this situation, remember Rule 3.09, which forbids a prosecutor from threatening to prosecute a charge where the prosecutor knows it is not supported by probable cause. Have these rules handy to show them when you get these threats.

Remember these few tips to help yourself be a good lawyer:

1. Remember your oath is to zealously defend your client, not to be buddies with the judge or the district attorney.
2. All conversations in jail or conference rooms at the courthouse may be taped—they will probably not be admissible as evidence, but may be used by your opponent.
3. If relevant, have your client sign releases for you to obtain their information. HIPPA, business records, school, military, etc. These records can help your case. It takes time to get these records, so start as soon as possible after you identify the need for them.
4. Keep a log of all jail visits and have your client sign waivers allowing you to discuss the client’s case with the client’s family and friends.
5. Always investigate and interview witnesses immediately. Tape-record all of your conversations with witnesses—do not assume anything.

The newly formed ethics hotline has been hot. We have received numerous calls, and the hotline has turned into a helpline for lawyers with ethical and procedural questions. All the co-chairs have been invaluable. Many lawyers never had training on how to handle a criminal case and how to get cases in an ethical manner. Times have changed and now lawyers run wild ads on television, which are reminiscent of Cal Worthington, the California car dealer who would appear on commercials riding elephants trying to sell cars. Mary Flood, a Harvard-educated lawyer who does public relations work for Androvett Legal Media & Marketing, says over 90 percent of websites are misleading. Get your website approved by the State Bar before putting it up. The quality of your representation is what counts most. When I first met lawyer legend Percy Foreman, he said if you are being a lawyer for the money, do something else. He said if you do a good job as a lawyer, you will always make money. He made plenty.

Follow these simple tips that will help you on your cases:

1. Get a contract or letter of acknowledgement;
2. Build your file with a copy of the relevant statutes, punishment ranges, and lesser included offenses;
3. Be, look, and act professional;
4. Have file in shape so if another lawyer has to take it over, it will be organized in case you drop dead or get shot by an angry client;
5. Be available to your client throughout all times of the day and night. If you want an 8 am–5 pm job, go work for the government;
6. Read books on famous lawyers like Earl Rogers, Gerry Spence, and Clarence Darrow. They became famous for a reason;
7. Get help from TCDLA members or utilize hotlines;
8. In case of punishment or to aid in plea-bargaining, get a complete social history of your client. It will explain and not excuse what your client has been accused of;
9. Improve weaknesses by attending seminars and staying awake through them;
10. Ask questions. Lawyers are always willing to help comrades;
11. Build relationships with court personnel. One bailiff was my friend and he would always give the jury charge to the person I thought should be the foreman;
12. Carry a copy of the penal code and/or code of criminal procedure with you. I also highly recommend reading books written by Ray Moses, who tells you how to do everything from what to wear to what to say and how to handle cases. Jim Skelton’s search and seizure workbook is another great resource. Look up the Criminal Law Institute for the search and seizure information.

Learn to be in charge of the courtroom. Percy and Racehorse Haynes have been called the Kings of the Courtroom because they took control. Judges or district attorneys do not respect those who give in. Sometimes not giving in will result in an allegation of contempt against you, so carry a motion for a personal recognizance bond in your briefcase just in case—it will allow for your immediate release. You never know when you will need it. See § 21.002(d) of the Texas Government Code regarding the personal recognizance bond. Also carry a motion to prevent ex-parte communications between judges and assistant district attorneys. It is unethical for a judge to discuss cases ex-parte. Your oath is to your client, not to be friends with the judge. Let them know you are aware of those rules. The Commission on Judicial Conduct is there for a reason.

Sometimes it may be in your best interest to record conversations with clients. In Texas, the recording of phone calls and other electronic communications is allowed when one party to the conversation consents to it. The following is an article—entitled “May a Lawyer Electronically Record a Telephone Conversation?—written by co-chair Greg Velasquez of the El Paso County Public Defender’s Office regarding tape-recording calls.

May a Lawyer Electronically Record a Telephone Conversation?

Federal law

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the conversation.¹ This is called a one-party consent law. With the consent of one person or party to the conversation, recording the conversation is not a violation of the law.

“One-Party Consent” Statutes

Thirty-eight states and the District of Columbia have adopted “one-party consent” laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents.²

“Two-Party Consent” Statutes

Twelve states require the consent of every party to a phone call or conversation in order to make the recording lawful. These “two-party consent” laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Consent must be obtained from every party to a phone call or conversation if it involves more than two people.³

Texas Law

Texas’ wiretapping law is a “one-party consent” law. Texas makes it a crime to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents.⁴ But, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.⁵

The law does not cover oral communications when the speakers do not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.”⁶ Therefore, you may be able to record in-person conversations occurring in a public place—such as a street or a restaurant—without consent.

Also, a recording device in plain view is presumed to be used with the consent of all persons who can see it.

