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Ethics and the Law: To Err Is Human

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One of my lawyer friends sent me the question: “What is ethics?” I wrote him an essay on what Aristotle, Socrates, Confucius, and even Gene Autry wrote about ethics, and that response will be presented in a future article. It sounds like an easy question to answer, but in reality it is not. Joe Connors sent me his ideas on the subject, which will be displayed later. The following response is from Raymond Fuchs, one of the Ethics Committee members.

Ethics is a code of conduct, applied by rules. In our case it is governed by the State Bar, it is often confused with morals, which is our personal standard of conduct, defined by our beliefs, not rules. One may be ethical and immoral, but one who has high moral standards will rarely be unethical. Our personal morals are much more important. They will guide us in all phases of life. Ethics will only guide us in the practice of law. Do unto others as you would have them do unto you, is a moral standard, but something well worth living by.

The phrase “to err is human” is often used as part of the longer phrase from Alexander Pope’s poem An Essay on Criticism: “To err is human; to forgive, divine.” The poem also states “a little learning is a dangerous thing,” as well as “fools rush in where angels fear to tread.” It is estimated by the U.S. Institute of Medicine that 440,000 people die each year as a result of preventable medical errors. Preventable medical errors in hospitals are the third-leading cause of death in the U.S. Only heart disease and cancer kill more Americans. The journal of Patient Safety recently published a study that as many as 440,000 people die each year from preventable medical errors in hospitals. The new research followed up on a study done 15 years ago that estimated 98,000 died from preventable error.

Google to err is human and you will find that this phrase is used most as it relates to errors made in the medical system. Go to Methodist Hospital in Houston where Dr. Marc Boom is the CEO and you will find he does everything humanly possible to minimize any errors there. He is the leader of an organization of 17,000 people. Dr. Boom makes sure his employees are trained in a way to not make mistakes. Dr. Michael DeBakey, who was the top doctor at Methodist Hospital, once asked a resident who did not know the details he should have known about a patient, “Are you stupid or do you just not care!?” The resident, knowing what would happen if he said, “I do not care,” said “I am stupid,” to which Dr DeBakey replied “Why is it that I am always right?”

If courthouses were run the way Dr. Boom runs Methodist Hospital, they would be a much better place. If lawyers were trained the way Dr. DeBakey trained doctors, there would be fewer mistakes made by lawyers. Yes, it is not a perfect world, but when you are dealing with a client’s life all measures need to be taken ethically to defend your client. Return the calls, go to the jail, and keep your client advised. Prepare your case by getting a file set up with the indictment or information, a copy of the penal code section that relates to your case, a copy of the punishment options, and a copy of the jury charge if your client goes to trial. Also get a complete history of your client and get your client to sign a waiver of attorney-client privilege if there are trustworthy family members or friends who can help. Warn your client that wives and girlfriends can turn out to be his worst enemy, and get a waiver if your client wants you to share his case information with them. The hotline is now starting to get calls from citizens complaining about their lawyers, the prosecutor, and the judge.

Do not back down from abusive judges or prosecutors. Make sure the court reporter is taking down what they are saying. Remember they are not on our team. We know that innocent people are locked up by unethical actions of prosecutors and judges who coach them. We also know people are locked up because of legal errors.

How many legal errors result in citizens being convicted or placed on some type of probation? Do your best to make sure you are not one of the statistics. Go back and read the oath you took when you became a lawyer, and report unethical behavior of judges, prosecutors, and other lawyers. It is a tragedy when innocent human beings end up in prison, on death row, or on some form of probation. History has proven that innocent people have been put to death in legal systems because of neglect or corrupt actions by people in our legal system.

“To forgive is divine” is easy to say but hard to do. Forgiveness is great but do not forget it does not rectify what wrong has been done. Hindu followers believe in karma. Try to have good karma and come back as a butterfly rather than a roach or maggot.

We have the statistics on people dying from medical errors. How many people—because of legal errors, or “I am just stupid,”  as the resident told Dr. DeBakey—end up getting convicted, getting placed on some form of probation, get sent to jail or prison, get executed, lose their jobs and families because of legal errors? How many are legal errors or the result of unethical actions by the judge or prosecutor?

Report unethical behavior of prosecutors and judges or fellow lawyers . . . We are dealing with human lives in a different way than people in the medical profession, but the consequences of bad things that happen in our courts are terrible. Do everything ethically you can for your client even if the coordinator is complaining about resets, even if the judge wants to move his docket, and even if the prosecutor is pushing you. It is you that will be fading heat, not them. When a prosecutor does not ethically comply with discovery rules, is it because they are stupid or just do not care? Remember to tell your client: “Never discuss your problems with someone who cannot solve it. Silence can not be misquoted.”

Ethics and the Law: ’Twas the Week Before Christmas

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In the spirit of the Christmas season and to remind our members never to give up on any motion, we want to share this motion with you and discuss some points on Motions for Continuances in State court. In the case of this motion, three other motions had already been filed and denied. In an act of frustration and desperation, we filed this one below, which was granted. In the motion, only the defendant names and case number have been changed. This has been published previously, but for those who may have missed it, I hope it brings a smile to your face at the end of a hard-fought year for your clients.

Epilogue: Once this motion was granted, it gave us sufficient time to complete our preparation of the case in a proper manner. Because we had additional time, we were able to adhere to our duty-bound ethical oath: to zealously defend our client. Facts helpful to the defense are always hidden at the bottom of the well. That digging takes time and tenacity.

Time is the most valuable commodity to lawyer. Abraham Lincoln said, “A lawyer’s time and advice are his stock in trade.” If time is used wisely, our clients benefit. We all need time to work on our cases and explore all possible defenses or punishment options. We never have enough time.

On the flip side, judges and prosecutors want to move the docket. Prosecutors’ caseloads are huge and the statistics of open cases in their court are ever present on the mind of our judges. As defense counsel, we must be the gatekeepers to ensure our clients receive their right to effective assistance of counsel based on a thorough investigation of the facts. Without those facts our client cannot make his or her decision to move to trial or prepare for mitigation. This takes time. It is your job to get that time.

One Harris County judge who has since departed bragged that if a judge was still in court after 12 noon, he was not doing a good job. I was in court the day he made the statement to a local television reporter named Wayne Dolcefino. I told the judge to remain silent; but he like many let his alligator mouth override his hummingbird ass. It was on the 6 o’clock news. He told me the next day he would listen to me the next time. The next time never came because he was defeated in the next election and his comments made great propaganda for his opponent. An arbitrary “rocket-docket, move-it-along mentality” goes against the grain of our justice system to the detriment of the citizen accused.

