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Ethics

Ethics & The Law: Zoom: The Walking Ethical Violation

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Within 30 minutes of counsel’s calling into the TCDLA’s Ethics Hotline, counsel’s problems were solved.

DILEMMA:  Lawyer L represents incarcerated and indicted client C. Mr. C. is adamant that lawyer L immediately gift all discovery already received from the DA under Article 39.14, C.C.P., to Mr. C’s brother-in-law, Mr. B, who is a licensed private investigator in Texas.

Who will be killed, kidnapped or threatened as a result of that “required” release of discovery information?

Should an attorney always follow the dictates of his/her client, even if the client is right or wrong? 

ANSWER:  No!

Does Article 39.14, C.C.P., authorize counsel to so release all to Mr. B, who was not appointed or hired as an investigator for Mr. C? 

ANSWER:  No. See Article 39.14.

Do the Texas Rules of Disciplinary Conduct authorize counsel to disclose confidential communication and unprivileged information upon Mr. C’s request? 

ANSWER:  Yes. See Rule 105(c) and (d).

How can lawyer L “avoid or get around” the disclosure prohibition in Article 39.14, C.C.P.?

ANSWERS

  1. Only with a “sealed” judicial order authorizing such redacted or unredacted disclosure to Mr. B. 
  2. Without a court order, lawyer L can hire Mr. B as lawyer L’s second investigator in this case and disclose all. Lawyer L should be sure that he can trust Mr. B. 

How many clients can you trust not to get you involved in client’s past, present or future criminal conduct?

How many investigators have you dealt with that you can trust to do it right and keep you out of ethical and professional misconduct due to the actions and omissions of that very investigator whom you hired on a case?

When it comes to prosecutors and judges, how many can you trust to always do the right thing?

When  it  comes to hiring an investigator or working with an appointed investigator, 

who can you trust to always do the right thing so you will not get indicted, convicted or disbarred for that investigator’s conduct on your and Mr. C’s behalf?

Lawyer L may be held liable under tort or criminal law, if Mr. B alone or in conspiracy with Mr. C threatens, kidnaps or kills any State witness, whose name, address or phone number is disclosed in the Article 39.14 discovery.

Common sense dictates what a knowledgeable ethical lawyer should do in this scenario. What would you do?

Joseph A. Connors III

COVID-19 has changed the whole world, not just our part. 

We hear lawyers everyday complain that there is no business, no money to pay rent or mortgage.

The government has established several loan programs at low interest rates since lawyers are making no money. Some of this money has to be paid back. There is no free ride.

Many communities are making deals to conduct trials in coliseums. The powers-that-be insist it will happen. But many older lawyers are advised by doctors to stay away, that this killing pandemic is no joke.

To ethically do your job, warn clients about making phone calls, speaking to anyone, and writing any letter that may contain any information the prosecutor, judge or jury can use against the client. Get  your client to sign an acknowledgment that you have so advised her/him of this problem.

In the opinions of many trusted experienced lawyers, many calls on Zoom are unethical because other people can immediately hear or later listen to the client’s confidential communications with counsel. Knowingly allowing any third party to listen to or later review attorney-client communications waives the confidentiality of that information and the privilege created by the the attorney-client relationship. 

In almost all scenarios, Texas Rule of Disciplinary Conduct 1.05 prohibits counsel from waiving that privilege without her/his client’s informed prior consent. 

Law enforcement make arrests and accused citizens are quickly released since jails are full.

In Harris County, accused citizens appear before a magistrate who reviews the case and sets a bond. Then accused citizens have to appear in court for bond conditions. Contrary to settled law and without presentation of any “change of circumstances” evidence, many presiding judges continue to revoke bonds set by magistrates. 

After great discussions with several excellent lawyers, like Brent Mayr who is on our Ethics Committee, it became necessary to file a judicial complaint. No one took that obligation lightly;  but it was absolutely necessary that it be done.                                                                              

Zoom is a walking ethical violation: i.e. A jailed client is on Zoom and a guard is standing so close and can hear all dialogue between lawyer and client. That is wrong, wrong, wrong.

Yes, COVID-19 has changed our lives, but how many federal and state constitutional rights must be lost?  It is the job of each of us to preserve those constitutions one client in Texas at a time.

We recommend you object every time you are put in any such a situation. Make the judge’s record reflect that the law considers the attorney-client privilege to be sacred but it is being violated and abused each time something like this happens and you are being forced to commit an ethical violation every time this happens on the judge’s Zoom hearing; so i object to the court’s procedural manner of conducting this judicial hearing that is systemically depriving this defendant of each of his/her following rights guaranteed by the state and federal constitutions, namely:  First Amendment freedom of speech about confidential matters with counsel; Fourteenth Amendment due process of law; Fifth Amendment right to confidential communication with counsel during custodial interrogation by police, prosecutor and/or court; and Sixth Amendment right to effective assistance of counsel.

Ethics & The Law: Caught in a Trap

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The following query was submitted to the Ethics Committee, whose hotline can be reached at 512-646-2734.

Here’s the background of my case:

The father of a 20-year-old son calls my office to represent the son on aggravated sexual assault allegation from six to seven years ago involving a female cousin. The cousin would have been about five or six at the time of the alleged offense and my PNC would have been 12 to 14. 

