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Current Issue: October 2022

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Features

14 | How to Leverage Client Management Software as a Criminal Practitioner – By Benson Varghese
23 | Understanding Bitcoin in Criminal Defense – By Beth A. Mohr
29 | The Case to Repeal § 12.42(f) of the Texas Penal Code – By Warren Wolf
31 | How Incarceration Affects Eligibility for VA Disability Benefits and Using the Information in Sentencing – By Colonel Rick Rousseau

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
8 | Editor’s Comment
9 | Ethics and the Law
13 | From the Front Porch
15 | Federal Corner
26 | Shout-Outs

Departments

4 | CLE Seminars and Meetings
35 | Significant Decisions Report

President’s Message: Lost and Found

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I remember the day like it was yesterday. I was devastated. I poured my heart and soul and over a year’s worth of work into this case. I was sure we were going to win. But when the jury foreman announced the verdict, I was crushed: “GUILTY.” He said it with such glee and seemed to relish the moment and take pride in proclaiming it. Like he was presenting a lifetime achievement award at a banquet.

Later that evening I was at home. I must have been visibly sulking because my son, Brogan, who was about three years old at the time noticed I was not myself asked me: “what’s wrong, mommy?” I responded that I had lost a case. Without missing a beat, he responded: “Don’t worry, mommy, you’ll find it tomorrow.”

Out of the mouths of babes. He just continued to play with his toy cars and I couldn’t help but smile.

But let’s face it, we hate to lose trials. And as euphoric as it is to achieve victory for our clients, the reality is that we hate to lose more than we enjoy winning. In our profession, losing is magnified more than most other professions because when we lose, our client’s lives are usually destroyed – often permanently. So, the temptation we face when we experience a defeat in the courtroom is to bury it. Forget it ever happened, sweep it under the rug and move on as quickly as we can.

As strong as the urge is to fail fast and scrub the bitter stench of defeat from our minds there is value for us as professionals in processing the unwanted suffering that is ushered in each time a courtroom echoes with the nasty word: “GUILTY.”

Perhaps part of the reason why the joy of victory is so fleeting, but, despite our best efforts, the agony of defeat stays with us for days, weeks, and sometimes longer is that our subconscious is imploring us to process and learn from the loss. So, the scenes from the trial linger around, sitting patiently in the waiting room of our minds for us to fully embrace them, process them, learn from them, and become even better lawyers and people. The trick is setting aside our pride, finding that time, and extracting the lessons learned we know in our heart of hearts exist within each painful loss. We all know that the best learning process usually involves some degree of failure, failing is instructional. Experts say that after a failure there are certain steps we should take, a “postmortem.” Steps like looking back at the trial and acknowledge the mistakes we made in pre‑trial and during the trial and owning them. Remember we are human too. Next, analyze what went wrong. Then, plan for next time. If we don’t figure out how not to make the same mistakes again, we’re going to find ourselves right back in the same regrettable position.

So, the next time you have a defeat in the courtroom – or in life – remember the words of the great Ruth Bader Ginsburg: “So often in life things that you regard as an impediment turn out to be great good fortune.” At the end of the day, it’s not about us. It’s about the souls of the men and women entrusted to us. RBG was right. So was Brogan. The only thing worse than losing a case today is not finding the lessons learned to use in the cases we’ll find tomorrow.

Executive Officer’s Perspective: Inflation & Staffing

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“Pricing power is important in business. You want your business to have the flexibility to raise prices as needed, especially with regard to inflation.” “In business, all expense projections and all revenue projections must account for inflation.”

–Hendrith Vanlon Smith Jr, CEO of Mayflower-Plymouth

As we start our new fiscal year, we are faced with continuing inflation. At times, staying within budget and dealing with the challenges of excessive increases across the board seems overwhelming. We see these increases on all fronts which directly affect TCDLA’s staffing, planning, and services provided to members.

An example is a shortage of paper. The Voice for the Defense Magazine’s cost to print has doubled since last fiscal year. Our printer was trying to purchase as much paper as allowed and was hit with “limited quantities.” We use several printers for our brochures and publications, and they are facing the same challenges. This is the message from another one of our vendors: “Due to paper shortages and supply chain issues, some paper stocks will not be available for the time being. Turn times will vary per job; the average turn time is 5‑7 days. Please advise if you need by certain dates, and we will do our best to accommodate.” As consumers we see these same types of challenges everywhere we see signs in the grocery store for popular items “limited quantity two – save some for your neighbor.”

Do not panic; we will still print our Voice for the Defense Magazine. We know this is a member benefit and we are not considering taking it away. We will continue to look at other printers and temporary paperweight changes to get us through this period.

Another increase in cost is food – we all have seen a rise in food at restaurants and grocery stores. Hotels are no different and are facing the same increases which are passed on to us. Often there are still shortages. Hotels who customarily provided banquet orders for events several weeks in advance are now waiting until the week before or even the day before the event. Hotel contracts that were previously signed years in advance are being put on hold in hopes that prices will decrease. Another challenge with the hotels is dealing with new staff not knowing the required layout or A/V needs. We find ourselves explaining and scheduling a pre‑conference meeting a week before the event only to find out the hotel employee we had been in communications with is no longer employed with the hotel. All of these scenarios cause additional stress for everyone involved. The hotel staffing industry no longer has the same loyalty and relationships that we’ve built over time. Most of the time the new hotel contact worries more about the bottom line than our relationship, and there is no room for negotiation. The notion of creating repeat business is no longer an incentive for the new hotel contacts. The audio‑visual companies have doubled or even tripled their prices, and hotels are using third‑party companies because they cannot find staff or have staff that is knowledgeable in A/V.

Many associations are facing these issues and looking at increasing rates; we are focused on providing education and services during these difficult times and looking at other ways to tighten our budgets without price increases to our members.

Staffing and the great resignation continue to take a toll among small and large businesses. I see some of my favorite stores in the mall or restaurants closed with a sign “no employees, come back tomorrow.” So, what is the great resignation? It started at the beginning of 2021; employees had a feel of what it was like to be at home and reevaluate everything revolving around the workforce – this resulted in employees voluntarily resigning from long‑term positions. Some reasons for resignation related to wages, increased cost of living, job dissatisfaction, options to try different fields, work remotely, safety concerns of the pandemic, personal values not aligning with position, and unwillingness to give up family/personal time for work. The days of loyalty to a company for 20+ years and hard work ethic to stay late and come in on the weekends is disappearing.

