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Ethics & The Law: Question About If-Then Statement


Below is an actual call to our hotline and answer by John Wright, member of the Ethics Committee.


I am just trying to check on our duty to report. I know if a person makes a direct threat, we have a duty to disclose. However, I had someone call our office today and say, “If that doesn’t work [calling the state bar lawyer hotline], I’m going to kill her.”

We do know who the “her” would be. He hung up right after, and the statement was “if, then.”

Because it was IF, I am not sure if we have a duty to report it. Thoughts?

Thank you again for your assistance.


I am not sure if the caller was a client or not. If not a client, there may be no privilege; perhaps if the caller is a witness the lawyer has interviewed, etc., there would be a duty of confidentiality. I think that duty is owed to the client, not just anyone.

If the caller is a client, I would want to talk to the client further to see how serious he/she might be. If client cools down and backs off an indirect threat, I see no need to report this unless it were to repeat itself.

If the client persists in talking like this, I would report it for what it is, an indirect but persistent threat.

Ethics & The Law: Past Tense


Below is a real question presented to the Ethics Committee by a member:

I have a client that I represented in a recent exoneration. The date of offense was 2001. The exoneration process started in 2014-2015. It is now complete.

Former client is considering getting case expunged. In preparation for that, he has asked for his complete file. There are several exhibits to the writ that were filed under seal, with specific exclusionary language regarding access – even by him – on the grounds of witness safety and protection of the investigation. However, there is other information in his file that isn’t covered by a court order and could be problematic. Names, addresses, phone numbers, inculpatory statements… I’m concerned about possible retaliation towards these writ witnesses. Also, in our file is sensitive information developed by the DA during their investigation, a copy of which was provided to me as discovery.

What are my options here? Am I obligated to turn everything that is un-sealed over to him? Am I required to redact anything before I turn it over to him? Do I have a duty to approach the court for guidance – which my client will see as opposing him? Has there been any change in the lack of applicability of 39.14 to these cases?

Any guidance you can provide would be greatly appreciated. Thanks so much!


Keith Hampton

I think a court order cures almost all of these issues. I agree that if he has a lawyer, then go through him, but if not, then it sounds like he is a client who could misuse parts of the file. I think your ethical duties are broader than robotic obedience to a client’s demand. If I understand the circumstances (and I think I know the case), then I would ask for a hearing and let the judge redact or order you to refrain from disclosure. I am limiting my remarks to the ethics of what to do and not a civil suit or any other considerations.

John Wright

  • If there are some items that the attorney is sure she can simply provide to the client, I would recommend that be done right away.
  • Send the materials under a cover letter that says that the attorney has other materials that she is not sure the law will permit her to provide to the client, and that legal issue is now under review. The lawyer will do well to convey the idea that she is trying to be careful, not just recalcitrant.
  • The lawyer might consider asking the former client if he has a Texas licensed lawyer that will accept the file materials, and discuss them with him, knowing that the lawyer will have duties and obligations under the Michael Morton Act and the general duty to protect the rights of third parties.
  • If the former client persists in having all the materials sent to him personally, consider filing a suit in inter pleader under the civil rules. The theory of such a suit runs like this: I have possession of certain papers and property that may belong to the former client, third parties or to the court itself. The relief requested, after notice to the former client, the DA and all interested parties and a hearing, is that the court will decide what must be done with the papers and property. Once the court decides, the order can be appealed by anyone not happy with the outcome.
  • My overriding advice is to try to make nice with such a former client to the extent that is lawfully possible.
  • The client needs to be advised about the law on expungement so that process can be expedited.

Special thanks to Keith Hampton, JohnWright, and Sharon Bass.

Ethics & The Law: No Privilege


The lawyer client privilege is sacred. But it does happen that the client waives the privilege and, by doing so, allows the lawyer to respond to defend against allegations made by client.

This does not allow you to disclose other matters. Keep silent about other work product and privileged things you know. Keep silent about the bank robbery your client was involved in; but you must tell if client planning a future bank robbery.

Joseph Connors added that you have to be careful and if a client files a claiming that the lawyer did something wrong, the accused lawyer should only respond to those specific allegations and cannot bring up any other bad things the lawyer knows about client. This is not the lawyer’s opportunity to seek revenge against that former client.

A lawyer may reveal confidential information:

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.

(2) When the client consents after consultation.

(3) To the client, the client’s representatives, or the members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client.

(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.

(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.

(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.

(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.

Thanks to Joseph Connors, Sharon Bass , Michael Mowla.