All lawyers know that a continuance usually works in favor of a defendant, but it is routinely used by the defense as well as the state in accord with Article 29.03 of the Texas Code of Criminal Procedure.1 By and large, most continuances are reached by agreement with the State. When necessary, a well-drafted Motion for Continuance should contain exhibits. If the exhibits involve personal or confidential information, request an in camera inspection by the judge in your motion. Never underestimate the power of demonstrative exhibits. A picture is worth a thousand words. Don’t be shy. In the event your motion is objected to, and a controverting motion is submitted by the state, pursuant to Article 29.09 of the Texas Code of Criminal Procedure, your motion and your exhibits must stand alone to win the day. Do not rely on a stellar oral argument to get you by. Article 29.10 makes it clear the testimony shall be made by affidavit. If the continuance has become the 800-pound gorilla in the courtroom, use technology readily at hand. It is amazing how fast a motion for continuance will be granted when you have a photo of a swollen, bruised, battered or bleeding body part.

Happy holidays and best wishes for the new year.

Ethics and the Law: In God We Trust—All Others Cash

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Many stores and service businesses have signs that read “In God We Trust—All Others Cash.” This was a common phrase used by merchants in the early decades of the 20th century. It was the title of a book written in 1966. Growing up in Abilene, which had many small businesses, I often saw this sign in the window and by the cash register. These business owners had been the victims of bad checks, people who refused to pay their bill, phony money orders, cashier’s checks, and other deceptive ways of not paying their bill for goods or services. There were always people who wanted to run a tab, write a post-dated check, or tell my Dad, who had an auto repair shop, “I will pay you on Friday after I get paid.” Some must have forgot about Friday because one wall was lined with post-dated checks, hot checks, IOU statements, returned mail, and bills which were going to be “Paid on Friday.”

When lawyers sign on to a case and then do not get paid, they have a real problem. The client is going to have a million excuses for not paying. From an ethical standpoint, the lawyer must ask himself: Should I withdraw? Then the case is brought to the attention of the judge, and that will not be good for the client already accused of a crime. Or the lawyer can ask himself: Should I stay on the case and work for free? Many times lawyers do this because when they withdraw it is amazing how fast they fall from the good graces of the client and trigger an unfounded grievance. We receive many calls on the ethics hotline dealing with this issue.

Unless you are independently wealthy, you may want to consider doing what worked for Percy Foreman and Racehorse Haynes. Both made statements that one of the hardest things about being a criminal defense lawyer was getting paid. Both were very good at getting paid. My hero, Racehorse, has a closet filled with ostrich-skin boots and a Rolls Royce in the driveway. At the time of Percy’s death, several million dollars’ worth of bearer bonds were found in a coat hanging in the closet of the hotel room he kept in downtown Houston.

Within a few months of moving to Houston I attended a social function for a judicial candidate where Percy was the guest speaker. He warned a group of us who were law students that if we were entering the profession with the intent of making money, we were barking up the wrong tree. He said if we concentrated on doing a good job for our future clients, we would be rewarded for our work. Percy said that part of his clients’ punishment was paying his fee. Percy would take jewelry, appliances, cars, real estate, and various and assorted sundry for his fee. One of the last times Percy spoke in public before he went to lawyer heaven he said, “I am worth billions, but all I have is a few lousy million.”

When taking property in lieu of money, be wary… and make sure the property is not stolen, does not belong to another family member, is paid for, and is free of liens. At the time, getting a condo on Lake Conroe sounded like a great idea to me until I realized the maintenance fees were several hundred dollars a month. Wouldn’t you know, the client forgot to tell me that the fees were about two years past due. The condo was finally sold for enough to pay the maintenance fees, which resulted in no fee for me.

The practice of law has changed greatly since the days of Percy Foreman. Back then, there was no advertising. You would not see lawyers on television or the internet jumping on cars, crushing cars, or bragging about how many cases they had won or for how much money they had settled a case. The Yellow Pages used to be filled with full-page ads touting the skills of the advertising lawyer. Now techno-geeks extract big money from lawyers with claims of bigger and better websites and top-ten Google search results. Crooked outfits solicit lawyers to be published as part of the “top 10 lawyers in the state.” All it takes is a check. Supposedly this group is the subject of a state bar investigation. Bobby Mims has called it a hoax and so have many others. There is apparently no peer review. Lawyer Mims agrees with me that the best source of business is lawyer referral or past client referral.

Ethical rules were made for a reason. In a recent state bar video about Barratry, which can be found on the state bar website, the second speaker in the program nails the essence of Barratry on the head—CHEATERS. Cheaters are people who place misleading ads and hire runners to solicit cases. Penal code sections 38.12, and 38.01 discuss Barratry and the proof necessary for convictions. Rule 8.04 of the Texas Disciplinary Rules of Professional Conduct further discuss these issues.

Get your client ethically, not with promises, runners, bribes, deals with bail bond companies, or other unethical means. No case, no client, and no amount of money is worth losing your profession, your dignity, and your freedom. Get your agreement in writing, and send a letter of acknowledgment of the agreement. Look at past issues of the Voice online to get examples of acceptable employment contracts.

The road to hell is paved with good intentions. What sounds like a good deal today is a nightmare tomorrow. Lawyers have to eat too and take care of families, house payments, car payments, insurance payments, and many other things, maybe even a vacation if they are lucky. All lawyers worked long and hard to get through school. They do not send out mail-order law degrees. Remember this when the client wants to pay $100 a month. Unless you are independently wealthy, you must be paid. Never forget: In God We Trust—All Others Cash.

Ethics and the Law: Just Keep on Pickin’

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My cousin, Joe Hood, recently died after living his entire life in Cooke County, Texas. Cooke County was, and remains to this day, a rough area for law breakers—or outsiders, for that matter. During the Civil War, Cooke County dealt with many a Union sympathizer by the end of a hangman’s noose.

Cousin Joe, who could play everything from a banjo to a piano and in between, had a band that played on weekends in and around Cooke County. The band performed at many functions and dances. Some functions were attended by teetotalers, and others were packed with those that were “known to have a social drink on occasion.” During one of the dances with beer bottles flying, gunfire erupting, and a stabbing thrown in for good measure, a band member asked Joe, “What are we going to do?” Without missing a beat, Joe replied, “JUST KEEP ON PICKIN’.”

When you feel the burdens of being railroaded or when government lawyers or hostile judges are about to do you in, “Just keep on pickin’.” Call for help from other TCDLA members. The practice of law has changed much in the past years since TCDLA was formed, but concepts have remained the same: Educate lawyers who practice criminal law, and form relationships with those who have common goals. Word of mouth is still the best way to get clients.

Advertising and tort reform changed the way many older lawyers practiced law. Some ads border on ads run by snake-oil salesmen. In Houston, lawyers send out mail outs to all persons arrested. The ads brag about winning cases, knowing the judges and prosecutors, payment plans, and more. Some let their alligator mouth overload their hummingbird ass.

It is election time for judges, and some have gotten carried away in their comments about being tough on crime. Those that do need to read the oath they took to be a judge. If you run into a judge who you believe needs to be recused, there is an example you can use that is included online in this article, along with a Motion for a PR Bond if the situation deteriorates to the point where a lawyer is held in contempt.

