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

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“Life Is Like a Mountain Railway”

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

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

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

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

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

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

Ethics and the Law: Midnight Special

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

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

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

(“Midnight Special,” lyrics by Johnny Rivers)

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

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

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

Rule 4.02 Communication with One Represented by Counsel

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

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

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

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

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

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

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

Ethics and the Law: How to Tiptoe Through the Tulips

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Opinion 646

QUESTION PRESENTED

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

STATEMENT OF FACTS

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

DISCUSSION

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

—Clint Eastwood

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

—Robert Heinlein

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

—Frederick Douglas

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

Ethics and the Law: Rudolph

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

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

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

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

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

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

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

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

Acceptance of Holiday Gifts by Judge and Staff

Opinion No. 194 (1996)

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

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

Answer 1: Yes. A judge may only accept a gift from a friend for a special occasion and then only if the gift is fairly commensurate with the occasion and the relationship. Canon 4D(4)(b). A Judge may accept any other gift only if the donor is not a party or person whose interests have come or are likely to come before the judge. Canon 4D(4)(c). Opinion No. 44. Texas Judicial Ethics Opinions Page 115 of 170.

The Committee concludes that a holiday or seasonal gift from a lawyer or law firm where a lawyer is not a friend is prohibited. Where a friendship exists, the gift must be commensurate with the occasion and the judge must be mindful of Canon.

2A and should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2B. Opinion No. 39.

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

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

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

Canon 4D:

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

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

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

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

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

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

I. Compensation, Reimbursement and Reporting.

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

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

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

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

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

Ethics and the Law: The War Never Ends

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Client]

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

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

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

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

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

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

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

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

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

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

Ethics and the Law: Blowing in the Wind

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Imagine this: It’s mid-morning on a weekday, you’re standing outside the Criminal Courthouse after finishing a hearing in Criminal Court. The weather is ordinary for Houston. The sky is clear, the humidity is high, the wind is almost nonexistent, and of course, it’s hot. Sirens are blaring from a distance, although in retrospect, that is nothing unusual for the sounds of downtown Houston, Texas, and as the morning transitions into early afternoon, those ever-so-distant blaring sirens are getting closer and closer. The sound is echoing through the buildings and courthouses almost to a point of being deafening.

Curiosity gets the better of you, and as you look up a scene unfolds right in front of you and the onlookers. With a look of shock, disbelief, and amazement, many see five police cars pursuing a pickup truck with two citizens. From my observation in its passing, the pursued vehicle had a tire that had already blown out early on in the chase or had been shot by law enforcement. The chase continued on 45 North, with more police cars joining the pursuit.

According to reports, the driver of the pickup truck allegedly rammed police cruisers and vehicles belonging to innocent bystanders. The police finally apprehended the suspects at Berry Road and Airline Drive, according to the news report. As I continued to watch the “Breaking News” that afternoon and evening, it was filled with not only this story, but many others revolving around crimes that had been committed throughout the city, county, and other parts of the country. To be honest, the stories were enough to dissipate my morale.

I pose the question, where’s the answer to the aforementioned chaos?

That evening (the day of the police pursuit), I entered my office and the first thing that jumped out at me was my diploma from law school. It says, “Attorney and Counselor at Law.” Oftentimes through the chaotic stress that clients and the very nature of this job creates, I believe we overlook the “Counselor” part, which results in not going that extra step or mile or, in some cases, miles to get your client into rehab, or return those frantic “End of the World” phone calls. Simply put, as Cool Hand Luke says, it’s a “FAILURE TO COMMUNICATE,” which often leads to a grievance. Nobody is above having a grievance filed against them. Several judges, prosecutors, and defense attorneys across the State of Texas have at one time or another been accused of some sort of ethical violation involving inadequate communication. While sitting in a bar bragging about your new Mercedes Benz is great, don’t let your alligator mouth overload your hummingbird ass.