Working remotely has caused lots of influx.

Employers are no longer competing with companies in their local area – they are competing nationally due to the availability of remote work. During this time, employees and employers have had to adapt to what is needed at the moment. During the great resignation, people go back and forth to different work atmospheres to see what they prefer. Some find they need a social connection and want to come to the office. Being at home with roommates or other distractions is not successful for them. Others prefer to be in solitude or have the flexibility of a work/remote schedule. Employers find tracking the employee’s time hard, and trust is needed. Communication is also vital for tasks and deadlines. The pros and cons for both can go on and on.

TCDLA is not immune to this; putting on over 50 live seminars requires in‑person travel for all staff. In order to remain competitive, we also have to look at ways to retain our employees. Turnover is time‑consuming; training a new employee takes over a year due to all the various tasks completed routinely. Investing in employees you hope will stay takes away from the trainer’s time to complete their tasks, putting everyone behind. We do this with the understanding that it will be disastrous if we do not invest the time necessary for training in the long run. Mental health and wellness also have a considerable impact, which we must stay on top of and address.

Employers who have no option except to offer in‑ person work are faced with having to increase salaries, close business when not staffed, or close completely. Travis County Commissioners Court recently voted to raise the minimum wage to $20 for Travis County employees in hopes of retaining and hiring entry‑level staff.

In order to help us mitigate challenges and plan accordingly, we have implemented a project management task software to track and keep up with numerous deadlines. We have written procedures for every job function, task and process for each duty in the event we have someone leave. We have changed our email to outlook exchange which allows everyone to access anywhere. Staff are set up with laptops to have access remotely. After much trial and error, we have changed to a new zoom phone system that has given us much more options than a regular phone. Faxes are received via email. These are some of the things we have changed. If we can assist with any of the items mentioned above, feel free to reach out. At the end of the day, it is necessary to adapt and embrace change (which is difficult at times for me) and to find a balance that meets everyone’s needs to be successful and productive.

Editor’s Comment: October 2022

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Fall is upon us, or so I am told, as it is still hot out. I am writing this article as I fly back from my trip to Austin for the fall TCDLA Board meeting. By the time I get home, my wife Meghan will have decorated the entire house like Halloween is next week. Aside from the ghosts and goblins, fall is one of my favorite times of the year because of college football. I played at a small school in Mississippi named Millsaps College, and college football is one of the loves of my life, whether playing or watching. Sometimes I wonder why I love it so much when my Oklahoma Sooners leave me heartbroken every year. However, the more I think about it, the more I am convinced that the camaraderie of college football is what draws me to it even since I hung up my cleats and pads. The camaraderie doesn’t just include finding like‑minded people who choose correctly and root for the same team as me, but it is‑minded people who choose correctly and root for the same team as me, but also the spirited conversations with folks who choose wrong too. I spent much of the weekend talking trash with friends about whose team is better this year and it dawned on me just how many different teams are represented within our Board and our Organization.

Former TCDLA President Kerri Anderson Donica and future President David Guinn, Jr. both chose to root for Baylor. I forgive them but don’t think for a second I don’t remind them who I cheer for when OU wins and they likewise reminded me they finally got to be Big 12 champs last year. Current President Heather Barbieri is a Kansas State fan, much to my crimson‑blooded chagrin recently.

My friend and future President John Hunter Smith is an Auburn fan and I can’t wait to remind him that Auburn is of little consequence in the college football world when OU joins the SEC in the near future. Future President Clay Steadman, former President Bobby Mimms, former President Gerry Morris and Suzanne Spencer, former President Sam Bassett, former President Betty Blackwell, and Gene Anthes (all close friends) cheer for the school in Austin who may still play football, I’m not quite sure. They are both reminded almost yearly who dominates (dominated?) The Red River Rivalry. And then there are all my friends in and from Lubbock who cheer ever so loudly and obnoxiously for the Red Raiders (former President Tim Evans, Lance Evans, for‑ mer President Mark Snodgrass, Sarah and Rusty Gunter, Justin Underwood, Laurie Key, Lisa Greenberg, Dwight McDonald, and Sara Smitherman, to name a few).

If I had to think back to how many times I’ve yelled at a TV over the years when the Big 12 referees have screwed up a game it is almost always when OU is playing Texas Tech. There are too many of my friends to list in this article who cheer for Tech, and they are lucky I still call them friends. Just remember Baker Mayfield graduated up to OU and his Heisman Trophy. But, that’s not all, schools from west to east are represented within the Organization; my brother from another mother, Cris Estrada from UTEP, Mark Thiessen from TCU, Thomas Wynn from SMU, Jani Maselli Wood from the University of Houston (for her law degree), Sean Hightower from Stephen F. Austin, Mario Olivares for Texas A&M, and former President Grant Scheiner from Trinity University, among many others.

Aside from using this platform to assuredly piss off almost every friend I have in TCDLA, I want to remind everyone to think about something other than the law on occasion. If you attend a TCDLA CLE, or a board meeting, or other event, branch out from the normal, “I have this case . . .” conversation. We are competitive folks by nature and it doesn’t end at the courtroom doors. Enjoy the brotherhood (sisters included) that we have to mix it up and talk some shit to your fellow members. But, don’t ever forget there will only ever be one king of the Big 12 so long as OU is a member and it’s the team that plays in the Palace on the Prairie. And for those of you who chose right in your team, let us hope to hear on many occasions on the radio this year, “You can unhitch the wagons and put the ponies in the barn.” Boomer Sooner.

Be safe,
Jeep Darnell

Ethics and the Law: How to Avoid a Grievance When an Attorney-Client Relationship Ends

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All attorney‑client relationships come to an end at some point. However, the process of terminating the attorney‑client relationship is rife with the potential for disciplinary rule violations. The irony is that you may have provided exceptional representation and received a great result for your client, but may still wind up defending yourself against a grievance.