Female cousin “outcrys” in May of this year by giving a note to her sister describing the allegation. Her sister gives the note to their mom and Mom either gives the note or describes it to a counselor/therapist during a session.  Counselor/therapist tells Mom to report it to law enforcement or counselor/therapist would report under mandatory reporting duty.  

My PNC’s dad is the uncle of the mom of the complaining witness. Apparently, the family is pretty close-knit and everyone spends lots of time at Grandma’s house (PNC’s dad’s mother).

In our conversation, my PNC’s dad tells me he found an old computer at Grandma’s house. The computer belongs to the mom of the complaining witness. 

My PNC’s dad decides to go through the computer and tells me he finds several images of child pornography and bestiality. My PNC’s dad told me the images were actually named “9 year old,” “11 year old,” and so on. My PNC’s dad also finds videos/images of the complaining witness’ mom engaged in sexual activity with an adult male.

My PNC’s dad believes this computer can help his son.     

The computer is old, probably 2000-model desktop. Grandma did not complain about it being taken out of the house. Sounds like multiple people have had access to the computer, including the complaining witness and my PNC. My PNC is the person who told Dad he found the images on the computer. Dad took the computer and told Grandma (his mother) that he was taking it to law enforcement. Dad took possession of the computer sometime this week.

The complaining witness does not live there now, but did live there when she was in high school and the computer has been there ever since. Dad tells me that the images he found were dated 2002 and 2003.

I have not yet even talked to the Son, whom Dad asked me to represent. In the course of his consultation, I learned Dad has possession of child pornography, which I know are federal and state crimes. I advised Dad of this and the need to address the situation with law enforcement.

Question 1: Who is my client now? I have never given advice to the son, only Dad regarding Dad’s possession of child pornography.

Question 2: How do I keep myself out of “aiding and abetting or a party to” Dad’s continued possession of child pornography in violation of Texas and U.S. criminal law?

Question 3: How can I ethically facilitate the transfer of the child pornography to law enforcement?

Question 4: Can I still ethically represent the son in the underlying sex assault allegation?

ANSWERS

Keith Hampton

I don’t know what PNC means, but here are my answers in your emergency situation:   

As I understand it, the father is the only person you’ve offered legal advice to, so he is your client (Tex.R.Evid. 503).  Son is accused of sexual assault seven years after it allegedly happens.  I’m not seeing an ethical conflict (no opinion on legal conflict), but I also don’t know what the computer reveals.  Are both implicated?  If the father is not, your duty is to him, not the son, even if it means that the child porn hurts the son.  

You also say the father goes through his own mother’s house and finds Mom’s 10-year-old computer with child porn on this old computer that various people had access to.  Father now possesses someone else’s computer with child porn images.  Unless the father is implicated, then you turn it over to law enforcement.  If it does implicate your client – the father – then you take precautions to protect him. 

Joseph Connors

I have a problem with you trying to represent both the dad and the son, since ultimately you will probably have to withdraw from representing either of them.

  1. Get the computer to law enforcement and out of Dad’s possession as soon as possible.
    Tell Dad what he needs to know and get the computer to law enforcement as soon as possible. The best strategy is for YOU to hire another attorney to turn in the computer to local law enforcement; but your lawyer cannot disclose who hired him or where he got the computer from. The financially cheaper strategy is Dad turns in the computer to local law enforcement, who will question him where he got computer from and who downloaded the child pornography. The middle strategy is that you fax the DA a letter that a client has hired you to turn in a computer containing some child pornography, and you are inquiring as to which law enforcement agency you should turn the computer into.

  2. Rule One is get your fee up front and only represent ONE in a criminal affair (two relatives with different crimes are too interconnected – each may be a star witness for the other and each needs separate counsel from DAY ONE, plus DA may offer one a great deal or immunity to testify against the other!), so:
    Inform Dad that he is the only person who can hire you in this affair.  Refer Dad to another marvelous defense lawyer, whom the son can hire on the aggravated sexual assault allegation. Inform Dad that local police or the sheriff will want a statement of the accused admitting to the allegation. Tell Dad to tell his son not to talk at all to any law enforcement.

  3. You ask:

Question 1: Who is my client now? I have never given advice to the son, only Dad regarding Dad’s intentional possession of child pornography to aid son’s case.

Answer 1:  I agree with Keith. Your client is Dad, though Dad will say he does not need an attorney and will personally go turn in the computer to the police. Can you trust Dad to do that?  Or are you unwittingly giving Dad all the info he needs to destroy the computer’s hard drive (which is tampering with evidence, a state and federal felony)?

Question 2: How do I keep myself out of “aiding and abetting or a party to” Dad’s continued possession of child pornography in violation of Texas and U.S. criminal law?

Answer 2: Get the computer from Dad with a written letter signed by Dad asking you to turn the computer over to law enforcement. You keep that letter confidential and safe to cover your ass later on if Dad accuses you of criminal conduct by knowingly possessing child pornography.

Question 3: How can I ethically facilitate the transfer of the child pornography to law enforcement?

Answer 3:  Read A above.

Question 4: Can I still ethically represent the son in the underlying sex assault allegation?

Answer 4:  Read first answer above.

Thanks to Joseph Connors, Keith Hampton, Robyn Harlin, and Sharon Bass for helping with this article.

