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Ethics and the Law: Loose Lips Sink Ships

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Many times a lawyer’s business gets put on the streets when he posts a message on a listserv. Although information put on a listserv is supposed to be confidential, it gets leaked to the wrong person. The TCDLA Ethics Committee created the hotline specifically for criminal defense lawyers with criminal law issues. The messages we get are confidential to the caller. We may use the question only as an example in an article, but names and identifying information shall remain confidential. Lawyers continue to talk about their cases in the elevators at courthouses across the state. Several times prosecutors have heard the conversation and reported what they heard. Recently in Houston after a bad day in court, a defendant was mouthing off and said, “I think I will just go to Mexico.” A prosecutor ran and told the judge. Guess what? The defendant was put in custody and his bond was revoked. In the modern world we live in today, people are emailing, tweeting/twittering, “googling,” instant messaging, recording and posting text videos, and essentially living on Facebook. As soon as you take a case, your client should be advised, and it should be ordered mandatory, to stop all these things. Remember what Racehorse Haynes says: “E” in email stands for evidence. Social media sites are a gold mine for evidence against your client and the complainant. Use it to your advantage if you can obtain the information ethically.

They call it attorney-client privilege for a reason. Sitting around in a bar talking about your client’s case is a too frequent event and should not be done. If you need help on a case, get a mentor or call a lawyer friend. Remind them it is confidential. When you get hired or appointed on a case, ask your client to sign a waiver of the attorney-client privilege if he wants his mother, dad, wife, girlfriend, boyfriend, or anyone else to have information about the case. Warn the clients not to discuss their case with cellmates.

Recently a cellmate confessed to a capital murder to a man I was representing. Since my client was facing a long trip to the federal prison, the information he got from his buddy was passed on to a federal prosecutor, and my client’s long trip turned into a short trip. There is always a danger of retribution, so make sure you tell your client he or his family could be in danger. Yes, it does happen in the movies, but also in the real world. Wives, girlfriends, and even mothers have ended up in the witness protection program for giving information to the government.

There has been much discussion about the pending legislation of reciprocal discovery. TCDLA is obviously against that. For the present, we need to remain vigilant as lawyers during plea negotiations to invoke the “keep your mouth shut” rule. Finding a nugget of helpful information in your client’s case makes you want to shout it from the rooftop. Resist the urge. When you show your hand in good faith to a prosecutor in the course of plea negotiations, nine times out of ten you have just done your client a disservice. The prosecutor then talks to the witnesses and “magically” their story changes or something is added to help them make their case. I have overheard prosecutors talk to an officer after I, in good faith, tried to point out that the officer’s report did not adequately state probable cause for a stop. The prosecutor told the officer what he needed to say to make sure there was probable cause, and then told me, “Oh yeah, the officer forgot to put in report that your client ran a stop sign.”

Knowing when to keep your mouth shut is one of the hardest lessons to learn. Down the road, reciprocal discovery (if it passes) will very much change how we work. Use the tools that we have now while we have them. With the endless resources of the prosecution, our current appellate climate, and pending legislation twisting in the wind, there is no room for error when dealing with the prosecution. We have many cases, but those clients have but one life. Keep your mouth shut.

People used to get drunk and make phone calls, but now it is put on the internet world for all to see. Please call the ethics hotline rather than letting the world know about your ethics question. You are running the risk of the information being passed to the wrong person. When you hear someone say, “It is only minor surgery,” it’s only minor if it is happening to someone else. All our cases are big because they are big to the people we are representing. Look back in your history books or talk to someone who has been in war and they will tell you about the posters in store windows during World War II. There was always a danger of sabotage because of things said by people in the military or people working in the military field. An innocent conversation could be disastrous. The poster said, “Loose Lips Sink Ships.” Call the hotline at 512-646-2734.

Ethics and the Law: Cool Hand Luke

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“Cool Hand Luke” is a 1967 American prison drama film starring Paul Newman in the title role as Lucas “Luke” Jackson, a prisoner in a Florida prison camp who refuses to submit to the system and observe the established pecking order among prisoners. In a 1940s setting, Luke is arrested and sentenced to prison for two years after vandalizing parking meters. Luke’s resistance to observe the pecking order runs afoul with the prisoners’ leader, Dragline. Luke takes a beating from Dragline and eventually earns his respect and that of the other prisoners. Luke’s sense of humor and independence inspires the other prisoners. After winning a game of poker against Dragline with a hand worth nothing, Luke comments that “sometimes nothing can be a real cool hand,” to which Dragline bestows on him the nickname “Cool Hand Luke.”

