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Ethics & The Law: A Time to Keep Silent

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The Bible reminds us—a time to keep silence, and a time to speak—
As lawyers there is a time to keep silent . . .

Case 1:

Defendant in criminal trial asserted his Fifth Amendment privilege against self-incrimination and did not testify. The prosecutor introduced evidence in the form of affidavits and police reports, and the court ruled that the defendant was guilty. During the sentencing and punishment phase of the trial, the judge asked defense counsel whether he intended to seek to qualify defendant for probation. Defense counsel advised the court that probation could be considered under applicable law regardless if the defendant testified or not as to the absence of any prior felony convictions. The judge then asked the prosecutor, “Does the defendant have any prior convictions?” The prosecutor mistakenly stated to the court that police rec­ords reflect that defendant has no prior convictions. Prosecutor turned to the defendant and asked, “Right?” The defendant and defense counsel make no statement, and the court granted probation of defendant’s sentence.

When the judge asked the prosecutor about prior convictions of defendant, defense counsel knew that the prosecutor’s statement to the court was inaccurate because defendant had previously informed defense counsel about his prior felony convictions. After the trial concluded, defense counsel advised defendant that if he is asked by probation officials about his prior arrests or convictions, defendant must answer and must answer truthfully. In fact, probation officials subsequently learn about defendant’s prior convictions as a result at a post-trial interview in which the defendant answered such questions truthfully about his prior convictions.

Case 2:

Lawyer has client charged with evading in a motor vehicle, a state jail felony. The facts of the case are not egregious, but when searched incident to arrest, defendant had a chargeable quantity of methamphetamine—i.e., less than a gram—that he/she was not charged with, even though the lab showed it was meth.

Client is offered two years deferred on the felony evading, 90 days on reduction to a mis­demeanor. Client refuses both offers. State informs lawyer that if client does not plead, State will file the meth case. Client says he/she will take the deferred. State mistakenly writes up paperwork so that defendant will receive two years deferred on a misdemeanor. Judge takes the plea, not reading the stipulation and plea agreement, believing it is a felony. Defendant receives misdemeanor probation.

Query: Is lawyer under any duty to inform the Court of the error?

See Ethics Opinion 504. While not entirely on point, I think it gives some good guidance. Under the opinion, the duty of candor does not require an attorney to correct a false statement made by the court regarding the Defendant (in that case, that he was never previously convicted of a felony, when, in fact, he had been). In this case, however, it’s not privileged information that the plea agreement was for something else. Nevertheless, I don’t think the rules go so far to require disclosure in this case.  

Discussion

Ethical dilemmas arising under Texas Disciplinary Rule 3.03 present very difficult issues because ethics rules governing lawyers’ conduct attempt to balance, on the one hand, a lawyer’s duty of candor to the court and, on the other hand, a lawyer’s duty of loyalty to and zealousness on behalf of a client, along with a duty to maintain confidential client information. Establishing the line between these competing obligations requires an examination of the specific facts in view of the standards for candor to the tribunal articulated in the Texas Disciplinary Rules.

Pursuant to Texas Disciplinary Rule 3.03(a)(1), a lawyer may not knowingly make a false statement of material fact or law to a tribunal; pursuant to Texas Disciplinary Rule 3.03(a)(2), a lawyer may not knowingly fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; pursuant to Texas Disciplinary Rule 3.03(a)(5), a lawyer may not knowingly offer or use evidence that the lawyer knows to be false. These rules constitute exceptions to a lawyer’s duty to maintain client confidential information under Texas Disciplinary Rule 1.05.

The particular question presented in the Statement of Facts does not involve a lawyer knowingly making a false statement of material fact or law, or a situation where the client has permitted perjury or made a fraudulent statement in which the lawyer’s silence may be tantamount to assisting a criminal or fraudulent act. Rather, the situation presents the issue of whether a lawyer may remain silent when neither he nor his client has made a false statement to the tribunal, but the lawyer knows that the court is relying upon mistaken or inaccurate information stated in court to the benefit of his client.

Several situations related to the issue of a criminal lawyer’s silence about his client’s prior criminal convictions have been considered in ethics opinions previously issued by the American Bar Association Committee on Ethics and Professional Responsibility. In ABA Formal Opinion 287 (1953), dealing with the earlier ABA Canons of Professional Ethics, three very similar situations were considered. These situations included: (1) The judge asks the defendant whether he has a criminal record and the defendant falsely answers that he has none; (2) the judge asks the defendant’s lawyer whether his client has a criminal record; and 3) the judge is told in court by the custodian of criminal records that the defendant has no criminal record and the lawyer knows this information is incorrect based upon his own investigation or upon his client’s prior disclosure of information to him.

The ABA Committee concluded under the earlier Canons of Professional Ethics that in each of these three situations, the lawyer’s obligation under Canon 37 to preserve a client’s confidential information prohibits any disclosure to the court of information the lawyer has concerning his client’s prior criminal record. However, the lawyer must not make any false statement to the court.

After adoption of the Model Rules of Professional Conduct by the American Bar Association, the ABA’s Committee on Professional Ethics reconsidered the issues presented in Formal Opinion 287. In ABA Formal Opinion 87-353 issued in 1987, the ABA Committee stated that Model Rule 3.3(a) and 3.3(b), which are virtually identical to Texas Disciplinary Rules 3.03(a)(1) and (2), represent a major policy change with regard to a lawyer’s duty when his client testifies falsely. It is now mandatory under Texas Disciplinary Rule 3.03(a)(1) (as well as under Model Rule 3.3(a)) that when a lawyer knows that his client has committed perjury, the lawyer must disclose this knowledge to the tribunal if the lawyer cannot persuade the client to rectify the perjury. A lawyer’s silence under those circumstances will have the effect of corroborating or assisting fraudulent misstatements made by a client.

Likewise, under Texas Disciplinary Rule 3.03(a)(1) of the Texas Disciplinary Rules (and Model Rule 3.3(a)(1) and if a judge specifically asks the defendant’s lawyer whether his client has any prior criminal convictions, the lawyer may not make any false statements of fact to the court. If the question by the court to the defendant’s lawyer follows an inaccurate statement in court by another person such as in the Statement of Facts, the lawyer must correct the inaccurate information made in court by a person other than the lawyer or his client, or make some other statement to the court indicating that the lawyer refuses to corroborate the inaccurate statement, or the lawyer may ask the court to excuse him from answering the question. If the lawyer refuses to corroborate the inaccurate statement or to ask to be excused from answering the question, the court is at least alerted to a problem and presumably will inquire further to discover the truth.

Texas Disciplinary Rule 3.03(a)(2) requires disclosure to the tribunal only when it is necessary for a lawyer to “avoid assisting a criminal or fraudulent act.” Hence, a lawyer’s silence in the absence of client fraud or perjury does not require disclosure of the client’s confidential information or correcting false information provided to the court by persons other than the lawyer or his client.

