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Ethics and the Law: Faster Than a Speeding Bullet

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All the rules and information in this article require some careful study, as there may be some duplication. The bottom line: Follow the rules before you put your Superman ad on TV, the internet, Facebook, or other social media. An ad picturing you stopping an 18-wheeler or jumping on cars or trucks may be something only Superman could do, but even Superman may not be able to save you from a grievance if you don’t get it approved by the State Bar.

Narrator: Faster than a speeding bullet. More powerful than a locomotive. Able to leap tall buildings in a single bound.
Man 1: Look! Up in the sky! It’s a bird.
Woman: It’s a plane!
Man 2: It’s Superman!
Narrator: Yes, it’s Superman, strange visitor from another planet who came to earth with powers and abilities far beyond those of mortal men. Superman, who can change the course of mighty rivers, bend steel in his bare hands. And who, disguised as Clark Kent, mild-mannered reporter for a great metropolitan newspaper, fights a never-ending battle for truth, justice, and the American way.

When you put up a website or do any type of advertising, you need to be aware of a few things. Get it cleared by the SBOT advertising review department for starters. And, read Tex. Disciplinary Rule Prof. Cond. 7.07 (www.texasbar.com/Content/NavigationMenu/ForLawyers/GrievanceandEthics/Ad…).

Deciphering the State Bar of Texas Advertising Rules with Gene Major
Bruce Vincent

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.

Gene Major on Texas’ Ad Rules

I recently talked with Gene Major, Director of the State Bar Advertising Review Department and Director of the Bar’s Attorney Compliance Division, about the state’s lawyer advertising landscape and the common mistakes that can lead to violations.

Gene has been with the State Bar for nearly 20 years, and he’s seen just about every type of lawyer advertising you can imagine, from loud-mouthed lawyers hawking their services during daytime TV to massive websites maintained by the state’s largest law firms.

Following are the highlights from our conversation:

How many advertisements does your office review during the course of a year?

On average, the Advertising Review Department handles about 3,500 advertisements and solicitation communications per year. A lot of the submissions we receive have initial problems that we clearly identify. This provides the opportunity for individual attorneys and firms to make necessary changes so their ad or solicitation is compliant with the Texas Disciplinary Rules of Professional Conduct.

Roughly 80% of the ads and solicitation communications submitted to the State Bar of Texas are eventually approved for public dissemination.

What are some of the most common mistakes and/or violations that your office sees when determining whether an ad is compliant?

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 (for example, 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.

Many lawyers market themselves by sending emails and newsletters to their own mailing lists or those purchased from third-party vendors. How can an attorney avoid running afoul of the ad rules when relying on mailing lists for marketing?

If a firm or individual lawyer is communicating with current and former clients, others lawyers, or other professionals, then they are not required to make an Ad Review submission so long as the communication is not false, misleading, or deceptive.

Using lists from third-party vendors is different since it is presumed that you do not have an attorney/client relationship with everyone on the list. In those instances, it is important to follow Rule 7.02 for advertisements and Rule 7.05 for solicitation communications.

For example, Rule 7.05 requires that you follow all the provisions of Rule 7.02 in addition to plainly marking all non-electronic communications with “ADVERTISEMENT” on the first page, and on the face of the envelope or other packaging that is used to transmit the communication. For such solicitations that are communicated electronically, “ADVERTISEMENT” must be included in the subject line and at the beginning of the communication itself.

Bruce Vincent is a writer and editor who was the only reporter to provide daily coverage of the federal trial that resulted in the Texas rules for attorney advertising. He regularly helps lawyers and law firms produce websites, advertisements, and other promotional pieces that comply with the State Bar rules. Contact him at .

While the First Amendment guarantees freedom of speech, the courts limit commercial speech. If you want to keep your privilege to practice law in Texas, remember that many have had advertising grievances sustained by the State Bar because they were unaware of (or just disregarded) the Texas Disciplinary Rules of Professional Conduct. Relevant portions of the rules may be seen on voiceforthedefenseonline.com here.

This article was provided with help from Joseph Connors, Michael Mowla, Mary Flood, Chuck Lanehart, Bruce Vincent, and Gene Majors.

Ethics and the Law: Forked Tongue

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The phrase “speaks with a forked tongue” means to deliberately say one thing and mean another—or to be hypocritical or act in a duplicitous manner. In the longstanding tradition of many Native American tribes, “speaking with a forked tongue” has meant lying, and a person was no longer considered worthy of trust once he had been shown to speak with a forked tongue. This phrase was also adopted by Americans around the time of the Revolution, and may be found in abundant references from the early 19th century—often reporting on American officers who sought to convince the tribal leaders with whom they negotiated that they “spoke with a straight and not with a forked tongue” (as for example, President Andrew Jackson told the Creek Nation in 1829). According to one 1859 account, the native proverb that the “white man spoke with a forked tongue” originated as a result of the French tactic of the 1690s, in their war with the Iroquois, of inviting their enemies to attend a Peace Conference only to slaughter or capture them.