The third most common grievance for lawyers involves mistakes made while terminating the attorney‑client relationship. This is surprising considering that the representation is largely over at this point. I suspect that is exactly why it happens ‑ most lawyers do not recognize the importance of these seemingly minor details in parting ways with a client. These details are often delegated to staff and forgotten as the lawyer moves on to new clients and new matters. But just as doctors with poor bedside manner receive disproportionately high numbers of malpractice claims,1 lawyers who do not take the time to attend to the client’s needs – especially as the representation is ending – will face higher numbers of grievances and malpractice lawsuits.

There are several issues surrounding withdrawal and proper termination of representation, including the timing of the withdrawal and whether good cause exists for withdrawal. Such issues require a detailed factual analysis and are beyond the scope of this article. For our purposes, we will assume that either the case is over, that it is the client’s decision to early terminate the representation, or that the lawyer has appropriate grounds for withdrawal and the timing will not prejudice the client. This article will focus on mistakes made during the process of withdrawal that result in a large number of grievances.

Providing the Client File Upon Request

The first issue that comes up in an astonishing number of disciplinary cases is a simple failure to provide the client’s file upon request. Texas Disciplinary Rule of Professional Conduct 1.15 (d) states, “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled[.]”

Rule 1.15(d) violations usually result from providing no file, an incomplete file, or not providing the file quickly enough. The rules do not specify what constitutes a reasonable amount of time in which to comply with this request, but I have personally seen cases sent into the grievance investigation stage where the attorney had not been given more than a couple of weeks to comply. The bottom line: the file must be provided promptly, and while the definition of “promptly” may be debated, you will need to justify even slight delays in providing the client his or her file. One can avoid a grievance all together by establishing procedures to provide the file to the client within a week or less of the request.

It may sound elementary, but the first step to accomplishing this goal is to keep a client file and to update it in real time. Whether electronic or paper, it is imperative that there be a file assigned to each client in which all pleadings, orders, notes, correspondence, and other documentation is placed as the case progresses. As I am writing this article, one of my lawyer clients has yet to provide me his client file on a case that I requested over two weeks ago. This type of delay is frequently the result of having to create or substantially update a file after the fact. With a busy practice, it is easy to neglect non‑urgent matters like file maintenance. But this makes it monumentally more difficult to prepare and provide the file after the case is over.  Do yourself a favor and make sure that files are maintained in real time. It will make the process of providing the client file seamless and will avoid an unnecessary grievance, which would be much more costly and time‑consuming than the effort it takes to keep the file updated.

A second issue that lawyers run into with providing the client file is not knowing what exactly to provide. The short answer: provide everything. Many lawyers still believe that their work product and case notes do not belong to the client. This is incorrect. With very limited exceptions, a lawyer’s notes and work product must be provided to the client.2 Moreover, the client is entitled to the original documents filed with the Court. If you, as a lawyer, wish to retain a copy of the file, it is your duty to make a copy for yourself but to supply the original file to the client. All copying expenses are borne by the attorney, not the client.

Criminal defense attorneys are frequently concerned about receiving a grievance for not providing discovery received from the prosecution under Texas Code of Criminal Procedure, Article 39.14(f).3 This is something that the State Bar of Texas’ Classification Attorneys are aware of and have been trained to consider when reviewing a grievance alleging that portions of a file were not received. If you have provided the file to the client upon request, but have withheld discovery under Article 39.14(f), be sure to include a letter explaining why that information cannot legally be provided. Sometimes the client will include the letter as part of their grievance materials, thinking it proves that they are not receiving everything. In fact, if a classification attorney reviews a letter indicating that everything has been provided except discovery under Article 39.14, it will virtually ensure that the grievance based on same will be dismissed.

Another problem arises when the lawyer destroys the client file too soon. If the client comes back at some future date to request the file and the lawyer is unable to provide it because it has been destroyed, the lawyer could be facing a sanction if the file was not retained for a reasonable amount of time. But what is a reasonable amount of time? The unsatisfying but true answer: it depends on the case.

The disciplinary rules do not explicitly tell attorneys how long they must keep client files after resolution of the matter.4 Professional Ethics Committee Opinion 627 acknowledges this void and resorts to “guiding principles” to determine the appropriate considerations for file retention. For our purposes, the primary consideration is the lawyer’s continuing obligation to not harm the interests of a former client. This requires a lawyer to thoughtfully consider whether the client could reasonably need the file at any future point. As we know, in criminal cases, a client’s potential need for the file may vary wildly depending on the type of case, how it was disposed of, the availability of future appeals, etc. There is not a one‑size‑fits‑all answer for the criminal practitioner. Therefore, you will need to put some reasonable policies in place that vary depending on the nature of the case and its disposition. Alternatively, and more common these days, is to keep electronic files for each client and to retain them indefinitely. This ensures the file can be provided if needed for an appeal or any post‑conviction issue.

One final note on this issue ‑ the rules do require a five‑year retention of client trust account records.5 If you are not retaining client trust account records for at least five years or, even worse, you do not put advance fee payments into your trust account or even have a trust account–you are violating various disciplinary rules. Each of the above issues may come to light if a client files a grievance for failure to supply their file. It is critical that you understand the rules governing the proper handling of fees and that you are maintaining proper trust account records for each client.

In terms of how to deliver the file to the client, this can require a more unique approach in criminal cases, particularly when the client is incarcerated. Generally, it is sufficient to tender a client’s file to be picked up at the lawyer’s office by the client or a designated representative.6 It is also normally permissible to provide the file as it is maintained in normal course of business, which may be in digital format.7 But for the incarcerated client, unless you are in agreement otherwise, it will usually be necessary for you to print out a hard copy of the file and mail it directly to the client. This can be expensive and time‑consuming, but not nearly as expensive and time‑consuming as defending a grievance. If there are certain items that cannot be provided in this manner, you will be in compliance with the rules if you are working with the client and making reasonable efforts to get the information to them or a representative.

Failure to Refund Unearned Fees

When an attorney‑client relationship ends prior to resolution of the legal matter for which the attorney was retained, you can bet the client will be asking for a refund of some or all the fees. How you respond to this request will play a huge factor as to whether that client decides to grieve you.

