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Ethics & The Law

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.

Ethics and the Law: Nuts, the Judge Wants to See You!

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It all starts innocently enough. You are in court (pre-pandemic), doing your usual thing when the court coordinator tells you the Judge wants to see you. For those of you who got in trouble in school (I’ll plead the 5th!), you know it’s never a good sign when an authority figure wants to speak with you. You walk into chambers, and the Judge says, “So what’s going on with the Smith case?” What do you do?

Well, first, here are the rules you as a lawyer must follow: Rule 3.05 of the Texas Rules of Professional Conduct states A lawyer shall not: (a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure.

And here are the rules a Judge must follow: Canon 3A of the Texas Code of Judicial Ethics states that a judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the Judge outside the presence of the parties between the Judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the Judge’s direction and control. This subsection does not prohibit: (a) all communications concerning uncontested administrative or uncontested procedural matters.

In my experience, 99% of the time a Judge inquires in this fashion, it is a harmless attempt to administratively figure out what is going on in the case; is this going to be a plea or a trial. This is allowed, but you are skating on thin ice. You can fall right through unless you are careful. So what should you do? You really have three options:

You could tell the Judge everything you know about the case, including your strategies, the state’s weaknesses, etc.

You could reprimand the Judge for unethical conduct, explaining that he is on the brink of breaking the law, and if he does, you must report him to the panel judge.

You could use some common sense, don’t break any rules, and gracefully get out of the situation.

Option #1 will lead you to possible sanctions with the state bar. Pursuing Option #1 allows you to play Russian roulette with your law license. This is not a good option. Option #2 doesn’t work either because there is a good chance that you will be dealing with this Judge for many, many years. In my experience, judges have long memories, and you will make an indelible negative imprint on the Judge’s memory for as long as he remains on the bench. This leads us to Option #3: common sense.

As mentioned, 99% of the time, when a Judge asks you this question, it’s a harmless attempt to figure out procedurally where this case is going. That arguably falls under an exception to rules against ex parte communications. Treat it as such. But, to be on the safe side, bring the prosecutor into the discussion. Answers such as “Thanks for asking Judge, let me get my file and the Prosecutor,” “I was just speaking with the DA about this, let me go get him/her,” or “There are two sides to this, so you probably want to hear the DA’s side too. Let me go get him/her”. This way, there is no rule violation, you haven’t pissed anyone off, and you may make some headway on your case.

What happens in the 1% of cases where ex parte communications are not so innocent? We will address that in future articles.

Good luck, and have fun!

Ethics and the Law: April Fools

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Assume lawyers are representing a client in an Article 11.07 of the Texas Code of Criminal Procedure post‑conviction writ. A contract was signed providing for a fee of $20,000 for a writ investigation plus expenses and an additional $10,000 fee was to be paid for the preparation and filing of a writ. The investigation fee has been paid including expenses. The fee for preparing and filing of a writ has not been paid. Client and lawyers cannot agree on the basis for a writ. Lawyers believe the best issue to proceed on is the failure to call witnesses in the punishment phase of trial. Client wants to claim actual innocence. Lawyers’ opinion is that there is no evidentiary basis for the claim of actual innocence.

Question number 1: Are the lawyers obligated to file a writ when they have not been paid to do so?

Question number 2: Are the lawyers obligated to file a writ claiming actual innocence if, in their opinion, there is no evidentiary basis for the claim of actual innocence?

Answer 1 provided by attorney Joe A. Connors, III.:

Q. 1: No. Client is entitled to the fruits of the investigation, which has been paid for, and a formal letter of withdrawal.

Q. 2: No. Client is entitled to a written discussion detailing why the attorneys will not pursue an actual innocence claim. Ineffective assistance of counsel for the “failure to call witnesses” requires a sworn statement from the witness detailing what the witness would have said plus compliance with both prongs of Strickland v. Washington, 466 U.S. 668 (1984). Of course, there is a duty to obtain a statement from the trial defense counsel on why they did not call that witness.