Ethics & The Law: Duty to Report Ethical Misconduct

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Texas Rules of Disciplinary Conduct Rule 8.03(a) (2017-2018) obligates a knowing lawyer to do his/her duty and report an unethical prosecutor or that knowing lawyer will face “knowing withholding” charges, if caught.  See In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988) (caught lawyer’s one-year suspension was not probated). 

Must A Lawyer Report Another Lawyer’s Misconduct?

Courts have spoken on that query. Regarding another “caught lawyer,” in In re Brigandi, 843 So.2d 1083, 1085-1086, 1088-1089 (La. 2003), the court said:

“Based on evidence developed in this investigation, the ODC concluded respondent was deliberately evasive in his earlier voluntary sworn statement to the ODC. It further determined he failed to report Mr. Cuccia’s misconduct.”

[*1086]  Following its investigation, the ODC instituted two counts of formal charges against respondent. In the first count, involving the Egana matter, the ODC primarily alleged a violation of Rules 1.5(f)(6) (failure to refund unearned advance fee and place disputed fees in trust), 1.15 (failure to promptly deliver client funds and make an accounting) and 1.16(d) (failure to protect client interests upon termination of representation by failing to surrender client papers and refund unearned advance fee) of the Rules of Professional Conduct. As to count two involving the Cuccia matter, the ODC asserted alleged violations of Rules 3.3(a) (lack of candor to tribunal), 3.4(c) (failure to comply with tribunal orders), 8.1(b) (failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.3 (failure to report professional misconduct), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(c) [Pg 4] (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (failure to cooperate with the ODC) of the Rules of Professional Conduct.

In Count II, respondent’s actions may have caused no palpable harm to any clients, but violated the general duty imposed upon attorneys “to uphold the integrity of the bar.” Louisiana State Bar Ass’n v. Weysham, 307 So.2d 336 (La. 1975). Attorneys are often in the best position to witness the systemic harm to the legal profession from organized schemes of misconduct, such as solicitation, which might not be readily apparent to the general public. As a result, our professional rules impose an obligation on all members of the bar to report any misconduct they become aware of in the course of their practice. An attorney’s  [*1089]  failure to do so must be viewed as a serious offense.

Laurel Fedder, Current Development 2009-2010: Obstacles to Maintaining the Integrity of the Profession: Rule 8.3’s Ambiguity and Disciplinary Board Complacency, 23 Geo. J. Legal Ethics 571, 572, 580-581 (2010), said:

“On first read, the first three elements of Model Rule 8.3(a) appear potentially confusing, but further consideration shows that these elements – the violation requirement, the knowledge requirement, and the integrity requirement – make perceptible stipulations. *** Alleged violations of the duty to report fellow attorney misconduct are rarely prosecuted absent allegations of additional misconduct propagated by the reporting attorney. In re Himmel, a 1988 case out of Illinois, represents the first instance of attorney sanctioning based solely on a violation of the duty to report  [*581]  fellow attorney misconduct. Unfortunately, Himmel did not generate a trend; in the ten years following Himmel, only a single instance of attorney reprimand solely for violating Rule 8.3(a) occurred. Since then, the practice of pursuing reporting violations only when additional violations are alleged has continued. The Riehlmann court held the defendant in violation of both Rule 8.3(a) and Rule 8.4(d), and the Rule 8.3(a) violation was one of twelve violations the Brigandi defendant was charged with. Disciplinary boards’ failure to pursue allegations of reporting violations unless coupled with another offense gives attorneys the impression that the Model Rule, and its state variants, are inconsequential, thus disincentivizing compliance. If disciplinary boards expect attorneys to fulfill their responsibility to report misconduct, then the boards should fulfill their responsibility to take those reports seriously. The statement of Arizona ethics counsel Patricia A. Sallen substantiates the assertion of inadequate disciplinary board action: ‘During my years as a bar counsel, I don’t remember having even investigated an allegation that a lawyer violated Arizona’s Ethical Rule 8.3, which closely tracks Model Rule 8.3. I know I never prosecuted one.’ If the reporting rule is to be effective, disciplinary boards need to increase the attention they give to reports of its violation so as to convey to attorneys the importance of adhering to it.”                     

Thanks to Joseph Connors for this article.

Ethics & The Law: The Trains Will Run Again

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When Texas was younger, her pioneers lived in fear of yellow fever, scarlet fever, malarial fever, dengue fever, a handful of generic bilious fevers, and about as many poxes.

Before the first blue norther came in each year, people stayed on edge. It came with the pioneer territory. 

So it’s no surprise that in September 1897, when cases of yellow fever popped up at Ocean Springs, Mississippi, Texans tensed up. Those who had survived the epidemic 30 years before recalled the losses of entire families, and the deaths of thousands. 

But things were different in 1897. Telephones supplemented telegraphs, bringing the news faster, and with the inflection of the human voice. People also traveled more, faster and farther than they had in 1867. A fantastic web of rail connected Texans to Texas and to everywhere else.

The good part about 1897 was that Texas found out about the outbreak in real time. The bad part about 1897 was that people from infected places might be arriving at the train station in your town any minute. What if they were bringing with them a bug that could wipe your community off the map?

The fever moved down the coast. Mobile, Biloxi, Bay St. Louis. Port towns all over the U.S. quarantined against ships from Gulf ports. Texas likewise locked down her ports to ships from any point east of New Orleans. Police inspected inbound trains to make sure passengers weren’t coming from infected towns. The people were cautiously optimistic.

