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Ethics and the Law: Don’t Act Ugly

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Over the past 10 years many Houston lawyers have become friends with several homeless people who hang around the courthouse. One recently died and several lawyers helped provide shelter, food, and medical care for “Rick.” Rick always had a positive attitude and was upbeat and would tell all the accused citizens standing in line to get in the building “Don’t Worry, Be Happy,” or “I Love You” to all the women, lawyers, and citizens. He was like a street preacher trying to spread some cheer around a depressing building.

Saundra is another homeless person who stays around the courthouse, and many lawyers help her. There were some dirty politics in several elections in Harris County, resulting in a new district attorney, sheriff, and several judges. Saundra would hear all the gossip, and when I would see her and spend a few minutes talking with her she would say, “God does not like it when people Act Ugly.” She was talking about what she was hearing about lawyers who were hiding evidence, lying, and acting ugly, and the families were talking about what the prosecutors and lawyers had done.

Acting ugly was resulting in accusations that lawyers were giving special deals to rich people, and poor people pleading guilty just to get out of jail because they had no money to get out on bond. Acting ugly was hiding evidence from defense lawyers. Randy Schaffer and a few other lawyers got new trials for people who had been convicted. Some of these cases showed that prosecutors lied, withheld exculpatory evidence or evidence that might have resulted in a not guilty verdict. Lawyers are bound by their oath and the rules of ethics by the state bar. The ethics hotline has received many calls from lawyers and citizens about the conduct of prosecutors and of their own lawyer. When a lawyer sees some other lawyer acting ugly, there are bar rules that advise us on what to do: Rule 8.03, 8.04, and Rule 1.05f.

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

Rule 8.03 Reporting Professional Misconduct

(a)   A lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

(b)   A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

(c)   This rule does not require disclosure of knowledge or information otherwise protected by Rule 1.05.

(d)   This rule does not require disclosure of knowledge or information otherwise protected as confidential information

1.  by Rule 1.05 or

2.  by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program.

Comment—Rule 8.03

1.   Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigations when they have knowledge not protected by Rule 1.05 that a violation of these rules has occurred. Lawyers have a similar obligation with respect to judicial misconduct. Frequently, the existence of a violation cannot be established with certainty until a disciplinary investigation has been un­dertaken. Similarly, an apparently isolated violation may indicate a pattern of misconduct that only a disciplinary in­ves­tigation can uncover. Consequently, a lawyer should not fail to report an apparent disciplinary violation merely because he cannot determine its existence or scope with absolute certainty. Reporting a violation is especially important where the victim is unlikely to discover the offense.

2.   It should be noted that this Rule describes only those disciplinary violations that must be revealed by the disclosing lawyer in order to avoid violating these rules himself. It is not intended to, nor does it, limit those actual or suspected violations that a lawyer may report. However, if a lawyer were obliged to report every violation of these rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating pro­fession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial “ refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. The term “fitness” has the meanings ascribed to it in the Terminology provisions of these Rules.

3.   A report of professional misconduct by a lawyer should be made and processed in accordance with Article X of the State Bar Rules. A lawyer need not report misconduct where the report would involve a violation of Rule 1.05. However, a lawyer should encourage a client to consent to disclosure where prosecution of the violation would not substantially prejudice the client’s interests. Likewise, the duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship.

Rule 8.04 Misconduct

(a) A lawyer shall not:

(1)  violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship;

(2)  commit a serious crime, or commit any other criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects;

(3)  engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(4)  engage in conduct constituting obstruction of justice;

(5)  state or imply an ability to influence improperly a government agency or official;

(6)  knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;

(7)  violate any disciplinary or disability order or judgment;

(8)  engage in conduct that constitutes barratry as defined by the law of this state;

(9)  fail to comply with Article X, section 32 of the State Bar Rules;

(10) engage in the practice of law when the lawyer’s right to practice has been suspended or terminated;

(11)  violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.

(b)  As used in subsection (a)(2) of this Rule, “serious crime” means any felony involving moral turpitude, any misdemeanor involving theft, embezzlement, or fraudulent misappropriation of money or other property, or any attempt, conspiracy, or solicitation of another to commit any of the foregoing.

Joseph Connors, Ethics Committee member, has helped me write and research for this article, as has Michael Mowla. This is an example of what has happened in other places:

Beginning in the late 1980s, attorneys have been required to report the misconduct of other lawyers, with failure to do so con­sidered to be misconduct in itself and resulting in serious disciplinary measures. A 1989 Illinois Supreme Court ruling, In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790, found that attorneys have a duty to report other lawyers’ misconduct even when a client has instructed them not to do so. The Illinois Supreme Court suspended James H. Himmel from the practice of law for one year after he failed to report a misappropriation of client funds by another lawyer, a violation of rule 1-103(a) of the Illinois Code of Professional Responsibility. Himmel’s failure to report, the court found, had allowed the offending attorney to bilk other clients as well. The attorney guilty of misappropriating funds was disbarred. Lawyers have also been found guilty of misconduct with regard to the advertising of their services. It is legal and ethical for attorneys to advertise, but if that advertising is false, deceptive, or misleading, makes unsubstantiated comparisons to another lawyer’s services, or proposes means contrary to rules of professional conduct, the attorney can be charged with misconduct. For example, an attorney was disbarred in Maryland for publishing misleading advertisements soliciting customers for “quickie” foreign divorces and misrepresenting his competence and knowledge of the law (Attorney Grievance Committee v. McCloskey, 306 Md. 677, 511 A.2d 56 [198]

Jim Skelton has read the rules and offered the following as an aid in understanding the rules:

I read Rules 1.05, 8.03, and 8.04 and think that Rule 8.03 is pretty clear—a lawyer has the obligation to report another lawyer to the State Bar who commits a 8.04 violation that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer. There are two exceptions: (1) if the lawyer had an addiction problem, the reporting law­yer has the option of reporting this to an approved peer assistance program as opposed to reporting it to the State Bar; and (2) if the lawyer learns the information from an attorney client agreement so long as the information does not involve an ongoing crime or a future crime.

