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Ethics & The Law

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.

Ethics and the Law: A Peek Behind the Curtain: The TX Attorney Grievance Process in a Nutshell

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The attorney grievance process is not something most lawyers want to think about. But chances are, even if you have never personally been involved in the grievance process, you know someone who has. Or maybe you’re a little curious about what goes on “behind the scenes” of the attorney discipline system. Either way, given the potential ramifications of a grievance to a lawyer’s livelihood, and the unique procedures and deadlines entailed, it is important to know what to expect should you ever receive that dreaded certified letter from the Office of Chief Disciplinary Counsel. 

Who can file a grievance?

Anyone with knowledge of attorney misconduct has the right to file a grievance against a Texas attorney. This includes clients, other lawyers, judges, and any member of the public. There is no standing or privity requirement to file a grievance.

The First Stage: Classification

Once a grievance is filed, the Chief Disciplinary Counsel (“CDC”) has 30 days to “classify” the grievance, meaning it must determine whether the grievance, on its face, alleges professional misconduct or a disability.  If the grievance does allege professional misconduct or a disability, it will be upgraded to Complaint status. If it does not, it will be dismissed as an Inquiry. Grievances alleging minor misconduct may also be referred, at CDC’s discretion, to the Client Attorney Assistance Program, which will attempt to resolve the issue between client and attorney outside of the grievance process.

If the grievance is dismissed as an Inquiry, the Complainant has the right to appeal the decision to the Board of Disciplinary Appeals (“BODA”). If BODA affirms the dismissal, the Complainant may amend the grievance one time by providing new or additional information. If the amended grievance is dismissed, the Complainant may again appeal that determination to BODA.

Approximately 70% of grievances are dismissed at the classification stage. Common reasons why a grievance might be dismissed at classification are:

  • The grievance alleges something other than professional misconduct or a disability. E.g., it complains about the outcome of a case or that the attorney was “rude.”
  • The grievance is barred by the 4-year statute of limitations.
  • The Respondent attorney has died, been disbarred, or resigned.
  • The grievance concerns a person who is not a licensed Texas attorney.
  • The grievance is a duplicate of, or identical to, a pending grievance.

The Second Stage: Investigation

If a grievance is upgraded to Complaint status, the Respondent attorney will be notified, provided a copy of the grievance, and given 30 days to file a written response to the allegations. CDC has 60 days from the date the attorney’s response is due to make a determination of “Just Cause,” although that time is extended if CDC sets the case for an Investigatory Hearing or issues Investigatory Subpoenas. 

Whereas the classification stage is limited to ascertaining whether a rule violation has been properly alleged, the investigation process seeks to determine whether there is sufficient evidentiary support for the allegations to warrant a finding of “Just Cause.” As part of its investigation, CDC may interview witnesses, subpoena bank records and other relevant documentation, and review court records, correspondence, files, settlement checks, etc.

This is a critical stage of the process and should not be taken lightly. Every effort should be made to properly and fully rebut the allegations and avoid a Just Cause finding, as once a case enters formal litigation, it will be much more difficult to obtain a dismissal and may entail costly and burdensome litigation. 

Investigatory Hearings & Subpoena Power

Effective June 1, 2018, amendments to the Texas Rules of Disciplinary Procedure instituted some important changes to the grievance process. Now, during the Investigation stage, CDC may issue subpoenas for documents, electronic information or tangible things and/or to compel the attendance of witnesses (including the Respondent attorney) at an Investigatory Hearing.

Investigatory Hearings are somewhat informal hearings aimed at facilitating the investigation and allowing for possible early settlement of the case.  These hearings are presided over by a panel of local grievance committee members.  The Respondent, the Complainant, and potentially other witnesses may appear and provide testimony or answer questions of the panel.  An investigatory hearing may result in a negotiated sanction, a finding of Just Cause, a referral to the Grievance Referral Program, or a dismissal of the complaint.