Remember, being a lawyer is a profession. It is a high calling, and there are many times where you can actually make a difference, and by your hard work change the path and future of your client. Encourage clients to go to church and to get involved in positive activities. Assess up front if you have a defense, and if so, start digging. If you believe you are only dealing with punishment, then start building a foundation to explain the conduct and try to mitigate the punishment. Get releases so you can get school records and medical records. Even the worst amongst us have generally done something positive in their lives. Get your client’s life history and letters of recommendation for your client. Always tell your clients to be up front with the people writing those letters so they know the client has a criminal accusation pending. NA/AA meetings or counseling are crucial. Document, document, document your file. If your case does not end well, you can have a record to show the grievance committee or have evidence to show if a writ is filed against you. When a client turns down a plea offer, get the client’s declination in writing. If he gets 40 years rather than the 5 he was offered, you will be able to show what happened.

If you have a “Cool Hand Luke” client, get another lawyer to help you discuss the case with your client. Sometimes it takes a village to effectively communicate with a client.

Reach out for help if you need it. Call Rick Waldroup in Lubbock if you need help on a capital case, or call the hotline if you need an ethics checkup.

After a recent investigation, I discovered the number of misdemeanor defendants who pled on the first setting in Harris County. There are only a few times an accused citizen should plead on the first setting: 1) If you know there is something bad the state will find out about if you wait; and 2) if you are 100 percent sure the state can make the case. Otherwise, do not plead a case on the first setting. Do not bow to the pressure of the rocket docket judges. Remember the oath you took when you were excited and became a lawyer. It is you, not the judge, fading the heat when you are on the receiving end of a writ and/or grievance because you pled the client out with no investigation. Sitting in the defendant chair in a malpractice case or before the disciplinary committee is worse than undergoing simultaneously an IRS audit and root canal with no anesthesia.

Tools of the Profession:

  1. Motion for PR Bond;
  2. Put the hotline number in your cell phone: (512)646-2734;
  3. Keep a copy of the criminal procedure and penal code in your briefcase;
  4. Get a summary sheet from TCDLA that shows a summary of offenses and lesser included offenses and objections;
  5. Present evidence to the grand jury when it is warranted;
  6. Always get copies of complaint, information, probable cause document, search warrant, and affidavit. Many times mistakes in the documents can help win a case;

Remember: No matter how bad it may look, “Just keep on pickin’.”

Ethics and the Law: Leaving with a Clean Slate

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Toby Boyer, Houston lawyer, told me he wanted to leave this world with a clean slate. Toby knew the end was near, and we tried to help him get his affairs in order. He continued going to court to take care of his clients almost to the day he left this world. A case I was helping him with in another county could not be resolved easily, so Toby said he wanted to give back the fee. I tried to get Toby to keep part of the fee and he said, “No, I want to leave this world with a clean slate.” Not many would have done that, but the client got all his money back.

When we’re leaving this world, announced or unannounced, there are some ethical issues involved. What happens to the client? What happens to the fees? Another lawyer friend died unannounced, and it was amazing how many of the clients said they had paid the fee in full. The lawyer’s partner called the hotline regarding the dilemma. He too was an honorable man, and he stayed on all the cases and received no money since the clients had “paid the full fee.”

When shutting down an office, please refer to the Texas Rules of Disciplinary Procedure. Rule 13.01, Notice of Attorney’s Cessation of Practice, states:

When an attorney licensed to practice law in Texas dies, resigns, becomes inactive, is disbarred, or is suspended, leaving an active client matter for which no other attorney licensed to practice in Texas, with the consent of the client, has agreed to assume re­sponsibility, written notice of such cessation of practice shall be mailed to those clients, opposing counsel, courts, agencies with which the attorney has matters pending, mal­practice insurers, and any other person or entity having reason to be informed of the cessation of practice. If the attorney has died, the notice may be given by the personal representative of the estate of the attorney or by any person having lawful custody of the files and records of the attorney, including those persons who have been employed by the deceased attorney. In all other cases, notice shall be given by the attorney, a person authorized by the attorney, a person having lawful custody of the files of the attorney, or by Chief Disciplinary Counsel. If the client has consented to the assumption of responsibility for the matter by another attorney licensed to prac­tice law in Texas, then the above notification requirements are not necessary and no further action is required.

Charles Thompson, Houston lawyer, has contributed the following, proposing the adoption of a new rule in Texas to aid us all when the day or night comes that we call it quits, announced or unannounced:

A CALL TO ACTION:
Texas Should Adopt ABA Model Ethics Rule 1.17

Many solo practitioners are stunned to learn that you (or your estate) cannot ethically sell your law practice in the State of Texas. Any other profession in the Texas can obtain compensation for the goodwill that has built up over the years of practice. Doctors can, dentists can, accountants can, and lawn-service firms can. All but four states allow for the sale of a law practice. Alabama, Louisiana, and Kansas are the other states that don’t allow sales.

This prohibition becomes a particular hardship when a solo practitioner suddenly dies. There are many ways to skirt the prohibition on sales if both lawyers are living. The “seller” and the “purchaser” can form a partnership where both attorneys are “responsible attorneys” for all the clients’ files, the “buyer” makes a contribution to the partnership, then the seller retires and receives compensation pursuant to the retirement. DR 1.04(h) states that payments are not prohibited to a former partner or associate pursuant to a separation or retirement agreement. But if an estate is involved, the issue becomes quite tricky.

I know this from personal experience. My father was a general solo here in Houston. I had practiced for about a year in the Dallas area because I wanted to “make it on my own.” I was an associate in an insurance defense firm. I was objecting to interrogatories when I got the call that my father had died of heart attack. I suddenly had to handle and eventually close a going law practice while grieving. I do not feel I was able to realize the maximum value from my father’s practice.

DR 1.05(a) makes it impossible to disclose the information needed to properly value a law firm. A lawyer is also prohibited from soliciting the clients of the deceased attorney. DR 7.05.

ABA Model Rule 1.17 would fix this oversight. This rule permits the sale of a law practice, including its goodwill. The rule is as follows:

RULE 1.17 SALE OF LAW PRACTICE

A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if the following conditions are satisfied:

(a)   The seller ceases to engage in the private practice of law, or in the area of practice that has been sold, [in the geographic area] [in the jurisdiction] (a jurisdiction may elect either version) in which the practice has been conducted;

(b)   The entire practice, or the entire area of practice, is sold to one or more lawyers or law firm;

(c)   The seller gives written notice to each of the seller’s clients regarding:

(1)  the proposed sale;
(2)  the client’s right to retain other counsel or to take possession of the file; and
(3)  the fact that the client’s consent to the transfer of the client’s files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice.
 If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file.

(d)   The fees charged clients shall not be increased by reason of the sale.

It is time that the widows and widowers be compensated for all your hard work upon your death. This rule (or a variation) needs to be adopted by the State Bar.

Remember none of us get out of here alive. None of the lawyers working with me are afraid of dying; we just don’t want to be there when it happens.