        The hook in the rule is what is a “substantial question”? My guess is that there is no specific standard, that it is resolved on a case-by-case basis.

Special thanks to Joseph Connors, Michael Mowla, Chuck Lanehart, and Jim Skelton.

Ethics and the Law: Slim to None

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Regardless of where a lawyer practices, one thing will always remain the same—time is money. Abraham Lincoln said it best when stating, “a lawyer’s time and advice is his stock and trade.” When a client seeks out an attorney to represent him or her, the client is essentially paying for two things—the lawyer’s time and knowledge. More importantly, as most lawyers unfortunately know, when the case is over and the client has not fully paid, you have two chances of being paid—SLIM TO NONE—regardless of how much time and knowledge you put into it.

A lawyer’s “inventory” is considered his time. He essentially has nothing else to sell. Unfortunately, there is only so much time in a day, and unlike a products manufacturer, all the money in the world couldn’t buy us an endless amount of time. Thus, if you don’t manage your inventory carefully, you will have wasted your time and lost your money. This is why case selection and payment collection is very important.

Once it makes economical sense to take on a particular case, it’s essential to ensure that the client has some “skin in the game” as well. So long as clients have something on the line, they will almost always try to maintain communication and payment. The second clients receive what they want, they no longer are invested nor do they have an incentive to contact you or pay you.

In a perfect world, all lawyers would be paid upfront and in full. However, in reality we are left with either the occasional upfront payment or betting on the client’s word that they will comply with the signed written contract. This forces lawyers to be in between a rock and a hard spot. We take an oath and are duty bound to zealously represent the client and the client’s interests no matter what. This becomes virtually impossible when you are not paid for your time and efforts. Money opens doors and keeps the lights on, which is the only way to enable us to maintain our practice.

Collecting payment from a client is difficult at best. This raises several ethical issues: 1) who is running the show, the client or the source of the funding (e.g., Bubba’s mommy); 2) legal ramifications of accepting questionable funds (e.g., dope money in the briefcase); and 3) failure to collect essentially steals the lawyer’s time away from the “paid-in-full” client, which in turn gives us a bad rap of being “all about the money.” In reality we are simply looking to be compensated for services rendered, just like any other business. Because our services come in the form of advice and knowledge and it is not tangible or something concrete for the client to see and touch, the client believes that they have paid “all this money” and have “nothing to show for it.”

This is frustrating for both the attorney and client because the attorney has legitimately spent his or her time and efforts to gain the best possible outcome for the client, and the client is frustrated because not only did they not get the exact outcome they wanted—which was most likely unattainable anyway—but they are also out thousands of dollars to pay the lawyer. This creates the perfect storm.

 

We are duty bound to communicate effectively with our client. When clients text, email, or call—even if you’re in line at Kroger, or at your grandson’s baseball game, or at the nail salon—they expect you to respond. In the client’s mind, it’s just “a simple text or email, which couldn’t have taken much of the lawyer’s time.” The client needs to realize from the get-go that time is a valuable commodity, and that communicating in this new world of technology can be extremely risky. The client doesn’t consider the consequences of the text or email reaching an unintended recipient, which breaks attorney-client privilege,and as Eric Devlin well demonstrated in his seminar talk on September 29, 2016, once a text or email is transmitted, it is always subject to retrieval. Both the client and attorney must remember that the actual defense of a case is a balancing game, and as long as both parties remain professional and communicative, they can generally come to a realistic compromise.

Another piece of the time and money puzzle conundrum involves form of payment. Fortunately, unlike most service providers, a lawyer does not always have to obtain payment in cash. Instead, a lawyer can choose to collect his fees through different forms of collateral. On several occasions, I have heard of lawyers receiving a baseball card collection, several cars, guns, real estate, and other items taken in lieu of a fee. It is amazing what turns up if you do research before meeting with the client—find out addresses, schooling/education, family history, employer information, former employers/employees, etc.

Recently I had a case where a client was on probation and unfortunately picked up another case just two months before his probation ended. He came in to discuss his new case, and when I told him my retainer fee, he claimed to have no more money. I then agreed to try to find him a lawyer who would charge less; however, what was ironic is that when he left, I walked outside and saw him drive off in a new Mercedes-Benz. My new rule became “Run ’em before you talk to ’em.

One way lawyers can ensure receiving payment is if the client has property that was seized when arrested. The lawyer can file a motion to return property and get the property released to his or her firm. Have the client sign a document releasing the property (see the below example and also see attached motion and referral to TCDLA about returning evidence). The article can be found in The Prosecutor, Jan.–Feb. 2009, Volume 39, No. 1—www.tdcaa.com/node/3894.

Simple Memo for Client to Sign

The fee paid by __________[client] to ___________ [attorney] is not proceeds of any criminal act.

The [front-end loader, motorcycle, etc.] [collateral] given to me for my fee is not stolen and belongs to me. I additionally warrant that I am the sole owner of this property and no other person(s) or entity has any legal ownership interest in the property.

____________________[client signature]

Ed Mallett and Michael Mowla have both also provided me with ideas on this subject, such as referral fees. They say when you first get hired by an accused citizen, get a contract signed as soon as possible that includes the mandates found in TDRCP 1.04(f). You will find an example provided by Ed Mallett in the Voice for the Defense, October 2012 issue, found at archive.voiceforthedefenseonline.com/story/october-2012-complete-issue-pdf-download. Additionally, the article here provided by Lawyer Mallett shows what happened to a lawyer in South Carolina regarding this issue. Lawyer Mowla is also an expert on many things—including fees—and he has provided the rule about referrals. He states:

        The answer is in TDRPC 1.04(f). First, there must be a proportional division of legal services provided or join responsibility [see (f)(1)]. Second, there must be client consent [see (f)(2)]. Both factors must be present, and there are no exceptions. The referring attorney who is receiving a fee must do SOME work on the case—although this rule is bent quite a bit.

        When I refer a client to another attorney, unless I plan to stay on as counsel in some capacity, I wash my hands clean of the case. If the other attorney gets hired and collects a handsome fee, good for the other attorney. I consider the referral a “gift” to the other attorney for which I expect nothing in return (nor will I accept anything in return), and I make the referral based only upon my confidence in that attorney’s abilities.

