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Ethics & The Law

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.

Ethics and the Law: Lawyers Who Seek Judicial Office: A Re-Examination of the Rules

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“I hate to hear people say this Judge will vote so and so, because he is a Democrat—and this one so and so because he is a Republican. It is shameful. The Judges have the Constitution for their guidance; they have no right to any politics save the politics of rigid right and justice when they are sitting in judgment upon the great matters that come before them.”

—Mark Twain

In light of recent controversial blockbuster rulings by the United States Supreme Court and in anticipation of upcoming Texas judicial elections, now seems a good time to re‑examine certain rules which apply to lawyers who seek judicial office.

The relevant rules are:

Texas Disciplinary Rules of Professional Conduct Rule 8.02

    • A lawyer shall not make a statement that the lawyer knows to be false or with reckless dis‑ regard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.
    • A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Texas Code of Judicial Conduct.
    • A lawyer who is a candidate for an elective public office shall comply with the applicable provisions of the Texas Election Code.

Comment:

    1. Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney 113 general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.
    2. When a lawyer seeks judicial or other elective public office, the lawyer should be bound by applicable limitations on political activity.
    3. To maintain the fair and independent ad‑ ministration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.

Texas Code of Judicial Conduct Canon 5:

Refraining from Inappropriate Political Activity

    • A judge or judicial candidate shall not:
      • make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge;
      • knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent; or
      • make a statement that would violate Canon 3B(10).
    • A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party. A judge or judicial candidate may attend political events and express his or her views on political matters in accord with this Canon and Canon 3B(10).
    • A judge shall resign from judicial office upon becoming a candidate in a contested election for a non‑judicial office either in a primary or in a general or in a special election. A judge may continue to hold judicial office while being a candidate for election to or serving as a dele‑ gate in a state constitutional convention or while being a candidate for election to any judicial office.
    • A judge or judicial candidate subject to the Judicial Campaign Fairness Act, Tex. Elec. Code §253.151, et seq. (the “Act”), shall not knowingly commit an act for which he or she knows the Act imposes a penalty. Contributions returned in accordance with Sections 155(e), 253.157(b) or 253.160(b) of the Act are not a violation of this paragraph.

COMMENT

A statement made during a campaign for judicial office, whether or not prohibited by this Canon, may cause a judge’s impartiality to be reasonably questioned in the context of a particular case and may result in recusal. Consistent with section 253.1612 of the Texas Election Code, the Code of Judicial Conduct does not prohibit a joint campaign activity conducted by two or more judicial candidates.

Other than the rules stated, there is relatively little interpretive guidance on the subject, as precedent construing the ethics rules is scant.

A judge who violates Canon 5 or other pro‑ visions of the Code of Judicial Conduct is subject to discipline by the State Commission on Judicial Conduct. A lawyer running for judicial office who violates Canon 5 or other relevant provisions of the judicial code is subject to discipline by the State Bar of Texas.

Other “relevant provisions” include portions of Canon 2, which state:

  1. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
  2. A judge shall not lend the prestige of ju‑ dicial office to advance the private interests of the judge or others.

A judge or judicial candidate must also comply with statutory provisions regulating fund raising and other matters contained in the Texas Judicial Campaign Fairness Act.

Candidates Shall Be Honest

Judges and lawyers running for judicial office “shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation”. Texas Disciplinary Rules of

Professional Conduct 8.04(a)(3).

And, as noted above, Canon 5(1)(ii) of the Code of Judicial Conduct prohibits a judge or judicial candidate from knowingly or recklessly misrepresenting “the identity, qualifications, present position, or other fact con‑ cerning the candidate or an opponent.”

Thus, for example, a former judge cannot imply in political ads that he is a current judge. And, a judge who seeks reelection and is defeated cannot produce campaign materials to “reelect” or “keep” the candidate in a subsequent race against an incumbent on another court.

Judicial Candidates are Prohibited from Campaigning for Others

A judge or judicial candidate is prohibited from lending support for other campaigns. Canon 5(2) prohibits a judge from authorizing “the public use of his or her name endorsing another candidate,” and Canon 2(B) prohibits a judge from lending the prestige of judicial office to the advancement of private interests.

Thus, verbally recommending another candidate or otherwise supporting another candidate is unethical. Political contributions are risky as well. A contribution is appropriate only “when the judge is satisfied that neither the contribution nor the public record thereof will receive public attention before the election.” 166. Comm. on Jud. Ethics, State Bar of Tex., Op. 145 (1992), reprinted in 65 TEX. JUD. COUNCIL & OFF. CT. ADMIN. TEX.

JUD. SYS. ANN. REP. 126 (1993). Yard signs and bumper stickers are prohibited by the Rules and Canons.

My trophy wife Paula Lanehart served on the bench for more than 20 years. She reminded me constantly that I, as the spouse of an elected judge, should never publicly support or oppose a political candidate for office. The ethical rules are not clear on this issue. (The lawyer spouse of a current United States Supreme Court Justice is in the spotlight for her political activism.) Nevertheless, I held my tongue and avoided political donations for more than two decades, but I have publicly and loudly made up for my silence since Paula’s retirement.

Conclusion

Most of us will never seek judicial office, and when we do, we usually lose. After all, voters and politicians with the power of appointment view criminal defense lawyers as only a bit higher on the political food chain than our clients.

However, we as criminal defense lawyers are often confronted with unethical judicial candidates who promise to tow a particular law‑and‑order‑themed party line or platform. We stand by our clients as they face bad judges who skirt ethical rules and make decisions based solely on their perception of political expediency. The resulting unethical political abyss poisons our justice system locally, regionally and nationally.

We must all remember Texas Disciplinary Rules of Professional Conduct Rule 8.03(a)‑(b). When we are made aware of a breach of ethics by a lawyer or a judge, we are required to report the breach to the appropriate agency, the State Bar of Texas and/or the State Commission on Judicial Conduct.

Unethical conduct on behalf of another attorney must be reported to the State Bar. If you suspect a judge or candidate for judicial office of violating ethical rules, you must mail a completed, signed, and sworn complaint form to the State Commission on Judicial Conduct. The complaint form is available on the Commission’s website and can also be requested by email or phone.

I am reminded of one such breach of ethics many years ago in Lubbock County. A prosecutor known by criminal defense lawyers as unethical ran for a County Court‑at‑Law bench. Her opponent was a Lubbock County Associate Judge. The prosecutor claimed her opponent was not a judge but “only a mediator.” Her opponent filed a grievance, and the prosecutor was given a public reprimand by the 72nd District Court of Lubbock and required to pay $5,000 in attorney’s fees. Comm’n for Law. Discipline v. Susan J. Scolaro, Cause No. 99‑505,705.