Answer 2 provided by attorney Laura Popps:

Although the client has a say in the overall objectives of a case, it is the lawyer who assumes responsibility for the legal tactics and strategies in reaching those objectives. Moreover, a lawyer is violating the disciplinary rules if he files a frivolous legal pleading or one with no basis in fact/law. If the client and lawyer cannot agree on this issue, it may be appropriate for the lawyer to withdraw.

Further, a lawyer has a right to be paid according to his agreement with the client. If the client refuses to abide by that agreement and pay the lawyer for his services, it may be appropriate to withdraw.

See Texas Disciplinary Rule of Professional Conduct 1.15 (b)(4) & (5), as well as comment 7.

The author would like to send a special thanks to Betty Blackwell, Sharon Bass, Laura Popps, Joe Connors, and Bobby Mims.

Ethics and the Law: Bad Reviews

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QUESTIONS PRESENTED

May a Texas lawyer respond publicly to a former client’s adverse comments on the internet? If so, what information may the lawyer disclose?  

STATEMENT OF FACTS

A former client posted negative comments about a Texas lawyer on an internet review site. The lawyer believes that the client’s comments are false. The lawyer is considering posting a public response that reveals only enough information to rebut the allegedly false statements.   

DISCUSSION

The internet allows consumers to publish instant reviews and comments about goods or services. Once posted, consumer reviews are usually searchable, easily accessible to other potential consumers, and effectively permanent. With the internet becoming an increasingly common source of referrals for legal services, consumer reviews on various sites have assumed a greater importance for attorneys in recent years.

Vendors of commercial goods or services are relatively free to respond to negative reviews as they see fit. But when a former client posts a negative review about a lawyer, the lawyer’s duty of confidentiality limits the information the lawyer may reveal in a public response.  

In general, Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct defines the scope and extent of a Texas lawyer’s duty of confidentiality. Rule 1.05(a) broadly defines “confidential information” to include not only information protected by the lawyer-client privilege but also “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”  

A lawyer may not publicly reveal the confidential information of a former client unless expressly permitted by an exception stated in Rule 1.05. Absent an applicable exception found in Rule 1.05, a lawyer may not post a response to a negative review that reveals any information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client or acquired by the lawyer during the course of or by reason of the representation of the client. This is true even though the information may have become generally known. Compare Rule 1.05(b)(3) (allowing lawyer to use confidential information to the disadvantage of a former client after the information has become generally known) with Rule 1.05(b)(1) (generally prohibiting revelation of confidential information absent an applicable exception).

No exception in Rule 1.05 allows a lawyer to reveal information in a public forum in response to a former client’s negative review. The only exceptions potentially applicable to the facts presented in this Article appear in Rule 1.05(c) and (d):

(c) A lawyer may reveal confidential information:

(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. 

(d) A lawyer also may reveal unprivileged client information:

(ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct;

(iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.”

It is the opinion of the Committee that each of the exceptions stated above applies only in connection with formal actions, proceedings, or charges. The exceptions to Rule 1.05 cannot reasonably be interpreted to allow public disclosure of a former client’s confidences just because a former client has chosen to make negative comments about the lawyer on the internet. This approach is consistent with the guidance issued by the ethics authorities in other jurisdictions.

See, e.g., Los Angeles County Bar Association Professional Responsibility and Ethics Committee Formal Opinion No. 525 (Feb. 2013); Bar Association of San Francisco Ethics Opinion 2014-1 (Jan. 2014); New York State Bar Association Ethics Opinion 1032 (Oct. 2014); and Pennsylvania Bar Association Formal Ethics Opinion 2014-200 (2014).

Accordingly, a lawyer may not reveal confidential information, as that term is defined in Rule 1.05, merely to respond to a former client’s negative review on the internet. A lawyer may, however, post a response to a former client’s negative review so long as the response is proportional and restrained and does not reveal confidential information or violate any other provision of the Texas Disciplinary Rules. For example, it would not violate the Texas Disciplinary Rules to post the following response, suggested in Pennsylvania Bar Association’s Formal Ethics Opinion 2014-200 (2014):

“A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum.  Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”

Nothing in this article is intended to suggest that a lawyer may not seek judicial relief against a former client who commits defamation or other actionable misconduct through an internet publication.  