TDRPC Rule 1.04(f) Fees (Effective March 1, 2005) reads as follows:

(f)    A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if:

(1)  the division is:

(i)   in proportion to the professional services performed by each lawyer; or
(ii)  made between lawyers who assume joint responsibility for the representation; and

(2)  the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed, including

(i)   the identity of all lawyers or law firms who will participate in the fee-sharing arrangement, and
(ii)  whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and
(iii) the share of the fee that each lawyer or law firm will receive or, if the division is based on the proportion of services performed, the basis on which the division will be made; and

(3)   the aggregate fee does not violate paragraph (a).

The bottom line is that each case you take on as a lawyer should be carefully analyzed. Your time is precious and should not be wasted. As Benjamin Franklin stated, “THEN DO NOT SQUANDER TIME, FOR THAT IS THE STUFF LIFE IS MADE OF.”

You may have done a great job for your client and saved him or her from being locked up or convicted, but sad to say it is still SLIM TO NONE on your chances of getting paid no matter how much time you spent on it.

A special thanks to Monica Ishak, Robyn Harlin, Michael Mowla, and Ed Mallett for their advice and guidance with this article. Robert can be reached at .

Ethics and the Law: Sticks and Stones

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“Sticks and stones may break my bones but words will never hurt me.” An old saying we most all grew up with, and also one that many have discovered to be untrue. The phrase was originally presented as an “old adage” and was first cited in The Christian Recorder of March 1862, a publication of the African Methodist Episcopal Church. Notably, the reference to the phrase as an “old adage” suggests an even earlier coinage. Although the phrase has good intentions to help toughen a person’s skin, it has become fairly clear that what happens after the words are uttered and transmitted not only do hurt, but also break bones, destroy relationships, cause injury, and in extreme cases cause death. We quickly find out the statement is false and misleading when we enter a place called “the real world.”

In the legal field, words have a grave effect on essentially every part of the practice. Attorneys are taught early on that their chosen words can and will be the deciding factor of a client’s fate—whether the words are uttered in front of a courtroom or transmitted through messages and social media. Even words from a jailhouse snitch or co-defendant can have the effect of stripping people of their rights and sending them to jail—regardless if those words were in fact true or whether they were simply presented in a way others were willing to accept as true.

This is also very critical when speaking to a police officer. James Duanne, a Regent University School of Law professor, former criminal defense attorney, and Fifth Amendment expert, gave a lecture specifically targeting this issue and emphasizing the importance of not speaking to the police. His lecture went viral after being posted on Youtube for its controversial nature; however, Duanne stands firm in his belief that speaking to an officer can only hurt your case—regardless if you are truly innocent or guilty. Duanne gave this lecture to a group of law students with Virginia Beach Police Department Officer George Bruch present—both of whom both explained in practical terms why people should never talk to the police under any circumstances. Duanne begins his lecture by providing a quote from Supreme Court Justice Robert Jackson, who stated in Watts v. Indiana, 338 U.S. 49, 59 (1949), “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”

Duanne then provides some top reasons why speaking to the police can only harm your case. A brief recall of his top rules include: “1) Even perfectly innocent citizens may get themselves into trouble, even when the police are trying to do their jobs properly because police malfeasance is entirely unnecessary for the innocent to convict themselves by mistake;
2) talking to police may bring up erroneous but believable evidence against even innocent witnesses; and 3) individuals convinced of their own innocence may unknowingly commit a crime which they inadvertently confess to during questioning.” Duanne also provides practical examples to illustrate this notion.

One example Duanne gave that could essentially happen to anyone was where a police officer went to a citizen’s home investigating a murder in the area, asking the citizen if he had known or heard anything about the shooting. The citizen replied that he knew nothing about the shooting, and that he’d never shot a gun before in his life. Later, a witness mistakenly told police she thought she saw that citizen near the victim around the time of the shooting. The citizen got charged for the murder, and the prosecutor called the officer who had initially questioned the citizen to the stand and asked if there was anything suspicious about the citizen’s answer. The officer simply replied: “Yes, I had never mentioned anything about a shooting. I had asked simply him if he had known anything about the murder.

And just like that, regardless of what the citizen said on the stand, the officer’s statement has been heard by the jury, and it is now up to the jury to decide whether the officer misremembered his own question or whether the citizen is just trying to cover up what really happened. Duanne then provides famous examples of celebrities who didn’t get convicted of the underlying crime or offense because there was not enough evidence—but because they had denied the act to the police and/or FBI, they were charged and convicted solely for lying to an officer, which is a punishable crime. We should all take note of Duanne’s lecture and points so that we can apply it in our daily lives. Citizens should not only follow Duanne’s rules when speaking to police; they should also apply these principles when speaking through public forums since those statements are just as permanent.

In this new age of technology, with Facebook, Twitter, Snapchat, Instagram, email, and the like, it is much more important that we all as professionals choose our words appropriately and cautiously because once those words are out there, the bell cannot be unrung—even if later deleted or erased, a recording will always exist on the web and may well resurface at any time.

Joel Colvin, a cybersecurity consultant and attorney who helps me on cyberspace cases and owner of Colvin Training and Consulting Inc., is specifically hired by law firms to help set policy, pass security audits, and investigate breaches of security. He warns that it is simply not possible to retract an electronic mes­sage or force a delete once sent. The message is then essentially in the control of the recipient, who can choose to save it, forward it, take a picture of it, print it, or do a number of different things with it. Further, anyone who the recipient sends the message to also holds that same power, and the chance of dis­tribution is that much greater. The problem expands exponentially as each recipient becomes a new sender.

Accordingly, how far a message goes effectively depends on each recipient and the length of time the message is kept. For example, electronic mailing lists accelerate publications of messages even faster now. Emails sent to an electronic mailing list are automatically saved by the mailing list server as well as potentially any or all members of the list. By design, a mailing list is created to get the message out to a large number of people, quickly and conveniently—two factors that are usually largely the cause of most mistaken message transmittals. The concept behind Twitter, Facebook, LinkedIn, and other social media platforms is based on this same “mass publication made easy,” but in turn this means that there is always a way to capture the message.