The Final Stage: Litigation

If the investigation results in a finding of Just Cause without a negotiated sanction, the case will proceed into litigation, at which point the Respondent can choose to have the case heard before a grievance committee or in district court. Formal discovery ensues and settlement negotiations may take place.  If no settlement is reached, the case will be set for trial. 

Trial proceedings before a grievance committee are confidential unless and until a public sanction is issued (at which point certain information becomes public). In addition, proceedings before a grievance committee can result in a private reprimand, an option that is not available in district court. Other possible sanctions available in either domain include a public reprimand, a probated suspension, an active suspension, a combination of probated and active suspension, or disbarment. 

Some cases that enter formal litigation are diverted to the Grievance Referral Program, a program designed to assist lawyers who have impairment or performance issues and who enter the disciplinary system as a result of minor misconduct. In exchange for a dismissal of the underlying complaint, the Respondent lawyer agrees to complete a remedial program individually tailored to the lawyer’s needs.

Other Statistics

  • The most frequently sanctioned misconduct is lack of communication with the client.
  • In the 2019-2020 Bar year, civil practitioners received the highest number of sanctions, followed by family law and criminal law practitioners.
  • In the 2019-2020 Bar year, 7505 grievances were filed, and a little over 300 sanctions were imposed. The number of sanctions imposed was lower than usual due to the impact of Covid-19 on disciplinary litigation.
  • The vast majority of grievance cases entering formal litigation proceed through the evidentiary process. Roughly 10% or less of Respondent attorneys opt to have their case heard in district court.

Conclusion

The attorney grievance process is cloaked in secrecy, and can be quite intimidating if you are unfamiliar with the process or what to expect. By educating yourself on the procedures, being responsive, and complying with deadlines, you greatly increase the odds of a successful outcome.

Ethics and the Law: Constitutional Carry

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The measures in reference to Texas’ new gun laws, regularly called “Constitutional Carry” go into effect on September 1, 2021. Effective September 1, the applicable provisions under Tex. Penal Code, Chapter 46, have been amended to  allow certain persons to carry a weapon on their person without a license, under certain potential restrictions.  The following is a primer on many, but not all, of the criminal law considerations that practitioners must consider when considering and/or advising clients on the change in Texas’ gun laws.

The law will refer to a person without a  license to carry (“LTC”) after September 1, 2021, as a non-prohibited person. Until September 1, 2021, a non-prohibited person MUST continue to carry their handgun as if they were unlicensed.

Texas Representative Matt Schaefer is the author of HB 1927. He gave the following closing comment for the bill on May 23, 2021 “We are charged with defending the freedoms that are owed to Texans and guaranteed by the Constitution. My faith is with law-abiding Texans, who are the first to respond because they are there.” In modern parlance, the term “constitutional carry,” also called “permitless carry” or “unrestricted carry,” refers to legal carrying of a handgun, either openly or concealed, without a license or permit.  The general idea behind constitutional carry is that every person who is not prohibited from legally owning a handgun should be free to carry it openly or concealed in public without fear of being prosecuted simply for exercising their right