Nevertheless, before her opponent’s grievance was adjudicated, the prosecutor won the election, but she was soon removed from office. The court found she failed to satisfy the statutory qualifications to be a judge and lied about it. Scolaro v. State ex. rel Jones, 1 S.W.3d 749 (Tex. App.—Amarillo 1999, no pet.). Her removal came primarily through the efforts of members of the Lubbock Criminal Defense Lawyers Association. Those who spearheaded the effort to remove the unethical judge were publicly skewered by the clueless Lubbock media and ultra‑conservative local citizenry. The judicial post she held is now occupied by a former member of the Lubbock Criminal Defense Lawyers Association. Karma is a thing.

“Always do right; this will gratify some people and amaze the rest.”

—Mark Twain

Ethics and the Law: Ethical Issues Dealing with an Incompetent Client

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At one point or another, you will be faced with a client with a mental condition that raises an issue as to whether they are competent. The constitutional standard for competency to stand trial asks whether the defendant has a sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding and whether they have a rational as well as factual under‑ standing of the proceedings against them.1

Often times, there are going to be cases where there is no doubt about the client’s competency or lack thereof. But what about the close cases? Even more difficult, what about the client who is adamant that they are competent when there is evidence to suggest otherwise? Or the client whose mental illness impairs their ability to make critical choices about their case?

These specific scenarios raise numerous ethical questions that are not easy to address or answer. These include, in no particular order, questions about the duty of loyalty, the duty of candor to the court, and the need to maintain confidentiality.

Don’t Go Runnin’ to the Court (Except for Funding)

When confronted with a client — appointed or retained — who appears to lack that fundamental “reason‑ able degree of rational understanding,” it is important for criminal defense lawyers to first embrace one of our most fundamental obligations: maintaining the confidences of the client. This is critical to developing an effective defensive strategy, while ensuring that the client’s rights are protected.

Many times, we see where lawyers, upon learning that the client has some mental illness or appears to have some mental illness, immediately notify the court (which inevitably places the State on notice) of what they have learned in their discussions with their client about their possible mental impairment. This is presumably due to the requirements set out in Article 46B of the Code of Criminal Procedure. Triggering those statutory requirements, however, may either not be necessary or punitive to the client. For instance, if a client is released on bond but is found to be incompetent and ordered to be transferred to a mental hospital, that is a substantial restriction on their freedom. Even worse, it is typically not due to any conscious choice or decision on their part. The more prudent course of action is utilizing an ex‑ pert that operates under the umbrella of the attorney‑client relationship and is able to consult with both the client and the attorney confidentially about the client’s mental condition. If you are appointed to represent a client or the client does not have the funds to retain a forensic psychologist, you should first file an ex parte motion for the assistance of an expert pursuant to Ake v. Oklahoma to evaluate the client before going to the court and invoking the procedures set out in Article 46B.004. You want to be careful to include enough information to get the court to approve the funding (e.g. “funding is needed for the appointment of a psychologist to help assist counsel evaluate any possible mental conditions and their impact on the defendant’s role in the alleged offense”), but not blatantly “suggest” the defendant may be incompetent to stand trial so as not to trigger the requirements of Article 46B.

All this is consistent with newly implemented Rule 1.16 of the Texas Disciplinary Rules of Professional Conduct titled “Clients with Diminished Capacity.” This rule, which upon closer inspection was obviously in‑ tended to apply to clients in the context of non‑criminal settings, nevertheless encourages lawyers to rely on others to “protect the client” with diminished capacity.2

This course of action is also preferable because it allows you to rely on an expert in the field of psychology to support or dispel any belief you as the criminal defense lawyer may have about the client’s mental capacity and ability to consult with you, rather than have to make those difficult determinations on your own.

To Disclose or Not Disclose?

Once you have the insight and opinion from your psychological expert regarding your client’s mental capacity, the next ethical conflict deals with whether there is an ethical obligation to disclose that information to the court and the prosecutor.

Again, as discussed previously, upon the court being presented with a suggestion that the defendant is incompetent, the court is required to take certain steps including appointing a “disinterested expert” to examine the defendant and report on their competency. In certain circumstances, however, a finding of incompetency could result in further harm to the client. What, if any, ethical obligation is there to disclose the fact that a defendant does not possess the required mental capacity to understand the proceedings against them? What happens when, for instance, during a plea colloquy, the court inquires of the attorney whether they believe the defendant is competent to enter their plea?

Rules 3.03 and 3.04 of the Texas Disciplinary Rules of Professional Conduct speak about, as titled, “Candor Toward the Tribunal” and “Fairness in Adjudicatory Proceedings,” but, like other rules, give little explicit guidance with how to deal with a situation like this. Comment 1 to Rule 3.03 makes it clear that “The advocate’s task is to present the client’s case with persuasive force.” However, “[p]erformance of that duty while maintaining confidences of the client is qualified by the advocate’s duty of candor to the tribunal.”

In some cases, disclosing the client’s incompetency to the prosecutor can be beneficial. Once the prosecutor realizes the possible impediment they face to prosecuting the defendant, a prosecutor might be compelled to dismiss the charges or offer an alternate resolution that does not require a plea or a trial. However, what happens when the disclosure has the opposite effect? Instead of agreeing to dismiss the charge, the prosecutor could insist on commitment or other harsh alternative to try and restore the defendant’s competency. In the federal criminal justice system, for instance, upon a finding of incompetency, the court “shall commit the defendant to the custody of the Attorney General” who “shall hospitalize the defendant for treatment in a suitable facility.”3 What if the defendant is released on bond (as is the presumption in federal cases) and suffers from an intellectual disability that cannot be treated with medication or therapy? One can see the harmful and cruel consequence that comes from disclosing the client’s incompetency in that scenario.

Again, there is no clear guidance from the Rules, their commentary, or any Ethics Opinion with how to make these determinations.

Who Gets to Call the Shots?

Only adding to these dilemmas, what happens when the client’s lack of competency or other mental impairment leads them to make choices that you, as the criminal defense lawyer, knows is not in the best interest of the client. For instance, what if the client does not want to be found incompetent even though your expert and your diligent review of that expert’s opinion leads you to conclude otherwise?

In the Preamble to the Rules, in the Section titled, “A Lawyer’s Responsibilities,” it states generally, “In all professional functions, a lawyer should zealously pursue client’s interests within the bounds of the law.” Comment 6 to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct, states,

Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer.

That is a lot of power and responsibility for us as lawyers to assume. But what about the role the client plays in the attorney‑client relationship?