Joel further advises that for lawyers, this presents both a prob­lem and an opportunity. If someone finds the system where the message still exists, a client may be screwed or saved, de­pend­ing on what that message says or to whom it was sent. For lawyers as publishers, it boggles the mind why any would post, email, or tweet anything damaging about their client or their case, regardless if that message was intended to only reach a “safe” recipient. Sometimes, even the location from where a message was sent can be damaging to a client by being locatable geographically through metadata associated with the message sent.

Michael Mowla, an esteemed member of the Texas Criminal Defense Lawyers Association and Ethics Committee, as well as a Board Certified Criminal Appellate Lawyer by the Texas Board of Legal Specialization, makes it a point to live by this principal: Unless you are willing to allow it to be read in open court, do not send a communication by electronic means. Mowla continues by stating that he also always follows two main rules: 1) Never text information about a case—texting is to tell someone you are running late or sending a newspaper article; and 2) never send negative or incriminating information about any client through any electronic means.

With all the technological advancements and changes, the legal world is beginning to take note and is slowly churning out new laws regarding social media and text messages. The Mississippi Ethics Commission, for example, has issued an opinion that text messages concerning government business, regardless of the device used to produce them, qualify as public records, which the press and anyone else is entitled to request. Moreover, the commission stated, “Any doubt about whether records should be disclosed should be resolved in favor of disclosure.”

Leonard Van Slyke, media-law attorney and adviser to the Mississippi Center for Freedom of Information, stated that he believes the goal and significance of this ruling is to prevent public officials from using text messages as a method to circumvent compliance of the Public Records Act. This serves as another example of the growing connection between ethics, the legal world, and social media/messaging.

As lawyers, we will always be held to a higher ethical standard than the average layman. Therefore, prior to speaking, you must think about how one’s words will affect the client and whether the statements will better serve to zealously advocate for the client. By gaining a better understanding of the power of words, attorneys can speak more strategically and provide more effective litigation.

Assessing the statements you make to others is a vital key to successful representation, and although words may not break bones, they can break an individual’s spirit and reputation and is likely to breed apathy and resentment.

I believe that life and death are in the power of the tongue; those who love to talk will reap the consequences.

—Proverbs 18:21

A very special thanks to Monica Ishak, Michael Mowla, Joel Colvin, and Craig Hattersley for their advice and guidance with this article.

Ethics and the Law: Keep Your Hand on the Throttle and Your Eye on the Rail

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“Life Is Like a Mountain Railway”

Life is like a mountain railway
With an engineer that’s brave
We must make this run successful
From the cradle to the grave.

Heed the curves and watch the tunnels
Never falter, never fail
Keep your hands upon the throttle
And your eye upon the rail.

Keep your hand on the throttle, your eye on the rail, and your attention on the realities surrounding probation so you can best serve your client. By doing this, you are able to ethically follow your oath and keep a happy client. Additionally, you can avoid a writ, a grievance, and/or a lawsuit.

In order to ethically represent a client, a lawyer must keep up with all the changes in the law and in court procedures. One new program to be aware of is the Texas Risk Assessment System. This new tool, copied after the Ohio system, is used by probation departments to allegedly screen people who are getting probation. It supposedly determines what level of supervision each individual requires to be a successful probationer. This 17-page questionnaire influences whether your client gets daily, weekly, or monthly supervision, making it a very important document for defense lawyers to understand.

In case some of us missed the memo about the Texas Risk Assessment System, the questionnaire will be posted on TCDLA online. Be sure to look over the kinds of questions on the questionnaire so you can gauge the level of supervision this assessment is likely to suggest for your probation-seeking client. This will better equip you to advise your client. Remember to always advise your client of the difficulties and pitfalls of being on some type of supervised release. May times clients are better served by short sentences of incarceration rather than chains around their necks on supervised release.

Greg Velasquez, a member of the Ethics Committee, highlighted the Attorney General’s opinion JM 194 as another reality that probation lawyers need be aware of. The opinion comments on ex parte communications that go on between judges, probation officers, and prosecutors and the impact these conversation have on the client’s due process during pending and impending proceedings. This will also be posted on the TCDLA website. These ex parte conversations are unethical—and most undoubtedly detrimental to your client in probation revocation and adjudication hearings.

Ethics and the Law: Midnight Special

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Midnight Special is a traditional folk song thought to have originated among prisoners in the American South. The title comes from the passenger train “Midnight Special” and is performed from the viewpoint of the prisoners. Lyrics first appeared in print in 1905.

You get up in the mornin’
You hear the ding dong ring
Now you look upon the table
You see the same darn thing
You find no food upon the table
No pork up in the pan
But if you say a thing about it
You’ll be in trouble with the man

Ah, let the Midnight Special
shine her light on me
Oh, let the Midnight Special
shine it’s ever lovin’ light on me

(“Midnight Special,” lyrics by Johnny Rivers)

This song was recorded in an Angola prison and related to a 1923 Houston jail break. John and Henry Lomax, in their book “Best Loved American Folk Songs,” told a story that identified the Midnight Special as a train from Houston shining its light into a cell in the Sugar Land prison. The light of the train is seen as the light of salvation, the train that would take them away from the prison walls. Carl Sandburg believed the subject of the song would rather be run over by a train than spend more time in jail. Several versions of the song place the location of the song near Houston.

Many things have changed in the past 100 years since prisoners were singing this song. Many things have not changed. Desperate men and women are still locked up. Many are there because their lawyers did not follow the oath they took. The hotline has been getting many calls from lawyers and families of defendants. The families are complaining because the lawyer either has been hired or appointed and does not communicate with the client or the family. Some are desperate people as were the prisoners in the “Midnight Special” song.

Several lawyers got mad because the family got another lawyer to go see the defendant in jail. It is completely ethical to do this. See Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct, specifically 4.02(d)(2):

Rule 4.02 Communication with One Represented by Counsel

(a)   in representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(b)   In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(c)   For the purpose of this rule, “organization or entity of government” includes: (1) those persons presently having a managerial responsibility with an organization or entity of government that relates to the subject of the representation, or (2) those persons presently employed by such organization or entity and whose act or omission in connection with the subject of rep­resentation may make the organization or entity of government vicariously liable for such act or omission.