Ethics and the Law: With Liberty and Justice for All

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These as we all know are the last words to the Pledge of Allegiance to the Flag of the United States of America. Those who deny freedom to others do not deserve it for themselves. Lawyers continue to get into trouble. One former lawyer in Houston was sentenced to 40 years for stealing $9 million from his employer, and a lawyer in San Antonio was sentenced to 10 years for padding her pay vouchers. The DA investigator in the Houston case was caught selling the contraband involved and was prosecuted. The fox was guarding the henhouse. Prosecutors continue to hide evidence, as evidenced by a Harris County case involving a prosecutor who failed to disclose evidence. If police and prosecutors do their jobs honestly, they can get a majority of convictions, but they continue to lie.

A recent former member of the Harris County Criminal Lawyers Association and Texas Criminal Defense Lawyers Association stayed on the listserves after he went to work as an Assistant DA in Liberty County. On the listserves, he read emails about a pending case. Robb Fickman gathered a volunteer group and went to Liberty, Texas, to seek liberty for the unfortunate soul in that criminal case. Lawyer Fickman took about 15 lawyers, and their presence in the courtroom was noticed by the judge and prosecutor in question.

Paul Looney, the Houston/Hempstead lawyer, won a Franks hearing where a search warrant affidavit was filled with lies. Do not trust the prosecutors. Do your own investigation. Remember that your client is the most important person. Do not play grab-ass with the judge and prosecutor. Do not disclose your case to the prosecutors. It is amazing how fast they can correct the problem if you tell them what is wrong with their case. Running your mouth can cause many problems and end up hurting your client. Unfortunately, many lawyers—to get favor with their pals in the DA’s office—run and tell the prosecutors what is on the listserve. Bragging about what you can do will have disastrous results if your client goes away for a long time. DO NOT LET YOUR ALLIGATOR MOUTH OVERRIDE YOUR HUMMINGBIRD ASS. Be realistic with the client. Show all documents to your clients so that they know you are working on the case. You can be brilliant and do brilliant work, but you must send copies to your client so that he will know. This will avoid many grievances.

After meeting and talking to Michael Morton and Anthony Graves several times, I have to wonder about what goes wrong in our JUSTICE system. A crooked prosecutor who became a judge and crooked law enforcement is what goes wrong. Experienced honest police officers will tell you that if they and prosecutors do their job right, then the system will work like it should; when a judge looks at a prosecutor before he makes a ruling or decision, the system is not working right. This happens every day in courtrooms in Texas and other states.

Be prepared, know your client, and be professional when in court. If you see bad behavior, be like Charles Goodnight, the man on whom the book and movie “Lonesome Dove” was based. He said that he did not like rude behavior in a man and would not tolerate it. He didn’t and we shouldn’t. File a complaint as described below. If you need help call Robb Fickman in Houston. He knows how to get it done. If you see a lawyer doing wrong, report it as prescribed below.

Lawyer Anne Ritchie, who is on my legal team, followed her oath while in the Navy and is following it now as a lawyer. She is one of the smart lawyers in our group, and she has set out below the rules to follow. Lawyers across the state continue to complain about bad treatment by judiciary. If the complaints are legitimate, then this article may help you get some relief. Make sure you are doing your job properly. Be on time, file your motions on time, have your client to court on time. Prepare a memo that tells your client’s life history so that when the judge asks you about your client you will be able to do something besides just stand there and scratch. Many judges do try to do the right thing, and the info about your client can be helpful. When the prosecutor says that defendants all have excuses, they are all the same, be prepared to show that, no, they are not the same—MY CLIENT IS DIFFERENT. Get photos, school records, any awards, and other things. Get releases signed by the client to get all records. You will be amazed at the results when you show the prosecutor a well-written memo about your client.

Then, if after all your proper behavior, you get bad behavior, file a complaint.

Texas Disciplinary Rules of Professional Conduct Rule 8.03 (Reporting Professional Misconduct) provides the following:

(a)   Except as permitted in paragraphs (c) or (d), 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)   Except as permitted in paragraphs (c) or (d), 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)   A lawyer having knowledge or suspecting that another law­yer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental ill­ness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyer’s report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b).

(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.

Tex. Disciplinary R. Prof’l Conduct 8.03 (1994), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (West 2013) (State Bar Rules art. X, § 9).

The appropriate authority mentioned in Rule 8.03(b) is the State Commission on Judicial Conduct. The Commission has jurisdiction over almost 4,000 judges across the state of Texas. State Comm’n on Judicial Conduct, Fiscal Year 2013 Annual Report, at 15 (2014) (available at http://www.scjc.state.tx.us/pdf/rpts/AR-FY13.pdf) (hereinafter FY13 Report). The Commission is not governed by the Texas Public Information Act, the Texas Open Meetings Act, or the Texas Administrative Procedures Act. Id. at 2.

One peer review program, as referred to in Rule 8.03(c), is the Amicus Curiae Program, which is available to all judges, whether or not they are attorneys. The program “helps locate resources and identify and treat impairments that may be affecting . . . judges’ personal lives and their performance on the bench.” Id. at 13. The Amicus Curiae Program was originally funded by the Texas Legislature, then the Court of Criminal Ap­peals, but since 2005 has had no funding. Id. at 13. It would be in the best interests of the members of the State Bar of Texas for that organization to provide some funding for the Amicus program since having mentally healthy judges on the bench is of benefit to all attorneys.

Should a lawyer know that a judge has violated a rule of ju­di­cial conduct “that raises a substantial question as to the judge’s fitness for office,” the lawyer has a duty to report that judge to the Commission. Tex. Disciplinary R. Prof’l Conduct 8.03(b). A complaint must be in writing; fax and email complaints are not accepted, but it may be made anonymously. A form for the complaint is available at www.scjc.texas.gov. The Commission may also initiate its own complaint based on media, court documents, the internet, or other sources. FY13 Report at 7. After its investigation, the Commission may make a decision of one of the following types:

  • Administrative Dismissal Report: This happens when the complaint fails to state an appropriate allegation.
  • Dismissal: This includes cases of insufficient or no evidence of misconduct, cases where the judge took appropriate remedial actions, and cases where there may be a problem, but it is not sanctionable.
  • Order of Additional Education: This may be ordered alone or as part of a sanction.
  • Private or Public Sanction: This happens when sufficient evidence supports a finding of judicial misconduct.
  • Suspension: A judge may be suspended after being indicted by a grand jury for a felony, or if charged with a misdemeanor involving official misconduct.
  • Voluntary Agreement to Resign: The judge may decide to re­sign in lieu of disciplinary action.
  • Formal Proceedings: These are reserved for particularly egre­gious complaints. The Commission may conduct a hear­ing or ask the Supreme Court of Texas to appoint a Spe­cial Master to hear the matter.

Id. at 9–10. Any order of additional education, public or private sanction, or public censure may be appealed to a Special Court of Review specially created by the Supreme Court of Texas. Id. at 10.