Ethics & The Law: Caution: Danger Ahead

I can still hear my mother telling my brother and me to BE CAREFUL every time we left our house. As lawyers and in daily life, those words are very important. The following recent case is an example of not being careful. It is not wise to talk about cases in elevators or in the hallway. Terry Gaiser and I had a recent case where we had told our client to be careful—and be quiet. In the hallway he was cursing the officers who arrested him, the judge, and the prosecutor. He thought only his family and our witnesses were hearing this. In the courtroom after the state had put on the major witness, they then called a police officer who who had been in civilian clothes in the hallway. There is no doubt after hearing what the officer said he heard that the years moved up on what we had thought the sentence would be. The following summary is a good example of not being careful.

Morrison v. State (Murder)(Lamar)(06-17-00159-CR)(March 27, 2019). OPINION: Justice Burgess. Because billing records exist to secure an indigent defendant’s right to the appointment of counsel, the prosecutor’s “affirmative obligation” requires a prosecuting attorney to refrain from reviewing indigent defense billing records during the case against the defendant, regardless of how the prosecutor may acquire that information and regardless of whether any privilege attendant to those records was waived by public disclosure; a defense attorney who (a) creates detailed billing records disclosing confidential client communications and attorney work product, (b) fails to protect strategic defense information from public disclosure during the payment process, or (c) fails to take remedial actions after learning that the prosecuting attorney has reviewed his billing records provides ineffective assistance of counsel; and because the State violated the first principle, and because defense counsel violated the second principle, the defendant’s Sixth Amendment right to counsel and her Sixth Amendment right to be free from State intrusion into the attorney-client relationship were violated, and the defendant is entitled to a new trial.

Here are examples of calls or emails we received on the Hotline.

HOTLINE QUESTION: I have recently had requests from federal clients for the discovery from their file. I know that certain documents such as offense reports cannot be given to clients, but I don’t know which, if any, documents can be given to clients and the law governing the dissemination of federal discovery.

ANSWER: We are talking only about discovery that was received from the government under Fed. Rule Crim. Proc. 16. 
 First, see if the government will agree to releasing all or part of the discovery to the client. Some AUSAs don’t care about parts or all of the discovery. Get that agreement in writing (email is fine).
 Second, if you cannot obtain an agreement for any part of the Rule 16 discovery, ask the court for permission and get a court order. See attached for such a motion I filed and the court’s order. Once a court orders that you cannot turn over certain documents to the client, you will be protected from a grievance. See Voice for the Defense Online for Lawyer Mowla’s Motion and Order.

Ethical issues are best presented directly to TCDLA’s Ethics Committee phone hotline or by email to that committee’s chairpersons, Robert Pelton or Michael Mowla. Article 39.14, C.C.P., is the only limitation on what you can send a client who has asked for “all” his file created while you represented the client in a criminal case. At your expense, your ex-client is entitled to promptly receive from you all contents of his paper and digital file(s) in your office—except the e-discovery you received from the state’s DA. If you obtain a court order from the same court having jurisdiction over your client’s indictment, that court’s express order can permit your making judicially compliant additional disclosures to your client, and you can send the state’s e-discovery you got under Article 39.14., C.C.P. Continue to ignore the client’s file request and you will lose at the grievance committee! So beware.

QUESTION: I had a client I represented on a world of felony drug cases in two different counties last year. The client is drug-enhanced crazy (meaning the client was crazy to begin with) but is not quite incompetent. I managed to get good outcomes for him (he was facing decades in prison, but received multiple concurrent 7-year sentences, if memory serves). While his cases were pending, he visited me in my office and went over discovery on some of the cases—this was before his bond was yanked for failing drug tests while on “pretrial probation” (in Smith County they do things like this and never mind the Constitution, the presumption of innocence, justice, or other quaint outdated notions in today’s modern world)—and I went over the remain­der of his discovery with him during multiple visits to the jail.
 My now-ex client sent me a letter a few weeks back demanding his file and everything in it, to include multiple discovery discs, many pages of police reports, witness statements, and multiple documents containing confidential information. The client saw all this on multiple occasions while his cases were pending. I consulted with a defense attorney about the issue and followed his advice: I did not reply. 
 The ex-client has filed a “Motion to Compel Attorney to Produce Client’s File” with the Smith County District Court that convicted him. Never mind a possible lack of jurisdiction, and never mind that the judge in that court probably doesn’t give a whit about the motion, but what exactly—legally and ethically—can I send to the ex-client? What, legally and ethically, if anything, am I required to send him? Am I obligated to pay for copies of whatever I can legally/ethically send him?
 I am concerned about violating rules about not releasing confidential information—to include phone numbers, addresses, and other sources of contact information for witnesses. On the other hand, I don’t want to get hammered by the Bar. I feel in a bit of a Catch-22 situation here—damned if I do and damned if I don’t.

ANSWER by Joseph Connors: It appears that attorney collected various items of evidence to use as substantive or impeachment evidence while representing client. Now that client’s case is over, does attorney have to return same to client or to the person from each item was separately obtained by defense counsel or his/her investigator?