Texas Disciplinary Rule 3.03(a)(5) further provides that a lawyer shall not knowingly “offer or use evidence that the lawyer knows to be false.” Does silence by the lawyer and his client in the situation described in the Statement of Facts constitute the use of evidence that the lawyer knows to be false? The phrase “or use” evidence was added into Texas Disciplinary Rule 3.03(a)(5) primarily to address a circumstance where a client or other witness who testified truthfully under direct examination later provides false testimony under cross-examination by another party. See Schuwerk & Sutton, A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Houston Law Review 1, 264, 265 (October 1990). Comment 13 to Texas Disciplinary Rule 3.03 suggests that while a lawyer should urge his client to correct or withdraw false evidence given in cross-examination, disclosure of such perjured testimony or other false evidence given during examination by another party is discretionary rather than mandatory. Accordingly, silence by the lawyer under the Statement of Facts should not be deemed to be “use” of false testimony under Texas Disciplinary Rule 3.03(a)(5).

Conclusion to Scenario 1

The conclusion after discussion by several ethics team members is basically the same. Even though an error was made it was not made by client or defense lawyer so nothing needed to be disclosed.

Conclusion to Scenario 2

Since neither lawyer nor his client in the Statement of Facts made a false statement to the court, the lawyer has not violated Texas Disciplinary Rule 3.03(a)(1); since the client did not commit fraud or perjury, the lawyer’s silence does not constitute assisting a criminal or fraudulent act. The lawyer may remain silent without violating Texas Disciplinary Rule 3.03, and therefore is prohibited under the Texas Disciplinary Rule 1.05 from disclosing confidential information about his client’s prior convictions.

Special thanks to Terry Gaiser, Jack Zimmermann, Michael Mowla, Betty Blackwell, Joseph Connors, and Keith Hampton.

Ethics & The Law: Is Pay Okay?

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QUESTION

I need a lay witness to testify. It’s too late for a subpoena. Is it unethical to compensate her for her time to appear?

The answer is in the ABA Model Rules of Professional Conduct, which were adopted by Texas on June 20, 1989, as Tex. Disciplinary Rule Prof. Conduct 3.04. ABA Model Rule 3.4(b) states that an attorney “shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.” The comments to this rule, and specifically Comment 3, provide that it is not improper to pay a witness’ expenses, but the common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying. This has been construed to mean that you can pay a fact-witness for expenses and time lost preparing to testify and to testify. This consideration is not the same as paying a “fee for testifying.” The comments provide that “there is no reason to draw a distinction between compensating a witness for time spent in actually attending a deposition or a trial and compensating him for time spent in pretrial interviews with the lawyer in preparation for testifying so long as the lawyer makes it clear to the witness that payment is not being made for the substance of the testimony or as an inducement to ‘tell the truth.’” But if you pay a witness and attach any conditions to the payment, such act may be considered as influencing testimony. So, you cannot pay a witness if it is conditioned on giving testimony in a certain way, to prevent attendance at trial, or contingent on the outcome of the case. The factors that you should consider are: (1) what is reasonable consideration for the witness’ time; and (2) whether the agreement is in writing (always do this).

Tex. Disciplinary Rule Prof. Conduct 3.04, Rule 3.04, Fairness in Adjudicatory, provides that a lawyer shall not: (a) unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for his loss of time in attending or testifying; or (3) a reasonable fee for the professional services of an expert witness . . .

Use good judgment when paying fact-witnesses. If the fact-witness is a busy professional like a doctor, attorney, teacher, plumber, electrician, or any other person whose time lost equals livelihood lost, then figure out a reasonable fee to pay the fact-witness. But if the fact-witness is a retiree or a 15-year-old kid, that witness’ time lost will be worth a lot less. And if the fact-witness is some mooch who lives in his parent’s garage, basement, or never left the bedroom he grew up in and who smokes pot and plays video games all day, his time lost will be worth what’s in the center of a doughnut or close to it.

Two other considerations: paying a fact-witness opens up the door for cross-examination as to your witness’ motives for testifying. And, you must also consider Tex. Disciplinary Rule Prof. Conduct 3.03, Candor Toward the Tribunal.

—Michael Mowla

I don’t think anyone would disagree with the answer from Michael. I would emphasize the necessity of a written agreement when you pay any witness for his/her time and/or expertise.

—Jack Zimmermann

I don’t understand “too late for a subpoena” because it is easier than ever to serve one. I’m not sure how this issue arose. I agree on one thing: compensation for witnesses you can’t attribute to the court is a fair (and devastating) basis for impeachment of defense witnesses, one to be avoided, ironically, at all costs. If you can, preserve the issue, and you can do so in a variety of ways.

—Keith Hampton

Thanks to Michael Mowla, Jack Zimmermann, Joseph Connors, and Keith Hampton.

Ethics and the Law: Mayday

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Mayday took over in the age of direct voice communications. Whenever a ship and its crew find themselves in a dangerous situation, they can lead every message with either two or three calls for mayday! This tells all listeners that the following message will contain urgent, life-or-death information and that they have to drop everything to provide assistance to this distraught crew.

Mayday provides in two sounds a clear and distinct message about the status of a ship, her crew, and the urgency of their situation. Similar vocal codes exist to share other kinds of information, such as “Pan-Pan,” which also signals distress. But unlike mayday, a ship signaling Pan-Pan is telling the world that they are experiencing difficulties, but that these problems are not life and death. It may mean a mechanical breakdown or a non-serious medical situation. Mayday, on the other hand, is the naval equivalent of dialing 911. Anybody who broadcasts a mayday is telling the world to come running, there are lives in danger.

The TCDLA Hotline has become a mayday for lawyers. We get calls from despondent lawyers, some on the verge of going off the deep end with worry about how to handle an ethical dilemma.

I am happy to report since I created the Ethics Hotline in 2011, many lawyers have called and their issues have been resolved in a satisfactory manner. If you have a mayday situation, call (512)646-2734. Put this number on your phone, and remember: We operate 24/7.

Below are some examples of the calls we get.

The Hotline gets many calls about discovery and what a lawyer should do when the issue of sharing an offense report arises. The lawyer is in control. The lawyer must make the decision on who can review a copy of the offense report. Read 39.14 carefully to avoid any ethical problems. This and an actual call are discussed below.

(e)   Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article unless:

(1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or

(2) the documents, evidence, materials, or witness statements have already been publicly disclosed.

(f)    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. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this article, the defendant may not be the agent for the attorney representing the defendant.

