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Ethics & The Law - Page 5

Ethics and the Law: Nunca Sabes

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

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

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

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

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

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

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

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

Ethics and the Law: A Little Bit Crazy

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

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

Question

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

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

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

Response by Keith Hampton

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

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

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

Response by Michael Mowla

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

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

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

Ethics and the Law: To Be or Not to Be

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

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

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

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

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

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

Ethics and the Law: Fast Answers for Serious Business

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

Question

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

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

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

Brent Mayr Answer

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

Jimmy Ardoin Answer

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

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

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

Michael Mowla Answer

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

Ethics and the Law: Racehorse

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

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

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

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

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

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

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

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

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

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

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

He said, “I don’t know that Judge.”

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

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

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

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

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

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

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

 

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

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

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

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

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

By United States Marines.

Ethics and the Law: Hide & Seek

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

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

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

– Joe Connors III

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

– Keith Hampton

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

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

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

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

What remedies does competent ethical defense attorney have?

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

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

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

– Joe Connors III

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

– Larry P. McDougal

Motion from Larry McDougal can be found here.

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

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

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

– Joe Connors III

Ethics and the Law: Jim Skelton on Trial Experience

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

* * * * *

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

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

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

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

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

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

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

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

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

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

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

Ethics and the Law: Don’t Act Ugly II

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

My two cents to add to an already valuable article:

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

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

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

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 .

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