1. Keep everything and face and lose on some issue at attorney’s own grievance hearing.

2. Return each item to the person from whom same was initially obtained on theory it was loaned to counsel and was never “owned” by client.

3. Give all to client and hope client does not misuse such potential evidence by threats, murder, etc.

4. Attorney can study all attached and figure out the ethical and moral answers to this serious dilemma.

Special thanks to Michael Mowla, Joseph Connors, and Sharon Bass. See the Voice for the Defense Online for Motion and Order from Michael Mowla and files from Joseph Connors.

Ethics & The Law: Rudolph (and Gifts to Judges)


All of you have heard the song “Rudolph the Red-Nosed Reindeer” and are familiar with its main character, Rudolph. Rudolph was created in 1939 by Robert May, an employee of Montgomery Ward. Although sources vary as to whether May created the story of Rudolph to promote sales at the Christmas season or to give as a gift to his young daughter to bring her comfort, May was doing his best to keep his job and comfort his child because Ms. May was dying of cancer.

May was picked on and bullied as a child, and the story of Rudolph was based on those personal experiences. Rudolph was Santa’s ninth reindeer, mocked by the other reindeer because of his shiny red nose. Like May, Rudolph was mocked and bullied, but in the end, Rudolph became the hero when he was chosen to lead Santa’s sleigh on a foggy Christmas Eve.

Johnny Marks, Robert May’s brother-in-law, actually wrote the song “Rudolph the Red-Nosed Reindeer.” My friend Carol Erickson remembers Johnny Marks, who served as a captain in the Army during World War II. Carol’s dad served in the same unit as Johnny. After the war, Carol remembered Johnny coming to her house wearing a red suit and driving a new red Cadillac. Johnny tried to pitch the song to many popular singers—Dinah Shore, Perry Como, Bing Crosby, Frank Sinatra—but none were interested. At the urging of his wife, my hero and family friend Gene Autry recorded the song in 1949. It was an immediate hit and became one of the top songs in music history, selling millions of copies.

“Rudolph the Red-Nosed Reindeer” has become a piece of modern folklore and a metaphor for overcoming obstacles, embracing differences, and recognizing everyone’s unique potential. As you review the lives of your clients in an ethical manner, you may find a little or a lot of Rudolph in them. Your client may have come from a broken and dysfunctional home, or have learning disabilities or mental issues. It is important to get your client’s full life history. The recommendation is that you go back three generations in your client’s life. No matter how bad and bleak the case looks, there may, and probably will, be some socially redeeming qualities.

It is our job to zealously defend our clients in an ethical manner. If your client is a veteran, get all of his records whether good or bad. Also get a copy of the school and medical records. Do not forget to have your client stop all social media, especially Facebook. Serious prosecutors will be checking to see what a defendant has posted. If your client is in jail, warn him to be aware letters can be read and may be used against him and to beware of phone calls from jail. Be mindful of conversations in the hallways at the courthouse. It has happened that bystanders including law enforcement have testified about what they heard.

Once your investigation is complete, you may find your “Rudolph” has a history that will help him guide the sleigh to a positive outcome, or produce mitigation of the punishment. Even the worst among us has done something right in life. The research done on the ancestors of your client may help explain and or excuse his behavior. As my psychiatrist friend Geoff Grubb believes, only a very small percentage of humans are “Born to be Wild.” The remaining commit crimes because of many factors: poverty, inferiority complex, peer pressure, opportunity, desperation, drugs, depression, mental disorders, overpopulation, politics, racism, TV violence, or regionalism.

Like Rudolph, your client’s life may be changed forever if given the chance. If your Rudolph has alcohol or drug problems, enroll them in AA or NA. Encourage them to get a job, go to school and church, and any other positive thing that will help get them back on the right track.

Always remember: Santa Claus and the Grievance Committee are watching you.

Acceptance of Holiday Gifts by Judge and Staff

Opinion No. 194 (1996)

QUESTION: Is it a violation of Canon 4(d)(4) of the Texas Code of Judicial Conduct for a judge, court coordinator, or court reporter (as well as clerks and bailiffs) to:

1.   accept holiday or seasonal gifts (assuming such to be commensurate with the occasion); or
2.   attend holiday or seasonal law firm parties?

ANSWER 1: Yes. A judge may only accept a gift from a friend for a special occasion and then only if the gift is fairly commensurate with the occasion and the relationship. Canon 4D(4)(b). A Judge may accept any other gift only if the donor is not a party or person whose interests have come or are likely to come before the judge. Canon 4D(4)(c). Opinion No. 44.

Texas Judicial Ethics Opinions Page 115 of 170

The Committee concludes that a holiday or seasonal gift from a lawyer or law firm where a lawyer is not a friend is prohibited. Where a friendship exists, the gift must be commensurate with the occasion and the judge must be mindful of Canon 2A—and should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2B. Opinion No. 39.