Then news of 12 cases in New Orleans hit the papers, and all hell broke loose. New Orleans health officials swore that it was just some lesser fever, but nobody cared. Towns all along the coast declared absolute quarantines against New Orleans and other infected places. Cotton futures plummeted. Ripples of the news were felt in the great east coast financial kingdoms.

Texas papers daily carried the updated number of cases, deaths and recovered patients in New Orleans. To try to keep her commerce alive, New Orleans declared herself squeaky clean and announced new clean-up measures. It would now clean…wait for it…the asphalt! Just in case yellow fever germs were living on the blacktop, New Orleans was singeing the surface. 

But Texans didn’t care. Towns in East Texas outright refused to allow trains to stop at their stations. Keep it moving at 25 mph…or else. The State Health Officer, Dr. Swearingen, posted armed guards at all dirt roads entering Texas from Louisiana. Quarantine camps, like the one below, sprang up outside of railroad towns.

Travelers who were shut out of their destinations because of quarantines, but couldn’t turn back because trains weren’t running east, were held at these camps for 2 weeks to prove they were disease-free.

Places like Marlin and Georgetown locked themselves down entirely. Nobody could enter. If you lived there and were returning home after lockdown was declared, well that was just too bad. Bryan sent a health official to inspect Houston, on behalf of its citizens, who had heard rumors that the Bayou City was infected. Denton also issued a quarantine against any outside entry.

Big towns and little towns did the only thing they thought might save them – they cleaned. Galveston appropriated $5,000 to clean the city gutters, pull weeds and pick up trash. Houston declared that any structure within 250 feet of a sewer line had to tie into the line. Corpus engaged in a city-wide cleanup effort. In Milam County, a volunteer force in Cameron disinfected the town. As far as I know, nobody scorched the pavement to kill germs in Texas.

By the third week of September 1897, the papers were filled with quarantine notices and rumors of “suspicious cases.” Caldwell, Navasota, Wills Point, Brenham, Tyler, Calvert, La Grange, Huntsville, Brookshire, Hearne, Columbus…even Dallas declared a quarantine against trains and humans from infected or suspicious places.

The holdouts were few. Waxahachie, Palestine and Corsicana said they didn’t believe yellow fever was coming to Texas, so they remained open. Naturally, other towns quarantined against the open towns. Overall, everyone quarantined against each other in the spirit of self-preservation.

Then nothing happened. Texas thought it had dodged a bullet. The Houston Post published this triumphant but creepy victory cartoon to kick off October 1897. 

Orange reported it was resuming business. Hillsboro and Waco lifted their quarantines. Public schools re-opened on October 4 in Richmond. A large crowd at Sabine Pass greeted the first train to arrive there in weeks. Merchants and markets rallied. Everyone was alive again. And that should have been the end of the story.

….but it wasn’t. An October 12, 1897 statement by Dr. Juan Guiteras of the U.S. Marine Hospital, published in the Houston Post, upended Texas in way that made the events of September look like dinner theater.

Dr. G’s report declared that he had inspected Houston and Galveston, and the fever was present in both places. Yellow Jack, Bronze John, the Saffron Scourge –  it had arrived in Texas! About 12 cases, he said, most of them recovered, but definitely yellow fever.

Houston and Galveston doctors moved swiftly to denounce Guiteras’ statement, claiming it was just dengue fever, not yellow fever. City councils passed resolutions declaring that their cities had one malady and not the other. But the damage was done. Texans flew into action.

Now Texas towns declared quarantines against Houston and Galveston, as well as other places down the coast. The old shotgun quarantine method went into effect. Try to enter from Houston and you had to deal with men with guns. The San Francisco Bulletin summed it up well:

The town of Bryan not only tried to prevent trains from stopping there, they barred trains from entering the county entirely. Picture it like a train robbery, but without the theft part. Brazos County was not alone in this tactic. 

Texas A&M entered total isolation and declared it would stay that way until the first frost.

In Fayette County, a Muldoon company loading a huge order of rock bound for the Galveston jetties stopped work…no train would be sent to infected Galveston.

Folks in Wharton and other towns just fled. Trying to avoid contact with other people – even their neighbors – they fled to the interior and North Texas.

At Brenham, there was a run on groceries and supplies (yep….19th century toilet paper pirates). People living outside of town were preparing for “a siege in case this yellow fever business comes to the worst.”

The news from La Grange two days after the cases were announced:

“Our streets have been almost deserted this week, owing to people being afraid to come into town.”

On the day the Associated Press broke the news of cases in Texas, the Western Union office at Houston was flooded with 750 telegrams and had to call in extra hands to deal with the 900 responses to be sent out.

Houston immediately bought from Washington D.C. a new device for mechanical fumigation of mail. The machine, by way of a paddle with thin metal tines, slapped tiny holes in each envelope to allow sulphur or formaldehyde fumes inside to kill germs on the letters.

San Antonio locked down, but the Austin city council couldn’t agree to quarantine or not to quarantine, so they just adjourned without doing anything at all.

Mayor Rice of Houston, at the pleading of the Houston Cotton Exchange, issued an invitation for town representatives from the Texas interior to come to Houston and inspect it for themselves.

He even offered to provide free transportation. Each town decided independently whether or not they wanted to risk sending their most trusted citizens into Houston. In the end, the handful that went were able to convince others that Houston wasn’t a hotbed of yellow fever.