Many criminal practitioners charge fixed fees and, if fired prematurely (particularly without good cause), will take the position that the fee was earned upon receipt and that no portion of it need be returned. Sometimes there is language in the fee agreement specifically stating that the fee is earned upon receipt and is non‑refundable.

Not only is refusing a refund on this basis one of the quickest ways to get a grievance filed against you, but it is an incorrect statement of the law. A fixed fee is not earned upon receipt, even if language in the fee agreement indicates that it is.8 The fee is not earned until the legal work for which the fee is paid is completed. Theoretically, this means until the case is resolved. But many practitioners, rather than waiting until completion of the case to consider the fee earned, will use a graduated fee agreement to delineate what portions of the fee are earned upon completion of certain tasks in the case. This is perfectly fine, and even preferable. It leaves less room for misunderstanding by the client about how and when the fees are earned, and allows the lawyer to be paid as the case and workload progresses.

When the State Bar receives a grievance alleging that a lawyer refuses to refund fees, they first attempt to determine whether there is a legitimate fee dispute ‑ a valid disagreement about how much of a fee has been earned ‑ versus a flat refusal to refund fees that clearly have not been earned. This can be difficult to discern from the face of a grievance, but if it appears that the lawyer is refusing to consider any refund even though a case ended prematurely, it is more likely to be upgraded for investigation. If this happens, the State Bar will often check to see if you have a trust account and may even subpoena your trust account records to see if the fee was deposited into the trust account when received.

The State Bar investigator will typically ask the lawyer to provide invoices justifying the fee or, if it is a fixed fee case, to essentially create an invoice estimating the hours billed multiplied by the hourly rate. If the lawyer is unable to justify keeping the entire fee, the case will likely be set for an investigatory hearing, after which the lawyer may be offered a sanction for violation of Rule 1.15(d).

If you want to avoid this time, money, hassle, and mark on your professional reputation, the time to negotiate with a client about a refund is before a grievance is filed – i.e., when the client first raises the issue. I have many lawyer clients who, after a grievance has been filed and they have hired me to defend them, tell me they are more than willing to refund some of the fee to resolve the matter. But once a grievance is pending, it is too late to negotiate directly with the client. Not only is there no way to “settle” a grievance at this stage,9 but such overtures, even when genuine, can appear to disciplinary counsel as an attempt to bribe the complainant or tamper with their participation in the proceeding.10

There may be times when the client is being wholly unreasonable – demanding a full refund despite substantial work on the case. Only you can decide whether it is worth it to stand on principle and face a possible grievance, or attempt to work something out that may resolve the issue. It is perfectly fine not to pander to insulting or irrational demands. Just ensure that you can fully justify the amount of the fee you have retained before sending a client away empty‑handed. And for the clients who are not being unreasonable but with whom you legitimately disagree about the fee – just know that sitting down with the client to discuss the matter and returning a portion of the client’s money could save you an exponential amount of time, money, and legal trouble down the road. Sometimes it is not all about the money. It often is the client’s need to feel heard and treated fairly that will make all the difference.

In conclusion, resolving an attorney‑client relationship on a positive note should be given the same priority in your practice as bringing in new clients. Maybe even more. Not only can it save you the stress of defending a grievance, but it is the lasting impression you leave with clients that will build your reputation over time. The time and effort it takes to put the right processes and training in place up front will pay high dividends over the course of your professional career.

From the Front Porch: Learned Treaties: An obscure law school evidence question or a powerful weapon for the rural practitioner to use at trial?

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We rural practitioners have many advantages over our more urban criminal defense brothers and sisters. Less stress (in theory), less traffic, better lifestyle… wait, I will not go into everything because I do not want any more city lawyers to move here! But one thing we do not have is access to expert witnesses. For example, if you Google “expert witnesses Dallas”, you can find scores of experts who will testify about seemingly every issue you can think of. Hell, some consulting firms are even looking to hire more. However, if you have ever tried to ask one of them to come, say, to Nacogdoches, their response is likely to be, “Where’s that?” followed by a huge fee. In all fairness, who can blame them? It will take several days away from the office for them to come to rural places.

So, what is an honest, hard‑working rural practitioner to do? My advice? Grab one of those dusty evidence books from law school and look up the learned treatise exception to hearsay. Texas Rules of Evidence Rule 803 (18) states that “Statements in Learned Treatises, Periodicals, or Pamphlets are not hearsay if a) the statement is called to the attention of an expert witness on cross‑examination or relied on by the expert on direct examination, and b) The publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. What does all that mean as a practical matter? You have the State’s witness testifying against some issue to the detriment of your client. You do not have an expert witness. But you can have the best book, manual, article from the world’s leading authority on the subject. How do you get this information before a jury? You call that to the attention of the expert witness on cross‑examination, then have them admit that is reliable. Once your book, article, manual passes legal muster, you get to read it to the jury.

I can hear the naysayers mumbling already. What if the State’s expert does not recognize that book, article, manual as a reliable authority? The State’s expert may say something like “I’ve never heard of it!” The framers of this rule must have seen that excuse coming. So as a safeguard, they put it that you can ask the Judge to take judicial notice of your expert materials. What if the Judge will not take judicial notice of it? Make an offer of proof. As a practical matter, that gives Judge’s something to worry about. They may change their position and let it in. At the very least, you may have an excellent issue for appeal. And you do not need to pay $5k for an expert to come to your rural location. You may only have to pay for the book or print out the article. This is one way in which we can all educate ourselves as experts, and this is a reasonable alternative on a rural court‑appointed attorney’s budget! So, the next time you are faced with an issue that requires expert witness testimony, do not despair. Get busy and do the research and find that learned treatise that provides the argument you’re searching for. When you have met the evidentiary burden for using a learned treatise in trial, you can then convey to the jury in your style the substance of that information and why they should consider its value in their deliberations. You do not have to drone on. Nowhere in the rule does it say you cannot read it with enthusiasm and charisma! Another upside to this is you do not have to worry about your expert witness being a gun for hire or someone who does not know what he is talking about. Also, let us not forget that the jury has observed your attention to detail and preparation on your client’s behalf. The information being given to the jury has received the court’s blessing and should be argued as having an expert’s seal of approval.