ANSWER 2: No. A judge may attend holiday or seasonal law firm parties if the party is open to people other than judges and court personnel. Rule 4D(4)(b) and Opinion No. 39 permits a judge to accept ordinary social hospitality. The judge should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary and should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2(A) and (B).

The answers above apply equally to the judge’s staff, court officials, and others subject to the judge’s direction and control. Canon 3C(2) provides a judge should require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. See Canon 3B(2) Code of Judicial Conduct, September 1, 1974, through December 31, 1993, and Opinions 110, 112, and 140 applying Code to court personnel.

Here is the main code provision that would apply to gifts:

Canon 4D:

(4)   Neither a judge nor a family member residing in the judge’s household shall accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to the judge; books and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) a judge or a family member residing in the judge’s household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(c)  a judge or a family member residing in the judge’s household may accept any other gift, bequest, favor, or loan only if the donor is not a party or person whose interests have come or are likely to come before the judge;

(d) a gift, award or benefit incident to the business, profession, or other separate activity of a spouse or other family member residing in the judge’s household, including gifts, awards, and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

Ancillary to that would be the requirement to report certain gifts (depending on the value) in annual personal financial statements. That reporting requirement is for those officeholders who file reports with the Texas Ethics Commission or with the local county clerk per the Election Code. It is also generally covered under Canon 4I:

Compensation, Reimbursement, and Reporting

(1)   Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety.

(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

(b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge’s family. Any payment in excess of such an amount is compensation.

(2)   Public Reports. A judge shall file financial and other reports as required by law.

Finally, as you know, some gifts are illegal and could result in criminal charges under Chapter 36 of the Penal Code.

Ethics & The Law: Freedom Is Not Free


I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies foreign and domestic: that I will bear true faith and ­allegiance to the same. That I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

Voting is not a privilege, it is a right, and many paid dearly for it. Remember this when you say “my vote won’t count” or “I’m too busy” or “I don’t care”—American men and women in uniform have served, or are currently serving, in the military to protect and preserve our democracy and YOUR right to vote. Many have died1 or suffered permanent disabilities fighting for our freedoms.


Voting is our most fundamental right as Americans. Many sacrifices have made it possible for our citizenry to be able to vote—from military actions to civil rights movements.

African-Americans won the right to vote in 1870 when the 15th Amendment2 ended the practice of denying the right to vote based on race, skin color, or prior servitude. This was the third of the Reconstruction amendments.3 Fifty years later, after a long struggle known as the Women’s Suffrage Movement, women earned the right to vote in 1920 with the 19th Amendment.4

Many black citizens were threatened or killed trying to exercise their right to vote. There were other voting obstacles as well. A “poll” or “head” tax had to be paid in person at the time of voting. It was imposed on all adults equally, regardless of income or property ownership. The poll tax was used in the South during and after Reconstruction as a means of circumventing the 14th Amendment5 and denying voting rights to African-Americans.

The tax also created a burden on poor white Americans. This form of taxation gradually fell out of favor in the South in the mid-20th century, but it was not until the adoption of the 24th Amendment6 in 1962 that poll taxes were finally abolished as a prerequisite for voting in federal elections. They were later eliminated in all elections. The Voting Rights Act of 1965 was passed to enforce the already-existing rights in a handful of Southern states.

Don’t take our freedoms for granted. Too many have sacrificed for our rights. Be smart in your voting decisions. Politics can be dirty business—false information is everywhere—so look at the source of these allegations. Remind others to vote. You can send out emails to people on your list and encourage them to vote. Since you as a lawyer may know more about many of the candidates, you can do a service for your contacts by giving them your choice of who is the best candidate.

Ethics & The Law: A Time to Keep Silent


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

Case 1:

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

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

Case 2:

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

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

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

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


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

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

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

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

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

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

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

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

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

Conclusion to Scenario 1

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

Conclusion to Scenario 2

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

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

Ethics & The Law: Is Pay Okay?



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

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

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

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

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

—Michael Mowla

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

—Jack Zimmermann

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

—Keith Hampton

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

Ethics and the Law: Mayday


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

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

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

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

Below are some examples of the calls we get.

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

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

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

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

(f)    The attorney representing the defendant, or an in­ves­tigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may al­low a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this article, the defendant may not be the agent for the attorney representing the defendant.

Here’s the synopsis:

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

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

Can I give him copies of the videos?

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

Hi, Lawyer!

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

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

Michael Mowla

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

Joseph A. Connors III
Lawyer in McAllen, Texas

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

Keith S. Hampton
Attorney at Law

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

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

Ethics and the Law: Safe Not Sorry


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

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

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

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

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

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

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

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

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

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

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

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

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

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