Do not be ashamed to get your clients help or, if no opposition is held, get them to church. More often than not, people need positive reinforcement. You have a license to practice law and to some degree counsel individuals with options that will be most beneficial to them in an unfavorable situation. This isn’t a license to lie, cheat, steal, or deceive the individual who has had the misfortune of being arrested and charged with a crime, as they are aimlessly webbed into the criminal justice system. Winning is great; however, it isn’t everything. Those who send innocent people to prison to be locked away like wild animals are beyond despicable and in some quarters would be called to be taken to the nearest hanging tree.

There’s no denying, time like most things has changed things, and law has been no exception to that rule. With change comes uncharted territory, which leads to pressure. The pressure of the unknown and the unsureness of circumstances can in some instances lead to being unethical, whether that be described as above, or in advertising because someone is seeking that next case.

The Executive Director of the Harris County Criminal Law­yers Association, Christina Appelt, and I have discussed the wild advertising done by lawyers. A week out of law school, some law­yers are spending thousands of dollars on websites and paying top dollar to be listed at the top of the search engines—while bragging about their many awards received along with their ratings. The very idea of this is repulsive to not only me, but to the many lawyers I personally know who have gone to court and fought to protect the rights of their clients without fanfare or seeking glory or a higher rating on some phony ad program.

Mary Flood, a brilliant lawyer who helps lawyers in their advertising efforts, has informed me that most of the ads are not approved by the State Bar of Texas, as required by the ethical rules. Our organization is composed of many great lawyers. Some are low profile while others are high profile, and some do not seek recognition while others jump in front of the camera at every opportunity presenting itself.

In closing, I leave you with this final thought, whether you are low profile, high profile, camera shy, or prefer a camera: The bottom line is some lawyers are losing sight of what our responsibilities are, and that is effective counseling through effective communication. Will we ever find an answer to these questions, or will they just be “Blowing in the Wind”?

Do you feel like your life is Blowing in the Wind? Are your clients’ lives Blowing in the Wind? Get help for your clients through the many programs available. If you need help, call the Texas Lawyers Assistance Program. Bob Dylan sings a song, as follows. No one has all the answers. Seek help when needed. The answer is Blowing in the Wind.

“Blowin’ in the Wind” by Bob Dylan

How many roads must a man walk down
Before you call him a man?
How many seas must a white dove sail
Before she sleeps in the sand?
Yes, and how many times must the cannon balls fly
Before they’re forever banned?
The answer, my friend, is blowin’ in the wind
The answer is blowin’ in the wind.

Yes, and how many years can a mountain exist
Before it is washed to the sea?
Yes, and how many years can some people exist
Before they’re allowed to be free?
Yes, and how many times can a man turn his head
And pretend that he just doesn’t see?
The answer, my friend, is blowin’ in the wind
The answer is blowin’ in the wind.

Yes, and how many times must a man look up
Before he can see the sky?
Yes, and how many ears must one man have
Before he can hear people cry?
Yes, and how many deaths will it take ‘til he knows
That too many people have died?
The answer, my friend, is blowin’ in the wind
The answer is blowin’ in the wind.

The TCDLA hotline number is 512-646-2734. Our committee members are Jack Zimmerman, Greg Velasquez, Don Davidson, Robyn Harlin, Joe Pelton, David Sheppard, Ray Fuchs, Michael Mowla, Joe Connors, Keith Hampton, Jimmy Ardoin, Larry McDougal, and Brent Mayr. They will try to find some answers blowing in the wind that may help you.

Ethics and the Law: Know When to Hold ’Em and When to Fold ’Em

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Several lawyers have contacted the hotline for advice on ending their relationship with a client. A simple motion to withdraw may not be as simple as some people think. After talking with several smart lawyers I have found the following scenarios:

1.   Lawyer takes case knowing there will be problems, but takes the case anyways because he needs the money;
2.   Lawyer takes the case because it is a high-profile client and believes it will enhance his reputation as a top, smart lawyer;
3.   Lawyer takes case because the family member or former client puts pressure on him telling him, “You are the only one who can help,” and “You are the best lawyer around.” Yes, lawyers like to have their ego stroked.
4.   Lawyer takes case because client has had problems with other lawyers and he wants to prove he is the one who can handle it.

