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Ethics and the Law: Too Hot to Handle

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

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

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

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

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

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

The Bottom Line on Evidence Too Hot to Handle

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

Remember in life some things are TOO HOT TO HANDLE.

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

Ethics and the Law: Competency Quagmire

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

LAWYER QUESTION

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

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

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

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

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

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

—Joseph A. Connors III

No clear answer.

From my Ethics paper a year ago:

The Special Case of the Incompetent Client

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

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

—Brent Mayr

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

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

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

—Keith S. Hampton

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

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

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

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

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

—Jack Zimmermann

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

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

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

Ethics and the Law: Privilege Peril

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

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

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

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

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

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

Committee Advice to the Lawyer

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

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

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

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

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

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

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

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

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

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

Supreme Court decision
Nix v. Whiteside, 475 US 157

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

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

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

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

Ethics and the Law: Who Is Running This Show?

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

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

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

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

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

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

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

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

—Michael Mowla

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

—Keith S. Hampton

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

As Mark wrote:

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

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

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

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

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

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

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

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.

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