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Ethics & The Law - Page 10

Ethics and the Law: Professionalism

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The newly formed ethics hotline has been hot. We have received numerous calls, and the hotline has turned into a helpline for lawyers with ethical and procedural questions. All the co-chairs have been invaluable. Many lawyers never had training on how to handle a criminal case and how to get cases in an ethical manner. Times have changed and now lawyers run wild ads on television, which are reminiscent of Cal Worthington, the California car dealer who would appear on commercials riding elephants trying to sell cars. Mary Flood, a Harvard-educated lawyer who does public relations work for Androvett Legal Media & Marketing, says over 90 percent of websites are misleading. Get your website approved by the State Bar before putting it up. The quality of your representation is what counts most. When I first met lawyer legend Percy Foreman, he said if you are being a lawyer for the money, do something else. He said if you do a good job as a lawyer, you will always make money. He made plenty.

Follow these simple tips that will help you on your cases:

  1. Get a contract or letter of acknowledgement;
  2. Build your file with a copy of the relevant statutes, punishment ranges, and lesser included offenses;
  3. Be, look, and act professional;
  4. Have file in shape so if another lawyer has to take it over, it will be organized in case you drop dead or get shot by an angry client;
  5. Be available to your client throughout all times of the day and night. If you want an 8 am–5 pm job, go work for the government;
  6. Read books on famous lawyers like Earl Rogers, Gerry Spence, and Clarence Darrow. They became famous for a reason;
  7. Get help from TCDLA members or utilize hotlines;
  8. In case of punishment or to aid in plea-bargaining, get a complete social history of your client. It will explain and not excuse what your client has been accused of;
  9. Improve weaknesses by attending seminars and staying awake through them;
  10. Ask questions. Lawyers are always willing to help comrades;
  11. Build relationships with court personnel. One bailiff was my friend and he would always give the jury charge to the person I thought should be the foreman;
  12. Carry a copy of the penal code and/or code of criminal procedure with you. I also highly recommend reading books written by Ray Moses, who tells you how to do everything from what to wear to what to say and how to handle cases. Jim Skelton’s search and seizure workbook is another great resource. Look up the Criminal Law Institute for the search and seizure information.

Learn to be in charge of the courtroom. Percy and Racehorse Haynes have been called the Kings of the Courtroom because they took control. Judges or district attorneys do not respect those who give in. Sometimes not giving in will result in an allegation of contempt against you, so carry a motion for a personal recognizance bond in your briefcase just in case—it will allow for your immediate release. You never know when you will need it. See § 21.002(d) of the Texas Government Code regarding the personal recognizance bond. Also carry a motion to prevent ex-parte communications between judges and assistant district attorneys. It is unethical for a judge to discuss cases ex-parte. Your oath is to your client, not to be friends with the judge. Let them know you are aware of those rules. The Commission on Judicial Conduct is there for a reason.

Sometimes it may be in your best interest to record conversations with clients. In Texas, the recording of phone calls and other electronic communications is allowed when one party to the conversation consents to it. The following is an article—entitled “May a Lawyer Electronically Record a Telephone Conversation?—written by co-chair Greg Velasquez of the El Paso County Public Defender’s Office regarding tape-recording calls.

May a Lawyer Electronically Record a Telephone Conversation?

Federal law

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the conversation.1 This is called a one-party consent law. With the consent of one person or party to the conversation, recording the conversation is not a violation of the law.

“One-Party Consent” Statutes

Thirty-eight states and the District of Columbia have adopted “one-party consent” laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents.2

“Two-Party Consent” Statutes

Twelve states require the consent of every party to a phone call or conversation in order to make the recording lawful. These “two-party consent” laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Consent must be obtained from every party to a phone call or conversation if it involves more than two people.3

Texas Law

Texas’ wiretapping law is a “one-party consent” law. Texas makes it a crime to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents.4 But, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.5

The law does not cover oral communications when the speakers do not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.”6 Therefore, you may be able to record in-person conversations occurring in a public place—such as a street or a restaurant—without consent.

Also, a recording device in plain view is presumed to be used with the consent of all persons who can see it.

Texas Lawyer and the Professional Ethics Committee for the State Bar of Texas

May a lawyer electronically record a telephone conversation between the lawyer and a client or third party without first informing the other party to the call that the conversation is being recorded?

In November 2006, the Professional Ethics Committee for the State Bar of Texas issued Ethics opinion No. 575 and answered the question.7 The Committee stated the following:

It is recognized that there are legitimate reasons a lawyer would electronically record conversations with a client or third party. Among the legitimate reasons are to aid memory and keep an accurate record, to gather information from potential witnesses, and to protect the lawyer from false accusations.