Here’s the synopsis:

Client is charged with a misdemeanor and our office is appointed to represent her on the criminal case. Discovery is made available to us, which includes several body-cam videos, etc. After a bit, we are contacted by a local attorney who does both criminal defense and civil rights. He asks if there is any video in the criminal discovery that shows an assault against the client by the cop. We responded that we would be happy to identify the specific video and timestamp for him, but that my reading of 39.14 precludes us from providing actual copies absent a court order. His response is that he can be “consulting legal counsel” and share the videos, specifically mentioning this is how they’ve worked with 39.14 in the past.

I would love to give him ALL the video—this cop is a wrongful shooting waiting to happen. Serious anger issues . . .  But I read 39.14 to be “consulting legal counsel” in the criminal case.

Can I give him copies of the videos?

(1) His response is that he can be “consulting legal counsel.”

Hi, Lawyer!

As for (1), my response for (2) below assumes that the client contacted him first and retained him. If he cold-called you and the client doesn’t know, be careful. Make certain you aren’t unintentionally getting yourself involved in a backdoor type of barratry situation merely because you’re trying to help your client.

As for (2), that’s my understanding of the law. This is not a smokescreen. He is in fact consulting on the criminal case since he will need to communicate with you to give his opinion on whether any possible plea deal (or evidence you may want to present) could harm his civil case, giving his opinion and advice on any issues he spots on the criminal case. Plus, you need information from him to make sure he is not doing anything in the civil case that could hurt your client’s position in the criminal case. Protecting the client and making sure the client obtains relief if a civil rights violation occurred takes cooperation and coordination between the client’s attorneys.

Michael Mowla
Attorney

Let me just add: Confirm with client that client has hired civil-rights attorney, for if client has not, do not share 39.14 discovery with requesting civil attorney; (2) document your file with answer to (1) and send letter to client describing client’s answer to your question; and provide video to civil-rights attorney, if client answers (1) in the affirmative. Affirmatively document in writing the taking of each above step in case anyone files a misconduct or grievance against you personally. CYA prevention now is bettering than those you help now later replying “I don’t remember it that way,” when you and your law license are the BULLSEYES being hunted for by others seeking to do injustice to you!

Joseph A. Connors III
Lawyer in McAllen, Texas

I completely endorse what Michael said. Lawyer, please be so very careful. Just a reminder.

Keith S. Hampton
Attorney at Law

Another caller had an issue about affidavits filed in a Motion for New Trial. After consulting with the lawyer and another smart lawyer, we were able to answer the questions. Thanks to the lawyer calling the Hotline, we were able to assist in a small way in the granting of a Motion for New Trial in a felony case. All parties were happy.

Thanks to Michael Mowla, Keith Hampton, Joseph Connors, and Terry Gaiser.

Ethics and the Law: Safe Not Sorry

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Who among us has been interrogated by their 4-year-old child or grandchild about what lawyers do? Unfortunately, we do not make our living playing Pet Bingo, Llama Spit Spit, or Toca Kitchen on a tablet. For most of us, at the end of the day, all of our time is spent TALKING, and our currency is information: Whether it be privileged, non-privileged, helpful, or harmful, we process A LOT of it. Gone are the days of Atticus Finch and Perry Mason. Simple letters couriered by the mailman and telephone calls from a land line and consultations only in the office are dead.

A lawyer’s duty to keep abreast of changes in the law includes keeping up with technology. To ethically represent your client, you must accept the challenge and do your best to keep up with all new technology advances. Like all evidence, it can cut both ways. The Instagram photo of Johnny at the local bar that supports your client’s mistaken identity defense can also put him behind bars for a revocation of his parole or probation. The late Racehorse Haynes often commented, “Texting means Trouble, and Email means Evidence.”

It is our job to get it through out client’s head that once they catch a case, their online persona and content is a field day—whether through Snapchat, Instagram, electronic surveillance, wiretap, text messages, or emails. You would think jail calls would be a no-brainer for Our Hero to keep his mouth shut. Always tell your hero not to talk about his case on jail calls. I heard a story of an inmate telling his sister what kind of pistol he used when he shot his wife 9 times while she was stopped at a red light. Coupled with the jailhouse snitch, the recorded phone calls can tag an extra 20 years on a case for the Defendant.

The Texas Rules of Professional Conduct are silent on the specific use of email to convey confidential information; instead, they focus not on the manner of the communication but on the content analysis of confidential information, as indicated in Rule 1.05 (a) (b) (c) (d).

Emails can lead to severe consequences, derailing people in all walks of life from Washington, D.C., on down to the City of Houston and on to infinity. And as harmful as they can be, you should be advised to memorialize events to create a timeline for a defense strategy.

Social Media (from Brad Johnson/Texas Bar Blog):

We all know that an attorney has a duty to protect confidential client information, but it’s easy to forget that duty when posting on social media or responding to online reviews related to a lawyer’s services. The proper analysis under the Texas Disciplinary Rules of Professional Conduct will involve Rule 1.05, which generally defines the scope and extent of a lawyer’s duty to protect confidential client information.

Rule 1.05(a) broadly defines “confidential information” to include information protected by the lawyer-client privilege, as well as “all information relating to a client or furnished by the client” that a lawyer acquires during the course of or by reason of the representation. Rule 1.05(b) prohibits a lawyer from revealing confidential information of a client or former client absent an applicable exception—and also extends to the use of confidential information to the disadvantage of a client or former client.

For example, an attorney’s inclusion of information in a social media post that identifies a particular client, or which would allow a third party to do so, will generally be subject to the restrictions of Rule 1.05. These limitations will apply regardless of whether the communication is made in a public social media post or a social media post that is limited to friends and acquaintances of the lawyer.

The Professional Ethics Committee for the State Bar of Texas issued Ethics Opinion 662 (August 2016), related to an attorney’s duty of confidentiality in responding to a former client’s adverse comments on the internet, and Ethics Opinion 648 (April 2015), related to an attorney’s communication of confidential information by email. These provide useful analysis related to an attorney’s duty of confidentiality as related to electronic communications. See www.legalethicstexas.com. As always, the proper analysis will depend on the specific facts involved.

Many of us are caught on cameras about 70 times—in workplaces, shops, or other public places with surveillance cameras installed. Whether you are picking your nose or scratching yourself, it is probably on film. Many courthouses have cameras and audio recorders that can pick up conversations. Do not discuss your client’s case in elevators or areas where others are around. Do not take chances with social media postings, and remember you may be subjecting your law license to jeopardy if you do not follow the advertising rules. BE SAFE NOT SORRY.

If you are a Texas lawyer and have questions about your ethical obligations, you may contact the TCDLA Ethics Hotline at (512)646-2734 for guidance on how to access the relevant rules and information, including ethics opinions and caselaw, that may help you reach an informed decision. When the little 4-year-old asks what you do, you might want to say, “It depends.”