After getting the news that his mother passed away, Luke escapes from prison but is eventually recaptured. Luke manages to escape the prison a few more times after that but each time is recaptured and punished. Upon his return, the warden, also referred to as the Captain, would deliver his warning speech to the inmates that began with the line, “What we have here is a failure to communicate.” Each time, Luke’s punishment entailed digging a grave-sized hole in the camp yard, filling it back in, and then being beaten by the guards. Luke eventually caves in and begs for mercy, causing the prisoners to lose respect for him. On his final attempt to escape, Luke steals a prison dump truck with Dragline. They travel to a church but police eventually catch up to them. Dragline surrenders peacefully but Luke makes a bold move and mimics the Captain’s famous line of “What we’ve got here is a failure to communicate.” He is immediately shot in the neck and dies. His actions restore his reputation among the prisoners.

When you get hired or appointed on a case, remember you are the one the client and family are looking to for saving the day. Failure to communicate is one of the top reasons clients become unhappy and file grievances. Good communication, even if the case has bad results, will save you a lot of misery. Spending nights and weekends worrying about a grievance, writ, or worse can be minimized if you simply talk to your client. Try to find an ally who is related to or who knows your client well who can be trusted. Get a waiver from your client so you can talk to that person. Engage them as your ally so they can spend hours talking about the case with the client. You can then spend your time lawyering and not babysitting. Clients have put their life in your hands and look to you to help them. Make it clear from the beginning that you cannot perform miracles, and do not be overly optimistic. Many lawyers get the check and then never talk to their clients. A short phone call or jail visit can go a long way to ease a client’s fear. Be honest with them. Send letters to the client even if it is to say hello, hope you’re okay, and we are working on your case. Many times clients come in and you ask who their prior lawyer was—and they don’t remember. You want them to remember you because they can send you more business and tell all their friends and neighbors how great you are. Return your phone calls.

COMMUNICATE WITH COURT PERSONNEL. A friendly “hello, how are you doing” goes a long way. Be polite but firm, and don’t let your client see you hugging or laughing with the prosecutor. Remember who brought you to the dance. Being friends with a DA may be great but not in front of a client. If you were accused of crime and hired a lawyer, would you want to see them together in a bar or restaurant or playing baseball together? I don’t think most people would. You are fighting a battle for your client, and the odds are always against you. Percy Foreman worked until the end. The last time I saw him, he was lying on a couch in his office barking orders to his staff. Look and act like a lawyer, carry a file even if you have a magazine in it or a briefcase when you go to court. Reach out for help if you need it on a case. Get involved with TCDLA and HCCLA. Get on the listserve. Many smart people like Michael Mowla will help. ”

COMMUNICATE WITH YOUR TEAM AND KEEP YOUR HOUSE IN ORDER. With all the technology available now, save important emails or keep a pad by your bed so when you wake up at midnight with a good idea you can write it down, and document the content of client calls. If it isn’t written down and documented in your file and with your staff, re-creating your recollection for a grievance or lawsuit is less enjoyable than an IRS audit.

COMMUNICATE WITH YOUR COLLEAGUES. Right now there are several members of this organization who are very ill, in hospitals, rehabs, nursing homes, AA meetings, going through a divorce, or dealing with the loss of a loved one. Reach out to those people and make an offer to help. Many lawyers in Houston have died, and it is comforting to know that members of TCDLA and HCCLA are helping to resolve their cases. No one can get out of here alive, so keep your affairs in order to protect your clients as well as your loved ones left behind. Effective documentation will save you in front of the grievance committee—as well as your estate against a lawsuit after you’re long gone.

COMMUNICATE TO THE BAR WHEN REQUIRED. If a lawyer, be it defense lawyer, prosecutor, or judge, violates the canon of ethics, you are duty bound to report it. Robb Fickman leads the charge in Houston and elsewhere to aid in filing judicial complaints. Like Warren Burnett, he spent a lot of time in West Texas. A friend of mine who rode the rodeo circuit said when you deal with people who have spent time there, you better have your tennis shoes on tight because they are tough people. Burnett and Fickman are in that category. Like Luke Jackson found out, a failure to communicate can be disastrous. Many lawyers find themselves with a writ or sitting in front of a grievance committee, hearing them say, as the Captain did, “What we’ve got here is a failure to communicate.”