Ethics opinion No. 575 p.2.

The Committee also stated “No provision of the Texas Disciplinary Rules of Professional Conduct specifically prohibits a lawyer’s unannounced recording of telephone conversations in which the lawyer participates.”8

The Committee was of the opinion that the Texas Disciplinary Rules of Professional Conduct did not generally prohibit a lawyer from making undisclosed recordings of telephone conversations in which the lawyer is a party, provided that certain requirements are complied with.

The Committee cited Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct: “(a) A lawyer shall not: (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” and the Committee stated that it did not believe that an undisclosed recording of a telephone conversation by a party to the conversation could be termed to involve “dishonesty, fraud, deceit or misrepresentation” within the meaning of Rule 8.04(a)(3). Thus, a Texas lawyer’s undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(a)(3).

The Committee concluded that the Texas Disciplinary Rules of Professional Conduct did not prohibit a Texas lawyer from making an undisclosed recording of the lawyer’s telephone conversations provided that (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute a serious criminal violation under the laws of any jurisdiction applicable to the telephone conversation recorded, and (4) the recording is not contrary to a representation made by the lawyer to any person.

Ethics and the Law: Introducing…

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Robert Pelton, the former President of the Harris County Criminal Lawyer’s Association (HCCLA), Associate Di­rec­tor for TCDLA, and Feature Articles Editor of the Voice, will be writing a regular column on ethics and the law.

Texas Criminal Defense Lawyers Association (TCDLA) President Gary Trichter has recognized the need for an ethics committee to help members. One of the top priorities for the committee was to establish an ethics hotline for criminal defense lawyers. Protocol is as follows: Call the hotline at 512-646-2734 and leave a message. It will then be routed to me, or to a co-chair. You will get a call or several calls within 24 hours. If it is an emergency, you can call me at my office at 713-524-8471 or on my cell at 713-829-0678. The hotline has already received numerous calls and all questions have been answered. The job of a lawyer is serious business, and the committee’s goal is to help members if they have ethical questions. We are in the job of enforcing the U.S. Constitution and Texas law. It is important for a lawyer to know the law and how to ethically practice the law. Having a grievance filed or a writ for ineffective assistance can be a disastrous event.

It is very important to set up a file properly with copies of the complaint, information, indictment, statute, punishment range, and all notes or reports. Keep a log of each time you talk with the client. When you first get hired, remember the attorney-client privilege. Do not discuss the case with any of the client’s family or friends without a waiver. Always get the waiver in writing, even if it is something as short as “I waive attorney-client privilege as to _______. I fully understand the consequences” (signed by client). Many times the client’s wife, husband, or best friend can turn out to be the worst enemy.

The TCDLA Ethics Committee is made up of the following members:

Robert Pelton, Chairman, , 713-524-8471, 713-829-0678 cell

Jack Zimmerman—Houston, www.texasdefenselawyers.com, 713-552-0300

Robyn Harlin—Houston, , 713-697-5900

Ray Fuchs—San Antonio, , 210-226-5757

David Sheppard—Austin, , 512-478-9483

David Zavoda—Odessa, 432-580-8266

Joe Pelton—Abilene, , 325-676-9100

Greg Velasquez—El Paso, , 915-546-8185

Joseph Connors—McAllen, , 956-687-8217

Don Davidson—Bedford, , 817-355-1285

Doug Barlow—Beaumont, , 409-838-4259

No one is immune from client complaints. Sooner or later, no matter what you do, a client may claim you have done something wrong. If that happens, be prepared to defend yourself. Many lawyers have been accused of misconduct. F. Lee Bailey, part of the O. J. Simpson Dream Team and one of the most famous lawyers in America, wrote a book, The Defense Never Rests. Bailey was disbarred for misconduct while defending one of his clients. At last account he finally rested and is living in Florida.

Future topics will include the following:

  1. How to get business ethically
  2. How to set and collect fees
  3. Contracts or letter of acknowledgment
  4. Contempt
  5. Conflict of interest
  6. Attorney/client privilege
  7. Gifts to judiciary
  8. Ex-parte communications
  9. Grievance process
  10. How to set up a file
  11. Investigators, polygraph operators
  12. Tape-recording rules
  13. Motions to withdraw
  14. Pretrial publicity
  15. What to say and not say to the media
  16. Personal habits—alcohol-drug problems
  17. How to act like a lawyer
  18. Books that will help
  19. Seminars
  20. Board Certification
  21. College of State Bar
  22. Advertising
  23. Closing practice
  24. Selling your practice
  25. Social networking, Facebook, Twitter
  26. Blogs
  27. Website
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