 

A recent call from one of our members concerned prosecutors he was dealing with who he believed were lying. The caller also had to deal with a client making demands that he file frivolous motions. Word was sent out to our committee members, and several excellent suggestions were made to the lawyer.

The past month we have received many calls about difficult clients or clients who make unrealistic demands.

I would direct the attorney to 1.02: A lawyer has to abide only as to plea to be entered, whether to waive jury, and whether client testifies. Comment 1 explains that while clients have ultimate authority to determine the objectives, they are subject to the lawyer’s professional obligations—which includes not bringing a baseless or meritless motion.

When dealing with difficult clients, remember to document all calls and correspondence. Always get a waiver of the attorney/client privilege before talking with family members or friends of your client. Many calls have come in where the caller is complaining that the court-appointed lawyer will not talk to the mother or other concerned family members. Unless there is some real reason not to talk to your client’s family, get your client to sign a waiver. An example follows.

You ever get that feeling that something you’re doing might be . . .  unethical? Stop right there! There’s an app for that—or, rather, a TCDLA committee. The Ethics Committee will get back to you within 24 hours. Save the number in your phone: (512)646-2734 or 888-ETHICS4 (888-384-4274). Reminder: Don’t post ethical dilemmas on the listserve or on social media, as you never know who’s looking.

Several years ago, while preparing a sentencing memo for a felony case, I asked my client to bring all his diplomas, letters of recommendation, and resume so I could put it in the memo. The memo was filed and included in the documents the client brought to me. The client was granted probation partly based on the contents of the memorandum I presented to the court. Ten years later, when the client and his sisters were fighting over assets in their mother’s estate, the probate lawyer got a copy of the memo I had filed and was able to prove all the diplomas from college were fake. Be wary when presenting documents without checking them out yourself. My client had spoken with forked tongue, and, luckily, he had finished his probation. It happens often so be wary.

The form on the facing page can be found on the TCDLA website in the Members Only section (Brief, Motion & Memo Bank/Voice Motions).

The following missive was in response to a request for advice from the Ethics Committee:

“To you and the TCDLA Ethics Committee, thank you all so very much for your help with my DA disqualification issue and helping me work through it. A special thanks to Michael Mowla, Brent Mayr, Keith Hampton, and Pat Metze for prompt written responses. What an incredible breadth of knowledge we all have at our beck and call. And, Robert, thanks so much for always answering that phone of yours on practically the first ring. The Texas criminal defense bar is in such good hands.”

Ethics and the Law: Nunca Sabes

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To ethically represent an accused citizen, you must be sure they know the consequences of a plea or finding of guilt. Judge Herb Ritchie, formerly a partner in the law firm of Ritchie and Glass, recently was a guest speaker at the Wednesday Appellate Update class in Houston. Greg Glass shared some of the forms and agreements used by the law firm. They are included in this article. In the law practice these days it is very important to correspond in person, by phone, by letter, or in a jail visit. Failure to communicate is one of the leading causes of a grievance. These forms may help you stay out of that trap. Get a good fee agreement or at least a letter of acknowledgment when you are hired. To be safe, document every phone call or visit or action you take on your client’s behalf. Nunca sabes.

The hotline has been busy as lawyers call with their headaches and heartaches. Some of the problems are easy to solve and some not. It is important to remind our members about the hot/help line. Several have called after not hearing from the state bar hotline for days. Hopefully, the new state bar president can improve that feature of our membership. All the CLE events and meetings are important, but nothing is more important than helping a fellow lawyer in need.

Some of the same questions are repeatedly asked. One such: The statute of limitations on a grievance is four years. You’d be advised to keep the file or a copy for at least this long. All the calls we get are confidential, so there is no worry about your business being put out on the street.

Joseph Connors, one of our first selections to be on this committee when it was started in 2011, recently was in charge of presenting the Hidalgo Bar Association annual meeting. It was a delightful event. After my presentation, a local judge came and introduced himself and asked me if I knew there were judges in the room. He was concerned that some disparaging comments were made about judges. Since we were in the Rio Grande Valley, I answered “nunca sabes.” For the gringos and gringas in our organization, it means “you never know.” Such as you never know what the future holds. About a week later I got an email from the judge advising me that one off his brethren judges had been arrested by the Feds and accused of taking bribes. Some of the good deals lawyers were getting were allegedly the result of some greasing of the palm of the accused judge.

Another issue frequently raised involves lawyer advertising. A lot of beginning lawyers get a website and then it begins. Pay a few hundred dollars and start becoming a member of all the companies that are inviting you to be one of the top 100 best lawyers in Texas. Pretty soon you can put all those seals on your website hoping to impress potential accused citizens. Then after a while you can start listing all the cases you have won or got a favorable result. Remember when this is done, the state bar advertising review committee has to approve the ad. The lawyers who are claiming to have all those great results need to be aware that a disclaimer may be needed stating that you cannot promise all those great results in all your cases

Remember your stock and trade: time and advice. The following forms may help you make sure you get paid for your time. Always advise your client about consequences of a plea or conviction. Nunca sabes and primero dinero.