Texas Health Officer Swearingen released the state ordered quarantine of Houston and Galveston when no new cases had appeared for about 10 days.

Less than 2 weeks after the panic began, it subsided. Houston theaters announced they’d resume plays. Public schools re-opened across the state. And the Houston Post trumpeted the news everyone was waiting to hear.

Trains will run again! Texans and commerce began to move. They shopped, sent letters, received newspapers, saw their neighbors. Texas was gonna be okay.

Little did they know, it was those new-fangled window screens they’d installed since the last epidemic that had saved them from heartbreak and death. The discovery that mosquitoes were the cause of the dreaded disease was still a couple years away. Newspaper editors, with a few days’ hindsight under their belts, scoffed at the experts who had raised the alarm of the fever in Texas. Halletsville bragged on itself for knowing all along that the scare was no big deal. Ain’t hindsight grand? 

This thing we’re living through right now is like 1897 in many ways. Every day, we’re bombarded with figures and death tallies. Every day we’re reminded to stay at home. Every day we’re told that the economy is wrecked.

There are pertinent things we don’t understand yet, just like those Texans didn’t know the damn mosquitoes were the cause of yellow fever. We’re leery of the various alarms & predictions of experts, but afraid nonetheless. We’re bringing back shotgun quarantine at the Louisiana border.

But we are adapting and we are pioneering new ways of doing what needs to be done. We are doing as Texans have always done – moving ably through uncharted territory.

And while we don’t yet know how our version of this story ends, we must remember this: the trains will run again. You can count on it. 

When the trains start running again, remember the RULES OF ETHICAL BEHAVIOR. Many of the ethical complaints received by the state bar are for FAILURE TO COMMUNICATE. Even though you may not be in your office, it is vital to be in contact with your clients. If they are in jail, send a letter or put a little money on their books. Talk with their family to reassure them that you are OK and concerned and working on their cases. It is time to COWBOY UP.

Cowboy Up, America.

When a cowboy’s in a pinch, he just tightens up the cinch, spurs his horse, and rides right through it because that’s the way the Duke would do it. He’d “cowboy up.” And with our country now in danger, a cowboy’s like the old Lone Ranger. Ridin’ hard and shootin’ straight, fightin’ those who spread the hate. The original meaning of “cowboy up” was to inform the next bull rider or bucking bronco rider at a rodeo to get ready to ride or “cowboy up.” As lawyers, it is hard to be away from court. Most of us are complaining about having no business and no money. Many of the accused citizens we represent have no jobs and no money. You don’t have to look far to see many who are in much worse shape than we are. Be ready to get back to court when the time comes and be an ethical lawyer. COWBOY UP!  

Thanks to Mark Pusateri with Copano Press in Corpus Christi for allowing me to use some of his historical info. Special thanks to Jim Skelton and my brother Joe. The three of us were cowboys once. Jim lost three fingers when the rope on his saddle horn ripped. My brother almost got blood poisoning when a steer pushed him into a sharp gate post and ripped his leg open. I only got a concussion when a half-broke horse ran me under a tree. Jim was 11, Joe was nine, and I was 12. When we had a problem, Jim always said, “Y’all need to COWBOY UP.”

Ethics & The Law: Question About If-Then Statement

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Below is an actual call to our hotline and answer by John Wright, member of the Ethics Committee.

QUESTION:

I am just trying to check on our duty to report. I know if a person makes a direct threat, we have a duty to disclose. However, I had someone call our office today and say, “If that doesn’t work [calling the state bar lawyer hotline], I’m going to kill her.”

We do know who the “her” would be. He hung up right after, and the statement was “if, then.”

Because it was IF, I am not sure if we have a duty to report it. Thoughts?

Thank you again for your assistance.

ANSWER:

I am not sure if the caller was a client or not. If not a client, there may be no privilege; perhaps if the caller is a witness the lawyer has interviewed, etc., there would be a duty of confidentiality. I think that duty is owed to the client, not just anyone.

If the caller is a client, I would want to talk to the client further to see how serious he/she might be. If client cools down and backs off an indirect threat, I see no need to report this unless it were to repeat itself.

If the client persists in talking like this, I would report it for what it is, an indirect but persistent threat.

Ethics & The Law: Past Tense

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Below is a real question presented to the Ethics Committee by a member:

I have a client that I represented in a recent exoneration. The date of offense was 2001. The exoneration process started in 2014-2015. It is now complete.

Former client is considering getting case expunged. In preparation for that, he has asked for his complete file. There are several exhibits to the writ that were filed under seal, with specific exclusionary language regarding access – even by him – on the grounds of witness safety and protection of the investigation. However, there is other information in his file that isn’t covered by a court order and could be problematic. Names, addresses, phone numbers, inculpatory statements… I’m concerned about possible retaliation towards these writ witnesses. Also, in our file is sensitive information developed by the DA during their investigation, a copy of which was provided to me as discovery.

What are my options here? Am I obligated to turn everything that is un-sealed over to him? Am I required to redact anything before I turn it over to him? Do I have a duty to approach the court for guidance – which my client will see as opposing him? Has there been any change in the lack of applicability of 39.14 to these cases?

Any guidance you can provide would be greatly appreciated. Thanks so much!