Rule 1.02 of the Texas Disciplinary Rules of Professional Conduct sets out limits for both the lawyer and the client. The Rule starts with the mandatory provisions where the client has the ultimate power to make decisions. As they relate to us as criminal defense lawyers, a lawyer shall abide by a client’s decisions (a) “concerning the objectives and general methods of representation,” and (b) after consultation with the lawyer, “as to the plea to be entered, whether to waive jury trial, and whether the client will testify.” The Rule then continues with the exceptions, which provide, among other things, that “A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation.” Comment 1 to the Rule explains the interplay between the role of both the client and the attorney:

Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the objectives to be served by legal representation, within the limits imposed by law, the lawyer’s professional obligations, and the agreed scope of representation. Within those limits, a client also has a right to consult with the lawyer about the general methods to be used in pursuing those objectives. The lawyer should assume responsibility for the means by which the client’s objectives are best achieved. Thus, a lawyer has very broad discretion to deter‑ mine technical and legal tactics, subject to the client’s wishes regarding such matters as the expense to be incurred and concern for third persons who might be adversely affected.

One must ask themselves whether these same principles apply to a client who is incompetent. In McCoy v. Louisiana, ‑‑ U.S. ‑‑, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018), the Supreme Court held that the defendant in that case had absolute control over the decision to admit guilt despite his lawyer “reasonably assess[ing] a concession of guilt as best suited to avoid the death penalty.”4 This decision by the client was sacrosanct despite the client being “an unruly client” who “faced a strong government case.”5 It is worth noting, however, that the Court considered that the trial court “had determined that McCoy was competent to stand trial.”6

This is where the first step in dealing with a potentially incompetent client — obtaining a psychological expert to assist in your defense — can be of assistance. By having your own expert with their own observations of your client’s mental capacity, it will be easier to justify the decisions that you as the lawyer make to accomplish what is in the client’s best interests. In other words, if some mental illness is affecting the client’s ability to make certain decisions about the case, from an ethical perspective, it will help you making those decisions when you have the input from an expert in that field to weigh in and support your decisions.

However, there are always going to be situations where you must weigh the client’s autonomy and ability to decide for themselves what is in their best interest. In this regard, it is important to note that competency is not always clear and distinguishable. While a client’s mental illness may impede their ability to make certain decisions such as whether to plead guilty or not, they may possess enough capacity to set out what their objective is.

Even though the court’s assessment of a defendant’s competency to stand trial is a black and white determination, competency exists in degrees.7 A client may be competent enough to participate in a murder trial and yet that same client may not be competent to stand trial for a complicated financial conspiracy case. A client may be able to understand the roles of the actors in the court room and yet think aliens are coming to testify against him. As Justice Blackmun once stated, “Competency for one purpose does not necessarily translate to comptency for another purpose.”8

When addressing the court’s inquiry, keep in mind the continuum that competency exists on; then deter‑ mine whether for the purposes of the case the client is competent to proceed with trial, such that they can understand the charges against them, the roles of court officers, and be able to assist in their defense to the degree that their participation is required.

Conclusion

Dealing with a client with mental illness that lacks competency undoubtedly presents a criminal defense attorney with numerous ethical dilemmas. Only complicating matters is the lack of clear guidance from the Rules and their commentary, as well as differing perspectives as to what the attorney’s role is when representing an incompetent client. To help navigate this difficult territory, it is always best to have a psychological expert to assist both the attorney and the client. But one must be prepared — and well read on this issue — in order to ensure that the attorney is not only complying with the law, but their ethical obligations as well.

As always, the TCDLA Ethics Committee is here ready to advise and assist you with these ethical dilemmas.

Ethics and the Law: Conflicting Interest in Criminal Cases

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As we all know, the privilege of being an attorney comes with a lot of responsibilities.

In the same way that doctors and nurses are more effective in treating their trauma patients if they, themselves, are not vicariously wounded, we as attorneys are most effective when we are able to retain a certain level of professional detachment from the trials and tribulations of our clients. We still serve their best interests, of course, and we may care a great deal about them and the outcome of their case(s), but we never actually become one of the, per se, adversaries in the legal conflict.

As part of this, society places certain demands on us. These aren’t just window dressing. Rather, the rules put in play by these societal demands are what have allowed our profession to survive and even thrive over a large portion of human history.

The interplay between societal expectations and an attorney’s professional independence and need for income can often leave the criminal defense attorney feeling they are subject to moving targets of conduct.

Criminal defense attorneys are often solo practitioners with small offices and small staff, but the standards we must uphold are just as high as any white‑collar attorney in the largest firm in the state.

The Texas Disciplinary Rules of Professional Conduct (“TDRPC”) puts those societal expectations into the rules governing attorneys licensed to practice in Texas. One of the tenets of these expectations is that we will be able to represent our clients zealously, free from any conflict of interest.

  1. You cannot represent opposing parties.
  2. You cannot agree to representation if the work
    • involves a substantially related matter where the new client’s interests are materially or directly adverse to another client or the firm; or
    • reasonably appear that it is or will become adversely limited by your responsibilities or interests
  3. Representation okay in (b) if no material affect to either client and each affected/ potentially affected client gives fully informed consent.

The general rule on conflicts is found in TDRPC 1.06. Part (a) is easy enough and self‑explanatory.But (b) starts looking like some of our statutes, so it may be more easily understood in reverse and using an example.

  1. My law partner represents Client A against Adversaries X, Y, and Z.
  2. X later comes to me and asks me to represent him in a new matter against/involving Client A, I must turn away X as a potential new client (“PNC”) if I conclude that the new matter is related, in some substantive way to the already existing matter where Client A is the existing client and PNC X is the adversary.

This is because the new matter with X would be substantially related to the preexisting matter with Client A and PNC X’s interests are already materially and directly adverse to the interests of another client (Client A). Restated—if a new matter, with a new client, would be directly and materially adverse to a current client of the firm (here Client A), is factually unrelated to any current or previous representation of A, there is no conflict of interest, and no waiver is needed. However, in typical fashion, the comments urge you not to take on such representation—even though the rules just said it’s okay. Rule 1.06, cmt 11.

It is also important to note that the above applies only in state court. In federal court, the Dresser doctrine applies, which requires consent from an existing client before the attorney/firm can take on any new matter adverse to the existing client—whether it is related or unrelated. (Following ABA Rule 1.7)

Since a conflict of interest can result in an attorney being required to withdraw from all representation, return funds, lose out on future funds, and face potential complaints, the best practice is simply to avoid conflicts from the beginning—but how?