As attorneys, we do not want to cast aspersions on the ju­di­cial system on which we all rely, but sometimes, for the good of that same system, a complaint of judicial misconduct is necessary.

The complaint process is graphically illustrated by the following chart, provided by the Commission:

Ethics and the Law: Be Ye Kind One to Another

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Since the beginning of time, leaders and scholars have tried to encourage people to get along and cooperate with each other for the common good. As we all know, there have been wars and rumors of war since the beginning of mankind. We supposedly live in a sophisticated society, but things have changed little. Lawyers were once leaders and role models for the citizenry but now have digressed in to what some people think are nothing but shysters preying on clients. As we go about our job of representing people of all kinds, it is always better to take the high road and try to do what is right in the eyes of the world. Recently in a high-profile and hotly contested trial in Houston, the judge, in an attempt to bring civility to the lawyers, brought them to the bench and made them read the lawyers creed.

THE TEXAS LAWYER’S CREED
A MANDATE FOR PROFESSIONALISM
Promulgated by
The Supreme Court of Texas and the Court of Criminal Appeals
November 7, 1989

I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.

I. OUR LEGAL SYSTEM

A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

1.  I am passionately proud of my profession. Therefore, “My word is my bond.”
2.  I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.
3.  I commit myself to an adequate and effective pro bono program.
4.  I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.
5.  I will always be conscious of my duty to the judicial system.

II. LAWYER TO CLIENT

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client’s legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

1.  I will advise my client of the contents of this creed when undertaking representation.
2.  I will endeavor to achieve my client’s lawful objectives in legal transactions and in litigation as quickly and economically as possible.
3.  I will be loyal and committed to my client’s lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.
4.  I will advise my client that civility and courtesy are expected and are not a sign of weakness.
5.  I will advise my client of proper and expected behavior.
6.  I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.
7.  I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.
8.  I will advise my client that we will not pursue tactics which are intended primarily for delay.
9.  I will advise my client that we will not pursue any course of action which is without merit.
10.  I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client’s lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.
11.  I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

 

III. LAWYER TO LAWYER

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer’s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

1.  I will be courteous, civil, and prompt in oral and written com­munications.
2.  I will not quarrel over matters of form or style, but I will con­centrate on matters of substance.
3.  I will identify for other counsel or parties all changes I have made in documents submitted for review.
4.  I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.
5.  I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled.
6.  I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.
7.  I will not serve motions or pleadings in any manner that unfairly limits another party’s opportunity to respond.
8.  I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.
9.  I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.
10.  I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.
11.  I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel’s intention to proceed.
12.  I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.
13.  I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
14.  I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
15.  I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
16.  I will refrain from excessive and abusive discovery.
17.  I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.
18.  I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.
19.  I will not seek sanctions or disqualification unless it is necessary for protection of my client’s lawful objectives or is fully justified by the circumstances.

IV. LAWYER AND JUDGE

Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

1.  I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.
2.  I will conduct myself in Court in a professional manner and dem­onstrate my respect for the Court and the law.
3.  I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.
4.  I will be punctual.
5.  I will not engage in any conduct which offends the dignity and decorum of proceedings.
6.  I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.
7.  I will respect the rulings of the Court.
8.  I will give the issues in controversy deliberate, impartial and studied analysis and consideration.
9.  I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

ORDER OF THE SUPREME COURT OF TEXAS AND THE COURT OF CRIMINAL APPEALS

The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system.

        The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients, and demeaning to our profession.

        The abusive tactics range from lack of civility to outright hostility and obstructionism. Such behavior does not serve justice but tends to delay and often deny justice. The lawyers who use abusive tactics instead of being part of the solution have become part of the problem.

        The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.

        These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.

        We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.

        The Supreme Court of Texas and the Court of Criminal Appeals hereby promulgate and adopt “The Texas Lawyer’s Creed—A Mandate for Professionalism” as attached hereto and made a part hereof.

Ethics and the Law: Black Bart or Black Robe

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I’ve labored long and hard for bread,
For honor, and for riches,
But on my corns too long you’ve tread,
You fine-haired sons of bitches.

—Black Bart, 1877 California Stage Coach Bandit

Bart was one of those men who got fed up with crooked judges, sheriffs, lawyers, prosecutors, and other people who were supposed to be honorable.

My friend and colleague, Steven “Rocket” Rosen, has a sign that says, “If assholes had wings, this place would be an airport.” Rocket wanted to post it on the courthouse door in Houston, but I told him that was not a good idea. We talked about the stress that can be felt upon entering the building. Sometimes long lines of accused citizens and their families are standing in the rain waiting to go through the metal detector to enter the Harris County Courthouse. Law enforcement and ambulances are taking people away. Police are arresting disorderly family members crying and screaming in the hallway. This just adds more unnecessary stress.

Some lawyers refuse to get a badge that allows entrance to the courthouse. Rocket asked me to write about the stress and confusion lawyers encounter when doing their job. Rocket also has a sign hanging in his office that says: “You don’t have to be crazy to work here, but it helps. Remember, we are all fighting some kind of battle.” Most lawyers try their best to defend their client. The odds against the citizens accused are overwhelming. That is why all members need to be ready, willing, and able to help each other.

Mr. Richard “Racehorse” Haynes says the “e” in email stands for “evidence.” Now the “t” in texting can stand for “trouble.” A third-generation judge has left the “throne” because of texting a prosecutor during a trial. There are rumors about this not being an isolated incident. What happened to honor and integrity? Abe Lincoln and Clarence Darrow would be turning over in their graves if they saw the unethical behavior in some of our 254 counties. Whispers and meetings, if ex parte, need to be reported—as was the one with the texting judge. As a lawyer for some of the judges in Harris County said, “It was a perfect storm of stupidity.” The judge in question violated Judicial Canon 2A, which states, “[a] judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The actions of the judge are of the type that bring public discredit on the judiciary and on the legal profession in general.

Contrary to what the public believes, lawyers are humans too. Until they need the services, citizens complain about law enforcement, doctors, and lawyers. Then we all become very important. Lawyers used to be looked up to, as many of the leaders in the community were doctors and lawyers. Crooked dealings by lawyers, judges, prosecutors, and law enforcement have eroded public trust in the legal profession. Politicians who speak, as the celluloid Indians say, with a forked tongue are close to the bottom of public trust. Used-car salesmen are no longer at the bottom of the list. When judges get caught texting the prosecutors during trial, they are setting a bad example for those dedicated souls who go to work every day to help accused citizens who have made a mistake or been wrongfully charged.

Men and women suffered and died to uphold our Constitution. Be they judges, prosecutors, or defense lawyers, when lawyers are unethical, such behavior dishonors all those dear souls who fought to make America the Land of the Free and Home of the Brave. No one is perfect and we all make mistakes, but cheating when human lives are at stake is an unpardonable sin.

Which is worse, Black Bart who took money or a Black Robe who can take Freedom?