Ethics and the Law: Hung by Mistake

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George Johnson was buried in Boot Hill graveyard in Tombstone, Arizona, in 1882. His tombstone reads:

HERE LIES GEORGE JOHNSON
HANGED BY MISTAKE…
HE WAS RIGHT
WE WAS WRONG
BUT WE STRUNG HIM UP
AND NOW HE’S GONE

In 1882, justice was swift, but was not always fair. George Johnson had the misfortune of being hung after he was accused of stealing a horse. The good citizens of Tombstone learned too late that George unknowingly purchased the horse from the actual thief.

From the onset, it is imperative to have an investigator involved immediately to interview potential witnesses. Friend and former HCCLA and TCDLA President Ed Mallett reminded me of the very important case Stearnes v. Clinton, 780 S.W.2d 216, which chronicles defense counsel’s quandary when interviewing so-called “witnesses for the State.” As a defender, it is your responsibility to seek out and interview potential witnesses. Failure to do so is a one-way ticket to the writ, grievance, and malpractice dance.

According to Tony Freemantle in an article he wrote for the Houston Chronicle:

False convictions occur for a number of reasons: Victims identify the wrong person; prosecutors withhold exculpatory evidence from the accused; false or misleading forensic evidence points to the wrong person; defendants receive inadequate legal representation; witnesses perjure themselves.

        In May, the National Registry of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, released its first report analyzing 873 exonerations between January 1989 and February 2012. (Since then, the number of identified exonerations in the registry has grown to 1,050, and more are added almost daily.)

        In the 873 cases that were studied, the registry found the most common reasons for wrongful conviction were perjury or false accusation, mistaken witness identification, and official misconduct.

        Ninety-three percent of those exonerated were men, 50 percent were black, 38 percent were white, and 11 percent were Hispanic. DNA evidence helped clear 37 percent of them.

        In total they spent more than 10,000 years in prison for crimes they did not commit.

(Tony Freemantle, “Exonerees: The numbers are small, but the toll is immense—and growing,” Houston Chronicle, January 22, 2013)

To ethically represent a defendant, a lawyer must: 1) find all witnesses; 2) interview or attempt to interview all witnesses; 3) not rely on the state’s witness list or the witnesses listed in the offense report; 4) make a record if a witness refuses to talk to you because this can be used at trial to show the witness may not be truthful or may be hiding something; and 5) always go to the scene of the alleged crime and to all the places the client was taken to do any testing, such as a field sobriety test on a DWI case, and take scene photos or videos. Remember you can ethically tape-record witnesses. TCDLA has many resources and many good people willing to help you. The like-minded 1882 Good Citizens are still among us. We must be vigilant to make sure our clients do not get “Hung by Mistake.”

Ethics and the Law: Bubba Shot the Jukebox

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We were all down at Margie’s bar
Telling stories if we had one
Someone fired the old jukebox up
The song sure was a sad one
A teardrop rolled down Bubba’s nose
From the pain the song was inflicting
And all at once he jumped to his feet
Just like somebody kicked him

Bubba shot the juke box last night
Said it played a sad song it made him cry
Went to his truck and got a forty five
Bubba shot the juke box last night

Bubba ain’t never been accused of being mentality stable
So we did not draw an easy breath
Until he laid that colt on the table
He hung his head till the cops showed up
They dragged him right out of Margie’s
Told him “Don’t play dumb with us, son”
“Know damn well what the charge is.”

Well, the sheriff arrived with his bathrobe on
The confrontation was a tense one
Shook his head said, “Bubba Boy,”
“You was always a dense one.”
Reckless discharge of a gun
That’s what the officers are claiming
Bubba hollered, “Reckless! Hell!”
“I shot just where I was aiming.”

Bubba shot the juke box last night
Said it played a sad song it made him cry
Went to his truck and got a forty-five
Bubba shot the juke box stopped it with one shot
Bubba shot the jukebox last night
Well he could not tell right from wrong
Through the teardrops in his eye

                          – “Bubba Shot the Jukebox” by Dennis Linde

Since this was Bubba’s first offense, he was placed on Pre-Trial Diversion. To get Bubba’s gun back, look at the Code of Criminal Procedure, Article 18.19(c), and file a motion to return the firearm. See the sample motion on the page following. Ethically, in Bubba’s case because of his mental condition, you need to either let the State keep the gun, or do what many lawyers do and, with the client’s prior agreement, file a motion to get the gun returned to you as part of the fee. Always make sure that a client can legally receive and possess any firearm before taking action that results in it being returned to him. The last thing you want to do, ethically or legally, is assist a client—making you a party to the offense—in committing a crime or violating a term of community supervision by receiving or possessing a firearm. Even with a Concealed Handgun License, Bubba could not have had the gun in the bar legally because the bar got more than 51 percent of its income from alcohol sales.

