Ethics & The Law - Page 2

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.

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).

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.

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.

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!

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.

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.

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.

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

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

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

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

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

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

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

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

Within 30 minutes of counsel’s calling into the TCDLA’s Ethics Hotline, counsel’s problems were solved.

DILEMMA:  Lawyer L represents incarcerated and indicted client C. Mr. C. is adamant that lawyer L immediately gift all discovery already received from the DA under Article 39.14, C.C.P., to Mr. C’s brother-in-law, Mr. B, who is a licensed private investigator in Texas.

Who will be killed, kidnapped or threatened as a result of that “required” release of discovery information?

Should an attorney always follow the dictates of his/her client, even if the client is right or wrong? 

ANSWER:  No!

Does Article 39.14, C.C.P., authorize counsel to so release all to Mr. B, who was not appointed or hired as an investigator for Mr. C? 

ANSWER:  No. See Article 39.14.

Do the Texas Rules of Disciplinary Conduct authorize counsel to disclose confidential communication and unprivileged information upon Mr. C’s request? 

ANSWER:  Yes. See Rule 105(c) and (d).

How can lawyer L “avoid or get around” the disclosure prohibition in Article 39.14, C.C.P.?

ANSWERS: 

1. Only with a “sealed” judicial order authorizing such redacted or unredacted disclosure to Mr. B. 
2. Without a court order, lawyer L can hire Mr. B as lawyer L’s second investigator in this case and disclose all. Lawyer L should be sure that he can trust Mr. B. 

How many clients can you trust not to get you involved in client’s past, present or future criminal conduct?

How many investigators have you dealt with that you can trust to do it right and keep you out of ethical and professional misconduct due to the actions and omissions of that very investigator whom you hired on a case?

When it comes to prosecutors and judges, how many can you trust to always do the right thing?

When  it  comes to hiring an investigator or working with an appointed investigator, 

who can you trust to always do the right thing so you will not get indicted, convicted or disbarred for that investigator’s conduct on your and Mr. C’s behalf?

Lawyer L may be held liable under tort or criminal law, if Mr. B alone or in conspiracy with Mr. C threatens, kidnaps or kills any State witness, whose name, address or phone number is disclosed in the Article 39.14 discovery.

Common sense dictates what a knowledgeable ethical lawyer should do in this scenario. What would you do?

Joseph A. Connors III

COVID-19 has changed the whole world, not just our part. 

We hear lawyers everyday complain that there is no business, no money to pay rent or mortgage.

The government has established several loan programs at low interest rates since lawyers are making no money. Some of this money has to be paid back. There is no free ride.

Many communities are making deals to conduct trials in coliseums. The powers-that-be insist it will happen. But many older lawyers are advised by doctors to stay away, that this killing pandemic is no joke.

To ethically do your job, warn clients about making phone calls, speaking to anyone, and writing any letter that may contain any information the prosecutor, judge or jury can use against the client. Get  your client to sign an acknowledgment that you have so advised her/him of this problem.

In the opinions of many trusted experienced lawyers, many calls on Zoom are unethical because other people can immediately hear or later listen to the client’s confidential communications with counsel. Knowingly allowing any third party to listen to or later review attorney-client communications waives the confidentiality of that information and the privilege created by the the attorney-client relationship. 

In almost all scenarios, Texas Rule of Disciplinary Conduct 1.05 prohibits counsel from waiving that privilege without her/his client’s informed prior consent. 

Law enforcement make arrests and accused citizens are quickly released since jails are full.

In Harris County, accused citizens appear before a magistrate who reviews the case and sets a bond. Then accused citizens have to appear in court for bond conditions. Contrary to settled law and without presentation of any “change of circumstances” evidence, many presiding judges continue to revoke bonds set by magistrates. 

After great discussions with several excellent lawyers, like Brent Mayr who is on our Ethics Committee, it became necessary to file a judicial complaint. No one took that obligation lightly;  but it was absolutely necessary that it be done.                                                                              

Zoom is a walking ethical violation: i.e. A jailed client is on Zoom and a guard is standing so close and can hear all dialogue between lawyer and client. That is wrong, wrong, wrong.

Yes, COVID-19 has changed our lives, but how many federal and state constitutional rights must be lost?  It is the job of each of us to preserve those constitutions one client in Texas at a time.

We recommend you object every time you are put in any such a situation. Make the judge’s record reflect that the law considers the attorney-client privilege to be sacred but it is being violated and abused each time something like this happens and you are being forced to commit an ethical violation every time this happens on the judge’s Zoom hearing; so i object to the court’s procedural manner of conducting this judicial hearing that is systemically depriving this defendant of each of his/her following rights guaranteed by the state and federal constitutions, namely:  First Amendment freedom of speech about confidential matters with counsel; Fourteenth Amendment due process of law; Fifth Amendment right to confidential communication with counsel during custodial interrogation by police, prosecutor and/or court; and Sixth Amendment right to effective assistance of counsel.