If you need help or find the walls closing in on you, you can call the HCCLA ethics hotline at (713) 518-1738 or the TDCLA ethics hotline at (512) 646-2734. Also available to you is the Texas Lawyers Assistance Program. Their number is (800) 343-8527.

Ethics and the Law: Behind Closed Doors

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Ex parte communications are out of hand. In response to many complaints about ex parte communications, the Harris County Criminal Lawyers Association (HCCLA) sent a letter to First Assistant District Attorney Belinda Hill (below). In response, she sent out a memo to all the prosecutors (following the letter). This is a first, and lawyers all over the state need to share this with other prosecutors and judges.

The lawyer for the Texas Judicial Commission has told me that they receive few complaints about ex-parte communications because they are hard to prove. Some Houston lawyers have taken steps to correct this problem. Todd Dupont, President of HCCLA, at the urging of many of the members who have witnessed this unethical behavior, wrote a letter to First Assistant Belinda Hill regarding this ongoing problem. The letter and her response are included in this article. It is a sad state of affairs when prosecutors and some members of the judiciary continue to violate the rules of ethics. It is commonplace and part of standard procedure in many of the 254 counties in our state. It is a serious problem and affects lawyers, accused citizens, and the core of the criminal justice system. As this article is being written, complaints are being considered by several lawyers and criminal lawyer associations in the state against prosecutors and judges for violating the Judicial Code of Conduct and violating the oath taken by prosecutors. When freedom is at stake, there should be no room for misbehavior on the part of prosecutors, judges, or defense lawyers.

HCCLA Letter:

Hon. Belinda Hill
First Assistant District Attorney
1201 Franklin Street Suite 600
Houston, Texas 77002

Dear Judge Hill:

Recently the leadership of the Harris County Criminal Lawyers Association has received several complaints about ex parte communications between Harris County judges and Assistant District Attorneys.

Often these communications are about scheduling matters. HCCLA members complain about prosecutors and judges discussing which trials will go on Monday versus which will not. The prosecutor gains a unique advantage in these communications because he or she may properly prepare for certain trials while effectively ignoring last-minute trial preparation in other cases. The defense attorney then spends countless hours preparing over the weekend for a trial that everyone else (judge, court staff, and prosecutor) knows is not actually going to be tried but rather rescheduled. It has been reported that a defense lawyer had expressed an intent to file a motion for continuance to the prosecutor who then “presented” this fact before the court during a “scheduling conference” wherein the judge denied the motion while discussing the case scheduling with the prosecutor ex parte.

There are also examples of more substantive ex parte communications between prosecutors and judges. It is not at all uncommon for prosecutors to get expert designation orders and other orders signed ex parte. One felony judge is known to give suggestions in the back hallway to “his” chief prosecutor on how subordinate prosecutors can do better in ongoing trials.

For as long as any of us have practiced there have been improper ex parte communications between bench and bar in Harris County. HCCLA’s interest is not in punishing past transgressions, but in eliminating the practice. To that end, we write to seek your help in changing this culture.

Many of our members and board members are former Harris County prosecutors; we are not unmindful of the pressure on prosecutors not to rock the boat with judges before whom they appear every day. HCCLA will do its part to educate the bench and discourage it from seeking ex parte communications. Likewise, HCCLA’s leadership will discourage the defense bar as needed to delegitimize ex parte communications from either side.

We ask that you educate the prosecutors in your office, and discourage them from talking about cases with judges without the defense present, even where that conversation is about the scheduling or priority of trial cases.

I welcome your comments, especially on other examples that should be included. I’d like to have a final draft for the board meeting on Thursday so that we can vote up-or-down on it.

Sincerely,
T. B. Todd Dupont II
President
Harris County Criminal Lawyers Association

cc: Harris County Criminal District Court Judges
      Harris County Criminal Court at Law Judges

Memo from Belinda Hill to prosecutors:

Recently, we have received some complaints from the defense bar about improper ex parte communications occurring between prosecutors and judges. Whether these complaints are true or not, this is a good opportunity to remind you of the rules governing ex parte communications with the courts in which you practice.

Don’t do it. Don’t do it. Don’t do it.

Scott Durfee prepared a memo listing all the reasons why we should not engage in ANY ex parte communication with the judge.

Here’s why:

• It may be a crime. Section 36.04 of the Penal Code provides:

A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law.

For purposes of this section, “adjudicatory proceeding” means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined.

• It may be professional misconduct. Texas Disciplinary Rule of Professional Conduct 3.05 provides:

A lawyer shall not:

(a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;

(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:

(1) in the course of official proceedings in the cause;
(2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer;
(3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

It may result in office discipline. Section 10.4(c) of the Operations Manual forbids prosecutors from communicating with the judges of the various courts, either directly or indirectly, concerning the merits of a pending case unless such communications are “expressly authorized by law.”

Here are some practice tips to avoid trouble:

1. Be disciplined in how you communicate with the judge. It can be very easy to rationalize a brief one-on-one discussion about a particular case with the judge as clarification of an issue to facilitate a settlement, a “heads up” about some piece of evidence or testimony that will be offered later, an informal request for a continuance or notice about a missing witness, a request for advance notice of the order of trials, an advance discussion of what kind of sentence the judge will impose on a plea without an agreed recommendation, or some similar “harmless” discussion about a minor issue in the case. It might take place at the bench while you’re waiting for the other side’s lawyer to arrive, it might be your peeking your head into the judge’s office to say a few words before docket call, it might be a short e-mail to the judge. The discussion may even be initiated by the judge and you may worry that not answering the judge’s question will be considered rude.

Don’t indulge in such rationalizations. The State Bar will not, and your supervisors won’t either.

2. Don’t ask the judge for advice on how to try your case. There is no question that our judges, having tried or presided over many cases, have much wisdom to impart to you about how a case should be tried. Often, because you are the “home team” assigned to the court, a judge really wants you to know how well (or how badly) you are handling a trial and why. If this advice is offered while the case is pending, politely decline this mentoring opportunity. If you want the judge’s take on your case, ask him or her after the case is over (assuming that the case is not on appeal and subject to remand).

3. Wait for the opposing lawyer. If the case is on the morning docket and you want to get a ruling on a pending motion, but the defense attorney is late to court, neither you nor the court should penalize the attorney by proceeding on the merits of the motion in his or her absence. If you or the judge are frustrated with the attorney’s lateness, there are specific sanctions you can pursue to address that problem, but depriving the defendant of an advocate should not be one of them.

4. Document your notice to the opposing counsel. A certificate of service on your motions should be specific as to time, date, and the manner of service. This may be your only evidence in rebuttal to a claim that you improperly communicated with the court without notice to the defense, so it needs to be definitive.

5. Do not use the court staff as a back door to the judge. When you are communicating with the court coordinator, avoid asking the coordinator to get something done that you could not ask the court to do without the other side being present. This can include requesting issuance of orders for bench warrants or attachments, trial continuances, and bond revocations.