  • Interview carefully
  • Know your clients
  • Client Acknowledgements
  • Secure additional counsel
  • Don’t forget the “former” clients
  • Document, document, document

Facts: In 2017, wife meets with lawyer A to discuss a potential suit for divorce. They have a 45‑minute consultation. Wife doesn’t hire Lawyer A and doesn’t take any further action to file for divorce. This summer, husband comes into see Lawyer B—who is Lawyer A’s long‑time partner. Husband wants to file for divorce. Lawyer A doesn’t remember anything about the consult and did not keep any documentation.

Question: Can Lawyer B represent Husband?

Answer: No. Tex. Comm. Prof. Ethics, Op. 691 (2021).

Explanation: Under TDRPC 1.06 (b)(2), the duty of confidentiality extends not just to current clients, but former clients and even prospective clients. Id. This duty may attach even without an attorney/client relationship. Id. Lawyer A owes Wife the duty of confidentiality, which limits his ability to represent Husband in a suit for divorce from Wife, against Wife’s wishes. Id.  Lawyer A’s disqualification is imputed to Lawyer B. Id.

Rule 1.06(b)(2) is not limited to conflicts between a prospective client and an existing one. Id. Rule 1.06(b)(2) forbids representations that reasonably appear to be “adversely limited by the lawyer’s or law firm’s responsibilities to . . . a third person.” Opinion 691, supra. A lawyer’s duty of confidentiality to a prospective client is the kind of “third‑person” responsibility that may result in a conflict under Rule 1.06(b)(2). Id.

The fact that the Lawyer A claims to be unable to remember all or some of the information disclosed by Wife is not determinative of whether a conflict exists under Rule 1.06(b)(2). Id.

In the opinion of the Committee, based on the limited facts presented, Lawyer A’s previous consultation with Wife creates a conflict of interest that would prevent Lawyer A from representing Husband in divorcing Wife. Given that Lawyer A’s consultation with Wife lasted 45 minutes and related to the same matter as the proposed representation of Husband, the Committee believed a reasonable lawyer would conclude that Wife likely shared confidential information during the consultation  that  could be significantly harmful if revealed or used against her in a divorce from Husband. Accordingly, the Committee concluded that Lawyer A’s duty of confidentiality to Wife reasonably appears to adversely limit his ability to represent Husband in divorcing Wife and that Rule 1.06(b)(2) therefore prohibits that representation.

Opinion  691,  supra. Rule 1.06(f) provides for the vicarious disqualification of Lawyer B: “If a lawyer would be prohibited by this Rule [1.06] from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.” Id., TDRPC 1.06. Since Rule 1.06(b)(2) prohibits Lawyer A from representing Husband in divorcing Wife, Rule 1.06(f) automatically extends that limitation to Lawyer B and any other lawyer currently in Lawyer A’s firm. Opinion 691, supra.

The Committee noted that “[t]he firm‑wide imputation of conflicts arising from relatively brief prospective client interviews may in some cases lead to harsh results, but the language of Rule 1.06(f) currently allows for no exception.” Id., compare TDRPC 1.06(f) with ABA Model Rule 1.18 (limiting imputation of prohibition arising from consultation with prospective client, subject to certain conditions).  The Committee has proposed adding a new rule modeled on ABA Model Rule 1.18, but as of May 1, 2022, the proposed Texas Rule has not yet been adopted. See 83 Texas Bar Journal 618 (September 2020).

In the above scenario, it was assumed that Wife was unwilling to consent to Lawyer A’s or Lawyer B’s representation of Husband. However, it should be noted that a lawyer may be able to proceed with a representation generally prohibited under Rule 1.06(b)(2) with the effective consent of both the former prospective client and the proposed client. Opinion 691, supra. Effective consent under Rule 1.06(c) can only exist if: (1)“the lawyer reasonably believes the representation of each client will not be materially affected;” and (2) consent is given only after “the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any” is disclosed to all parties. TDRPC 1.06(c). It should also be noted that Wife may place limitations on its consent, such as an agreed screening arrangement whereby Lawyer A would be prohibited from participating in the representation or disclosing Wife’s confidences to any other person. Opinion 691, supra. Screening will not avoid a “former prospective client” conflict unless all parties consent to the arrangement, as required by 1.06(c). Id.

Former clients can be excellent sources of referrals, but they can also be the source of a conflict.

TDRPC 1.09 governs conflicts of interest with former clients.

  1. Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former
    1. in which such other person questions the validity of the lawyer’s services or work product for the former client;
    2. if the representation in reasonable probability will involve a violation of Rule 1.05; or
    3. if it is the same or a substantially related matter
  2. Except to the extent authorized by Rule 1.10 (Govt to private employment), when lawyers are or have become members of or associated with a firm, non of them shall knowingly represent a client if anyone of the practicing alone would be prohibited from doing so by paragraph (a)
  3. When the associated of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyers shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a) (1) or if the representation in reasonable probability will involve a violation of Rule 1.05 (Confidentiality)The following situation was recently posed to the TCDLA Ethics Committee:

Facts: Court appointed Lawyer to represent Client A in a criminal matter. Case is set to go to trial. Client A has been detained at the local jail pending trial and has recently been accused of perpetrating sexual assaults against other inmates.

During an interview about the extraneous allegations, Client A tells Lawyer that he was the victim of sexual assaults at the jail, including by Mr. X, who is a former client of Lawyer’s.

Prosecutor wants to introduce extraneous sexual assault allegations in punishment. Mr. X is not the victim of the extraneous that the State intends to produce, but rather the perpetrator of another, separate incident. The State is not aware that Mr. X exists at this time, and Mr. X would not likely be called to testify against Client A, unless the State chose to call him to rebut Client A’s evidence of sexual assault in the jail.

Client A would use the evidence of being sexually assaulted in jail for mitigation purposes as well as to rebut the allegation of sexual assault on him (i.e., that he has been sexually assaulted several times in the past to bolster his argument that he was the victim rather than the perpetrator of the offense).

Lawyer has no continuing obligations or responsibilities to X other than Lawyer’s obligations to X arising from X’s status as a former client.

Question: Is there a conflict under TDRPC 1.09(a)(2)?

Answer: Quite likely, yes.

Explanation: Rule 1.09(a)(2) prohibits representation of A in a matter adverse to X if there is a reasonable probability that (continued) representation of A will involve a violation of TDRPC 1.05.

Here, it seemed likely that the accusation against X would come out in trial. If that happened, it was quite plausible to believe something Attorney had learned about X during his representation of X may now be beneficial to A but adverse to X. While it was possible that Attorney might have been able to bring on secondary counsel for the guilt/innocence phase, who could then take over fully on punishment, such a situation would still likely trigger an investigation should a grievance be filed.