(d)   When a person, organization, or entity of government that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the first lawyer.

Comment 2 thereto discusses several exceptions to 4.02(a)’s general prohibition, including:

Finally, it does not prohibit a lawyer from furnishing a second opinion in a matter to one requesting such opinion, nor from discussing employment in the matter if requested to do so.

Most of the grievances are for failure to communicate. Don’t put yourself in that spot. It is no fun.

Ethics and the Law: How to Tiptoe Through the Tulips

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Acknowledgments to lawyers and law students who shall remain nameless . . .

Tiptoe through the window
By the window, that is where I’ll be
Come tiptoe through the tulips with me…

If you think the song is weird, just read some of the decisions made by people who are supposed to be minding the store! Judges arrive late to court. Citizens are kept waiting for hours. To some of the Judges it does not matter. They get paid while citizens and lawyers wait around to take care of business. The “Your Honor, can we please get a bond reduction,” “Your Honor, can we please have more time,” “Your Honor, I just had surgery,” “Your Honor, I have a family emergency,” and most pertinent here, “Your Honor, the prosecution has not given me all the evidence” all too often fall on deaf ears.

Many recent events have led to complaints being filed against members of the Judiciary. Some have resulted in Judges resigning, receiving reprimands, or being ordered into counseling. Several criminal law organizations, including HCCLA, have filed complaints. Robb Fickman has filed and drafted many such complaints. JoAnne Musick has authored several articles about the subject. It is a sad state of affairs when 170 citizens were held under million-dollar bonds to SEND A MESSAGE. Many Judges are honorable and take their oath seriously, but many fall short. Something happens when a lawyer puts on a black robe and gets the “Black Robe” disease. For those unfamiliar, it is a unique disease for which a highly specialized group of scientists have been rigorously testing a potential cure but have yet to curb certain side effects: inability to grant PR bonds or an inability to be cognizant of the dynamics occurring outside the courtroom that necessitate a legitimate reason for a continuance. Many lawyers forget the rules of disciplinary procedure apply to Judges as well as other members of the Bar. Complaints may be many, but the actions taken isare small.

It appears that in some parts of the state, prosecutors are not understanding the rules of discovery and Judges are letting this slide. The Michael Morton Act was passed for a crucial life-saving reason. Do not let the prosecutor or Judge tiptoe through the tulips when you are doing everything possible to see what evidence the state is using to prosecute your client. File Motions for Discovery if you believe you have not been given all the evidence. Do your own investigation. Many times there are witnesses who are excluded from the discovery and/or “open file” shared with you.

When “out of the tulips” additional evidence is given to you a few days before trial, have a Motion for Continuance ready, and be prepared to make a record. If you need the forms for a Motion for Continuance, refer back to the online Voice for the Defense article “’Twas the Week Before Christmas,” December 2014.

The following advice from Bobby Mims is for lawyers facing such unfortunate circumstances:

Be prepared to follow up that motion with a “Not Ready,” and if the Judge does not grant your Motion for Continuance, you may be forced to file a Motion to Withdraw. After that you have done everything you can to get your client the least prejudicial trial, and it becomes the Judge’s problem.

        We used to do this in capital murder cases before the ABA and Texas Guidelines for Capital Defenders were adopted. Now if the Judge does not give us the resources to defend the case, then we do all of the above and force the Judge’s hand.

        One time on a capital case, before guidelines were enacted, we asked for money to follow up on a lead that a third party had committed the crime, but the Judge denied our request for more funds. We announced “not ready” because we could not be effective. The Judge then asked if we’d filed grievances on ourselves for being ineffective. We filed our motion to withdraw and immediately filed grievances with the State Bar on ourselves. The Judge relented and gave us the money. Afterward, my investigators found the guilty party in Kentucky and turned over inculpatory evidence to the state, which promptly had the guy arrested and transported back to Texas for prosecution. He is now serving a life sentence. I later chastised the Judge that defense lawyers are in fact law enforcement officers also. 

        About a year later I got a call from the State Bar asking about the grievance. I told them why I filed it. The State Bar lawyer laughed and promptly dismissed the grievance. I objected to the dismissal and asked for a hearing. She told me that I had no standing since I was both the grievant and the grievee. That was the last that I heard of it.

The Texas Disciplinary Rules of Professional Conduct re­quire prosecutors to comply with the Michael Morton Act, Tex. Code Crim. Proc. art. 39.14, including making disclosures required by the act.  Therefore, prosecutors may not, as a condition for providing information in their files they are obligated to dis­close, require that criminal defense lawyers agree not to show or provide copies of the information to their clients, nor require that criminal defense lawyers agree to waive court-ordered discovery in all of their clients’ cases.

As illustrated by the Voice for the Defense article “The Michael Morton Act’s Undiscovered Country,” January 2016, it is evident this Act was created to ensure justice by allowing defense lawyers to “build robust cases” with the timely production of the full array of evidence if only prosecutors and Judges would comply with the spirit of the law. Our justice system should be about getting our clients the best representation and the fairest trial possible. Instead, prosecutors have been allowed to play games, leaving our clients’ futures in jeopardy and defense attorneys with few options. That is why you must know what to do when state prosecutors fail to follow through with timely production under the Rules of Discovery. According to the Michael Morton Act, the prosecutor has a duty to not “discovery dump” on defense lawyers shortly before or on the eve of the trial. This certainly violates the spirit of the Michael Morton Act.

As a starting point for valuable information for this article, Michael Mowla shared the following opinion regarding these issues (http://www.legalethicstexas.com/Ethics-Resources/Opinions/Opinion-646.aspx):

Opinion 646

QUESTION PRESENTED

As a condition for allowing criminal defense lawyers to obtain information in the prosecutor’s file, may a prosecutor require defense lawyers to agree not to show or provide copies of the information to their clients and agree to waive court-ordered discovery in all of the lawyers’ cases?