6. Ex parte communications on “procedural” matters may still be improper. For example, if a court order is necessary to obtain certain records during the discovery phase of the case, you can’ t simply approach the bench and present the motion and order without noticing the other side and giving them an opportunity to be heard. You may correctly think that the other side has no reason to oppose the order, but make no mistake: you are asking the judge to exercise his or her discretion to issue an order and the other side should know what you’re doing.

7. Apply the Golden Rule. Obviously, not every communication with the court is going to be an ex parte communication: we are allowed to talk to our judiciary about matters that would not have any influence on a pending matter. In figuring out whether a particular communication may be improper, ask yourself, “How would I feel if a defense attorney had this conversation with the judge or his staff outside of my presence?” From that perspective, the answer is usually pretty obvious.

Ethics and the Law: Born to Be Wild

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Geoff Grubb, M.D., one of my childhood friends who I met at age seven in Abilene, Texas, became a psychiatrist. He finished high school at age 17, went to medical school, and then became a psychiatrist. He trained at Rusk State Hospital and at the end of his career did psychiatric work at state hospitals all over Texas.

His career was cut short when he had a brain aneurism caused by stress and Type A behavior. The Creator pulled him up after being in a coma for 31 days. He helped me on many of my cases, and sometimes before I could give him all the facts, he stopped me and told me the answer. Dr. Grubb said at least 3 to 5 percent of the population is born with the propensity to become criminals. Some examples are Bonnie Parker, Clyde Barrow, John Dillinger, Al Capone, Ted Bundy, Charles Manson, John Wesley Hardin, and Billy the Kid.

When asked how to prevent crime, Warden Duffy said, “Build a better child.” Warden Duffy was the warden at San Quentin State Prison and had witnessed over 100 executions. Some say we should spend money on mental health programs and lunch programs for poor kids rather than sports stadiums. Our society drives some into a life of crime. When you have a client, go back three generations and see where your client came from, and it will help explain how they got where they are now

The remainder commit criminal acts because of childhood occurrences, environment, peer pressure, poverty, revenge, social, love and/or jealousy (domestic violence), drugs and alcohol, gang-related incidents, ignorance of the law, mental problems, hormonal imbalance, and money. Some see committing criminal acts as a way of survival. After all, going to prison or jail provides them with meals, a place to sleep, and maybe an education. Some individuals are just “rebels without a cause.” Presently (August 2013), there are 8,648 accused citizens in the Harris County Jail, and about 2,589 of them are on psychotropic medications for mental issues, according to Dr. Seale, Medical Director of the Harris County Jail.

Katherine Scardino, one of my Houston friends, recently saved one of those 3 to 5 percent from the death penalty. Even though she did a remarkable and ethical job of presenting a mental health defense, the jury instead gave him life without parole. The evidence Katherine presented was clear and the verdict should have been not guilty by reason of insanity.

Players: State v. Maron Thomas, Austin County, Texas

Death Capital trial May—first week of July 2013
Judge: Jeff Steinhauser
Lead Counsel: Katherine Scardino
Co-counsel: James Rivera
Mitigation: Gina Vitale
Mental Health: PhD Psychologist Dr. Kristi
 Compton, Dallas
Psychiatrist Dr. David Self (Rusk State Hospital,
 Rusk, TX)
Prison Expert: Frank AuBuchon
Crime Scene: Louis Akin (did not testify)

Maron Thomas was charged in Austin County with 5 murders in one criminal transaction. He killed his mother, stepfather, sister, brother, and two-year-old niece, who was beheaded and her head and body separated—meaning head in one room and body in hallway. The murders occurred in the family home. The facts of the crime itself suggested a mental health issue, which included Maron and his brother running naked through the field shortly before Maron killed his brother by shooting him twice—once in the back and once in the neck. Maron had never had any mental health history prior to this one incident. Initially, the investigators and the DA assumed that the killing spree was caused by the ingestion of a controlled substance—like Wet (marijuana with PCP)—but the drug testing done on Maron within hours of the offense indicated that the only drug he had in his body was marijuana. There was no other controlled substance. Maron had no prior criminal history; he was 23 years old. He had lived at home with his family his entire life, and the family had only moved to Bellville within the prior 2 years.

Maron was Muslim and had Islamic literature scattered all over his room. He wore a Kafi (cap) and prayed 5 times a day. He did not have a girlfriend or other friends other than his family. He was very close to his mother. He used marijuana, usually smoking it with his brother and maybe one of his brother’s friends.

The defense believed that Maron was insane at the time of this heinous offense and began mounting an insanity defense.

Lawyer Scardino called Dr. Compton immediately upon being appointed by Judge Steinhauser and asked her to go see Maron as quickly as possible. Within six days of the crime, Dr. Compton was at the Austin County Jail. We all know the value of a mental health expert interviewing the defendant as quickly as possible for the relevancy of testimony to mental state at the time of the crime. Her testimony was crucial to the jury beginning to place credibility on the mental health issue. She saw Maron about five times over the course of this case, and each time, she saw evidence of unrealistic thinking and delusions from a client hearing voices. About one year prior to trial, they hired Dr. David Self, who interviewed Maron four times. Both experts agreed that he was schizophrenic, and that this crime was the result of a schizophrenic episode. Dr. Self was amazing on the stand. He spoke in terms that the jury could understand and he was believable.

Neither Katherine Scardino nor James Rivera believed that Maron Thomas was sane or that he should be on death row. Because of their insanity defense, the mental health experts tes­ti­fied in the guilt phase of the trial. The jury rejected their in­sanity defense, but it was frontloaded to them for the punishment phase of the trial. It was their belief most of them accepted that he was insane, but having five dead people, with a child decapitated, was just too much for the jury. So, Katherine felt the life verdict was a compromise, but one that she gratefully, surprisingly, accepted out of Austin County.

He was, as my West Texas friends say, “Bat s—t crazy and always had been.”

Sometimes the immediate response of jurors is to “lock ’em up and throw away the key,” or “line them up in front of a firing squad.”

When dealing with clients, especially those with mental illness, keep detailed notes. Always try to get family members and friends to help. Remember to get a waiver of attorney/client privilege. One of the hotline calls was regarding a lawyer concerned that his client was boasting he had a live hand grenade. The hotline was able to help the concerned lawyer handle this in an ethical manner. No humans or animals were harmed during the disposition of this ethical and dangerous dilemma.

There are some people, including lawyers, that are crazy, “bat s—t crazy,” and some even really “bat sh—t” crazy. Like other citizens in this category, it is wise not to annoy them. To ethically represent a citizen with mental issues, refer to the end of this article.

Listen to your clients. Get HIPPA releases for medical records and general authorizations to get all school records, jail/prison records, or any other kind of records. If your client has been in the military, get all those records. The records will help you paint a picture of your client. Get a video of the family to show the judge or jury. Closely examine any records your client brings in. We recently had clients counterfeit college degrees, letters of recommendation, and such. We then presented those as evidence and later found out in further court action that the documents were phony. A degree from Harvard is great, but not when the school has no record of attendance.