A person carrying a handgun under the authority of Texas’ new gun law must not be prohibited under state and/or federal law against carrying a firearm and must meet the following requirements: must be 21 years of age or older; and  must not be prohibited from possessing a firearm in a public place in Texas.  As to the second requirement, it is imperative to understand who will be prohibited from possessing a firearm in a public place in Texas.    The following groups are prohibited under State and federal law from possessing a weapon: persons who have been convicted of a felony. (See Tex. Penal Code §§ §12.04 & 46.04(a) (effective Sept. 1, 2021); see also 18 U.S.C. § 922(g)(1)); persons who have been convicted of an misdemeanor crime of assault involving a family or household member before the 5th anniversary or release from confinement or community supervision (whichever is later). (See Tex. Penal Code § 46.04(b)(effective Sept. 1, 2021);but see 18 U.S.C. § 922(g)(9), it is “unlawful” for anyone “convicted in any court of a misdemeanor crime of domestic violence” to possess a weapon, regardless of the time since the conviction); persons, other than a peace officer, who are subject to a protective order, who received notice of the order and before the expiration of the order. (See Tex. Penal Code §§46.04(c)(effective Sept. 1, 2021); see also 18 U.S.C. § 922(g)(8));  persons who have been convicted (a final judgment of guilt) within the past 5 years of an Assault Causing Bodily Injury (see Tex. Penal Code §§§ 22.01(a)(1) & 46.02(a)(2)(B)), Deadly Conduct,(see Tex. Penal Code §§ 22.05 & 46.02(a)(2)(B)-, Terroristic Threat, (see Tex. Penal Code §§ 22.07 & 46.02(a)(2)(B)(effective Sept. 1, 2021)), Disorderly Conduct-Discharging a Firearm, (see Tex. Penal Code §§ 42.01(a)(7) & 46.02(a)(2)(B)(effective Sept. 1, 2021)), and Disorderly Conduct-Displaying a Firearm, (see Tex. Penal Code §§ 42.01(a)(8) & 46.02(a)(2)(B)(effective Sept. 1, 2021)); someone who is a fugitive from justice. (See 18 U.S.C. § 922(g)(2)); someone who unlawfully uses or is addicted to a controlled substance. (See 18 U.S.C. § 922(g)(3)); someone “who has been adjudicated as a mental defective or who has been committed to a mental institution.” (See 18 U.S.C. § 922(g)(4)); an alien illegally in the United States or who has been admitted into the United States under a nonimmigrant visa.  (See 18 U.S.C. § 922(g)(5)); anyone who “has been discharged from the Armed Forces under dishonorable condition.” (See 18 U.S.C. § 922(g)(6)); and anyone who was a citizen of the United States, but has renounced his or her citizenship.  (See 18 U.S.C. § 922(g)(7)).  Additionally, a person may not openly carry a handgun in plain view pursuant to Texas’ new gun laws while in a motor vehicle or watercraft that is under the person’s ownership or control, unless the person is 21 years of age or older, or has an LTC and the handgun is in a holster.  (See Tex. Penal Code § 46.02(a-1)(1).  Finally, a person may not carry, in plain view or otherwise, a handgun in a motor vehicle or watercraft that is under the person’s ownership or control if the person is engaged in criminal activity, prohibited by law from possessing a firearm, or a member of a criminal street gang.  (See Tex. Penal Code § 46.02(a-1)(2).  Under Texas’ new gun law, there will be no requirement that a person carrying a handgun be a Texas resident.

Texas’ new gun laws primarily affect handgun possession.  Much of the change in Texas’ gun laws are an effort to conform handgun and long gun carry laws. Previously, possession of any firearm including a long gun was prohibited in any place listed in Tex. Penal Code § 46.03, while places prohibited to license holders carrying handguns were listed in Tex. Penal Code § 46.035. These two prohibitions will now be combined in Tex. Penal Code § 46.03 (effective Sept. 1, 2021), which means that long guns are now explicitly prohibited in 51% establishments, professional sporting events, correctional facilities, hospitals, nursing facilities, mental hospitals, amusement parks, civil commitment facilities, and open meetings of governmental entities.

Other important considerations in understanding the change in Texas’ gun laws is understanding what is considered a handgun and how can handguns be carried under the new law.  The term handgun refers to any firearm that is designed, made, or adapted to be fired with one hand. (See Tex. Penal Code § 46.01(5)(effective Sept. 1, 2021)). Pursuant to the upcoming changes, there are two legal methods of carrying a handgun. A person carrying a handgun under the authority of Texas’ new gun laws may either carry that handgun: (1) concealed; or (2) openly in a holster. Generally speaking, “concealed” means that no part of the handgun is visible based on ordinary observation, while “openly in a holster” means that a handgun is partially or wholly visible based on ordinary observation MUST be carried in a holster.  (See e.g. Tex. Penal Code § 46.035 (effective Sept. 1, 2021)).