STATEMENT OF FACTS

A district attorney requires criminal defense lawyers to sign a confidentiality agreement as a condition to granting lawyers access to the prosecutor’s file (a so-called “open file” arrangement). The agreement allows lawyers to obtain discoverable information in the prosecutor’s file in exchange for their agreeing not to share copies of that information with anyone else, including the lawyers’ clients, and their agreeing not to seek court-ordered discovery in any of their clients’ cases.

DISCUSSION

Professional Ethics Committee Opinion 619 (June 2012) addressed the question of whether a prosecutor may require and defense counsel may agree “that documents the prosecutor produces to defense counsel may be shown to the defendant but that copies of the documents may not be given to the defendant[.]” The opinion observed: “Although the prosecutor has an obligation under Rule 3.09(d) [of the Texas Disciplinary Rules of Professional Conduct] to disclose to the defense all exculpatory or mitigating evidence, the Rule is silent as to the disclosure of other evidence and as to restrictions that may be placed on evidence and information disclosed.” This committee concluded in Opinion 619 that the Texas Disciplinary Rules of Professional Conduct permit such agreements, provided that, before signing such an agreement, defense lawyers must comply with their duties under Rule 1.03(b) to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Since this committee issued Opinion 619, the legislature passed and the governor signed the Michael Morton Act, codified at Tex. Code Crim. Proc. art. 39.14. Effective January 1, 2014, the Act amended article 39.14 of the Texas Code of Criminal Pro­cedure to require that prosecutors disclose all information in a prosecutor’s file except the prosecutor’s work product and other information (such as information about victims and children) that is made confidential by law. Among other things, article 39.14 permits discovery and copying of all witness statements, not just the defendant’s statement. Cf. Tex. R. Evid. 615(a) (requiring production of a statement of a witness other than the defendant only after the witness has been passed for cross-examination during trial). Furthermore, article 39.14 does not require (or permit a prosecutor to require) any concession by criminal defense lawyers or their clients in order to receive such discovery nor must defendants seek a court order to secure the discovery mandated by that article. Article 39.14(a) requires the disclosure of the prosecutor’s file “as soon as practicable after receiving a timely request from the defendant. . . .”

Comment 1 to Rule 3.09 states that “a prosecutor is obliged to see that the defendant is accorded procedural justice, that the defendant’s guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information known to the prosecutor.” Furthermore, Rule 8.04(a)(12) provides that a lawyer shall not “violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”

Because article 39.14 requires an “open file” policy by prosecutors without preconditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the required disclosures.

The committee concludes that the Michael Morton Act has rendered Opinion 619 obsolete because the act requires an “open file” policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided in the act.

CONCLUSION

As lawyer Mims, Mowla, and I can advise you, there may be many thorns you encounter while you are tiptoeing through the tulips. To ethically represent a client, be aware and be prepared when you encounter resistance by the prosecutor or Judge. Remember your oath is to your client, not the Judge or prosecutor.

Ethics and the Law: Don’t Take Your Guns to Town

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If Wild Bill Hickok were walking down the streets of Houston or Abilene or any other place in Texas with his guns today, he would probably be approached by the police and arrested. Wild Bill has a concealed handgun license, but Wild Bill doesn’t carry his pistols in a holster; he carries them stuck in a sash wrapped around his waist. Too bad he didn’t understand the nuances of the new open carry law. But then, who does? Several months have passed since the law was signed, giving law enforcement time to study and prepare for a freedom not al­lowed in Texas since after the War Between the States. But there is significant controversy about the new open carry law.

Growing up in Abilene, we all watched John Wayne, Audie Murphy, Lash Larue, and other war and cowboy heroes—where the good guys fought for noble causes and always won the day. And once again we are returning to the days of wearing a holster on our hip. But it turns out carrying a gun is more dangerous than “The Duke” may have led us to believe. When real bullets fly, real lives are impacted in ways not illustrated on the silver screen.

Guns sales are at an all-time high. The murder rate has escalated in Texas and many other places. There were 283 murders in Houston in 2015, the last one in a hotel on the north side of town. Today, citizens are fearful about where our communities are headed. We all want to feel safe in our homes and when out in public. As a result, many law-abiding citizens are choosing to carry guns for protection.

All gun owners should know the power they have to do either good or harm with the weapons they carry—and the risk they take by carrying. Unless people have been in the military or worked in law enforcement, they may not be properly trained on how to defend themselves or even use a firearm. And they likely have not truly grasped the potential consequences of that act. We all want to protect our families, friends, other citizens, and ourselves from the bad guys, but before this happens you need to be prepared. Buying that new shiny pistol is exciting, but before you carry or shoot it, remember that pistol is a tool—a dangerous tool. Get the right kind of pistol. Study it, examine it, read the instructions, and practice safely with it before you start toting it around.

For your own safety, as well as others, you should understand how to care for your pistol. One of my gun-toting friends who usually carries a couple of pistols was bragging about being prepared. I asked him to let me examine the pistol he carried in his boot. It would not even work because it was so dirty. He was embarrassed. A retired Texas Ranger friend of mine who gave me his hideout gun showed me the one he now carried. He, too, was embarrassed as I pointed out to him it might shoot one time and no more because the slide was dirty. Recently in Abilene, some friends were showing off their barbecue guns, those shiny big guns they wear when having a cookout. One of them was fooling with his pistol and it accidentally went off. Luckily it did not kill one of them.

Today, the new law allows a person with a concealed handgun license to openly carry if it is in a holster. The Old West may have risen again, but the “basics” of carrying a gun will never be the same. With more freedom comes a greater responsibility to be well trained on handling and operating a weapon. It also comes with some legal risk to the carrier. The district attorney has graciously provided HCCLA an interpretation of what the law means. JoAnne Musick, as president of HCCLA, has provided us with the position of the defense bar. While they are similar in many ways, there is still some polite disagreement about what the new law means. Can a police stop you and ask to see your license? Yes! Should you show it to them? Yes! But what happens if you don’t? Well . . . It is a little unclear. This lack of legal clarification as to the law’s application is a problem, and it will be for your future clients. We will only know the answers when someone is arrested and judged on the facts of their situation. Be aware that someone will be the guinea pig on which this law is tried and those yet-to-be-determined answers are defined. That person may be your client.