With thanks to Joe Connor, Ramon Villagomez, Judge Herb Ritchie, and Gregg Glass.

Note: These motions are available for members on the website in the Members Only section (Brief, Motion & Memo Bank/Voice Motions).

Ethics and the Law: A Little Bit Crazy

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Another recent tragic event at the Harris County Jail makes it very clear the severity of mental illness. A defendant who was set to plead to life without parole hung himself with bed sheets. Where were the guards? What happened to this poor soul who chose death over prison? What happened to the family he left? What happened to the family that was set to confront him in court in the witness impact statements?

The following is a question that was asked at a recent capital murder seminar in Houston. For years, courts and lawyers and medical professionals have been dealing with mental issues. The responses here are from members of the Ethics Committee. Lawyers joke about being crazy. There may be some truth to that since any lawyer who has extensive experience in dealing with clients with mental issues soon realizes your mind has to absorb and deal with some crazy things and learn to live with it. There are also some major ethical issues that may show up. One of these questions came up at the capital murder seminar, about taking a client off medication to show a jury what their behavior is like when they’re not medicated.

Question

The question arises with any incompetent client facing years in prison. The attorney believes the client was insane at the time of the offense, but it may be very difficult to prove at trial because of the lack of evidence gathered at the time of the offense. Is it unethical to advise your client and/or his family members to not take prescribed medications given to restore his competence (assuming there is no Order or Forced medications in place)?

I believe my ethical duty is to present the defendant at trial to the jury in the same state as he was in when the offense was committed so as to present his best case to the jury. By medicating him and making him appear sane (and very different from the way he was at the time of the offense), I am doing the client a disservice because the jury cannot see how the client really was at the time of the offense. I feel like I’m hiding the truth from the jury.

Is it unethical to advise a client to risk incompetency in order to record his appearance so that his mental illness can later be displayed to a jury?

Response by Keith Hampton

I would first want a psychiatrist to tell me what physical effects having him go off his meds will have on him physically. I would also want to know your level of confidence that he will look as crazy as you’re anticipating he will. There are lots of people who are insane at the time of the offense, but don’t often appear to be crazy at all.

That said, I am very sympathetic to the desire to have him filmed. I did a survey of all the murder acquittals by reason of insanity in Texas a few years ago, and virtually every one who was acquitted had been filmed at or near the time of the murders. I saw some of these, and it was easy to see why they were acquitted. Video is superior to witnesses recounting the person’s behavior and definitely superior to simply having experts. I won four verdicts of not guilty by reason of insanity for a vet last year, in part because he was filmed by the dash cam shortly after his crimes.

But back to the question of ethics. If the court has ordered him to take his meds, I think you can tell a client to disobey a law­ful order of a court so long as the client is willing to accept the consequences.

Response by Michael Mowla

When I deal with what I believe to be an incompetent client, I immediately seek an evaluation, and if the client clearly shows ideations of incompetence, paranoia, schizophrenia, etc., I have the evaluation videotaped. I work closely with a qualified shrink, but I stay out of her way so that she can do her job. The shrink appreciates my knowledge of her field, and also appreciates that I don’t micromanage.

In 1963, congress passed an Act called the Community Mental Health Centers Act. After this act, states began receiving federal and state support to offer mental health treatment.

Dr. Geoff Grubb, a childhood friend who became a psychiatrist and was involved in prison reforms with Federal Judge William Wayne Justice, has many stories about his experiences dealing with inmates with mental issues. One thing he has stressed in communicating with me is that we as lawyers should gather all records that exist so that a defendant can be properly evaluated. His recommendation is to get client to do a family tree going back as far as possible to try and find the source of the mental problem. Often it will be discovered there is a history of mental illness in the best of families, which may explain and help the doctor diagnose and treat the illness.

Ethics and the Law: To Be or Not to Be

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Life is full of problems. . .  The life of a lawyer can bring on many problems that regular citizens are not aware of and sometimes have little sympathy for. . .  Lawyers—like doctors, law enforcement officers, and other professions—are disliked and sometimes hated until they are needed.

Depression, anxiety, nervousness, and other mental issues follow some members of the bar. The suicide rate for lawyers is very high as compared to that of other members of society. Many sleepless nights occur when a lawyer is properly preparing a case for an accused citizen. As in the life of a surgeon, some lawyers literally have a human life in their hands. Nothing is worse than an ill-prepared defense when a human life is on the line.

When Jim Skelton suggested to me that I create an ethics hotline, many lawyers we knew were dealing with alcohol, drug, and mental issues. They needed help. Thanks to the creation of the hotline, many of these unfortunate souls reached out and got help. It has become for some a crisis hotline at times.