Thanks to Joseph Connors, Keith Hampton, Robyn Harlin, Sharon Bass, and Brad Johnson.

Ethics and the Law: Trying to Love Two Women

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Trying to love two women is like a ball and chain.
Trying to love two women is like a ball and chain.
Sometimes the pleasure ain’t worth the strain.
It’s a long old grind and it tires your mind.

—“Trying to Love Two Women,” Sonny Throckmorton

Here are some examples of calls to the Hotline. Be cautious when you are contemplating cases with a potential conflict of interest. Like the song says, “It’s a long old grind and it tires your mind.”

Conflict Issue 1

Lawyer X has several criminal cases pending in which law enforcement officer Y is one of the witnesses against his clients. Law enforcement officer Y has been arrested on an unrelated case and has retained Lawyer X to represent him. What ethical obligations, if any, does Lawyer X have to his other clients in which law enforcement officer Y is a witness against them?

In lawyer X’s opinion, there is no conflict of interest, as the case against law enforcement officer Y does not involve moral turpitude, and he has not learned anything about any of his clients from law enforcement officer Y.

What, if anything, must Lawyer X disclose to his clients?

Other than conflict of interest, what other ethical considerations should Lawyer X consider?

Answer 1

I have been in this very boat more than once. I believe it creates a conflict because the info about the officer’s pending charge is relevant to the other cases. I always notify all clients of the potential conflict.

If one of the cases where the officer is a witness is set for trial, I withdraw.

Yet I always send the DA a letter advising that my client will plead the 5th in any case where they are called to testify. Never had a judge not back me up.

Larry P. McDougal

Answer 2

Lawyer X has too narrow a view of conflict-of-interest law. It is about the right to conflict-free counsel. Will he go a bit easy on the cop when he cross-examines his current client? Won’t a vigorous cross hurt his cop client? What if the cop did something dirty in one of his other cases? Ethically, under the rules (plural) regarding conflict of interest, he must seek consent from his clients. He should put himself in the client’s position and see the world from that point of view. Maybe, depending on the facts of his cases, he would evade disciplinary action, as the attached opinion might suggest. But there is a future writ with Lawyer X’s name on it. Here is the constitutional law from a recent memorandum I wrote for a judge:

The Sixth Amendment guarantees an accused person the right to the effective assistance of counsel, a right that must be “untrammeled and unimpaired” by any conflict of interest. Glasser v. United States, 315 U.S. 60, 70 (1942). Conflict of interest jurisprudence is meant “to assure vindication of the defendant’s Sixth Amendment right to [conflict free] counsel.” Acosta v. State, 233 S.W.3d 349, 356 (Tex.Crim.App. 2007). Accordingly, it reaches any conflict of interest, including those involving former clients and third parties. Id. See, e.g., United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988)(Sixth Amendment right “extends to any situation in which a defendant’s counsel owes conflicting duties to that defendant and some other third person”); People v. Peters, 951 P.2d 926, 928 (Colo. 1998)(disqualifying two defense attorneys because one of them had previously represented a person the defense identified as an alternate suspect). Courts do not hesitate to find an attorney’s trial performance for his client was compromised due to a previous attorney-client relationship. See, e.g., Moss v. United States, 323 F.3d 445 (6th Cir. 2003); Brink v. State, 78 S.W.3d 478 (Tex.App. Houston [1st] 2001, pet. ref’d).

An actual conflict of interest exists where “counsel is required to make a choice between advancing his client’s interests in a fair trial or advancing other interests . . . to the detriment of his client’s interest.” Acosta, 233 S.W.3d at 355 (quoting Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997). Once a conflict of interest is shown, prejudice is presumed. Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App. 1994). Courts presume prejudice because “the evil [of representing conflicting interests] is in what the advocate finds himself compelled to refrain from doing” at any stage of representation. Holloway v. Arkansas, 435 U.S. 475, 490 (1978)(“It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain . . . tasks”); Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980). As the Fifth Circuit recognized:

When there is a conflict of interest . . . the prejudice may be subtle, even unconscious. It may elude detection on review. A reviewing court deals with a cold record, capable, perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty. Accordingly, where the conflict is real . . . a denial of the right to effective representation exists, without a showing of specific prejudice.

Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir. 1974).

Keith S. Hampton

Conflict Issue 2

The defendant that is charged with killing former client (Capital Murder—non-death) wants to retain me. Can I do it? Since former client is now deceased, is there no longer attorney-client privilege?

Answer 1

Privilege survives death. See, e.g., Swidler & Berlin v. United States, 524 U.S. 399 (1998) (this is the infamous Vince Foster case).

Keith S. Hampton

Answer 2

Depending on what the defense is, there is likely a conflict. If the lawyer has to attack the actions or character of the deceased former client, then he cannot represent the new potential client. If the defense is alibi, and the potential client was in another state at the time, it could be a closer question. I agree with everything Professor Hampton said.

Jack Zimmermann

If you do decide to represent co-defendants, make it clear to clients and advise the Prosecutor and Judge. The love you get from representing co-defendants may turn in to a major dilemma when you end up sued—whether it be a grievance, malpractice suit, fee dispute, or writ—and you will feel like you are wearing a ball and chain.

Thanks for the help from Keith Hampton, Larry McDougal, Jack Zimmermann, Joseph Connors, Chuck Lanehart, and members of the Ethics Committee.

Remember, the Ethics Hotline is like Las Vegas: We never close. Call if you have an issue, and you will get a response within 24 hours or sooner—(512)646-2734.

Ethics and the Law: A Sucker Born Every Minute

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We live in a changing society. Some changes are good and some are bad. As lawyers, especially those of us who have been around a while, we have seen major changes. In the beginning there were no cell phones, no fax machines, no computers, no email, no text messages, no twitter, Instagram, snapchat, Facebook, power point, skype, or LAWYER ADVERTISING (except having a listing in the phone book). The first outrageous ad I remember was for Cal Worthington, used car dealer in California, riding an elephant trying to get attention for his car lot. It worked just like it worked for P.T. Barnum, who ran the Ringling Bros. and Barnum & Bailey Circus. Supposedly he told people there is a sucker born every minute. He had carnival barkers luring people in to see animals born with two heads, shrunken heads from the Amazon, bearded women, scantily dressed women dancing to flute music. Lawyer advertising appeared in 1989. In 1990–91, new disciplinary rules were established.

Joseph Connors told me about a lawyer in the Rio Grande Valley who put up a billboard advertising his services but did not get approved. Someone ratted the lawyer out. The billboard came down, and the lawyer had to face consequences: numerous CLE hours on ethics and pay significant amount of money to Bar. If ads are approved by the State Bar,then no matter how repugnant they are we have no choice but to accept and realize there is a Sucker Born Every Minute.