ANSWERS

Keith Hampton

I think a court order cures almost all of these issues. I agree that if he has a lawyer, then go through him, but if not, then it sounds like he is a client who could misuse parts of the file. I think your ethical duties are broader than robotic obedience to a client’s demand. If I understand the circumstances (and I think I know the case), then I would ask for a hearing and let the judge redact or order you to refrain from disclosure. I am limiting my remarks to the ethics of what to do and not a civil suit or any other considerations.

John Wright

  • If there are some items that the attorney is sure she can simply provide to the client, I would recommend that be done right away.
  • Send the materials under a cover letter that says that the attorney has other materials that she is not sure the law will permit her to provide to the client, and that legal issue is now under review. The lawyer will do well to convey the idea that she is trying to be careful, not just recalcitrant.
  • The lawyer might consider asking the former client if he has a Texas licensed lawyer that will accept the file materials, and discuss them with him, knowing that the lawyer will have duties and obligations under the Michael Morton Act and the general duty to protect the rights of third parties.
  • If the former client persists in having all the materials sent to him personally, consider filing a suit in inter pleader under the civil rules. The theory of such a suit runs like this: I have possession of certain papers and property that may belong to the former client, third parties or to the court itself. The relief requested, after notice to the former client, the DA and all interested parties and a hearing, is that the court will decide what must be done with the papers and property. Once the court decides, the order can be appealed by anyone not happy with the outcome.
  • My overriding advice is to try to make nice with such a former client to the extent that is lawfully possible.
  • The client needs to be advised about the law on expungement so that process can be expedited.

Special thanks to Keith Hampton, JohnWright, and Sharon Bass.

Ethics & The Law: No Privilege

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The lawyer client privilege is sacred. But it does happen that the client waives the privilege and, by doing so, allows the lawyer to respond to defend against allegations made by client.

This does not allow you to disclose other matters. Keep silent about other work product and privileged things you know. Keep silent about the bank robbery your client was involved in; but you must tell if client planning a future bank robbery.

Joseph Connors added that you have to be careful and if a client files a claiming that the lawyer did something wrong, the accused lawyer should only respond to those specific allegations and cannot bring up any other bad things the lawyer knows about client. This is not the lawyer’s opportunity to seek revenge against that former client.

A lawyer may reveal confidential information:

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.

(2) When the client consents after consultation.

(3) To the client, the client’s representatives, or the members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client.

(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.

(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.

(6) To establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client.

(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.

(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.

Thanks to Joseph Connors, Sharon Bass , Michael Mowla.

Ethics & The Law: Caution: Danger Ahead

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I can still hear my mother telling my brother and me to BE CAREFUL every time we left our house. As lawyers and in daily life, those words are very important. The following recent case is an example of not being careful. It is not wise to talk about cases in elevators or in the hallway. Terry Gaiser and I had a recent case where we had told our client to be careful—and be quiet. In the hallway he was cursing the officers who arrested him, the judge, and the prosecutor. He thought only his family and our witnesses were hearing this. In the courtroom after the state had put on the major witness, they then called a police officer who who had been in civilian clothes in the hallway. There is no doubt after hearing what the officer said he heard that the years moved up on what we had thought the sentence would be. The following summary is a good example of not being careful.

Morrison v. State (Murder)(Lamar)(06-17-00159-CR)(March 27, 2019). OPINION: Justice Burgess. Because billing records exist to secure an indigent defendant’s right to the appointment of counsel, the prosecutor’s “affirmative obligation” requires a prosecuting attorney to refrain from reviewing indigent defense billing records during the case against the defendant, regardless of how the prosecutor may acquire that information and regardless of whether any privilege attendant to those records was waived by public disclosure; a defense attorney who (a) creates detailed billing records disclosing confidential client communications and attorney work product, (b) fails to protect strategic defense information from public disclosure during the payment process, or (c) fails to take remedial actions after learning that the prosecuting attorney has reviewed his billing records provides ineffective assistance of counsel; and because the State violated the first principle, and because defense counsel violated the second principle, the defendant’s Sixth Amendment right to counsel and her Sixth Amendment right to be free from State intrusion into the attorney-client relationship were violated, and the defendant is entitled to a new trial.

Here are examples of calls or emails we received on the Hotline.

HOTLINE QUESTION: I have recently had requests from federal clients for the discovery from their file. I know that certain documents such as offense reports cannot be given to clients, but I don’t know which, if any, documents can be given to clients and the law governing the dissemination of federal discovery.

ANSWER: We are talking only about discovery that was received from the government under Fed. Rule Crim. Proc. 16. 
 First, see if the government will agree to releasing all or part of the discovery to the client. Some AUSAs don’t care about parts or all of the discovery. Get that agreement in writing (email is fine).
 Second, if you cannot obtain an agreement for any part of the Rule 16 discovery, ask the court for permission and get a court order. See attached for such a motion I filed and the court’s order. Once a court orders that you cannot turn over certain documents to the client, you will be protected from a grievance. See Voice for the Defense Online for Lawyer Mowla’s Motion and Order.

Ethical issues are best presented directly to TCDLA’s Ethics Committee phone hotline or by email to that committee’s chairpersons, Robert Pelton or Michael Mowla. Article 39.14, C.C.P., is the only limitation on what you can send a client who has asked for “all” his file created while you represented the client in a criminal case. At your expense, your ex-client is entitled to promptly receive from you all contents of his paper and digital file(s) in your office—except the e-discovery you received from the state’s DA. If you obtain a court order from the same court having jurisdiction over your client’s indictment, that court’s express order can permit your making judicially compliant additional disclosures to your client, and you can send the state’s e-discovery you got under Article 39.14., C.C.P. Continue to ignore the client’s file request and you will lose at the grievance committee! So beware.