Some new members have volunteered to serve on the committee. The existing committee members are lawyers I selected in the beginning. They were chosen because I knew I could depend on them no matter what hour of the day or night trouble beckoned. The same will be expected of the new volunteers. The following are the original members of this most important committee: Jack Zimmermann, Greg Velasquez, Joe Pelton, Robyn Harlin, Joe Connors, Michael Mowla, Ray Fuchs, Larry McDougal, Brent Mayr, Jimmy Ardoin, Keith Hampton, and Chuck Lanehart. The newly added members are John Carsey, Valerie Cavitt, P. Michael Schneider, and Paul Smith.

For some unknown reason, many association members have not been aware of the hotline, and they tend to post their problems on the general listserve. This is incorrect. Please call the ethics hotline number and you will receive a call or several calls to help you with your crisis or ethical question. Put the number in your phone so you will have it when you need it. All calls remain confidential, so there is no reason to put your business on the street. When you call, an email is generated to me, and I either call you directly or contact one of the other members to assist—or sometimes to get another opinion.

There are a few simple things you can do to avoid some common problems: Return calls to clients. Don’t take cases you cannot handle. If you get a letter from the grievance committee, answer it immediately. Prepare your cases, whether it’s as simple as a traffic ticket or capital murder. Every case is important because it is important to your clients, and you took an oath to represent them. Document your fee agreement; document every time you talk or meet with a client. If there are family members or others who your client wants to be informed of the case, make sure you get a waiver of the attorney/client privilege. It can always be revoked if your client doesn’t want his ex-wife or girlfriend knowing what is happening with the case. Some of the people your client thinks will be with him until the end can turn out to be your worst enemy.

Ethics and the Law: Fast Answers for Serious Business

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When the ethics committee gets a question, it is sent out to all members of the committee. The answers are received promptly so the lawyer can get a fast answer. The following is a real question from a lawyer who called in, and these committee members gave fast answers. Everything we do is serious business.

Question

Attorney represents client at federal motion to suppress. His client testifies that the car which was the subject of the search belonged to him, in order to establish standing to object to the search. The judge denies the motion to suppress. The client pleads guilty, reserving his right to appeal the suppression issue.

Later, the client debriefs with federal prosecutors, with the usual document signed by all parties regarding confidentiality, information not to be used, etc. At the debriefing, the client admits he did not own the car. The case is now scheduled for sentencing.

What should the lawyer do? Withdraw now? Withdraw after sentencing? Divulge information from the debriefing, since it was a fraud on the court and the information was not privileged since there were others present?

Brent Mayr Answer

Comment 12 to DR 3.03, I believe, is as good as it gets. Because the disclosure that the vehicle was not his was not a confidential attorney communication, I think under the Rule that the attorney has to disclose it to the court.

Jimmy Ardoin Answer

I think the lawyer needs to inform the client of his duty of candor to the court and advise client that they need to correct the record on this. If client refuses to do so, then I think the lawyer needs to file a motion to withdraw now. The Government will also be bound by the disciplinary rules and will be obligated to inform the court either through a separate filing to correct the record or by disclosing to Probation for inclusion in the PSR. Client is therefore likely to receive a 2-pt enhancement under § 3C1.1 for Obstructing or Impeding the Administration of Justice. I don’t believe the lawyer can wait until after sentencing to withdraw if client does not consent to disclosing the truth to the court immediately.

I believe Rule 3.03(b) controls on this matter. It states: If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

I think the best course of action if client refuses to participate in correcting the record with the court is for the lawyer to file an ex-parte motion to withdraw informing the court of the false testimony that was given during the motion to suppress hear­ing. Further, Comment 12 of Rule 3.03 of the Disciplinary Rules states: The other resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take reasonable remedial measure which may include revealing the client’s perjury. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence.

Michael Mowla Answer

What did he say exactly and what was his relationship to the owner of the car? One thing to consider that this was on the issue of standing. Even if he did not own the vehicle, if he was the driver but was in legitimate possession of the vehicle, he has standing to object to the search of the vehicle. See United States v. Arce, 633 F.2d 689, 694 (5th Cir. 1980). And if he did not own the vehicle, was a passenger in it, as a passenger he may challenge the stop. See Whren v. United States, 517 U.S. 806, 808–810 (1996), and Jackson v. Vannoy, 49 F.3d 175, 176 (5th Cir. 1995). Thus, ultimately, the perjury would have not made any difference, although I agree that it should be disclosed to the court.