Texas Lawyer and the Professional Ethics Committee for the State Bar of Texas

May a lawyer electronically record a telephone conversation between the lawyer and a client or third party without first informing the other party to the call that the conversation is being recorded?

In November 2006, the Professional Ethics Committee for the State Bar of Texas issued Ethics opinion No. 575 and answered the question.⁷ The Committee stated the following:

It is recognized that there are legitimate reasons a lawyer would electronically record conversations with a client or third party. Among the legitimate reasons are to aid memory and keep an accurate record, to gather information from potential witnesses, and to protect the lawyer from false accusations.

Ethics opinion No. 575 p.2.

The Committee also stated “No provision of the Texas Disciplinary Rules of Professional Conduct specifically prohibits a lawyer’s unannounced recording of telephone conversations in which the lawyer participates.”⁸

The Committee was of the opinion that the Texas Disciplinary Rules of Professional Conduct did not generally prohibit a lawyer from making undisclosed recordings of telephone conversations in which the lawyer is a party, provided that certain requirements are complied with.

The Committee cited Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct: “(a) A lawyer shall not: (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” and the Committee stated that it did not believe that an undisclosed recording of a telephone conversation by a party to the conversation could be termed to involve “dishonesty, fraud, deceit or misrepresentation” within the meaning of Rule 8.04(a)(3). Thus, a Texas lawyer’s undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(a)(3).

The Committee concluded that the Texas Disciplinary Rules of Professional Conduct did not prohibit a Texas lawyer from making an undisclosed recording of the lawyer’s telephone conversations provided that (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute a serious criminal violation under the laws of any jurisdiction applicable to the telephone conversation recorded, and (4) the recording is not contrary to a representation made by the lawyer to any person.

Robert Pelton, the former President of the Harris County Criminal Lawyer’s Association (HCCLA), Associate Di­rec­tor for TCDLA, and Feature Articles Editor of the Voice, will be writing a regular column on ethics and the law.

Texas Criminal Defense Lawyers Association (TCDLA) President Gary Trichter has recognized the need for an ethics committee to help members. One of the top priorities for the committee was to establish an ethics hotline for criminal defense lawyers. Protocol is as follows: Call the hotline at 512-646-2734 and leave a message. It will then be routed to me, or to a co-chair. You will get a call or several calls within 24 hours. If it is an emergency, you can call me at my office at 713-524-8471 or on my cell at 713-829-0678. The hotline has already received numerous calls and all questions have been answered. The job of a lawyer is serious business, and the committee’s goal is to help members if they have ethical questions. We are in the job of enforcing the U.S. Constitution and Texas law. It is important for a lawyer to know the law and how to ethically practice the law. Having a grievance filed or a writ for ineffective assistance can be a disastrous event.

It is very important to set up a file properly with copies of the complaint, information, indictment, statute, punishment range, and all notes or reports. Keep a log of each time you talk with the client. When you first get hired, remember the attorney-client privilege. Do not discuss the case with any of the client’s family or friends without a waiver. Always get the waiver in writing, even if it is something as short as “I waive attorney-client privilege as to _______. I fully understand the consequences” (signed by client). Many times the client’s wife, husband, or best friend can turn out to be the worst enemy.

The TCDLA Ethics Committee is made up of the following members:

Robert Pelton, Chairman, , 713-524-8471, 713-829-0678 cell

Jack Zimmerman—Houston, www.texasdefenselawyers.com, 713-552-0300

Robyn Harlin—Houston, , 713-697-5900

Ray Fuchs—San Antonio, , 210-226-5757

David Sheppard—Austin, , 512-478-9483

David Zavoda—Odessa, 432-580-8266

Joe Pelton—Abilene, , 325-676-9100

Greg Velasquez—El Paso, , 915-546-8185

Joseph Connors—McAllen, , 956-687-8217

Don Davidson—Bedford, , 817-355-1285

Doug Barlow—Beaumont, , 409-838-4259

No one is immune from client complaints. Sooner or later, no matter what you do, a client may claim you have done something wrong. If that happens, be prepared to defend yourself. Many lawyers have been accused of misconduct. F. Lee Bailey, part of the O. J. Simpson Dream Team and one of the most famous lawyers in America, wrote a book, The Defense Never Rests. Bailey was disbarred for misconduct while defending one of his clients. At last account he finally rested and is living in Florida.

Future topics will include the following:

1. How to get business ethically
2. How to set and collect fees
3. Contracts or letter of acknowledgment
4. Contempt
5. Conflict of interest
6. Attorney/client privilege
7. Gifts to judiciary
8. Ex-parte communications
9. Grievance process
10. How to set up a file
11. Investigators, polygraph operators
12. Tape-recording rules
13. Motions to withdraw
14. Pretrial publicity
15. What to say and not say to the media
16. Personal habits—alcohol-drug problems
17. How to act like a lawyer
18. Books that will help
19. Seminars
20. Board Certification
21. College of State Bar
22. Advertising
23. Closing practice
24. Selling your practice
25. Social networking, Facebook, Twitter
26. Blogs
27. Website