Federal Corner: Conflict of Interest Arising from Dual Representation

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Sheperd I: 27 F. 4th 1075 (5th Cir. 2022)

Sheperd II: 44 F.4th 305, 2022 U.S. App. LEXIS 22357; 2022 WL 3274129 (5th Cir. August 11, 2022)

In a couple of recent opinions, the Fifth Circuit Court of Appeals clarified the rules regarding ineffective assistance of counsel involving conflicts of interest. The decisions address the actions of an attorney who breached his duty of utmost loyalty and harmed a client. But, the decisions also raise the possibility that more ethical attorneys might make similar mistakes much more innocently.

Let’s start at the end with a quick recap of the facts cited by the Court in the second case. Ann Sheperd, the owner of a home‑health agency, was convicted of Medicare fraud. On appeal she complained that her Sixth Amendment right to effective assistance of counsel had been violated. Turns out, Sheperd’s pretrial counsel was also representing one of the Government’s star witnesses. The Court Remanded the case for an evidentiary hearing on whether Sheperd’s lawyer’s conflict of interest—a conflict the Government knew about—adversely affected his representation. The district court’s answer: Yes. (Sheperd II).

Clearly, the position occupied by Sheperd’s counsel is not one that a competent lawyer with a grasp of ethical principles and a casual understanding of conflict of interest would occupy. However, due to the complexity of the rules that address conflict of interest, defense counsel does not have to be oblivious to ethical obligations to occupy similar territory. In addition to being a firm reminder of the duty of utmost loyalty owed to a client, the case is important for how it addressed the second prong of the Strickland analysis (harm), and for the remedy available for this type of harm. If you ever thought about writing a writ, or just hope to avoid being the legitimate subject of one, read these cases.

I. SHEPERD I

A.   The Facts

The facts of the case are set out brilliantly in Sheperd I. However, a little editing has been done for brevity, clarity, and to avoid further shaming of the lawyers. The quotes from both cases appear without the footnotes, citations, and quotation marks present in the opinions.

Ann Sheperd owned and operated a home‑health agency. In June 2016, a grand jury indicted her (and several others) with conspiracy to commit healthcare fraud. Sheperd retained counsel. The district court set trial for August 2016. A month later, Sheperd replaced her counsel. The District Court declared the case complex, and relaxed the trial deadlines. Sheperd replaced her counsel again in February 2018. “Attorney A”.

Two months after entering his appearance as Sheperd’s counsel, Attorney A met with FBI agents and a federal prosecutor to discuss Sheperd’s trial. But he was not there acting on Sheperd’s behalf. Attorney A was there to act on another client’s behalf—Okpara. Attorney A had helped Okpara secure a plea deal related to healthcare fraud in a different district court almost a year before. So why did Okpara need Attorney A at the meeting? Because Okpara was Sheperd’s friend and business associate—a relationship the Government wanted to exploit by calling Okpara as a witness against Sheperd.

If representing both Sheperd and Okpara at the same time sounds zany to you, then you wouldn’t be alone. The Government thought it sounded zany, too. In fact, it even pointed out to Attorney A that he had an obvious conflict. Attorney A replied that he hadn’t noticed. Even so, the meeting continued since, according to Attorney A, Sheperd wanted to plead guilty and would do so by the next month, in May. Turns out, the meeting was a success … for Okpara. Afterward, the Government amended Okpara’s plea deal to include 5K1 consideration. That is, in exchange for Okpara having provided the Government with substantial assistance in the investigation or prosecution of another person who has committed an offense, the Government agreed to permit Okpara to receive a reduced sentence.

Nobody told Sheperd about Attorney A’s conflict. Nobody told the district court about it either. But that time was not wasted. The Government used it to bring six more counts of healthcare fraud against Sheperd. The grand jury returned a superseding indictment that charged Sheperd with all six counts. Attorney A, for his part, continued to receive ‑provided discovery. Not until August—with trial looming—did Attorney A start trying to address his conflict. He approached a former state Assistant Attorney General with experience prosecuting healthcare‑fraud cases “Attorney B” about taking over Sheperd’s defense. Attorney A had worked with Attorney B before, and Attorney B got involved, in his words, on August 14.

On August 20, Attorney A finally revealed to Sheperd his conflict and proposed solution. But Sheperd felt burned. She initially refused to retain Attorney B. The district court set a status conference.

The status conference took place on August 27, 2018. Attorney B was not present. Attorney A assured the court that Attorney B would be prepared for trial two weeks later. That same day, Sheperd changed her mind, agreed to let Attorney B represent her, and Attorney A then withdrew as counsel.

A few days later Sheperd’s case was transferred to a new judge. The new judge held a pretrial conference on September 4. At the conference the judge asked the parties if they could move up the trial date. All parties represented they could not, pointing, in part, to Attorney B’s recent appearance in the case. Counsel for defendants also flagged the conflict issue for the district court, but suggested that the trial could proceed so long as Okpara did not testify. After discussing the conflict, the judge stated that he had never seen this type of conflict. The district court then, to the surprise of all parties, moved the trial date up by three days—to Friday, September 7.

On September 6, the day before trial, Attorney B moved for a continuance, arguing, the unfortunate circumstances surrounding the status of Ms. Sheperd’s counsel had denied him significant trial preparation time. He had only worked meaningfully on the case for approximately one week, despite having been involved for three. Alternatively, Attorney B moved to withdraw. That same day, all defendants also filed a joint motion, asking the court to, among other things, continue the trial and exclude Okpara’s testimony. The court did not rule on the motions. Trial began the next day.

A few days into trial, the Government called Okpara as a witness. That brought the conflict‑of‑ interest issue to a head. Defense counsel collectively reasserted the arguments from their pretrial motion: (1) Attorney A could have provided Okpara with privileged information to enhance Okpara’s efforts to cooperate with the Government; (2) if Okpara testified, he could share self‑incriminating statements that Sheperd shared with Attorney A; and (3) the current indictment could have been based on tainted information from Okpara. Attorney A and Sheperd took the stand. The district court ultimately excluded Okpara from testifying.