Attorney Advertising Laws in Texas

The Texas Disciplinary Rules of Professional Conduct requires lawyers to file a copy of most public media advertisements and solicitation communications with the Advertising Review Committee prior to dissemination, or concurrently. Attorney advertising laws in Texas are quite restrictive, but as a solo or small firm, you can stay in full compliance while still having effective advertising campaigns. Below are some of the major laws regarding attorney advertising in Texas:

  • A lawyer cannot advertise in the public media by stating that he or she is a specialist, except for Patent attorneys, Trademark attorneys, and a few other exceptions.
  • A lawyer that advertises in the public media must publish or broadcast the name of at least one attorney who is responsible for the content.
  • In the case of an infomercial or similar format, there must be a statement that the presentation is an advertisement both verbal and in writing at its outset and conclusion.
  • In public media advertisements, any individual who portrays a lawyer whose services or whose firm’s services are being advertised, or who narrates an ad as if he or she were a lawyer, should be one or more of the lawyers whose services are being advertised.
  • No mottos, slogans, or jingles that are false or misleading may be used in any ad in the public media.
  • Advertising on the internet must display specific statements and disclosures as mandated by the Texas Disciplinary Rules of Professional Conduct.
  • A lawyer cannot send, deliver, transmit, or knowingly permit or cause another person to send, deliver, or transmit a written, audio, audiovisual, digital media, recorded phone message, or other electronic communication to prospective clients for the purpose of obtaining professional employment on behalf of any lawyer or law firm if the communication involves coercion, duress, fraud, intimidation, harassment, etc.
  • With a few exceptions, any written, electronic, or digital so­lici­tation communication to prospective clients for the pur­pose of obtaining professional employment must plainly be marked “ADVERTISEMENT” on its first page, in a color that contrasts sharply with the background, and in a font that is larger than the one used in the body of the communication.

Advertising Review

The Advertising Review application fee is $100.

Our Advertising Review Department is responsible for reviewing attorney and law firm advertisements and solicitation communications as required by Part VII of the Texas Disciplinary Rules of Professional Conduct.

Time Frames

Advertisements and Solicitation Communications can be filed either prior to dissemination OR concurrent with dissemination.

  • Preapproval review time is 25 days
  • Filing concurrent review time is 40 days

Deciphering the State Bar of Texas Advertising Rules

Texas Disciplinary Rules of Professional Conduct

For more than 20 years, the State Bar of Texas advertising rules have governed lawyer advertising, including print and electronic ads, websites, brochures, and practically any communication about a lawyer’s legal services that reaches the public. Despite two decades of regulation, Texas lawyers and law firms still have questions about exactly what is and isn’t allowed, and the potential impact for violations.

That lack of familiarity can lead to a firm or an individual lawyer having their ad, website, etc., labeled as “noncompliant” by the State Bar of Texas Advertising Review Department, which reviews lawyer advertising for violations under the Texas Disciplinary Rules of Professional Conduct. Those who fail to remedy noncompliant communications may be the subject of an official complaint filed with the Bar’s Chief Disciplinary Counsel.

The prospect of defending a disciplinary complaint—not to mention the possibility of coming out on the losing end—undoubtedly contributes to the thinking of those who abide by the rules. However, whether based on ignorance or arrogance, some attorneys and firms continue to operate outside the lines even with the unenviable prospect of being caught looming on the horizon

Common mistakes and/or violations when determining whether an ad is compliant

This information is from the Ad Review Committee.

While we review each submission individually and no two are the same, there are several things that seem to appear over and over again.

Failing to file an advertisement or solicitation is a common problem that violates TDRPC Rule 7.07. Although the State Bar has been regulating lawyer advertising for more than two decades, we still see instances where a lawyer or firm simply fails to submit an ad as required under the rules.

Another issue we see regularly is the use of trade names, which is prohibited under TDRPC Rule 7.01. It’s important to know that this rule is not applicable to descriptive URLs (e.g., insurancecoveragelawyer.com, etc.). Many firms do not take the time to come up with a descriptive URL. Now that they are included on firm letterhead and business cards—provided they are not false, misleading or deceptive—descriptive URLS can help people remember you.

We also see instances where ads and websites violate Rule 7.02(a)(2), which covers past case successes and results. If you list a dollar amount in your ad, on your website, or in any other public communication, then it must include the actual amount received by your client. If you list an overall recovery amount, the same rule requires that you also list the amount of attorney’s fees and litigation expenses that were withheld from whatever your client received.

One final issue that appears is another violation of Rule 7.02 based on how professional honors and accolades are listed. If you have been selected to Texas Super Lawyers, Best Lawyers in America, or other similar recognition, then you must also include the name of the organization that is presenting the award and the year or years you were selected. Putting a Super Lawyers logo on your website or in an advertisement without this information is a violation that we point out regularly.

What types of penalties are in place for those who fail to file their ads with the Ad Review Committee or those who produce ads that violate the ad rules?

The financial penalty for failing to file an ad or solicitation communication is essentially $250 since the normal filing fee is $100 and the non-filer fee is $350. Those who fail to file will receive a non-filer letter from the ad review staff. If they don’t respond to that letter as required, then they can be referred by the Advertising Review Committee to the State Bar’s Chief Disciplinary Counsel, which conducts its own independent investigation before determining the next course of action.

There are other ways that you may be referred to the State Bar’s Chief Disciplinary Counsel if your communication violates the TDRPC. While that doesn’t happen very often, we have seen instances where it has been necessary.

Jack Zimmermann, Joseph Connors, Michael Mowla, Keith Hampton, Robyn Harlin, Joe Pelton, Sharon Bass, and I all discussed some of these repulsive ads, but if they’re approved by the State Bar nothing can be done.

Ethics and the Law: Too Hot to Handle

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There have been several calls to the hotline from lawyers faced with a dilemma when they find themselves with evidence or knowledge of evidence in a criminal case. For instance, a client may bring in a bloody knife and tell you they just stabbed someone. A client could bring in a gun and tell you they just shot someone in a robbery. A client may tell you their cell phone contains pornography or other bad information. What do you do?

Joseph Connors, a longtime lawyer friend and original member of our Ethics Committee, has told me many times the following: SOME THINGS ARE TOO HOT TO HANDLE.

If a client brings in something that could be evidence, you can tell them several times anything law enforcement can use against you will be used. Tell them that several times and then adjourn your meeting and have client come back later and never mention it again.

Never, never tell a client to throw the evidence in the river or somewhere else. You are then subjecting yourself to criminal prosecution.