As lawyers, what do we advise our gun-toting clients? Make sure that you have a good reason for openly carrying your shiny new pistol, and that you have a concealed handgun license if you intend to carry one. Be aware that you may be, and probably will be, a target for law enforcement to stop and ask you questions. When the police may ask you if you have a permit, be polite and tell them the correct answer. This is the moment where potential problems arise. Also be aware that if you are in the wrong place at the wrong time, an outlaw may try to shoot you first because you are openly carrying a pistol.

We do know that Penal Code 46.02 still remains the law and allows gun rights to those individuals who do not have a concealed handgun license. The revisions that took effect January 1, 2016, now state that a person commits an offense if the person intentionally, knowingly, or recklessly carries a handgun in a motor vehicle or watercraft that is owned or controlled by that person at any time if (1) the handgun is in plain view, unless the person is licensed to carry a handgun and the handgun is carried in a shoulder or belt holster, or (2) the person is engaged in criminal activity, or (3) the person is prohibited by law from possessing a firearm, or (4) the person is a member of a criminal street gang.

Also note that even with a license, gun owners can’t waltz into just anywhere without taking notice of the posted signs. Gun owners and business owners alike should be aware of Texas Penal Code 30.06, which details the requirements for signs businesses may display to prohibit guns on their premises. According to a “reliable and credible” law enforcement source who shall remain nameless for his own protection, many of the signs posted by business owners are not even effective as they do not comply with the code. This may save your gun-slinging client but not your gun-shy business owner. Make sure you have crossed all your t’s and dotted all your i’s before posting your sign and expecting it to be enforced.

AS WE ENTER THE NEW YEAR with the open carry law, there are several things to remember: safety first. A firearm is designed to kill. Yes, there are some people who shoot skeet or go to a gun range, but a firearm is designed to kill. If you have ever been in law enforcement as a licensed peace officer or in the military, you will know the consequences of weaponry ignorance. Firearms are not toys. They are designed to cause destruction of a target. And secondly, this new law could dramatically affect the status quo. Our clients need to understand they must make sensible decisions when choosing to carry. We know many of them will not. That is what keeps us in business. Still, we as lawyers are also in the law enforcement business. Our job is to make sure our clients are legally arrested and searched. This job is made more difficult now because no one knows for sure the details to this new law. Johnny cash sang a song, “Don’t Take Your Guns to Town”. I RECOMMEND YOU READ THE LYRICS OR LISTEN TO THE SONG before you take your guns to town. Think long and hard about the consequences.

Do you want to go away peacefully in the night or “die with your boots on”? Do you want to be judged by 12 or carried by 6?

“I have a very strict gun control policy. If there is a gun around, I want to be in control of it.”

—Clint Eastwood

“There are no dangerous weapons. There are only dangerous men.”

—Robert Heinlein

“A man’s rights rest in 3 boxes. The ballot box, the jury box, and the cartridge box.”

—Frederick Douglas

This is all very serious business, and when a shooting happens, many people may “beat the rap but not the ride.”

Ethics and the Law: Rudolph

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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, including Dinah Shore, Perry Como, Bing Crosby, and 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 our 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 perhaps struggles with 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 social 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, and 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.

In Texas, Santa has a longhorn named Rudolph that he uses to pull his sleigh. This sketch is courtesy of Sam Pelton.

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, court reporter (and 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:

I. 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 and the Law: The War Never Ends

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November 11, 1918, marked the end of World War I. History books tell us that the bells rang and the “war to end all wars” ended. No veterans of that war are living today, and there are very few civilians who were alive on the 11th month of the 11th day at the 11th hour of 1918. In 1938, legislation was passed in the United States declaring November 11 to be “Armistice Day,” set aside to honor those who served in World War I. Since 1954, November 11th is known as Veterans Day. Virtually every family has a legacy from wars that have occurred since, including World War II, the Korean “conflict,” the Cold War, Vietnam, the Gulf, the Iraq, Afghanistan, and other lesser known and ongoing operations.

Dave Hood was a farmer in Cooke County, Texas, when he was called to serve in the army in World War I to fight in the war to end all wars. Dave and thousands of young men went over the pond to fight for America. He was still there on the 11th hour of the 11th day of the 11th month when the war ended in 1918. He heard the bells toll and the people rejoicing that the war was over. He came back to Cooke County to continue his life. Dave was never the same. Cousin Dave suffered from what was then called “shell shock.” Dave self-medicated with alcohol. Truth be known, his drinking got so bad that his wife (while he was passed out on the bed) sewed the sheets together and beat him with a broom. Despite his wife’s inventive efforts to make him stop, it never worked. Veterans Day was always special to Dave. Dave would walk to my granddad’s farm, which was nearby, and ask my Aunt Fannie to bake him a chocolate pie. He did every November 11th until he left this Earth.

 

My Uncle Lowell, who served with General Patton in World War II, also came back from the war “shell shocked.” He had been in a tank attack when his tank exploded, killing several of his buddies in the tank. A day later, after being trapped inside with his fallen comrades, Lowell was rescued and taken to an Army hospital in France to recover. After eight months he was sent back to battle. When the war ended, he came back to Anson, Texas, where he spent the rest of his life shaken by the war, self-medicating with all there was around—alcohol.

Doctors and therapists know a lot more these days. Shell shock, as they called it in the old days, is Post Traumatic Stress Disorder, or now known as “Post Traumatic Stress.”

In my era, many of us enlisted or were drafted into the military. Some served in combat while others were held in reserve. Two of my closest friends served in the 101st Airborne Division in 1965 and 1966. Frank survived, graduated from college, and became a huge success. My other friend, Robbie, who enlisted at age 19, survived but suffered from PTSD. He was constantly plagued by memories of the war. He was in a unit called Tiger Force , in long-range recon patrol. Robbie would be dropped in to observe the enemy and report his findings to his superiors. Robbie was one of those young men who would cut off the ears of the enemy he killed and wear them as souvenirs. To say he returned a changed man is an understatement. Robbie died a couple of months ago. Although he was decorated with multiple Bronze Stars, he wanted NO part of a military funeral.