Be wary on scenario #4. When a client comes to you after having several other lawyers, it is like getting involved with a man or woman who has been married five times. You may think in your mind, this is the one, and he or she is just misunderstood, but you have not heard Mickey Gilley’s song “Don’t the Girls All Get Prettier at Closing Time.” Like a friend of mine, a San Antonio lawyer, who wakes up with strange women in his bed and asks, “Who are you?” She says, “ I don’t know who I am this morning, but last night I was the YELLOW ROSE of Texas.”

The Texas Disciplinary Rules of Professional Conduct provide limits on when an attorney can terminate representation of a client:

Mandatory Termination

  • When other disciplinary rules would be violated. Tex. Disciplinary R. Prof’l Conduct 1.15(a) (2005), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (State Bar Rules art. X, § 9).
  • When the attorney has become materially (physically or mentally) impaired. Id.
  • If the lawyer is discharged by the client. Id.
  • If ordered to by a tribunal. Tex. Disciplinary R. Prof’l Conduct x.xx 1.15(c).

Termination Prohibited Unless:

1)   withdrawal can be accomplished without material adverse effect on the interests of the client;
2)   the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes may be criminal or fraudulent;
3)   the client has used the lawyer’s services to perpetrate a crime or fraud;
4)   a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement;
5)   the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services, including an obligation to pay the lawyer’s fee as agreed, and has been given rea­sonable warning that the lawyer will withdraw unless the obligation is fulfilled;
6)   the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client;
7)   other good cause for withdrawal exists (Tex. Disciplinary R. Prof’l Conduct 1.15(b));
8)   In civil cases, good cause is shown and a written motion filed. Tex. R. Civ. P. 10.

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law if such retention will not prejudice the client in the subject matter of the representation. Tex. Disciplinary R. Prof’l Conduct 1.15(d).

The Harris County criminal district courts have a local rule on withdrawal of counsel:

Rule 6.15. Withdrawal or Substitution of Counsel

        If, prior to the disposition of a case, an appointed or retained attorney wishes to withdraw pursuant to DR 2-110, Code of Professional Responsibility, Vernon’s Ann. Civ. Stat., Title 14 App., Art. 12, Sec. 8, or for any other reason, the attorney must file a written motion to that effect with the Court. Such motion must be filed at least 15 days prior to a trial setting. If an attorney is retained to replace existing counsel, the attorney must file a motion to substitute counsel, naming both himself and the attorney to be relieved.

        A retained attorney of record at the time of trial will be considered the attorney of record in the event of an appeal unless the attorney files a written motion to withdraw when notice of appeal is given.

Do not forget that when you and your client part ways be­fore the end of a matter, you should make sure that the client is informed of any future settings. It is also not a good idea to withhold a client’s file if he does not pay you, pursuant to Disciplinary Rule 1.15(d). Texas Ethics Opinion 411 states:

        Although this ethical limitation removes much of the “clout” of a retaining file —since the greater the client’s need for his file, the greater the leverage the attorney retaining it will possess—an attorney who has once been retained to represent a client’s rights may not later precipitate actual harm to those rights merely to collect a fee.

In at least one case, a Texas attorney has been disciplined for retaining client papers. See Smith v. State, 490 S.W.2d 902 (Tex. Civ. App.—Corpus Christi 1973), on appeal after remand, 523 S.W.2d 1(Tex. Civ. App.—Corpus Christi 1975, writ ref’d n.r.e.).1

In the next issue, I will have examples from the Ethics Committee of their personal experiences about knowing when to hold ’em and knowing when to fold ’em.

The motion should state the following:

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.”

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