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may continue to represent a client in a proceeding after learning that the conduct of the lawyer’s former client may be material to the proceeding if: (1) the matter is not adverse to the former client; or (2) the matter is adverse to the former client but the representation does not question the lawyer’s work for the former client, the representation does not involve a matter that is the same as or substantially related to the matter for which the lawyer represented the former client, and the representation will not in reasonable probability involve a violation of Rule 1.05 with respect to confidential information of the former client. TDRPC 1.06. Regardless of whether the representation of the current client is adverse to the former client, the lawyer may represent the current client in the matter only if the lawyer complies with obligations under Rule 1.05 not to reveal confidential information of the former client and not to use confidential information of the former client to the former client’s disadvantage unless the former client consents after consultation or the information has become generally known. See Tex. Comm. Prof. Ethics Ops. 584 (Sept. 2008); 579 (Nov. 2007); 578 (July 2007); 527 (April 1999); 615 (April 2012); 608 (Aug. 2011); 598 (July 2010); 574 (Sept. 2006); 538 (June 2001); 494 (Feb. 1994); 607 (July 2011); 691 (June 2021); 627 (April 2013); 637 (Aug. 2013); 645 (Sept. 2014); 650 (May 2015); and 659 (July 2016).

“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 interests.” TDRPC Preamble.

In preparing this Article and the presentation that it stemmed from, I found myself going back to Attorney’s situation with Clients X and A and what I learned from the discussion with others on the TCDLA Ethics Committee. Our goal isn’t to win the grievance, it’s to avoid it entirely. In terms of avoiding a conflict, bringing on secondary counsel to take over punishment completely did exactly that. Since the evidence would only come out at punishment, and Attorney would no longer be representing A at that point, conflict would be averted. But the best bet for avoiding a grievance was for Attorney to get out entirely before trial on guilt/innocence. The Bar wouldn’t know the details up front and would almost certainly upgrade to investigate. This means a lot of stress on Attorney, hours spent answering the grievance, and maybe hiring of counsel. That’s a loss of time, money, and well‑being. Why chance it?

Ethics and the Law: Sharing the Wealth – What You Need to Know About Shared Fees and Referrals

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The majority of us have been there. If you haven’t, it will come soon enough (pay attention young lawyers).

We are criminal defense lawyers. No one needs us until they need us. And when they need us, they really need us. For many people who find themselves with that need, they may only know the lawyer who, for example, took care of their divorce or handled their uncle’s personal injury case. They think any lawyer can handle a criminal case, so they call that lawyer first.

Of course, those lawyers may know nothing about handling a criminal case or simply don’t want to handle the case. But, there is something that catches their interest.

They see a client in need — a need that is typically unlike one they have seen with other clients — and they see that the client is willing to spend whatever amount of money it takes to get them out of the trouble they’ve found themselves in. Rather than focus on meeting that need, the lawyer cannot help but see a financial opportunity.

So, the lawyer calls you, a buddy from law school who is a top‑notch criminal defense lawyer, and lays it on you: “I’ve got a person looking for a criminal defense lawyer. I want to send them your way, but I need a referral fee.”

I scratch your back, you scratch mine, right? Quid pro quo. These are concepts as old as time. And, back in the “good old days,” paying what was referred to as a “naked referral fee” was a common and acceptable practice.

That all changed in the late 1990s and early 2000s as part of a push to maintain professionalism within our line of work with, among other things, the adoption of Rule 1.04(f) of the Texas Disciplinary Rules of Professional Conduct.1 The current version of that Rule provides:

f. A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if:

    1. the division is:
      1. in proportion to the professional services performed by each lawyer; or
      2. made between lawyers who assume joint responsibility for the representation; and
    2. the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed, including:
      1. the identity of all lawyers or law firms who will participate in the fee‑sharing agreement, and
      2. whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and
      3. the share of the fee that each lawyer or law firm will receive or, if the division is based on the proportion of services performed, the basis on which the division will be made; and
    3. the aggregate fee does not violate paragraph (a).
    1.  

In sum, there are three key elements of a shared fee: (1) proportional or joint responsibility, (2) client consent, and (3) the total fee must be reasonable. More simply, you cannot accept or pay a referral fee to another lawyer (or non‑lawyer for that matter) for referring you a case nor can you require or request a lawyer to pay a referral fee for simply referring you a case.

So, with this in mind, you politely tell the lawyer, unless they are willing to associate with you on the case, share a proportion of the work or joint responsibility, and the client consents to the sharing of a reasonable fee for the work, you cannot pay them a referral fee. What happens then, when the lawyer replies by telling you, “Well then, how about we agree to refer each other cases? I’ll send you any calls I get for criminal matters and you send me all your calls for family law cases.” How does this comport with the Disciplinary Rules?

The recent amendments to the Disciplinary Rules last year addressed this very scenario and put some serious limits on it. Rule 7.03 added subsection (e)(2) which provides the following:

(2) A lawyer may refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if:

    1. the reciprocal referral agreement is not exclusive;
    2. clients are informed of the existence and nature of the agreement; and
    3. the lawyer exercises independent professional judgment in making referrals.

Under this new Rule, the lawyer’s proposal could work as a viable alternative. The problem, however, are the absolutes: “any calls I get for criminal matter” and “all your calls for family law cases.” As the Rule states, the agreement cannot be exclusive. Further, there must be assurances (in writing) from both attorneys that they will inform clients of the “existence and nature of the agreement.” To properly operate under this new Rule, it is best to have a list of lawyers that, based on your independent professional judgment, are fit to handle a particular matter that you can provide to a potential client.

Say then, for instance, the lawyer finally says, “Look, I get what you’re saying. I don’t want to lose my bar license over this. I’m going to give the client your name and number. Just take good care of them.” Do the Rules absolutely prohibit you from giving that lawyer anything of value for referring you the client?

Rule 7.03(e) states that, while a lawyer cannot “pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting or referring prospective clients for professional employment,” the Rule does explicitly create an exception for “nominal gifts given as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.” Although this Rule refers to a person “not licensed to practice law,” it is reasonable to interpret the Rule to permit giving nominal gifts such as a gift certificate or event tickets to that lawyer for referring you the potential client.

The bottom line is that we should be focused on providing quality legal representation to clients and, when we cannot provide those services ourselves, making sure they are referred to good lawyers who can do so. It should not be about the money. As Robert Pelton once wrote, “If the other attorney gets hired and collects a handsome fee, good for the other attorney. I consider the referral a ‘gift’ to the other attorney for which I expect nothing in return (nor will I accept anything in return), and I make the referral based only upon my confidence in that attorney’s abilities.” No one can doubt that is good advice to follow.