At the close of trial, Attorney B renewed the defendants’ joint pretrial motion, asking the district court to dismiss the case because of the conflict of interest. The district court denied the motion. The jury found Sheperd guilty on all counts. The district court sentenced her to 30 years in prison. Sheperd timely appealed, alleging several grounds to reverse based on Attorney A’s conflict of interest.

B. The Court Lays Down the Law – SHEPERD I

The Court began with a statement of the law, mainly citing Strickland V. Washington, 466 U.S. 668 (1984), when it wrote:

The Constitution guarantees criminal defendants the right to a fair trial. The Supreme Court has explained that one of the safeguards making trials fair is the right to counsel. In all criminal prosecutions, the Sixth Amendment declares, the accused shall enjoy the right to have the Assistance of Counsel for his defense. That’s no hollow guarantee. The Counsel Clause does not countenance empty suits; it requires effective assistance of counsel—the presence of competence and absence of conflicts.

Unfortunately, not all representations meet that standard. At times a representation may suffer from actual ineffectiveness—one that so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. That standard is satisfied when the defendant can show that (1) her counsel’s representation fell below an objective standard of reasonableness, and (2) that the deficiencies in counsel’s performance were prejudicial to the defense.

United States v. Sheperd, 27 F.4th 1075, 1082‑83 (5th Cir. 2022)(internal quotations omitted).

C. Conflicted Representation Reduces the Burden – SHEPERD I

The Court then continued the legal foundation of ineffective assistance of counsel as related to conflicts of interest.

That two-pronged test has a special application when a defendant argues that her representation was infected with a conflict of interest. One of the most indispensable duties that any counsel owes his client is the duty of loyalty. Counsel breaches that duty when he labors under an actual conflict of interest. And if he breaches the bedrock duty of loyalty, then his representation will fall below the objective standard of reasonableness that the Constitution requires.

But what about prejudice? Defendants still need to show it in actual-conflict cases. They show it, though, in a special way—by showing that their case is subject to a limited presumption of prejudice. Whether it applies boils down to one question: Did the conflict adversely affect counsel’s performance? That’s a lighter burden for defendants. Proving prejudice directly means showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. On the other hand, the limited presumption of prejudice in actual-conflict cases turns on whether the conflict adversely affected the representation. One way defendants can answer that mixed question of law and fact is through evidence that counsel’s judgment was actually fettered by concern over the effect of certain trial decisions on other clients.

The Government concedes there is no dispute that Attorney A operated under a conflict of interest. It also concedes that both it and Attorney A were obligated by rules of ethics to bring the conflict to the court’s attention. Still, that’s only the first half of Sheperd’s burden. She still must prove that Attorney A’s conflict adversely affected his performance. And on that question, on this record, we can’t tell one way or the other. (Sheperd I- 27 F.4th at 1083).

United States v. Sheperd, 27 F.4th at 83 (internal quotations omitted).

II. SHEPERD II

A. Results on Remand

On remand, the District Court was tasked with con‑ ducting “an evidentiary hearing on whether Shepherd’s lawyer’s conflict of interest—a conflict the Government knew about— adversely affected his representation.” United States v. Sheperd, 2022 U.S. App. LEXIS 22357,

*1, 44 F.4th 305 (5th Cir. 2022). The District Court answered the question in the affirmative, The Fifth Circuit sought out to determine the proper remedy in the case. Id. The Appellate Court did not appear to be impressed by the Government’s argument on the issue:

We ordered the parties to file letter briefs addressing any issues arising from the district court’s findings and conclusions, as well as the appropriate relief if any. The Government now concedes that Sheperd’s Sixth Amendment right to conflict-free counsel was violated and that some remedy may nonetheless be warranted. All that’s left, then, is to craft that remedy. The Government points us to the Supreme Court’s decision in Lafler v. Cooper, where the Court explained that Sixth Amendment remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. The remedy must neutralize the taint of the constitutional violation, but not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution. For example, when a defendant declines a plea offer as a result of ineffective assistance of counsel and then receives a greater sentence as a result of trial, then the remedy could involve resentencing or ordering the Government to reoffer the plea deal, depending on the circumstances.

Applying those principles to this case, the appropriate remedy is to VACATE Sheperd’s convictions and REMAND for a new trial. That remedy may well cause the Government to spend considerable resources. But it is not needless. As the Government admits, it never offered Sheperd a plea deal while she was represented by her conflicted pretrial counsel, or after. So there is no rejected plea deal to measure Sheperd’s harm against. And while Sheperd did reject a plea deal well before her conflicted counsel began representing her, the Government argues we cannot order it to reoffer that bargain without violating separation-of-powers principles. So we’ll give the Government what it asks for, then, by avoiding any constitutional issue.

The constitutional right to counsel is perhaps the central feature of our adversarial system, as it helps make real the Constitution’s other criminal procedure promises. And it is not lost on us that the Government knew Sheperd’s pretrial counsel was conflicted yet delayed informing the district court about it—for months. The Government’s proposed remedy—to keep the convictions intact but remand for new plea negotiations—wouldn’t neutralize the taint of the constitutional violation. After all, what would encourage the Government to offer a reasonable plea when it could hold intact convictions over Sheperd’s head? Nothing.

We VACATE Sheperd’s convictions and REMAND for a new trial.

Id., pp. *1‑4.

Clearly, the Fifth Circuit could not stomach the unethical practice of a lawyer representing a defendant and a snitch in the same case. You might think that this case would have no applicability to you. If you have read this far, you are probably incapable of engaging in the kind of unethical activities demonstrated by Attorney A in Sheperd. However, it is possible for far more noble counsel to find themselves in a similar predicament.

B. Less Obvious But More Frightening Applications

Although the error made by Sheperd’s lawyer might have sounded ethical alarms with almost all lawyers, it is not hard to imagine how good lawyers could innocently straddle the same ethical line. The defendant arrested today may very well be a snitch, or even a witness, down the road. Seeing the name of a current or former client in a new client’s discovery is a common event. When that happens, all work on the case stops until the conflict question is resolved. As with most things legal, the starting point is the applicable rules.