CONCLUSION

Under the Texas Disciplinary Rules of Professional Conduct, a Texas lawyer may not publish a response to a former client’s negative review on the internet if the response reveals any confidential information, i.e., information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client or acquired by the lawyer during the course of or by reason of the representation of the client. The lawyer may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the Texas Disciplinary Rules of Professional Conduct.

INQUIRY TO TCDLA ETHICS COMMITTEE FROM AGGRIEVED LAWYER

Attached is the review my client left.  My question is whether I can disclose in my response the fact that her case was dismissed and expunged.

I was hoping to receive the same level guidance, representation, and communication from [attorney X] as his previous reviews have indicated. It is very disappointing to be writing this review. I am confused as to why I had a completely lackluster and different experience. Any time I had a question for him I would receive a curt clipped response as if I was bothering him. I always had the feeling I had made a bad decision in having him represent me because of this. To his credit he was very responsive in texting back and performed the basic functions of his role, which for my issue were not very complicated. He did not spend $2500 worth of time on me and if so, I’ve yet to see his hours. Unfortunately, he did not communicate on issues that he knew about at the time would still impact me. I received very little communication on what to look out for and when asked about it he shared that because he gave me a discount, I should have no problem paying to have an error removed from my background now. Time is one thing that cannot be recovered. He was more focused on money though. I received the bare minimum from him. Overall, I feel he was apathetic and unhelpful in his representation of me. I hope no other client is treated this way.

RESPONSE OF COMMITTEE MEMBER JOE CONNORS

Please get back to us later after your ex-client then files another on-line response with many more details to further denigrate you in so many new ways.

Like the other responses from the Ethics Committee attorneys who took time to share their experience and knowledge with you, I also suggest YOUR SILENCE would be best. It will stop this matter now rather than its continuing with another bad post by your ex-client.

You asked for our advice but refuse to follow it so be forewarned: “This one is not over with posting your fine words.”

I have been there where you currently are. My silence stopped the need for my denigrating ex-client and non-client to get in each last evil word on-line about how bad I was. You ought to just be silent, I request. 

REPLY OF INQUIRING ATTORNEY

Aside from ethics rules, I believe it is a misdemeanor to divulge an expunction.  So, I do not think it would be wise to include in a response that I got a criminal case dismissed and expunged. I will just use the one suggested by Ethic opinion 662:

A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum.  Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.

RESPONSE OF COMMITTEE MEMBER BETTY BLACKWELL

I have just recently reviewed the State Bar rules about this, and they are extremely strict.  About the only answer you can give is that “professional rules do not allow me to respond as I would like.”

Anything you post on the website can be seen as a violation of confidentiality.  The only other thing they recommended was reaching out directly to the client and asking if you could talk to her about the review.  But it is really not recommended and could be an ethical violation to respond on the site where the review is posted,

I’m so sorry.  We have all had them.  It is frustrating, but better to ignore.

I have been told the best thing to do is get better reviews posted.  The bar does say that it is okay to request clients to post good reviews, though it is not okay to pay for good reviews.

Ethics and the Law: Just Visiting

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There is becoming an issue with visiting judges – some have been alleged to have ethics issues.

Now with the back log of cases more visiting judges will be used. These judges may have been defeated in last election. The voting public did not want them so why do lawyers have to accept them? It may be they were defeated because they had an “R” or a “D” by their name. But it could be because the voting public did not want them to be Judges. 

Ever get hired on a case and it falls in a court where you and the Judge have not, and never will, form a bonding relationship?

The section in the Government Code that applies to objecting to a visiting judge is 74.053. 

GOVERNMENT CODE—–74.053

Subsection (d) was amended after Lanford, see infra, was decided.  