Stay ethical my friends.

Ethics and the Law: The Ethics of Voir Dire and the Topic of Venue in Texas

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If you end up on this jury, and after hearing all of the evidence, you’re convinced that the State has proved every element of the crime beyond a reasonable doubt, except for whether or not it happened in this county, who will still vote guilty?”

That’s a question I first used in voir dire several years ago when picking a jury in a sexual assault of a child case in a rural East Texas county. My client had confessed during police questioning, and the State’s evidence was pretty solid. He rejected the State’s plea offer against my advice, and said he wanted a jury trial. I didn’t have much of a trial strategy, other than to make sure that everything was by the book and that he received full due process.

Our jury pool was full of folks in overalls, work boots, and Carhartt jackets, and I was wracking my brain for something that might delay the inevitable for my client. What popped into my head was the question at the beginning of this article. Not surprisingly to me, a lot, and I mean A LOT of people in the jury pool said they’d still convict, even if the State couldn’t prove beyond a reasonable doubt that it happened in the county where the State said it did. I was two people short of a busted panel when it was all over. I figured I’d found a pretty effective tool for weeding out potential jurors who are predisposed toward a guilty verdict; a weed‑killer, if you will.

Time passed, as it does, and I continued using that question in my voir dire, with varying degrees of effectiveness. The more serious the alleged crime, the more effective the question. Then one day during voir dire in district court, there was a hiccup. I was trying a case against an assistant prosecutor who I knew well; we’d tried several cases against one another in the past. I knew all of his voir dire tricks, and he knew mine. When I asked my weed‑killer question, Mr. Assistant District Attorney objected, asserting that I was misstating the law. It was that day that I learned for the first time that, according to Texas Code of Criminal Procedure Article 13.17, the State’s burden of proof where venue is concerned is by a preponderance of the evidence.

Now, most of you probably knew this already, but at that time I didn’t. Having read jury charges going back to 1999 that instructed the jury that the State must prove beyond a reasonable doubt each element of the alleged offense, including that it occurred in Fill‑In‑The‑Blank County, I assumed that that is what the law was. But now that I did know better, could I ethically continue to ask the question in voir dire?

What’s more, the Court of Criminal Appeals has ruled that venue is not an element of an offense, but, rather, something that must be proved to “establish [defendant’s] legal status.”1 However, the Fifth Circuit Court of Appeals has held that venue is an element of any criminal offense.2

So, it would seem that my weed‑ killer question is impermissible because 1) it is a misstatement of the law, and 2) because venue is not an element of a criminal offense.

And yet, take your garden‑ variety jury charge for a state jail felony possession of a controlled substance case. Where the charge regarding the elements is concerned, it will read something like this:

You must decide whether the State has proved, beyond a  reasonable  doubt,  two elements. The elements are that: 1) the defendant, Jane Doe, possessed garden variety Penalty Group I substance in Fill-In-The-Blank County on or about fill‑in‑the‑blank date; and 2) the defendant knew she was possessing a controlled substance. (Emphasis added.)

So, on its face it looks like you can’t ask the weed-killer question during voir dire because it misstates the law and venue is not an element of a criminal offense.  But your judge can misstate the law and include venue as an element of the offense in the jury instructions.  That seems like a non sequitur to me, but I don’t wear a black robe. 

Does a conflict between a judge’s jury instruction and the law have any consequence?  The Corpus Christi Court of Appeals says yes.  If the court’s charge requires the State to prove beyond a reasonable doubt that the offense occurred in Fill-In-The-Blank County, Texas (as almost every jury charge does), then the State does indeed have to prove venue beyond a reasonable doubt.3  In other words, the court’s jury instruction will change the State’s burden of proof if the instruction is clear that the State must prove venue beyond a reasonable doubt. 

The Texas Rules of Professional Conduct state that “an advocate has a duty to disclose directly adverse authority [to the court] in the controlling jurisdiction which has not been disclosed by the opposing party.”4  I would ask, then, under what, if any, circumstances the weed-killer question may be used.  One possible way is to file a proposed jury charge prior to voir dire using the language that sets the burden of proof for venue at beyond a reasonable doubt, and including it as an element of the offense, as we see in the jury charge example above.  If neither the State nor the court raises any objection to that specific language at the pre-trial hearing, you can reasonably argue that you expected that the court would require the State to prove venue beyond a reasonable doubt because of the absence of any push-back from the bench or opposing counsel.  Just for kicks, you might also suggest to your judge that she review a few of her most recent jury charges.

In summary, the Code of Criminal Procedure establishes the State’s burden for proving venue as preponderance of the evidence.  The Court of Criminal Appeals has ruled that venue is not an element of a crime, but is merely necessary to establish a defendant’s legal status.  However, the Fifth Circuit in Strain has ruled that venue is an element in every criminal offense, and the Cunningham decision from the 13th Court of Appeals tells us that the court’s charge to the jury on the State’s burden of proof for venue is what controls. As are many other legal issues, this one is as clear as mud to me.

If you are in need of assistance, please contact the Ethics Committee: 512.646.2734 •

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

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

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

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

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

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

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

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

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

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

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

Ethics and the Law: Safeguards to Prevent Juveniles from Incompetent Representation

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Juveniles are the most vulnerable among clients who are facing criminal liability for their actions. As attorneys, we have an ethical obligation to zealously advocate for all our clients, but can our lack of understanding regarding child development impact our ability to zealously advocate and provide effective assistance of counsel to juveniles? The American Bar Association published an article in October 2021 discussing this issue which can be located at https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/empowering-youth-at-risk/to-be-a-competent-childrens-attorney/. The ABA contends that 

[w]ithout a foundation in understanding child development, the child’s attorney or advocate . . . is not equipped to [determine a child’s position] in order to provide competent representation. The onus is on the lawyer to acquire the skills necessary to be an effective advocate, which, if you are representing a child, means having a foundation in child development.

Childrens’ prefrontal cortexes are not fully developed until well into their twenties. While in the criminal justice system, juveniles are not as developed physically, cognitively, socially, and emotionally. A background in child development would give lawyers the skills necessary to effectively communicate with children, as well as listen effectively to children. Communication is key when explaining the judicial process, client’s rights, preparation needed for court, and the consequences of certain decisions to any client, but especially to a child who is not fully developed and who may not be able to control their emotions or verbalize what their needs are.