When reviewing all of the above explained changes, the location where a person may legally carry a handgun must still be considered.  In most instances, a person carrying a handgun under the authority of Texas’ new gun laws may do so in any public, non-prohibited place, or a public place without effective notice. Businesses that chose to disallow the carrying of weapons can provide notice either verbally or in writing (ex. posted signage) that carrying a handgun is prohibited. On the other hand, the following places are generally prohibited to a person carrying a handgun, even under the recent changes,: schools or educational institutions, a transportation vehicle of the school or educational institution, or the grounds where a school sponsored activity is taking place, (see Tex. Penal Code § 46.03(a)(1)(effective Sept. 1, 2021));polling places including places offering early voting, (see Tex. Penal Code § 46.03 (a)(2) (effective Sept. 1, 2021)); courts or offices utilized by a court, (see Tex. Penal Code § 46.03(a)(3) (effective Sept. 1, 2021)); racetracks where pari-mutuel wagering takes place (horse or dog racing), (see Tex. Penal Code  § 46.03(a)(4) (effective Sept. 1, 2021)); secured areas of an airport. (see Tex. Penal Code § 46.03(a)(5) (effective Sept. 1, 2021)); within 1,000 feet of locations designated by TDCJ as a place of execution on the day a death sentence is to be imposed (does not include a person’s home or place of employment), (see Tex. Penal Code § 46.03(a)(6) (effective Sept. 1, 2021)); bars (51% or more establishments), (see Tex. Penal Code § 46.03(a)(7) (effective Sept. 1, 2021)); professional sporting events, (see Tex. Penal Code 46.03(a)(8) (effective Sept. 1, 2021)); correctional facilities ,  (see Tex. Penal Code § 46.03(a)(9) (effective Sept. 1, 2021)); civil commitment facilities, (see Tex. Penal Code § 46.03(a)(10); hospitals or nursing homes, (see Tex. Penal Code § 46.03(a)(11) (effective Sept. 1, 2021)); mental hospitals, (see Tex. Penal Code § 46.03 (a)(12) (effective Sept. 1, 2021)); amusement parks, (see Tex. Penal Code § 46.03 (a)(13) (effective Sept. 1, 2021)); and a room or rooms of an open meeting of a governmental entity. (See Tex. Penal Code § 46.03(a)(14) (effective Sept. 1, 2021)).

However, License holders are only prohibited in carrying inside amusement parks and hospitals if effective notice is given per Tex. Penal Code §s 30.06 & 30.07 (effective Sept. 1, 2021). Additionally, a room or rooms of an open meeting of a governmental entity will no longer be prohibited to license holders per Tex. Penal Code § 46.15(b) (effective Sept. 1, 2021). An unlicensed person carrying a long gun or a handgun is strictly prohibited and risks being charged with a felony for carrying into the room or a meeting of a governmental entity.

Private property owners may give notice to persons other than license holders that entering the premises with a firearm constitutes a trespass. This notice may now be provided by a Tex. Penal Code § 30.05 “No Firearms” sign personally by the owner or someone with apparent authority. The trespass notices for license holders will remain the same under Tex. Penal Code § 30.06 and/or 30.07.  Additionally, if an establishment sells alcohol and receives 51% or more of its income from the sale of alcohol, it must display 51% signage to give to all persons that the place is prohibited. Only license holders will be provided relief if the establishment does not provide effective notice. See Tex. Penal Code § 46.15(p).

People may decide to prohibit firearms and other weapons on their premises or property, but muse post a sign at each entrance that contains specific language, in both English and Spanish, in certain coloring and sizing.  If effective notice is provided under Tex. Penal Code § 46.15(o) (effective Sept. 1, 2021)), any person who carries a firearm (even accidentally) into that location will not have the benefit of the newly created defense to prosecution intended to guard against mistakes.