If your client brings you incriminating evidence (not contraband or child porn), you can give it back to them with a copy of the tampering with evidence statute. If you think they will destroy it, you can keep it, but you should secure it safely in your law office so as to protect yourself against a charge of tampering with evidence. If your client brings you contraband, you must get that into the hands of law enforcement; how you do that without incriminating yourself or hurting your client will depend on the facts of the case. If you stumble upon child porn on your client’s cell phone or computer, treat it as contraband and turn it over to law enforcement. The logistics of doing that are obviously far more complicated. You will want to remind yourself that you have a Fifth Amendment privilege and a work-product privilege, and you don’t want to waive those protections in any way. You also should recognize that your personal and professional interests are in conflict with your client’s interests. Accordingly, you should consider retaining a lawyer for yourself.

If the client brings you incriminating evidence and insists that you take it, you must turn it into the authorities. The last thing you want to do is to get hit with a tampering or obstruction charge. If the client tells you about specific incriminating evidence that exists somewhere (including a phone) that is NOT in your possession, no authority obligates you to report it (unless a statute says otherwise—like Texas Family Code 261.101—or the crime-fraud exception applies, or a person’s life may be imminently threatened). In fact, absent an exception, reporting such a communication or information from a client would be a breach of the attorney-client privilege. However, you cannot tell a client to destroy evidence or make it “disappear.” There is nothing wrong telling a client “I don’t want to know about any client criminality you are involved in.” Our job as defense lawyers is to clean up messes after the “bomb” has already been detonated, not to be “business partners” with our clients so that we are obligated to rat them out.

The Bottom Line on Evidence Too Hot to Handle

Never receive it physically from the client. If client’s own first attorney receives it, the first attorney should hire another attorney to turn that evidence/information (i.e., child pornography images and/or videos) into the District Attorney or proper law enforcement agency with the stipulation that the second attorney will not disclose identifying information of the first attorney or the first attorney’s client. The first attorney must call the CPS 800 phone number hotline and report information of the abused child’s name, address, etc., so CPS can begin an investigation. However, the question lingers: Does the attorney have to name his or her source of that information, which just might be the accused who is the client of the first attorney?

Remember in life some things are TOO HOT TO HANDLE.

Special thanks to Joseph Connors, Michael Mowla, and Keith Hampton.

Ethics and the Law: Competency Quagmire

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Many lawyers are faced with dealing with incompetent clients. Rules 1.02(a3) and 1.05(c4) deal with some of those issues. As we know from the Supreme Court’s McCoy v. Louisiana, 138 S.Ct. 1500 (2018), the client is the final decision-maker on most issues. Many times, there is not a perfect answer that guides the lawyer on what to do when you have a client who is not playing with a full deck. This article deals with some of the answers from our Ethics Committee that may guide you in the ethical route that is in the best interest of your client.

LAWYER QUESTION

Client had competency eval (POM < 2oz. case)—Doctor says incompetent but could regain. State agrees not competent. I also believe she is not competent (I raised the issue in the first place). State wants her to go to a State Hospital if found incompetent. Client says she wants a jury trial over whether she is incompetent. Am I required to request a jury trial?

Thank you for everyone’s responses. I told the Judge that my client has requested a jury trial, so we are set for a jury trial. So now I feel like I’ve got other issues:

1.   My client wants to be found competent and believes she is competent—must I advocate that she is competent?
2.   On the same note, if she wants to testify, but I think it’s going to cause her to be found incompetent, am I required to let her testify?

You need to try Westlaw or Lexis for more info to answer your own questions. But remember you are your client’s only advocate so you speak for her, as to that client’s very wishes. But you or the State will have evidence to present regarding the current incompetency of client. You need to get the court to appoint another defense attorney to aid you by interviewing your client in your presence. And then at jury trial, you or the State can call that second attorney to testify about client’s mental and competency conditions.

Maybe applying to “Your Duty to Advocate as Client Wants You” is McCoy v. Louisiana, 138 S.Ct. 1500 (2018)(allowing defense counsel to concede guilt, at the guilt and sentencing phases of a capital trial, violated the Sixth Amendment and warranted a new trial because it constituted structural error since counsel’s admission blocked the defendant’s Sixth Amendment right to make fundamental choices about his own defense).

Q. Client says she wants a jury trial over whether she is incompetent. Am I required to request a jury trial?
A. Yes. Read Texas Rules of Disciplinary Conduct Rules 1.02(a)(2) and 1.15 and its comment 6.

—Joseph A. Connors III

No clear answer.

From my Ethics paper a year ago:

The Special Case of the Incompetent Client

In terms of the criminal defense attorney abiding by a client’s decisions, a particularly special case is presented when—as is often encountered by criminal defense attorneys—the client suffers from a mental condition or disease that affects their ability to remain competent to stand trial. The Disciplinary Rules do little to assist or provide guidance in these situations; Rule 1.02 (g) prescribes that the attorney should take action to “secure the appointment of a guardian or other legal representative” for the client. Of course, no such procedure exists or, to my knowledge, has ever been used in Texas in a criminal case. The American Bar Association Standards for Criminal Justice only suggest that attorneys seek “an expert evaluation from a mental health professional, within the protection of confidentiality and privilege rules if applicable” where the attorney has a good faith doubt regarding the client’s competence.

I recommend that any criminal defense attorney faced with a situation like this read the law review article by Rodney J. Uphoff, “The Role of the Criminal Defense Lawyer in Representing the Mentally Impaired Defendant: Zealous Advocate or ­Officer of the Court?” 1988 Wis. L. Rev. 65 (1988), which can be found at http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1387&con…. The article recognizes the lack of clear guidance and absence of rules dictating what is to be done under these circumstance, but does provide some insight into how to handle these situations.

—Brent Mayr

I agree with Brent’s sentiments. However, do not think your client is taking away anybody’s hospital bed. There are plenty of beds. It is a pure management issue, not some shortage of beds.

I think a case can be made that the attorney can ignore a client who is asserting a right reserved for competent clients. This is different than a mentally ill, but presumably competent, client. The client is so mentally ill that he lacks a rational or factual understanding of the proceedings. Nevertheless, you can go ahead and afford him his jury trial in short order. I would tell the State and the judge your dilemma, grab friends and lawyers prosecutors to comprise a jury, present the opinions of the experts, then get him to the hospital.

The ethical rules presume a rational client. When you have a cli­ent who is so mentally ill they lack even a rational understanding of the proceedings and cannot assist in their own defense, you are in that ethical no-man’s land. The decision to testify is one of those zones of autonomy belonging solely to the client. But no client, rational or incompetent, has any say over how the lawyer wants to conduct his defense (other than the recent Supreme Court exception). Without ethical guidance, you go with your own sense of what is the right thing to do. I would feel like a fool if I were following the direction of an incompetent client. If I think she needs to be in the hospital, then she testifies (thereby displaying her need for help) and I urge that she be transported immediately to the hospital after the finding. She may be mad at me for making that argument, but I have had clients afterward express gratitude after they’ve been restored (and apologetic for thinking I was work­ing with the CIA against them).