The Texas Disciplinary Rules of Professional Conduct provide that when determining whether a matter is beyond a lawyer’s competence, relevant factors can include the relative complexity and specialized nature of the matter, the study the lawyer will be able to give the matter, and whether it is feasible to refer the matter to a lawyer with established competence in the field in question.1 Following the ABA’s guidance, it can be inferred that juvenile issues are specialized in nature, and those attorneys familiar with the Texas Family Code have seen the complexities of the juvenile system within the State of Texas. A juvenile has a constitutional and statutory right to the effective assistance of counsel in a juvenile proceeding.2 3 The effectiveness of counsel’s representation in a juvenile proceeding is reviewed under Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).4 However, with juvenile lawyers already being scarce throughout the state, how do we ensure that attorneys will complete the necessary study to become competent in child development without dissuading attorneys from practicing juvenile law because of the additional study required?

 First, we must hold judicial officials to a higher standard of mitigating incompetence. Juvenile judges witness firsthand an attorney’s competence and preparedness in the courtroom. If a judge suspects that an attorney is ill-prepared, perhaps allowing a continuance long enough for the attorney to become competent in child development should be allowed. This protects the best interest of the child and does not subject the attorney to any discipline, but simply increases the amount of time an attorney has to familiarize themselves with the basics of child development.5

Next, attorneys must hold each other accountable. As advocates, it can be inferred that we all want the best possible outcome for our clients, and the protection of children is something that resonates with most attorneys on a basic human level. Accountability is necessary in ensuring that the best interests of a child are met; we must help each other to help these children. One way to achieve this could be to have local bar associations keep lists of attorneys who have a background in child development, ensuring that others can defer to those attorneys for insight and resources while studying to become more competent in juvenile law themselves.

Lastly, another way to achieve competence and possibly more attorneys willing to take juvenile cases altogether, is to offer more continuing legal education courses regarding child development and its impact on effective assistance of counsel, as well as other juvenile law issues. Juvenile law can be an intimidating field because of what is at stake and more diverse continuing legal education courses could help alleviate any worry an attorney may have regarding juvenile law. The Texas Criminal Defense Lawyers Association has done an excellent job providing juvenile law continuing legal education courses, including partnering with the Texas Indigent Defense Commission and Juvenile Training Immersion Program to host these courses. However, our work to provide the best legal counsel to the most vulnerable can always continue to be improved, made more accessible, and cover more topics within the juvenile justice system.

To conclude, if the State of Texas and TCDLA really want to keep juveniles’ “best interests” at the forefront, more child development, competency, continuing legal education, and accountability are essential to ensuring juveniles have a safe, fair, and equitable juvenile justice system.

Ethics and the Law: Between a Rock & a Hard Place

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Several teenagers from a Houston community became interested in satanic rituals. This was unexpected because this group was raised in a middle-class, law-abiding environment. However, one night the group was together and the subject of what it would look like to watch someone die came up. There was a young male who was not well-liked, and his name was mentioned as a possible victim of a satanic-like sacrificial killing. The teens made plans to lure him to a cemetery at night and then strangle him to death.

Sadly, the plan was executed. Two of the group were young girls who watched but did not participate in the planning or the actual ritual killing. However, they made no effort to stop it.

An investigation began once the body was discovered. When interest in Sharon became known, her parents realized she needed representation as the police were calling it a murder. Heavy stuff. We agreed to represent her. Not long after, the father informed us he had found a suitcase that may have contained items from the scene of the crime. We told him not to destroy it or its contents, and to bring it to our office for safekeeping until we determined if it might contain evidence, and if so, what to do with it.

So, the suitcase was delivered to our office and placed under lock and key. It was not going anywhere until we knew who owned it and what it contained. Meanwhile, our 16-year-old client was taken into custody and placed in a juvenile detention facility.

We began to investigate and interview witnesses. We knew the other girl in the group at the scene was Brittany1. We asked her for an interview. Our investigator, Gene Boyd, and I conducted a thorough interview of Brittany and determined neither she nor our client had participated in the deadly satanic ritual, but knew of it and were present at the time of the attack.

Meanwhile, the D.A.’s investigator had taken a statement from Brittany. Brittany agreed with them to wear a hidden recorder when she talked to us. We did not trust her, and we did not know she had a recorder when she came to our office. We brought out the suitcase, and she said it belonged to her. She identified a pair of tennis shoes as hers – and that Sharon was wearing them on the night in question.

I said, “Really, I didn’t even know they were in there” because we had not yet inventoried the suitcase and I was surprised they were even there. Meanwhile the D.A.’s investigator was parked down the street, recording the conversation.

We realized stains on the shoes could possibly be blood. We excused her for a short break, and I called my partner Jim Lavine to discuss the situation. We determined we did not know if the shoes really belonged to Brittany, if Sharon had really had them on that night, or if they were evidence. So, we decided we could not keep the shoes in our office, and Brittany owned them but could not keep them. We told her (and the attentive investigator parked down the street) that they may be evidence, and because they belonged to her, she needed to call the D.A.’s investigator and take them to him right away. We then prepared a receipt for the shoes and suitcase which she signed, and we sent her on her way.

The case against Sharon and the boys resulted in murder charges being filed and a motion to transfer Sharon to district court from juvenile court. In addition, the D.A.’s office decided to subpoena me as a witness to prove up the chain of custody of the shoes, possibly putting her at the scene.

However, we did not like the feeling we got by being placed in the chain of custody, especially if those spots turned out to be blood from the killing of the young man, linking the shoes to our client. We knew we were not going to testify willingly against our client.

We remembered hearing about the Texas Criminal Defense Lawyers Association Strike Force, which had been created not too long before this case occurred, to represent members who needed counsel in a legal dilemma like this. By good luck, the Strike Force Chair at the time was a long-time good friend of mine from San Antonio, Gerry Goldstein. When we called him, he could not believe the D.A. wanted to call me as a witness against my own client in a murder case – especially in one transferred from juvenile court.

Gerry filed a motion to quash with a brilliantly written memo in support. Fortunately, the law was clear in cases like this and we followed it: seeing to it that the evidence was delivered to authorities (immediately after leaving our office building, as it turned out) not altered in any way, and was available for use by the State if necessary.

But the State thought it was going to have to call the defendant’s attorney to prove how the evidence was delivered un-tampered to law enforcement. A hearing was scheduled before the criminal district court judge who had been assigned the case after transfer.

The prosecutor almost came to blows with Mr. Goldstein, but we prevailed. The subpoena was quashed  and the TCDLA Strike Force added luster to its already shining reputation.

