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Ethics & The Law

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.

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.

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