—Keith S. Hampton

This is for a class B POM. Your client is incompetent? She might be a genius.

It is abhorrent that a DA wants to prosecute this woman for something that even the Texas GOP wants to legalize. To send her off to a state hospital to take a spot from someone charged with a much more serious crime is absurd and a total waste of resources.

So, yes. Advocate for her. Argue to a jury that the trial is a total waste of resources, and unless they want to waste more state resources, they should find her competent. Then, when they find her competent, set the case for trial and make the same argument. Once a jury finds her not guilty, then there’s no harm and no foul. You can even argue that if they do find her guilty, there’s going to be an appeal, the case is going to get overturned (because of the evidence of incompetence), and they’ll have to send it back to be tried all over again, creating a vicious cycle.

Best part: No one will accuse you of doing anything unethical, including your “incompetent” client.

1. The lawyer’s opinion is not supposed to be argued to the jury in any case. You can tell the jury she wants to be found competent because she feels she is competent without expressing your opinion.
2. Whether to testify is the option for the accused to make, after advice from counsel. I would suggest you have a private meeting with her—with a witness who is working for you and therefore covered by the attorney-client privilege taking copious notes that your advice is that she not testify—and explain all the reasons why. If she elects to testify, you will have a memo to the record about what your advice was, and a place where she signs that she has been advised not to testify but exercises her right to testify anyway. If the experts say she is not competent and there is no compelling contrary evidence, she will probably be found incompetent. That is what you think is in her best interest, isn’t it?

—Jack Zimmermann

One of us had a recent case where client had been deemed insane at time of offense. The client had been in jail two years. We presented all options to client and family and advised if we proceeded with the insanity request, we would win the case, but young man would then be put in a mental institution for indefinite time. Rather than that, prosecutor agreed to let client plead guilty to robbery and get a two-year sentence,with the understanding the family would provide for the young man’s mental treatment.

This young man has done well so in the end by ignoring the insanity defense, justice was served. Each case is different, and yes, your job is to represent client, but it is the belief of most that the lawyer must follow client’s wishes. In this case, let the client go to trial and advocate for your client’s wishes.

Special thanks to Joe Connors, Keith Hampton, Brent Mayr, and Jack Zimmermann.

Ethics and the Law: Privilege Peril

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Discussions of previous acts are generally subject to the attorney-client privilege. If, for example, a client tells his lawyer that he robbed a bank or lied about assets during a divorce, the lawyer probably can’t disclose the information. But if a client initiates a communication with a lawyer for the purpose of committing a crime or an act of fraud in the future, the attorney-client privilege typically doesn’t apply. Likewise, most states allow—or require—attorneys to disclose information learned from a client that will prevent death or serious injury. Many have a similar rule where revealing otherwise confidential information would prevent or remedy financial injury due to a crime or fraud.

This can cause serious problems. Several lawyers have been killed by clients or others. Historically, many lawyers (including John Wesley Hardin, who became a lawyer while serving time in prison for murder) have been killed. In the last 20 years alone several lawyers have been killed.

Racehorse Haynes told me that “email” stands for evidence. Be careful what you put in emails, Twitter, Facebook, Instagram, or any other social media. These things have been the downfall of many people. One lawyer sent sensitive info to his client and noticed it had a different address when he received an answer. Turns out, another person had access to the email account and read the secret message. It caused great problems for the lawyer. One District Attorney sent a message to an alleged girlfriend about kissing her behind the ear. This was discovered in an open-records request and caused great embarrassment and eventually led to the DA resigning from office.

As with all legal issues and laws, there are exceptions, including exceptions to the sacred privilege. There is Peril in the Privilege. Be careful. If a client wants another person to be with them when discussing the case, warn the client. And if the client insists, get the client to sign a waiver of the privilege. It has happened many times that a husband, wife, or best friend turns on the client. They may become a Judas and bring great harm to your client.

All lawyers should have a strong working knowledge of lawyer-client privilege. The client is the only one who can waive the privilege except in rare cases. There is complete privilege if a client tells you he has committed a crime—from murder on down. There is no privilege if a client tells a lawyer he is going to commit a crime. It sounds simple enough, but it is not. Our committee spent a day working with a lawyer on a situation where a lawyer was feeling threatened by a client. The following is one of many emails a lawyer recently received from a client. The lawyer called the hotline, and almost all members of the committee sent responses.

ARE YOU PEOPLE SO FUCKING STUPID THAT YOU DON’T EVEN REALIZE THAT I WAS WRONGFULLY CONVICTED IN ARIZONA? IF IT HAPPENS AGAIN I AM GOING TO MAKE SURE THAT THERE ARE GOING TO BE DIRE FUCKING CONSEQUENCES AND BY DIRECT I MEAN FUCKING PERMANENT.

Committee Advice to the Lawyer

The consensus was that the lawyer should file an ex-parte motion to withdraw. There was some minor disagreement as to whether this language rose to the level of a terroristic threat, but the lawyer felt very uncomfortable after receiving a long string of crazy semi-threatening emails. We told him to make a police report and get a case number in case the client should make an attempt to harm him. Lawyer Mowla and I both advised him to get a concealed hand­gun permit and carry the pistol with him at all times.

Member Comment: Point well-taken. The school-shooter warn­ings left by Nikolas Cruz, the Parkland shooter, included a YouTube message, “I’m going to be a professional school shooter.” He wrote to a woman, “I’m going to fucking kill you,” and, “I am going to watch you bleed.” In other posts, he identified his AR-15 knockoff and said he is going to use it to shoot police and those Antifa types. He was making imminent threats openly without any conditions.

This knucklehead on the other hand is talking to his lawyer about things he “wants” to do or things he “hopes” to see happen. The context and the communication method are different.

Member Comment: Both writers exhibit mental instability to me. There are warning signs that need to be investigated. Professionals should decide if he is a danger to the community. Out of our area of expertise.

Member Comment: I would say that spotting psychosis is a learned skill in our profession, especially if you read a lot of the same material that shrinks do (as many of us have). That doesn’t make us professional shrinks, but certainly learned laypersons. Representing a guy like John Battaglia forces you to hone your skills. Until I finally lost him on February 1 to the needle, Battaglia was a talking, breathing psychiatric Petri dish. It took me months and multiple stays of execution to calm him down and convince him that I was indeed acting as his advocate, that ethnically I am Georgian (and if anything, Georgian Orthodox) and heterosexual, and not the “backstabbing in-the-pocket-of-the-DA Muslim Arab ****** ***** cocksucker” that he thought I was. These were his words in a letter he wrote to the court right after I was first appointed, and I think he really believed it even though my first name is Michael and my surname clearly is not Arab or “Muslim” (whatever that means).