(a) When a judge is assigned to a trial court under this chapter:

(1) the order of assignment must state whether the judge is an active, former, retired, or senior judge; and

(2) the presiding judge shall, if it is reasonable and practicable and if time permits, give notice of the assignment to each attorney representing a party to the case that is to be heard in whole or part by the assigned judge.

(b) If a party to a civil case files a timely objection to the assignment, the judge shall not hear the case. Except as provided by Subsection (d), each party to the case is only entitled to one objection under this section for that case.

(c) An objection under this section must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial, including pretrial hearings, commences, whichever date occurs earlier. The presiding judge may extend the time to file an objection under this section on written motion by a party who demonstrates good cause.

(d*) An assigned judge or justice who was defeated in the last primary or general election for which the judge or justice was a candidate for the judicial office held by the judge or justice may not sit in a case if either party objects to the judge or justice.

(e) An active judge assigned under this chapter is not subject to an objection.

(f) For purposes of this section, notice of an assignment may be given and an objection to an assignment may be filed by electronic mail.

(g) In this section, “party” includes multiple parties aligned in a case as determined by the presiding judge.

Johnny Holmes tried to object to a defeated judge being assigned to hear criminal cases in Harris County. See Holmes v. Lanford, 847 S.W.2d 581 (1993). The Court of Criminal Appeals ruled that the section was clear that it only applied to civil cases.

After that case was decided, section (d) was added at the request of the Houston DA’s office to cover all cases. I was the TCDLA legislative representative at the time and was present when the legislation was passed. I believe that the legislative history would reflect that it was a direct result of the case holding that section (a) and (b) as written, before the changes, only applied to civil cases. The much-needed addition was section (d) which now says:

(d) An assigned judge or justice who was defeated in the last primary or general election for which the judge or justice was a candidate for the judicial office held by the judge or justice may not sit in a case if either party objects to the judge or justice.

No case has been decided under this section because it is so clear. I agree this applies to criminal cases. Since pointing this out, Dan Mills has not sat as a visiting judge in Travis County.

Written by Betty Blackwell

At least one Houston lawyer believes Lanford is still good law.  His reasoning is that even though the statute was specifically amended to address defeated judges, which was the case in Lanford, the legislature did not add in the amendment that it applies to criminal cases. Lanford told the legislature that they needed to say that, and they chose not to.

So his argument is that it only applies to civil cases. There are no cases decided under that section since its amendment. I believe that is because administrative judges, who assign visiting judges, just don’t want to risk an entire case going away since it is easier to assign another judge.

For the huge number of pro prosecutor judges who have been defeated, I think we need to be making the objection.

Thanks to Betty Blackwell and Sharon Bass.

*Section (d) was amended after Lanford was decided.

Ethics and the Law: How Much Discovery Does a Client Get?

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There continues to be confusion about discovery duties and what information defense counsel can share with her/his client.

Texas Code of C Procedure Article 39.14 (f) READS:

The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement.

Essentially, you can share the discovery with your client by letting them read it, but you cannot give copies to the client unless you have permission from judge or th prosecutor. Many bad things happen when discovery is found in a client’s jail cell or his gang leader’s home after a search warrant’s execution.

While prosecutors make up their own minds and give what they think is discoverable and material, you have an obligation to your client to ensure the prosecutors follow all the rules. You should report prosecutorial non-compliance to the trial court and seek aid there.  Additionally, you have an obligation to report prosecutorial non-compliance to the State Bar’s Office of Chief Disciplinary Counsel.

The State Bar’s Professional Ethics Committee’s Opinion No. 657, May 2016 presented these questions:

  1. What documents and information must be delivered by a lawyer to a former client convicted of a criminal offense when requested by that former client?
  2. Who bears the costs of delivering the documents and information to the former client?
  3. In what form must the documents and information be delivered?

Read this opinion to get the answers. The opinion can be found online at http://law.uh.edu/libraries/ethics/Opinions/601-700/EO657.pdf. If you have questions, please call the Ethics Hotline at 512-646-2734.

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.”

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