Leaving Galveston, the first billboard you see is that of a personal injury lawyer. He has them on both sides of the road. He claims to be tough, mean, and smart, stating he wins his cases. About a half mile down the road, the next billboard shows a lawyer saying, “We sue lawyers”—then your usual fare showing furniture stores, car dealers, and carpet companies. Make sure you follow the rules of ethics and document your file so you do not end up getting sued, grieved, or facing a writ.

The state bar is finally getting serious about going after prosecutors, judges, and defense lawyers who have participated in wrongdoing resulting in wrongful convictions. As defense lawyers, we must be mindful of the rules of ethics so they do not try to throw the ball back at us. Lawyering is no joke. It is a serious profession in spite of all the distasteful advertising. Locking a man or woman up for years in cells or cages is an extreme event. Many of the old-time gangsters learned the art of crime after being wrongfully convicted for petty crimes when they were young. John Dillinger is a prime example.

If you have an ethics question or not sure what to do, call the HCCLA Ethics hotline at (713) 518-1738 or the TDCLA Ethics hotline at (512) 646-2734. We are like Las Vegas—we never close. Don’t wait until a process server is at your door with a writ, grievance, or lawsuit. Remember, there are people who are crazy, bat sh—t crazy, and some who are really bat sh—t crazy.

The following information was taken from the Handbook paid for by Texas Appleseed and Hogg Foundation for Mental Health:

Top Ten Things to Keep in Mind as You Represent a Client With Mental Illness

1. Mental illness and mental retardation are not the same: Mental retardation is a permanent condition characterized by significantly below average intelligence accompanied by significant limitations in certain skill areas. Mental illness, on the other hand, usually involves disturbances in thought processes and emotions and may be temporary, cyclical, or episodic. Most people with mental illness do not have intellectual deficits; some, in fact, have high intelligence. It is possible for a person with mental retardation to also have a mental illness. Many of the Texas statutes that address mental illness also address mental retardation, and you should look carefully at those statutes for the differences in how the two are addressed. This handbook does not address mental retardation.

2. You owe your client a zealous representation: You have the ethical obligation to zealously represent your client, which may include exploring your client’s case for mental health issues. It may also include bringing appropriate motions if your client’s mental illness has affected his or her case in any of the ways discussed in Section 1 of this handbook.

3. If your client is incompetent, stop and order an evaluation: If your client is incompetent, he or she may not be able to make informed decisions about fundamental issues, such as whether or not to enter into a plea bargain agreement or, instead, proceed to trial. Do not allow your client to accept a plea bargain, or make any other decisions regarding the case, when you have reason to believe that he or she is incompetent. Instead, immediately request a competence evaluation.

4. Mental illness and incompetence are not synonymous—and you should be concerned about both: Keep in mind that competence to stand trial is distinct from mental illness, so that some clients who are fit to proceed to trial may still have serious mental illness. Even if your client does not have a competence issue, there may still be significant mental health issues in the case that you should explore. Remember, however, that if your client is competent to stand trial, he or she makes the final decision about how to proceed with the case, whether or not to explore mental health issues, and whether treatment should be part of a disposition.

5. An insanity defense may be appropriate: By taking the time to properly inquire about your client’s mental illness and to explore various legal and medical options, you may obtain information that will help you decide if you should explore an insanity defense. If your client receives a not guilty by reason of insanity verdict, he or she will avoid receiving an unjust conviction. However, as discussed further in Section 7 of this handbook, there may be disadvantages to pursuing the insanity defense and you should discuss all of the pros and cons with your client.

6. Mitigate, mitigate, mitigate: Mental conditions that inspire compassion, without justifying or excusing the crime, can be powerful mitigation evidence. Part of your job as an attorney is to present the judge or jury with evidence that reveals your client as someone with significant impairments and disabilities that limit his or her reasoning or judgment. Mitigation evidence can be used to argue for a shorter term of incarceration or for probation instead of incarceration. In capital cases, mental illness and mental health testimony may mean the difference between life and death.

7. Ineffective assistance of counsel and reversible error: An attorney’s failure to request the appointment or otherwise obtain the assistance of qualified mental health or mental rehabilitation professionals when indicated can be a violation of a defendant’s Sixth Amendment right to effective assistance of counsel. This certainly applies to capital cases but also other homicide cases and any alleged offense that suggests mental aberration. A defendant’s prior history of mental impairment may indicate that you need the assistance of a professional evaluation. Ake v. Oklahoma, 470 U.S. 68 (1985). Ake also confirms the claim of indigent, convicted defendants to the assistance of mental health professionals at sentencing proceedings. An appellate judge may find reversible error if a client is truly incompetent or insane and the issue is not raised in court.

8. Overcome your own prejudices before you hurt your client and his or her case: A popular assumption is that mental-state defenses are attempts by bad persons to “get off” or deny responsibility for their behavior. Many people believe that persons with mental illness, by contrast to those with mental retardation, have the ability to fully appreciate the nature of their acts and control them. This denial of psychiatric disability can deeply influence the attitudes of both judges and juries toward expert witnesses and mental health defenses. Part of your job, if you are representing a person with mental illness, is to overcome cynicism toward mental health issues in criminal cases. Mental illnesses are neurobiological brain diseases. A mental illness is a medical illness, not “hocus pocus,” and the people who experience it suffer profoundly. Mental illness can be diagnosed, treated, and sometimes even cured. You do your client a disservice by representing it any other way.

9. Incarceration is particularly harmful to people with mental illness: Jails can be very damaging to the stability, mental health, and physical health of people with mental illness. Numerous studies show that placing mentally ill people in single cells, isolation, or “lock down” can worsen their schizophrenia, depression, and anxiety. Mentally ill and mentally retarded adults are also more likely than others to be victimized by other inmates or jail staff. They are at high risk for suicide. They generally get inadequate, if any, medication and treatment while in jail. As set out in Section 5 of this handbook, you should seek to get your client’s case dismissed quickly and, if appropriate, try to get your client released on bond.

10. Do not let your client get caught in the “revolving door”: Many adults with mental illness are arrested for minor offenses that directly relate to their illness, their poverty, or their disturbed behavior. They cycle repeatedly through the courts and jails, charged with the same petty offenses. This “revolving door” is not only a burden to the courts and the criminal justice system, but it is costly to society, to these individuals, and to their families. By quickly pleading your client to “time served” without exploring his or her mental illness, you may lose the opportunity to help your client get better so that he or she does not re-offend. Attorneys should do their best to link mentally ill defendants to appropriate treatment or services that will help them keep out of trouble. While it is important to get your client out of jail as soon as possible, it is equally important to keep him or her from returning to jail. Releasing persons with mental illness back into the community with no plan for treatment or aftercare is a recipe for revocation and recidivism. Don’t set up your client to fail.

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