In situations where I have dealt with a client who did not make imminent threats as I described before, but who clearly were mentally unstable (I agree with you that counsel’s client is unstable), I counseled the client to seek mental health assistance and referred them to excellent shrinks. Luckily, the clients were just stable enough to heed my advice. Once that happened, they were in the hands of the shrink, who acted accordingly. The client perhaps got help he needed, and I didn’t have to worry about violating the attorney-client privilege.

Member Comment: If something terrible happens to the subject of his invectives and the authorities learn of these texts, someone is going to have to explain why “see or hear something, say something” doesn’t apply. Why isn’t saying he wants the lawyer to die not a warning similar to the recent school shootings—where no one said anything even though the shooters left similar warnings?

Member Comment: No duty to disclose anything to the authorities or court. The client did not make a direct threat. Wishing someone and his family dead, including at the hands of a “drunk Mexican” (?) is not the same as making an imminent threat.

Be careful of listening ears. Talking about cases in the elevator at the courthouse is not a good idea. Remember what happened to Samson when he ran his mouth and told his secret to Delilah.

The SCOTUS case below elaborates further on attorney-client privilege. Before his trial for murder, the defendant, Whiteside, discussed his planned testimony with his attorney, and said that he had seen “something metallic in [the victim’s] hand,” in contradiction to earlier statements that he had not seen a gun in the victim’s hand. Whiteside’s attorney, Robinson, had warned that he (Robinson) would have an ethical obligation to report perjured testimony to the court. Whiteside, on the stand, admitted that while he believed the victim had a gun, he did not actually see a gun in the victim’s hand. Whiteside was convicted, and subsequently applied for a federal writ of habeas corpus on the grounds that his conviction was tainted under the Sixth Amendment in that his attorney’s threat to disclose the perjury had deprived Whiteside of effective assistance of counsel.

Supreme Court decision
Nix v. Whiteside, 475 US 157

The Court ruled unanimously that Whiteside had not been deprived of his Sixth Amendment rights. The majority opinion, written by Chief Justice Burger, stated that an attorney’s duty to his client’s cause is “limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth,” and that “the right to counsel includes no right to have a lawyer who will cooperate with planned perjury.”

Concurrences by Justices Blackmun, Brennan, and Stevens stated that Whiteside had failed to show that the attorney’s actions had caused prejudice to the defendant’s trial required to sustain a claim of “ineffective representation,” as required by the case of Strickland v. Washington, 466 U.S. 668 (1984).

In a separate concurrence, Justice Brennan said that the Court is deciding only the narrow issue “conduct acceptable under the Sixth Amendment” (quoting the lower court). “Unfortunately, the Court seems unable to resist the temptation of sharing with the legal community its vision of ethical conduct.” But it is up to “the States . . . how [lawyers] behave in their courts, unless and until federal rights are violated.”

Special thanks to Joseph Connors, Michael Mowla, Jack Zimmermann, and Sharon Bass.

Ethics and the Law: Who Is Running This Show?

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When I worked at a printing shop in Abilene, Texas, customers would come in and order posters, business cards, and circulars for sales events at grocery and department stores.

One day, a traveling salesman came in and ordered 500 8 x 10 cards that read “The Boss May Not Always Be Right, But He Is Always the Boss.” The salesman gave them out to the customers he called on. Almost every small business in Abilene had one.

The client may not always be right, but he is always the client. Right or wrong, the client makes the final decision on the following:

1.   Plea of guilty or plea of not guilty
2.   Court trial or jury trial
3.   Whether to testify or to not testify
4.   If the verdict is guilty, who decides whether it goes to a judge or the jury for punishment
5.   Whether to file a motion for a new trial or appeal
6.   Whether to concede guilt.

To save headaches down the road, the better practice is to get all these things documented by having the client sign.

Example: I am Perry Mason, accused citizen, and my lawyer, Matlock, has advised me I have a right to decide whether or not to testify. I understand this and I want to (testify) (not testify).

Another issue—the decision to call or not call certain witnesses—leads to some polite disagreement. Below are comments from members of the Ethics Committee:

I think the “to call witnesses or not call witnesses,” standing alone, invades the province of the attorney’s duties to the client. I would modify it as “calling witnesses if doing so affects whether the client pleads guilty or admits guilt.” In other words, the client has the right to not call Witness A because A may state on the record that client is guilty. Obviously, an attorney should call a material and relevant witness provided that witness does not harm the client’s case. But, if the power to call any witness were up solely to the client, the client may insist that you call up to (or more than) 20 witnesses that are cumulative to 5 other witnesses. Or, witnesses who have have nothing relevant to say. Or worse, witnesses who will damage the defensive theory. Allowing clients such unfettered power may serve to only harm the client’s case.

—Michael Mowla

Besides adding that the attorney cannot concede guilt over the objection of his client, I would remove calling witnesses and whether to file a motion for new trial. The client has no veto power over whether (or who) I call as a witness and whether I think it serves him to file a motion for new trial. However, if the client wants to appeal, I have no discretion—that’s his call. Whether to withdraw after sentencing—it depends. I generally don’t like to step away unless my soon-to-be-former client is in someone else’s hands.

—Keith S. Hampton

An article by Mark Walsh in the July 2018 issue of the ABA Journal deals with the most serious example of a lawyer and client disagreeing on strategy and a recent Supreme Court case about conceding guilt.

As Mark wrote:

The May 14 decision in McCoy v. Louisiana looked to English common law, the American Bar Association’s Model Rules of Professional Conduct, and the court’s own precedents for its holding. The Sixth Amendment, the court said, guarantees a defendant the right to choose the objective of their defense and to insist that their lawyer refrain from admitting guilt, even when the lawyer’s view, based on experience, is that confessing guilt provides the defendant the best hope to avoid the death penalty.

        Writing for a 6–3 majority, Justice Ruth Bader Ginsburg said, “with individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage or to maintain his innocence, leaving it to the state to prove his guilt beyond a reasonable doubt.”

In the case, where a jury found the defendant guilty of first-degree murder, McCoy refused to plead guilty by reason of insanity in an attempt to avoid the death sentence. In the Supreme Court decision, Justice Ginsburg wrote of the defendant’s right:

Ginsburg, in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, stressed that trial management on matters such as what arguments to pursue and what objections to raise “is the lawyer’s province.” But some decisions “are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf and forgo an appeal.”

        “Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as English did in this case,” Ginsburg said. “But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration.”

        The court held that the error in McCoy’s case was structural, and thus he must be granted a new trial. Ginsburg cited, among other things, ABA Model Rule 1.2(a) that says a “lawyer shall abide by a client’s decisions concerning the objectives of representation.”

Check out the July issue of the Journal for further details—and for a further read on the rights of a defendant in determining trial strategy.

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