C. What are the Rules?

  1. Federal courts defer to the State or District Bar Association in which the Court resides. (See for example: Local Criminal Rule 57.8(e) Northern District of Texas, which defers to the Texas Disciplinary Rules of Professional Conduct for the definition of unethical conduct).
  2. Texas Disciplinary Rules of Professional Conduct
    1. Rule 05. Confidentiality of Information
      1. Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer‑client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney‑client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
      2. Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly:
        1. Reveal confidential information of a client or a former client to:
          1. a person that the client has instructed is not to receive the information; or
          2. anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm.
        2. Use confidential information of a client to the disadvantage of the client unless the client consents after consultation.
        3. Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.
        4. Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.
    2. Rule 06. Conflict of Interest: General Rule
      1. A lawyer shall not represent opposing parties to the same litigation.
      2. In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:
        1. involves a substantially related matter in which that person’s interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer’s firm; or
        2. reasonably appears to be or become adversely limited by the lawyer’s or law firm’s responsibilities to another client or to a third person or by the lawyer’s or law firm’s own interests.
  1. Texas Rules of Evidence
    1. Rule 03 Lawyer‑Client Privilege
      1.  A “client” is a person, public officer, or corporation, association, or other organization or entity ‑ whether public or private ‑ that:
        1. is rendered professional legal services by a lawyer; or
        2. consults a lawyer with a view to obtaining professional legal services from the lawyer.

The definition of “client” under Rule 503 of the Texas Rules of Evidence is broad enough to cover any potential client that discloses any fact relevant to the case. It is clear from these rules that a lawyer could easily get entangled by talking with two defendants regarding the same conspiracy. In that situation, a lawyer cannot use information disclosed by either client to the advantage or disadvantage of either client. The lawyer is unable to do his job.

The likelihood of such a conflict is greatly increased when all defendants are not arrested at the same time. A lawyer could talk to one client months before speaking with another client, with both clients having been charged in the same indictment. According to the Rule 503, it does not matter if the first potential client did not retain the lawyer. If the lawyer consulted with the person with a goal of getting hired, that person is a client.

A similar conflict could arise when a person arrested provides information that implicates others who are subsequently charged. This often occurs in traffic stop or controlled buy situations where the first person arrested is charged individually and then spills the beans on the rest of the gang. A lawyer often does not get the full details of the client’s discussions with the Government until he receives discovery. At that point, the lawyer should have had several conversations with the client where confidential information would have been shared. Under one of these scenarios, a good lawyer could find themselves potentially in the same position occupied by counsel in Sheperd. This is a situation often encountered in smaller jurisdictions, but possible anywhere. Such a conflict affects retained counsel and appointed counsel equally. An appropriate action, declining representation or filing a motion to withdraw, to such conflict might financially burden the ethical lawyer, but the unethical lawyer may suffer greater consequences.

TAKEAWAYS

  1. The reduced burden to demonstrate harm under the Strickland analysis is an important distinction for clients who have suffered conflicted representation. It is a “lighter lift” to demonstrate that the conflict affected the representation than it would be to demonstrate that a defendant would have been exonerated or that a lower sentence would have been pronounced, but for the error.
  2. The discussion of the remedy for a conflict of interest in Sheperd II is a wonderfully uncomplicated statement of the law. The remedy must neutralize the taint of the constitutional violation by going back to the point where the case was untainted.
  3. The Government’s lawyers took a scolding. All lawyers have a duty to report an ethical breach, and no party should benefit by abiding the infraction.
  4. If you see a name that rings a bell at any point in the case, find out why before you move forward.
  5. Screen potential clients for ability to pay prior to consultation. In a large conspiracy case, you only get one ticket. Don’t waste it on someone that needs appointed counsel.
  6. Having a client sign a waiver of conflicts is inadequate; it is a band aid on a severed artery.
  7. Decline or withdraw when you should. Being an ethical lawyer may hurt your bottom line, but your bar card is worth more than one case.

Shout Outs

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Robert C. Hinton (left), Michael P. Heiskell (middle), and Ronald L. Goranson (right) at Baylor Lawyer of the Year Luncheon. Photo Courtesy of Nick Teixeira, Baylor Law.

Michael P. Heiskell grew up in the small central Texas community of Pelham. Formerly known as Forks of the Creek, Pelham was settled by ex-slaves in 1866 and had an estimated population of 75 families in the 1950s. He is a proud “Double Bear,” graduating from Baylor University in 1972 and Baylor Law in 1974. When he arrived at Baylor in the late sixties, he was one of just five Black students on campus. By the time he finished his undergraduate degree in 1972, that number had grown to nearly 100— largely due to his efforts. During his time at Baylor, Michael was the first president of Agiza Funika (“Blacks Involved,” in Swahili), a social-service club designed to give African-American students a social outlet while helping them become more deeply involved in campus and community life. Michael was also president of the political science club Pi Sigma Alpha, the Phi Alpha Delta Pre Law Society, and a member of both Baylor’s Student Foundation and Omicron Delta Kappa, a national leadership honor society.

Following his graduation from Baylor, Heiskell enrolled at Baylor Law in 1972, was an active member of the Student Bar Association, and became the law school’s first Black graduate in 1974. Michael has remained an active Baylor alumnus and currently serves on the Baylor University Board of Regents.

“Michael exemplifies every quality of a Baylor Lawyer. He is a fierce yet compassionate advocate for his clients and has an unswerving dedication to improving the quality of our justice system while maintaining the highest ideals of the legal profession,” stated Baylor Law Dean Brad Toben. “He is an outstanding lawyer and a truly authentic person. His career and life bear testimony to his richly deserving this honor.”

Michael was one of the three founding partners of Johnson, Vaughn & Heiskell. He now serves as the firm’s senior attorney. Before founding the firm in 1984, he served as an Assistant District Attorney for Galveston County from 1975 to 1980, and as an Assistant United States Attorney in the Northern District of Texas from 1980 to 1984.

A big round of applause for E.G “Gerry” Morris, of Austin, TX. He received the Robert C. Heeney Memorial Award from the National Association of Criminal Defense Lawyers (NACDL) at the Association’s annual meeting in Palm Beach, FL on August 13. The Robert C. Heeney Memorial Award is given annually to the criminal defense attorney who best exemplifies the goals and values of the Association and the legal profession. Congratulations, Gerry!