Ethics and the Law: Racehorse

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Lawyer Haynes was an inspiration to us all. I had the  privilege to work with him on a few cases. Yes, he was a great lawyer but also a great American. Lawyer Haynes had served our country in one of the worst battles of WWII, the Battle of Iwo Jima. He was in the middle of the battle and would run messages back and forth to different commanders. He told me they picked him because he was short and less likely to be shot. He was fearless in war and fearless as a lawyer. It was my good fortune to get to know him and the other lawyers and non-lawyers who worked with him. Elise Sartwelle worked for Lawyer Haynes for many years, and she cared for and loved Racehorse very much. Elise helped keep up with the clients, helping Lawyer Haynes with personal matters, and her services were priceless. Elise was totally dedicated to keeping his office going when his health started to fade. Jack Zimmerman, one of the original members of the Ethics Committee, wrote this moving eulogy that was read at the funeral. Jack is also a retired Marine Colonel, and Lawyer Haynes was very proud of that.

I think everyone that has spoken so far has given you reasons why Haynes was a great trial lawyer, and in my opinion Richard Haynes was the best trial lawyer that I had ever seen. But I wanted to concentrate on not only Haynes as a great lawyer but also as a great human being. And the reason he was a great human being was that he cared about people.

To give you an example of what I am talking about, he and I were trying a case in a small South Texas town where we were out for dinner in a small roadside diner, and being the junior member of the team it was my responsibility to take care of administrative matters like paying the bill. And he watched what I put on the tip. And I used the standard 15% tip and he got all over me, saying that these people live on these tips and you should be more generous, especially in a small town where they aren’t paid anything. And he made it clear to me that when we are trying an out-of-town case, in a small town—especially in a small town—you should care about people and should tip more than 15% amount.

And while we are talking about pay, he persuaded me after 14 years of active duty as a major of Marines to leave the Marine Corps to come practice law with him in Houston, Texas, and he told me that there would be a significant pay increase. After a while I realized that I had taken a pay cut of about $6,000 that I would be getting as a major, and I went to him and told him: “Haynes, you told me that I was going to be making more money. You promised me that I would be making the pay of a general, and you know I’ve taken a pretty good cut here in my pay.”

He said: “Well Jack, I did tell you you’d make the pay of a general, but I did not tell you what Army it’s in. I was talking about the Mexican Army.”

So he had a sense of humor, but also was concerned with equal rights and the appearance of equal rights. Not just the fake occurrence of it. And the way I first learned that was when he called me in his office one time and said, “Close the door.” And he said, “We got problem with your name.”

I said, “How’s that?” And he said: “Well, the last part of your name is mann. We just can’t have that in this law firm.” He said from now on, your name is Zimmerperson, so you will be referred to as Zimmerperson from now on, and I was for the rest of the time that I was there. So I thought this would give you a little insight into his sense of humor and his sense of fairness.

But the next item is that he trusted the lawyers who worked with him and trusted our judgment. That is why everybody is so loyal, and that is why there are so many former members of the law firm of Haynes & Fullenweider who are present today. There are all of the civil lawyers who worked there, almost all of the criminal lawyers who worked there, here at this funeral service. And I think he generated loyalty because he trusted us, and I use this as an example: trying a major, major murder case involving the widow of the Secretary of State of Texas at the time, who was also the son of the Governor, who was also a former Chief Justice of the Texas Supreme Court, and the wife was on trial for being the cause of death for the famous fellow.

We heard about midway through trial that someone had contacted one of our investigators and said: “Hey, you guys may be in trouble because some juror was overheard saying that they would never vote to acquit somebody that was associated with the power structure. That wouldn’t be right.”

And then we found out almost on the same day, within just days, that another juror was overheard at the grocery store over the weekend saying, “The way that guy beat that girl up, I would never vote to convict her,” and we reported that to the district attorney’s office. So I contacted the district attorney and he said, “Hey, I need to tell you something,” and he told me about his situation and I told him what happened with mine, and we both realized that we were going to have a hung jury one way or another—whichever way the majority went.

And the county did not want to have to pay for another jury trial and I didn’t want to put my client through another jury trial. We were almost finished with the trial. So that night I called Haynes and I said: “Hey, I need some advice. What do you recommend?”

He said, “I don’t know that Judge.”

They brought in a new judge because it was such a big publicity case. The local judge recused himself. And I said: “I don’t know either. I’ve never tried a case in his court, he is from out of town.”

So Haynes said, “What do you think of the way he is running the trial?”

Now, my last assignment on active duty before I came to Haynes and Fullenweider’s office was as a Marine Corps military trial judge, and so I always gauged the qualifications of the civilian judges I was before based on if they ruled on a motion or objection the way I thought it should be ruled on. If they did, I thought they were really great judges; if they didn’t, I didn’t think they were so good.

So he said, “What you think about this judge’s fairness?”

I said: “Well, every ruling that he has made so far in these several days of trial, I think has been right on. I think he is fair, and it appears he is worthy of trust.”

He said, “Well, do what your gut says to do.”

So the next day, instead of having a mistrial, we agreed to excuse the jury and go to a bench trial, just before the judge, and that advice was sage because, as it turned out, that decision to waive the jury and go to the judge resulted in a 20-minute deliberation. After final arguments the judge came back and found my client not guilty. So I use that as an example of him putting his trust in his subordinates, in developing good trial lawyers.