QUESTION: I had a client I represented on a world of felony drug cases in two different counties last year. The client is drug-enhanced crazy (meaning the client was crazy to begin with) but is not quite incompetent. I managed to get good outcomes for him (he was facing decades in prison, but received multiple concurrent 7-year sentences, if memory serves). While his cases were pending, he visited me in my office and went over discovery on some of the cases—this was before his bond was yanked for failing drug tests while on “pretrial probation” (in Smith County they do things like this and never mind the Constitution, the presumption of innocence, justice, or other quaint outdated notions in today’s modern world)—and I went over the remain­der of his discovery with him during multiple visits to the jail.
 My now-ex client sent me a letter a few weeks back demanding his file and everything in it, to include multiple discovery discs, many pages of police reports, witness statements, and multiple documents containing confidential information. The client saw all this on multiple occasions while his cases were pending. I consulted with a defense attorney about the issue and followed his advice: I did not reply. 
 The ex-client has filed a “Motion to Compel Attorney to Produce Client’s File” with the Smith County District Court that convicted him. Never mind a possible lack of jurisdiction, and never mind that the judge in that court probably doesn’t give a whit about the motion, but what exactly—legally and ethically—can I send to the ex-client? What, legally and ethically, if anything, am I required to send him? Am I obligated to pay for copies of whatever I can legally/ethically send him?
 I am concerned about violating rules about not releasing confidential information—to include phone numbers, addresses, and other sources of contact information for witnesses. On the other hand, I don’t want to get hammered by the Bar. I feel in a bit of a Catch-22 situation here—damned if I do and damned if I don’t.

ANSWER by Joseph Connors: It appears that attorney collected various items of evidence to use as substantive or impeachment evidence while representing client. Now that client’s case is over, does attorney have to return same to client or to the person from each item was separately obtained by defense counsel or his/her investigator?

1. Keep everything and face and lose on some issue at attorney’s own grievance hearing.

2. Return each item to the person from whom same was initially obtained on theory it was loaned to counsel and was never “owned” by client.

3. Give all to client and hope client does not misuse such potential evidence by threats, murder, etc.

4. Attorney can study all attached and figure out the ethical and moral answers to this serious dilemma.

Special thanks to Michael Mowla, Joseph Connors, and Sharon Bass. See the Voice for the Defense Online for Motion and Order from Michael Mowla and files from Joseph Connors.

Ethics & The Law: Rudolph (and Gifts to Judges)

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All of you have heard the song “Rudolph the Red-Nosed Reindeer” and are familiar with its main character, Rudolph. Rudolph was created in 1939 by Robert May, an employee of Montgomery Ward. Although sources vary as to whether May created the story of Rudolph to promote sales at the Christmas season or to give as a gift to his young daughter to bring her comfort, May was doing his best to keep his job and comfort his child because Ms. May was dying of cancer.

May was picked on and bullied as a child, and the story of Rudolph was based on those personal experiences. Rudolph was Santa’s ninth reindeer, mocked by the other reindeer because of his shiny red nose. Like May, Rudolph was mocked and bullied, but in the end, Rudolph became the hero when he was chosen to lead Santa’s sleigh on a foggy Christmas Eve.

Johnny Marks, Robert May’s brother-in-law, actually wrote the song “Rudolph the Red-Nosed Reindeer.” My friend Carol Erickson remembers Johnny Marks, who served as a captain in the Army during World War II. Carol’s dad served in the same unit as Johnny. After the war, Carol remembered Johnny coming to her house wearing a red suit and driving a new red Cadillac. Johnny tried to pitch the song to many popular singers—Dinah Shore, Perry Como, Bing Crosby, Frank Sinatra—but none were interested. At the urging of his wife, my hero and family friend Gene Autry recorded the song in 1949. It was an immediate hit and became one of the top songs in music history, selling millions of copies.

“Rudolph the Red-Nosed Reindeer” has become a piece of modern folklore and a metaphor for overcoming obstacles, embracing differences, and recognizing everyone’s unique potential. As you review the lives of your clients in an ethical manner, you may find a little or a lot of Rudolph in them. Your client may have come from a broken and dysfunctional home, or have learning disabilities or mental issues. It is important to get your client’s full life history. The recommendation is that you go back three generations in your client’s life. No matter how bad and bleak the case looks, there may, and probably will, be some socially redeeming qualities.

It is our job to zealously defend our clients in an ethical manner. If your client is a veteran, get all of his records whether good or bad. Also get a copy of the school and medical records. Do not forget to have your client stop all social media, especially Facebook. Serious prosecutors will be checking to see what a defendant has posted. If your client is in jail, warn him to be aware letters can be read and may be used against him and to beware of phone calls from jail. Be mindful of conversations in the hallways at the courthouse. It has happened that bystanders including law enforcement have testified about what they heard.