Kudos to Allen Ross of Rusk, TX and Jeff Herrington of Palestine, TX. They received a NOT GUILTY on Capital and lesser included Murder. This case previously ended in a mistrial when evidence was not properly disclosed by the Sheriff’s Office. The State’s only evidence was an alleged confession of the then 17-year-old, in Sheriff’s custody. The Defense attacked this confession as involuntary and pointed out potential culprit for the murder. The client was 17 years old when he entered the jail, and 21 years old when he walked out with an acquittal thanks to Allen and Jeff. Outstanding job!

Shout Out to Mitch Adams who won his burglary of a building case in the 4th District Court. This case also ended in a mistrial because Mitch’s client was hospitalized. The State’s only piece of evidence was a traffic citation left in a car that was the alleged getaway vehicle. The citation listed demographic details contrary to an eyewitness’s description of the female suspect. Mitch pointed out the discrepancies and won the day for his client. Great job, Mitch!

Amazing work by attorney Beverly Melontree, who won her Assault Causing Bodily Injury juvenile case in CCL3. This was a bench trial in front of the County Court at Law No. 3 Judge Getz. Victories in front of that Court are very seldom, so she was advised not to move forward in this manner. They were proven wrong when the Judge found the assault not true and stated Beverly had proven self-defense for her juvenile client. Tremendous work, Beverly!

Congrats to Joseph Esparza, who won a general court martial for an USAF NCO client accused of multiple sex offenses, rape, sexual assault, and an assault and battery involving two alleged victims at JBSA Lackland in San Antonio. He prepped the case hard and was able to show in cross examination that both alleged victims had their own reasons to fabricate their claims against his client and that, further, they colluded to bring their accusations against his client. Client testified in his own defense and multiple character witnesses testified after him as to his excellent character for truthfulness. The verdict after a 4 day trial was NOT GUILTY on all charges. Amazing work!

Pat on the back to Mark Griffith for a Not Guilty charge Client was arrested for DWI and blood test procured that came back over the limit. At the scene, officers were made aware that client was on the Autism Spectrum but ignored the fact that he had a neurological disability on the scene and in their testimony. Expert for defense described behavioral and mental issues that can appear due to being on the spectrum. The defense empowered the jury to stop disregarding disabilities. The verdict was the beautiful two words. Way to go!

Shout Out to Dean Watts for a case dismissal by reason of insanity for a felony evading case in Nacogdoches. Accomplished after 2 years and countless hours of hard work. Fantastic job!

Staff Highlights: The New Voice Behind the Voice

Alicia Thomas

Title: Communications Coordinator
Native State: South Dakota
Zodiac Sign: Leo
Favorite Color: Teal
Loves: Crafting & Exploring

Alicia Thomas started with TCDLA in March of 2021 as the Media Specialist and has recently been promoted to Communications Coordinator. In her time at TCDLA she has gotten to know many of the members and enjoyed working with the staff. Before TCDLA, Alicia has had a variety of jobs ranging from working at an ice cream shop to customer service in IT. She graduated from South Dakota State University with a BFA in Graphic Design in May of 2020. In June of the same year, she and her high school sweetheart, David, got married, packed up, and moved to Texas. In her free time, Alicia can be found doing a variety of graphic design projects, playing with her dogs, crafting, or watching The Office.

Current Issue: September 2022

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Features

16 | A Tribute to Frank Maloney – By David Botsford
18 | Tribute to Past President Frank Maloney – By Gerald Goldstein
19 | How do you pay tribute to a legend? – By Stan Schneider
21 | Memories of TCDLA’s First President – By Judge Frank Maloney

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
8 | Editor’s Comment
9 | Ethics and the Law
12 | Federal Corner
15 | From the Front Porch
20 | Shout-Outs

Departments

4 | CLE Seminars and Meetings
36 | Significant Decisions Report

President’s Message: September 2022

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Oftentimes we wait until it is too late to thank the heroes in our lives. We think we have all the time in the world to get around to it. We want to wait for the perfect time and the perfect words. And the way life frequently plays out – we struggle to find either of them. Before we know it, life happens, and our heroes pass from this earth and the opportunity to thank them – in this life at least – is gone.

Well, on July 5th, we lost one of our own heroes, Honorable Frank Maloney. Judge Maloney was truly one of the greatest criminal defense attorneys this state has ever seen. He’s also one of the greatest leaders and Presidents TCDLA has ever been blessed with, having served in the role in 1971‑1972. He also went on to serve the National Association of Criminal Defense Lawyers as President in 1988.

What made him so great? For starters, a sincere calling to serve others: his clients, his colleagues, his family, and his friends. Add to that: his ability to listen; his fundamental understanding that professional success and authentic kindness are not mutually exclusive; and his inclusivity and willingness to encourage and befriend new and up and coming attorneys and to mentor so many lawyers across the state of Texas. Yes, he was wicked smart and great in a courtroom for sure. He had a tremendous track record of success. He had great war stories – far more wins than losses you can be sure. But what made him such a great lawyer was understanding that there was more to life than just practicing law. He understood that being a great lawyer begins with first being a good person. It means being a well‑rounded and well‑grounded person. That’s what gives a lawyer perspective. Perspective to not get too high with the victories and more importantly, to be able to have the courage and fortitude to get back up from the depths of the lows that come from the defeats and battle scars. That’s the foundation that made Judge Maloney a hero of TCDLA. One of the reasons that I made Institutional Knowledge a goal for my year as TCDLA President is to be able to capture these incredibly important lessons – courtroom lessons and life lessons – from the greats like Judge Maloney. Learning from Judge Maloney helps us become better people, better attorneys and a far better TCDLA.

As I was talking the other day with Melissa Schank, our TCDLA Chief Executive Officer, about several of my role models, she reminded me what we admire about our heroes is actually a reflection of ourselves—as much as our own DNA. We just need to see it in our daily lives, to nourish it, and share it with the world. So, thank you, Judge Maloney, and all of the heroes who founded the largest most successful criminal defense organization in America, and in doing so, paved the unstoppable path for us to follow. Thank you for caring so much for the accused and their defenders. We will always honor you, and you will never be forgotten.

Today, take a moment to reach out to your heroes in life and thank them. Now is the perfect time.

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