 

I end by saying that some of the other people talked about how he loved his family, and let me tell you two things about how I know he loved his wife, Naomi. We were trying a case in a rural Louisiana court, and after dinner we went shopping on a street that had all these shops on it, and he went in and he bought a sconce. Does everybody here know what a sconce is? About half of you raised your hands. I sure didn’t know what a sconce was before. Do you know what a sconce is? It is something you put on a wall and you can put a candle in it, or if it’s electrified, you can put a light bulb in it. But I had no idea what a sconce was, and I admitted I didn’t know. But he bought that for his wife and then he brought it back as a present. I thought, man, I would have never thought to do that, and I love my wife more than anybody loves their wife. But he did it because he knew she would appreciate it, and I understood from the family that they’re still in the house that they bought.

Another example and the last thing I’ll bore you with is when we were trying the case in Louisiana I was telling you about. We were representing a state district judge and the district attorney, who were charged with buying votes in a rural Louisiana parish, being tried in federal court. We ended up getting one of the cases dismissed and the jury acquitted on the other one, so we had a victory party there, and the supporters of the judge and district attorney literally rented the local country club. They only had our party in there that night, and they asked Haynes what kind of music he liked. He said he liked country-western. So they hired a four-piece country-western band, and they were taking requests for songs. And the thing I remembered about that night was that his favorite song that they played was a country-western song that ends with the line “he stopped loving her that day.” I don’t know if you are familiar with that song or not. So now, a few days ago Richard passed away. People can say he stopped loving Naomi that day, but in reality, I know that he and Naomi are looking at us now from wherever they are and he didn’t stop loving her that day. He still loves her and she still loves him.

From the Halls of Montezuma
To the shores of Tripoli;
We fight our country’s battles
In the air, on land, and sea;
First to fight for right and freedom
And to keep our honor clean;
We are proud to claim the title
Of United States Marine

Our flag’s unfurled to every breeze
From dawn to setting sun;
We have fought in every clime and place
Where we could take a gun;
In the snow of far-off Northern lands
And in sunny tropic scenes,
You will find us always on the job
The United States Marines.

Here’s health to you and to our Corps
Which we are proud to serve;
In many a strife we’ve fought for life
And never lost our nerve.
If the Army and the Navy
Ever look on Heaven’s scenes,
They will find the streets are guarded

By United States Marines.

Ethics and the Law: Hide & Seek

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Joseph Connors has submitted this issue for discussion with the Ethics Committee. The issue is a recurring problem—prosecutors not disclosing evidence to the defense. The following is the question and responses from Keith Hampton, Larry McDougal, and Joseph Connors. Lawyer Connors has also provided motions that he files.

Question:
Sexual Assault Team ADA does not trust particular criminal defense attorney X (who has got­ten a dismissal or not guilty in 5 of 7 serious sexual assault indicted cases after 2013), so ADA fails in Defendant A’s case to provide Defendant A’s defense attorney X with information that the current case’s child victim “out cried” to same ADA of a new felony accusation against Defendant A, since ADA does not “trust” defense attorney X—after CPS officials ruled out that same accusation when ADA referred that accusation to CPS for investigation. ADA was on stand and testified, “We do not trust [defense attorney X], so I did not disclose any information about that ruled-out accusation against Defendant A.” Since the ruled-out accusation can be classified as a “false accusation,” did ADA violate any ethical rules or Brady v. Maryland and its progeny, given that certain false accusation testimony is admissible in Texas?

Above occurred in the last 30 days. DA’s team sees no problem here. What say thou?

– Joe Connors III

Answers:
I understand that the same child accuser made an accusation subsequent to the current accusation that CPS “ruled out.” You want to know if the subsequent accusation and the fact that CPS ruled it out is Brady. Yes, it is. It was also a violation of Rule 3.09(d).

– Keith Hampton

Same child accuser made accusation for which Defendant A was indicted. Later, same child accuser is interviewed by ADA in preparing for trial. During that one-on-one interview (with no one else present), child made an additional sexual assault accusation against Defendant A regarding different date, time, and place than made the subject of the indicted offense and ADA’s file e-tendered Defendant A’s counsel under current Article 39.14, C.C.P.

Since CPS “ruled out” that subsequent accusation, ADA intentionally failed to inform counsel for Defendant A, since DA’s team does not trust that defense counsel, even after CPS “ruled out” and ADA no longer personally believes the most recent above additional sexual assault accusation is “true,” and since the child needs to be protected on “ruled-out” incident during cross-examination by Defendant A’s counsel.

Your writing about this “often occurring” issue will educate defense bar and district judge who read the Voice.

Remember other reasons that ADAs claim that the State need not disclose such above information is either because it is immaterial to case’s issues and is thus inadmissible under Tex. Evid. Rules 401 and 402, or because that ADA does not personally believe that new Rule 404(b) incident information is credible to that ADA.