Ethical Issues

  1. Can a criminal defense lawyer be subpoenaed and forced to testify against a client at trial? No.
  2. Can a criminal defense lawyer keep potential evidence from the prosecution in a criminal case in Texas? No.
  3. How does the defense lawyer explain this procedure to the client? See the discussion below.
  4. What is the defense lawyer’s obligation to the court in such a situation. See the discussion below.
  5. Was it prudent for defense counsel to enlist the assistance of the TCDLA Strike Force? Yes.

Discussion

  1. In 1987, the law was not settled in Texas. A resolution was adopted unanimously by the Board of Directors of the Texas Criminal Defense Lawyer Association, that the Texas Supreme Court and the Texas Court of Criminal Appeals adopt a rule of ethics that it is unprofessional conduct for a prosecutor to subpoena an attorney at a grand jury without prior judicial approval where the prosecutor seeks to compel the attorney/witness. The then-president of the TCDLA cited authority from the states of Tennessee and Massachusetts, the United States Court of Appeals for the First Circuit. The trial court granted a motion to quash and a motion in limine. Note that the evidence was brought to us by a third-party agent of the client (father), not just a third party. This preserved the attorney-client privilege. See Rules 1.05, confidentiality of information, 1.06, conflict of interest, 1.14, safekeeping property, Texas Disciplinary Rules of Conduct, as of Sept 2021.
  2. A lawyer cannot keep, destroy, or prevent the discovery of incriminating physical evidence in a criminal case, or counsel the client to destroy or prevent discovery of such evidence. See Rule 8.04, Texas Disciplinary Rules of Conduct.
  3. The lawyer in this situation should advise that the lawyer cannot destroy or keep evidence, but that the lawyer cannot be subpoenaed to testify against the client about such evidence. See Rules 1.05 and 8.04, Texas Disciplinary Rules of Conduct.
  4. The lawyer’s obligation to the Court under these circumstances is to file a motion to quash the subpoena and a motion in limine to prevent the prosecutor from bringing such information to the attention of a jury. See Rule 1.05, Texas Disciplinary Rules of Conduct.
  5. Under the state law at that time, it was absolutely the proper thing to bring the matter to the attention of the Texas Criminal Defense Lawyers Association, especially the TCDLA Strike Force. The Strike Force chair at the time personally appeared at a hearing for us and we prevailed on a motion to quash and a motion in limine. Strategic conclusion of an author.

Post-Script

Of the five teenagers tried and convicted as adults, two males received life sentences, one male pleaded guilty and received a 60-year sentence, and the fourth male traded his testimony for a 20-year sentence. Sharon, the only female tried, went to the jury after being convicted on a parties theory. The prosecutor forcefully demanded of the jury a sentence of 60 years for Sharon and finding that she personally used or exhibited a deadly weapon, which would affect the timing of her parole.

We asked for a 10-year sentence, probated, and a finding that she did not use or exhibit a deadly weapon. The jury almost hung, but finally assessed a 15-year sentence and found that she did not use or exhibit a deadly weapon. The court released her immediately on an appeal bond. Ultimately, her appeal was unsuccessful, and she was paroled after serving five years. She went on to become a wife and mother. When compared to what could have happened, this outcome was definitely a defense victory.

Ethics and the Law: New Rule for Clients with Diminished Capacity

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Beginning July 1, 2021, a new Rule of the Texas Disciplinary Rules of Professional Conduct went into effect, Rule 1.16. It is intended to address the ethical problems of representing persons with “diminished capacity” a term that includes persons with mental impairment and intellectual disability. The central problem for lawyers has been the underlying assumption of the ethical rules that the client is mentally sound, an assumption often refuted by the reality of criminal defense lawyers often called upon to counsel and represent clients suffering from a mental disability.

Both the Code and the ethical rules are relatively clear about how to represent a person who is incompetent to stand trial. But the Rules have offered no guidance to lawyers about how to represent a client who is barely competent, but whose judgment is impaired due to illness. In Indiana v. Edwards, 554 U.S. 164, 173 (2008), the Supreme Court called such a client the “gray-area defendant,” legally competent to stand trial but who “lacks the mental capacity to conduct his trial defense unless represented.” Ethically, it has been an ethical no-man’s land.

The problem arises in those areas that award the client autonomy in criminal cases. Rule 1.02 specifically commands that the defense lawyer “shall abide by a client’s decisions” regarding the “plea to be entered,” the waiver of the right to trial by jury, and the decision whether to testify. Moreover, the lawyer cannot, even if it is sound strategy, concede guilt to a jury over the client’s objection. McCoy v. Louisiana, 138 S. Ct. 1500 (2018).

Without guidance, some attorneys decided to treat client decisions like any other, ignoring the impact of an illness on judgment, and dutifully obeying the ethical command even as the client was committing legal suicide. Others went the other direction, with an attitude of benevolent condescension, manipulating the events and the client as a countermeasure against his client’s illness, even against his will.

Rule 1.16 now provides guidance and expressly empowers the lawyer if certain preconditions are met. First, the defense lawyer must first reasonably believe that the client does in fact have diminished capacity due to mental illness. Secondly, this incapacity must render the client unable to “adequately act” in his own interest. Finally, the client’s diminished capacity has put him “at risk of substantial physical, financial, or other harm unless action is taken.”

If these preconditions are met, then the attorney is permitted to take “reasonably necessary protective action.” “Protective action” is intentionally broad to include the various courses of action that might arise. The Rule helpfully specifies that the lawyer may consult with “individuals or entities that have the ability to take action to protect the client.” The lawyer that has been hesitant to speak to others can be reassured that reaching out to those who care about the client is permitted under the Rules. When enlisting other people, the lawyer is directed by the Commentary to “look to the client, not the family members or other persons, to make decisions on the client’s behalf.”

The Rule also expressly addresses the attorney-client privilege issue: “the lawyer may disclose the client’s confidential information to the extent the lawyer reasonably believes is necessary to protect the client’s interests.” The Commentary directs the lawyer to consider the client’s consent before disclosing confidential information under these circumstances. “Only in compelling cases should the lawyer disclose confidential client information if the client has expressly refused to consent. The authority of a lawyer to disclose confidential client information to protect the interests of the client is limited and extends no further than is reasonably necessary to facilitate protective action.”

This Rule was debated and the concerns of some members of the bar should be noted. The Legal Director of Disability Rights worried about the Rule’s impact on clients who expected their lawyer to “be their advocate, not their protector.” Another objection was that the Rule invites lawyers “to make untrained judgments about a client’s mental state with no real guidance.” Time will reveal the wisdom of this Rule, but in the meantime, the criminal defense lawyer does address a frequent dilemma in our profession with some guidance, however minimal.

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