In order to receive the protections afforded by Texas’ new gun laws, a person openly carrying a handgun MUST keep the handgun holstered. A handgun should not leave the holster unless the person is acting in justified defense (Tex. Penal Code, Chapter 9) or another lawful activity. A person cannot display a firearm in manner calculated to alarm. This has commonly been referred to as brandishing. The Tex. Penal Code criminalizes the general display of a firearm as either disorderly conduct or deadly conduct. If a person intentionally or knowingly displays a firearm or other deadly weapon in a public place in a manner calculated to alarm, this is the act of disorderly conduct. Additionally, an unlicensed person commits an offense if the person carries a handgun while the person is intoxicated and is not: on their own property or property under their control  or on private property with the consent of the owner of the property; or inside or directly enroute to a motor vehicle or watercraft: (i) that is owned by the person or under their control; or (ii) with the consent of the owner or operator of the vehicle or watercraft. See Tex. Penal Code § 46.02(a-6)(1).

Ethics and the Law: July/August 2021

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I became aware of TCDLA in 1974 while I was a student at South Texas College of Law. I joined as a student member. I was assigned to intern with Jim Skelton. Jim and I met, and he let me start working on cases. One case was a robbery case where a woman, our client, had robbed a grocery store. I had read in the Voice for Defense about mitigating evidence being presented to a jury. I showed the article to Jim, and we immediately started preparing for the punishment part of the trial. We put on several witnesses to testify about our client and her background. We put on evidence of her family history. We showed that her husband had abandoned her and three small children, and when she robbed the store she took food, diapers, and other household goods. The jury came back very soon, and our client was granted a short probation – thanks to the article in the Voice. After that my job on all cases was to investigate and prepare mitigating evidence. When I first met Jim Skelton, he was defending David Owen Brooks who was a defendant in the largest mass murder case in U.S. history. After being involved in that case and helping Jim, I knew my calling was defending citizens accused of crimes.

Jim and I were appointed to represent a woman charged with capital murder. The case had been reversed and we did the retrial. She was found guilty again and sentenced to death. After many years and finally at a writ hearing in federal court, she was given a new trial. Rather than go to trial again the state allowed her to plead to life. A documentary was made about the case. When I went to prison to see her, she started crying and said thanks to my testimony in the federal writ hearing – hours away from her execution – her life was spared. We both cried together, and I felt part of my mission in life was fulfilled. She was released from prison a few months ago and called me on the phone to thank me again and talk.

TCDLA is very important to me as it allows me to try and help my fellow lawyers by founding the ethics committee and ethics hotline.

Ethics and the Law: Spill the Beans

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Lawyer, client, and prosecutor were in front of judge on an agreed plea. Client entered a plea of guilty for ten years in prison. Judge was asked to give client credit for back time. Defendant announced that he has been in custody since March 19, 2019. Defense lawyer agreed. Judge sentenced client, gave all requested credit and away they all go.

Shortly afterwards, defense lawyer realized the client should have given credit from jailing on March 19, 2020, not 2019, and told the client. Client responds “No, I did not say March 19, 2019.” The Defense lawyer promptly obtained a copy of the reporter’s record and confirmed the mistake and presented it to the client.

Under Texas Rules of Disciplinary Conduct 1.05(f) and 3.03(a), (b) & ( c) and their commentaries, the rule is that if something is material, it must be revealed. 

The above misrepresentation is material and those ethical rules apply. Defense counsel needs to ask that client for permission to spill the beans and clean up the mess. It is best to put the request for permission to the client in writing so there is record in case client later files a grievance claiming a privilege violation.

Then if the client refuses to agree to correct the misrepresentation, defense counsel is obligated to inform the presiding judge and prosecutor of the mistake in requesting and obtaining an extra year of jail credit.

Since defense counsel is acting in good faith, the judge may just leave it alone.

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