What remedies does competent ethical defense attorney have?

Let presiding judge know?
Let elected DA know?
Let State Bar Grievance Committee know?

Then when the DA’s office starts to retaliate against that same defense lawyer, what options does that defense lawyer have when DA’s office threatens that defense attorney in another case (in the future after above child abuse case is disposed) with criminal prosecution for the slightest error in another case, starts giving terribly unfair plea bargain offers, refuses to make any plea bargains, clearly treating that same defense attorney differently than the treatment given other criminal defense attorneys practicing in that same county?

DA’s motto to remember: “What goes around comes around.” “If you stick my nose in the dirt, expect your nose to be stuck in the dirt first chance I get.”

– Joe Connors III

I was on the Bar Committee when 39.14 came out. The CDC takes Brady violations very serious. There is nothing in any rule or statute that has a “I do not trust the defense attorney” exception to Brady. My view is this is clearly covered under 39.14 under what must be produced. My recommendation is for Attorney X to file a grievance on the ADA.

– Larry P. McDougal

Motion from Larry McDougal can be found here.

Courts have held that if a complainant has made a prior false allegation of sexual assault, in some situations these statements may be admissible even though specific acts of misconduct are generally inadmissible. See Lopez v. State, 18 S.W.3d 220, 225–26 (Tex. Crim. App. 1991); Hughes v. State, 850 S.W.2d 260, 262–63 (Tex. App.—Fort Worth 1993, pet. ref’d); Rushton v. State, 695 S.W.2d 591, 594 (Tex. App.—Corpus Christi 1985, no pet.).

In Ex parte Miles, 359 S.W.3d 647, 669 n.22 (Tex. Crim. App. 2012), the court granted an 11.07 petition for writ of habeas corpus based on State’s violation of Brady v. Maryland, after saying:

We note that the undisclosed reports could have also led to other admissible evidence favorable to Applicant. While the State usually does not have a duty to turn over inadmissible evidence, the analysis might not end there. The Fifth Circuit has held that, if inadmissible evidence would give rise [**58] to the discovery of other admissible evidence or witnesses, the State does have a duty to disclose that evidence. United States v. Brown, 650 F.3d 581, 588 (5th Cir. 2011); United States v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004); Sellers v. Estelle, 651 F.2d 1074, 1077 n.6 (5th Cir. 1981).

– Joe Connors III

Ethics and the Law: Jim Skelton on Trial Experience

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This is an article written by Jim Skelton in 1985 with some very good information for us all. Jim left this world March 8, 2017. Jim had been the Significant Decisions Editor for the Voice and a longtime participant in the TCDLA Huntsville Trial College. Jim helped many lawyers and helped me come up with the idea for the Ethics Committee and hotline to help lawyers. In Jim’s honor, this will be the Ethics article for this issue. (Note: Judge McKay, from East Texas, was a Harris County judge for many years.)

* * * * *

I always marvel at the expectations of trial judges. Everyone from the Chief Justice of the United States Supreme Court on down complains bitterly about the ignorance of the trial bar. A lot of what they say is true—but what solutions do they offer?

It doesn’t take a great deal of sense to complain. Most folks have that down pat. The hard part is to offer an alternative or come up with a workable solution. It does little good to complain that your blind date is a stringy woman wearing off-brand jeans and a halter top that reveals a midriff with two moles and a fresh abrasion. The key is getting through the evening without killing yourself. Bitching won’t solve the the problem.

A lawyer fresh from law school is much like an ugly blind date, moles and all. But given time and experience, all that can change. Let’s talk a bit about converting moles to “beauty spots.”

The first problem that faces young lawyers is getting experience. They all want trial experience. It’s a Catch-22 problem. You have to have clients to get experience, and you have to have experience to get clients. That’s how the story goes, but I don’t think that is being far-sighted.

A successful trial lawyer is basically a person who has the ability to talk and listen to people, and you don’t have to wait for a trial to get this experience. It should be a daily practice. After all, the people who you meet daily are the ones who make up juries. The only difference is that they are packaged differently. They come in singles in your daily life, whereas they come in panels of thirty-six in your lawyer life. And if you don’t practice relating to them individually, how in the hell can you expect to relate to them when they come in gaggles of thirty-six?

This then is “experience rule” number one. Practice daily the fine art of talking to people. When you go out to eat, always make eye contact with the waitress and have something to say to her other than how you want to torture your stomach. When you buy gas, spend a minute of your time visiting with the gas attendant. See if you can get him to smile or laugh, or if time permits, get him to talk about himself. When you’re shopping, talk to the clerks and get them to talk to you. Remember, a good trial lawyer never meets strangers, just prospective jurors.