Once your investigation is complete, you may find your “Rudolph” has a history that will help him guide the sleigh to a positive outcome, or produce mitigation of the punishment. Even the worst among us has done something right in life. The research done on the ancestors of your client may help explain and or excuse his behavior. As my psychiatrist friend Geoff Grubb believes, only a very small percentage of humans are “Born to be Wild.” The remaining commit crimes because of many factors: poverty, inferiority complex, peer pressure, opportunity, desperation, drugs, depression, mental disorders, overpopulation, politics, racism, TV violence, or regionalism.

Like Rudolph, your client’s life may be changed forever if given the chance. If your Rudolph has alcohol or drug problems, enroll them in AA or NA. Encourage them to get a job, go to school and church, and any other positive thing that will help get them back on the right track.

Always remember: Santa Claus and the Grievance Committee are watching you.

Acceptance of Holiday Gifts by Judge and Staff

Opinion No. 194 (1996)

QUESTION: Is it a violation of Canon 4(d)(4) of the Texas Code of Judicial Conduct for a judge, court coordinator, or court reporter (as well as clerks and bailiffs) to:

1.   accept holiday or seasonal gifts (assuming such to be commensurate with the occasion); or
2.   attend holiday or seasonal law firm parties?

ANSWER 1: Yes. A judge may only accept a gift from a friend for a special occasion and then only if the gift is fairly commensurate with the occasion and the relationship. Canon 4D(4)(b). A Judge may accept any other gift only if the donor is not a party or person whose interests have come or are likely to come before the judge. Canon 4D(4)(c). Opinion No. 44.

Texas Judicial Ethics Opinions Page 115 of 170

The Committee concludes that a holiday or seasonal gift from a lawyer or law firm where a lawyer is not a friend is prohibited. Where a friendship exists, the gift must be commensurate with the occasion and the judge must be mindful of Canon 2A—and should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2B. Opinion No. 39.

ANSWER 2: No. A judge may attend holiday or seasonal law firm parties if the party is open to people other than judges and court personnel. Rule 4D(4)(b) and Opinion No. 39 permits a judge to accept ordinary social hospitality. The judge should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary and should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2(A) and (B).

The answers above apply equally to the judge’s staff, court officials, and others subject to the judge’s direction and control. Canon 3C(2) provides a judge should require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. See Canon 3B(2) Code of Judicial Conduct, September 1, 1974, through December 31, 1993, and Opinions 110, 112, and 140 applying Code to court personnel.

Here is the main code provision that would apply to gifts:

Canon 4D:

(4)   Neither a judge nor a family member residing in the judge’s household shall accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to the judge; books and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) a judge or a family member residing in the judge’s household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(c)  a judge or a family member residing in the judge’s household may accept any other gift, bequest, favor, or loan only if the donor is not a party or person whose interests have come or are likely to come before the judge;

(d) a gift, award or benefit incident to the business, profession, or other separate activity of a spouse or other family member residing in the judge’s household, including gifts, awards, and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

Ancillary to that would be the requirement to report certain gifts (depending on the value) in annual personal financial statements. That reporting requirement is for those officeholders who file reports with the Texas Ethics Commission or with the local county clerk per the Election Code. It is also generally covered under Canon 4I:

Compensation, Reimbursement, and Reporting

(1)   Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety.

(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

(b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge’s family. Any payment in excess of such an amount is compensation.

(2)   Public Reports. A judge shall file financial and other reports as required by law.

Finally, as you know, some gifts are illegal and could result in criminal charges under Chapter 36 of the Penal Code.

Ethics & The Law: Freedom Is Not Free

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I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies foreign and domestic: that I will bear true faith and ­allegiance to the same. That I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

Voting is not a privilege, it is a right, and many paid dearly for it. Remember this when you say “my vote won’t count” or “I’m too busy” or “I don’t care”—American men and women in uniform have served, or are currently serving, in the military to protect and preserve our democracy and YOUR right to vote. Many have died1 or suffered permanent disabilities fighting for our freedoms.

 

Voting is our most fundamental right as Americans. Many sacrifices have made it possible for our citizenry to be able to vote—from military actions to civil rights movements.

African-Americans won the right to vote in 1870 when the 15th Amendment2 ended the practice of denying the right to vote based on race, skin color, or prior servitude. This was the third of the Reconstruction amendments.3 Fifty years later, after a long struggle known as the Women’s Suffrage Movement, women earned the right to vote in 1920 with the 19th Amendment.4

Many black citizens were threatened or killed trying to exercise their right to vote. There were other voting obstacles as well. A “poll” or “head” tax had to be paid in person at the time of voting. It was imposed on all adults equally, regardless of income or property ownership. The poll tax was used in the South during and after Reconstruction as a means of circumventing the 14th Amendment5 and denying voting rights to African-Americans.

The tax also created a burden on poor white Americans. This form of taxation gradually fell out of favor in the South in the mid-20th century, but it was not until the adoption of the 24th Amendment6 in 1962 that poll taxes were finally abolished as a prerequisite for voting in federal elections. They were later eliminated in all elections. The Voting Rights Act of 1965 was passed to enforce the already-existing rights in a handful of Southern states.

Don’t take our freedoms for granted. Too many have sacrificed for our rights. Be smart in your voting decisions. Politics can be dirty business—false information is everywhere—so look at the source of these allegations. Remind others to vote. You can send out emails to people on your list and encourage them to vote. Since you as a lawyer may know more about many of the candidates, you can do a service for your contacts by giving them your choice of who is the best candidate.

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