Every client has a backstory. Ethically, to zealously defend our client, we have to get that story—in addition to the facts of the offense that the State is trying to sell. Some clients are forthcoming with their story, while others are not. We have to DIG DEEP.

With our clients who served in the military, forget the “THANK YOU FOR YOUR SERVICE” cliché. SPEND THE TIME SHOWING THE VETERAN YOU CAN DO MORE THAN JUST TALK A GOOD GAME AND GET THEIR RECORDS. A FORMER employee of mine kept telling me she was calling everyday to get records on our client without success. In frustration, I stripped her of the assignment and actually reached the powers that be on the phone. The records were emailed to me within ten minutes.

All avenues must be explored for dismissal, a not guilty verdict, or for punishment mitigation. School records, medical records, and military records must be obtained. Military records are particularly useful because unlike medical records that are likely shredded after ten years, or school records that were stored in a warehouse that was destroyed by a hurricane, THEY ARE ACCESSIBLE.

Below is a website that advises you how to get military records:

Military.com
National Personnel Records Center
1 Archives Drive
St. Louis, Missouri 63138
Fax 314-801-9195
Phone 314-801-0800
https://www.archives.gov/veterans/

The instruction and information sheet for a request pertaining to military records can be found at this link: http://www.archives.gov/veterans/military-service-records/. Click on “Submit your request by MAIL or FAX using the SF-180 Form.”

Getting military records can make a big difference in a veteran’s life. The records may help you get a case dismissed. It may help you mitigate punishment in the event of a trial or a plea. Pick up the phone and call if you need adult leadership. If all else fails, call 314-801-0800 to talk to someone about the records. The people who work these requests are generally very helpful. If this information is confusing to you, simply Google “How to get military records.” You will be thanking a veteran for his service by getting the records and using those records to show a jury, prosecutor, or a judge what the veteran is made of.

The Ethics Committee boasts several lawyers who served in the military, including retired Colonel Jack Zimmermann (Marines, two bronze stars for bravery), David Shepherd (Army), Don Davidson, (Navy), Joseph Connors, (Marines), Joe Pelton (Army and Texas Army National Guard—Infantry Officer Candidate school at Ft. Benning, Georgia, becoming a second lieutenant at age 20), and Robert Pelton (Army and Texas National Guard).

* Original artwork by Sam Pelton, grandson of Robert Pelton, in honor of Veterans Day

Ethics and the Law: Silence Is Golden . . . Sometimes

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Keep your mouth shut. Don’t tell anyone else about it. It is part of an old proverb: “Speech is silver and silence is golden. Often the best choice is to say nothing.”

When your clients are the subject of criminal investigations, ethically you should warn them to keep their mouths shut and remain silent.

Your client needs to communicate with you, so it is better not to be silent with you. It is much better if you are not silent with your client. Silence may get you a grievance and a difficult client. All communications between the accused citizen and the lawyer are privileged communications. Many times the client will bring his wife, family members, or friends when the lawyer and client are communicating. Always advise the client of the privilege. Warn the client of the potential danger of his best friend or wife or husband or any other person suddenly becoming his enemy. If the client insists, write a simple note for the client to sign.

I, [client], waive the attorney/client privilege and permit my lawyer to communicate with my [spouse, cousin, friend, etc.]. My lawyer, [Robert Pelton], has advised me that there is a danger in doing this.

[Client]

Always tell your client not to discuss their case with anyone. If your client understands and signs this waiver, then you can discuss the status or answer questions. The client may not be able to fully explain what is going on, and family or friends may be able to help.

The hotline has received several calls from lawyers and or family members or friends, employees, seeking facts or the status of the case. Mothers worry about their children. When a crying mother, whose son has a lawyer, calls or comes to your office asking for your advice and wanting to know why the other lawyer won’t talk to her, explain the attorney/client privilege. We recommend you call the lawyer and advise the current lawyer of this event. The rules permit this. The lawyer may have good reason to hide information from that certain person. If there is no valid reason, then a simple explanation to the lawyer that he needs to get a waiver from his client so the lawyer can tell the crying mother or father what is happening on the case may help. A lawyer who is serious will not mind that.

Clients in jail get lonely and scared because many of them do not have many people who really care about them. Try to see the client who is locked up, and encourage people to visit the client. Send a letter to just check in if you cannot go to the jail.

You are bound by the Texas Code of Ethics. Talking in hallways or elevators can be disastrous. It has been reported that in at least one courthouse in Texas recording devices have been discovered in hallways and elevators. A police officer out of uniform was in the hallway in a Houston courtroom listening to the defendant talk with a friend about his case. Of course the officer told the prosecutor of the conversation, and it was very unfavorable to the client.

At minimum, when you have a trustworthy person worried about their loved one, get a waiver from the client to give information about what is going on with case and court settings.

Many clients do not take their cases seriously. They may think it is no big deal. Do not make promises you cannot keep. If the client is totally unreasonable, then the best option is to decline the case.

What will the outcome be? You cannot and should not talk about the case results until you have all the facts covered. Investigate the case. Go to the scene of the alleged offense. Talk to all the witnesses. Even after getting discovery, you will generally find more witnesses that law enforcement did not talk to. Law enforcement people want to close the case. In a recent capital murder case where our client was a gang member, the deputy talked about all the tattoos and what they meant. He was very familiar with our client’s life, but when asked about the shooters, he had no information. When he was asked why there was not an investigation on the two shooters, he said, “No prosecutor asked us to find out about them.”

You are ethically bound to investigate law and facts. Most times it is best to have an investigator talk to the witnesses first. Tape-record and memorialize in writing—then you can talk to the witnesses. You will end up being a witness if the individual who was interviewed claims you lied or misled them.

Sometimes the truth hurts. It hurts more if you have not done everything ethically to find facts that may help your client. Reach out to a fellow lawyer if you need advice as a second opinion.

Bobby Mims is now working very diligently and ethically to find facts that will help him in a capital murder case. Without doing what Lawyer Mims is doing, his client will suffer and his case will make bad law which others will have to deal with.

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