Experience rule number two should start with a mirror. Take a good look at yourself. If you’re perceptive you will notice that nature has given you only one mouth and on the other hand has given you two ears. The way most lawyers function, this should be different. We should have three mouths and probably no ears. Why did nature design your head in such a fashion? The answer is simple. You should do twice as much listening as talking. So when you talk to people, listen very carefully to what they say in return because they are telling you about themselves. And if you have sense enough to listen, you will learn a whole bunch about people. Jurors are the same way. If you can get them to talk to you and if you bother to listen to what they have to say, they will tell you a lot about how they think and feel. This comes in very handy if you want to win cases.

My third suggestion is to join an organization that permits you to get some experience in public speaking. You could try your hand at Toastmasters or something similar. Read the Sunday paper. It is full of information about upcoming seminars and places that afford the opportunity for you to practice running your chops. Don’t be proud. I would even speak at a clown convention, if given the opportunity, because every shot at public speaking makes jury trials a bit easier.

My next suggestion is to exploit Class C misdemeanors. Try every one of them, especially those in municipal court. How can you lose? The most that can happen is a $200 fine, so why can’t you use this as a vehicle to get trial experience? The same can be said for JP court. Take these cases to trial. If you want more such trials, go to some of the older lawyers and ask them to send you their traffic cases and those involving municipal and JP courts.

My final suggestion is to take some time off, hang around the courthouse, and watch jury trials. Don’t wait for the so-called “stars” to perform because you may never see a trial. You can also ask some of the more active trial lawyers if they would mind if you sat in with them when they are in trial. Most such lawyers would welcome you if you express an interest. Along the same line—spend some time with some of our more experienced trial judges. Get them to tell you about some of their trial experiences. Whenever I have a moment, I love to visit with Judge McKay. He has a wealth of stories about East Texas lawyers and some of the characters he has met in his trial days. I have never wasted a minute in the time that I have listened to him. I think that it should be required that every young trial lawyer spend some time with Judge McKay. He has a lot of experience, and he’s about half smart too.

Remember, plain old likability makes up for a world of experience. This trait does not come from 10,000 jury trials; it comes from daily living and daily habits. Keep in mind that a musician who practiced only at concerts would soon be out of the music business, and if you are sitting around waiting for jury trials to get “experience,” then you will not be long in the trial business. And I really hope to see you around for a while.

Ethics and the Law: Don’t Act Ugly II

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The following comments are from Ethics Committee member Brent Mayr in response to last month’s column, “Don’t Act Ugly”:

My two cents to add to an already valuable article:

One thing I think we overlook is that for us, as criminal defense attorneys, we are naturally inclined not to snitch. We cross-examine snitches and make them out to be the scum of the earth. And yet the rules require us to do exactly that when we know that another lawyer has committed a violation of the rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer. So how do we deal with this internal conflict between what the ethics rules require and our innate nature to not want to snitch? I think, first, we have to recognize the conflict. Snitching to gain some advantage is never commendable. We see that with the snitches who testify against our clients on a daily basis. On the other hand, if you see a crime being committed and you do something to intervene to stop that crime, even if it means just calling 911, then it is commendable. You are seen not as a snitch, but as a concerned citizen who cares about protecting others. The comment to the rule emphasizes this, explaining, “Reporting a violation is especially important where the victim is unlikely to discover the offense.”

I think when one is faced with knowledge of another lawyer’s misconduct, we truly have to engage in “self-searching” to determine the reason for acting upon that knowledge. Second, we have to recognize that the rule is designed to maintain the integrity of our pro­fession. If we report petty complaints for petty reasons or make serious accusations for ma­licious reasons, this purpose is defeated and we just look like a bunch of whiny sissies or selfish pricks. But if we see or learn of another lawyer doing something and ask ourselves, “What would the general public think if they learned that this lawyer was doing ____,” and it causes us to shiver, that’s when the call definitely needs to be made to the State Bar. Third, and finally, I think we need to remember the maxim, “What goes around, comes around.” At this time, a number of complaints are being leveled against a number of prosecutors and former prosecutors. While generally there has been cordiality between both sides of the bar, reporting what is believed to be an ethical violation on a member on the other side of the bar, disrupts that cordiality. Instead of battling in the courtroom, the war spreads outside the courtroom. The next thing you know, several members of the defense bar are getting letters from the State Bar. Clients get harsher offers, and then next thing you know, we’re having to resort to our appellate courts for assistance. Just like we, as criminal defense attorneys, must deal with the conflict between what the rules require and our nature drives us to do and try to maintain a balance between the two, I think we need to mindful of the peace and balance between opposite sides of the bars. Otherwise, we end up like civil litigators (joke—I love and respect many of my civil brethren). Of course, none of these justify acting or failing to act upon knowledge of misconduct. The rule makes it clear that knowledge of a violation that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer requires notifying the State Bar, period. However, for us criminal defense attorneys, I think if we consider these things, it will help make the decision to act or not to act an easy one.

Brent Mayr
Law Office of Brent Mayr, PC
www.bmayrlaw.com

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