Several months ago we got a call from an old client in West Texas who had been arrested on a Motion to Adjudicate. He was on deferred for a drug offense. It seems he and his wife had an argument and the wife claimed he had fired a shot at her. The police arrived and took him and 12 firearms to jail. He went to a local lawyer and was told the best deal he could get him was 5 years. We were hired and immediately filed a Motion to Dismiss and a motion to return the firearms. Both were granted. My client did not go to prison and we got the firearms as part of my fee.

Felony deferred adjudication does not prevent possession of firearms in the house UNLESS THE CONDITIONS OF PROBATION PROHIBIT IT. Many times when a person is placed on deferred or regular probation, the judge will order no firearms. Possession of firearms is sometimes a misunderstood area of the law. The Texas Penal Code has specific provisions related to the possession of firearms. If your client buys a gun or wants to get a Concealed Handgun License, look at Texas Government Code Section 411.172.

Under Section 46.02 of the Texas Penal Code, a person commits the offense of Unlawful Carrying of Weapon if he intentionally, knowingly, or recklessly carries on or about his person a handgun if he is not on his own premises or on premises under his control, or inside or directly en route to a motor vehicle that is owned by him or under his control. A person also commits an offense of Unlawful Carrying of Weapon if he intentionally, knowingly, or recklessly carries on his person a handgun in a motor vehicle that is owned by him or under his control where the handgun is in plain view, or where he is engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic, prohibited by law from possessing a firearm, or is a member of a criminal street gang. The burden is on the State to prove you are not traveling.

Under Section 46.04 of the Texas Penal Code, it is unlawful for a person who has been convicted of a felony to possess a firearm except on the premises where he lives.  It also holds that a person commits an offense of unlawful possession of a firearm if he is convicted of an assault on a family member and it is before the fifth anniversary of when he is released from confinement or released from community supervision following conviction, whichever is later.

Federal law is different, and under 18 U.S.C. Section 922(g), if you are a convicted felon or punished under Texas Penal Code Section 22.01, you may forever be prohibited from gun ownership.

To be safe and follow the ethical rule, use caution when ad­vising clients about buying, selling, or possessing a firearm or ammunition. Consider the following when your client is con­sidering probation:

1.   Misdemeanor supervision—not affected by firearms law unless it is a crime of domestic violence
2.   Deferred felony supervision—may possess firearm and ammunition and can go hunting, but cannot buy more firearms or ammunition, or carry across state lines
3.   Regular or shock probation—may not possess, ship, transport, or receive firearms.

Ethics and the Law: Talk Is Cheap

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Several calls to the hotline have concerned threats from prosecutors for interviewing witnesses. To properly do our job we must talk to or have someone else talk to witnesses. The better practice is to have an investigator talk and tape all interviews to keep you, the lawyer, from being accused of some impropriety. There are some very honorable prosecutors, but as we have seen, there are some who hide evidence and try to prevent justice.

As soon as you get a felony case, see if it is one where a no-bill is possible. All sorts of things can be presented that cannot at trial—such as polygraphs, letters, and your written theory of the case. Plan on getting a polygraph done on your client and refer to an article by Gary Trichter, “Putting on a Defense Before the Grand Jury” (Voice for the Defense, February 1989) about grand jury presentations.

If you get appointed or hired on a felony case before indictment, you need to immediately consider the idea of presenting a defense at the grand jury level. Many opportunities may be lost if you do not act quickly and ethically. Send a letter to the district attorney handling the case and the district attorney heading the grand jury section stating that you intend to present evidence. You can also send a letter to the grand jury foreman of a particular grand jury in session requesting that they review your case. DO NOT LET the DA BULLY you on this. Refer to Attorney General Opinion H-508 (January 28, 1975), which allows correspondence of counsel addressed to a grand jury, and a copy which is delivered to the prosecuting attorney is not prohibited as long as it contains no threat.

Some counties may give you some difficulty, so be prepared to show them the material in this article. Sad to say I have heard lawyers say they don’t want a no-bill because it keeps them from getting a fee. These people are vultures and are not real lawyers and should go turn in their bar card. If you do this right, you can charge a fee for your time in preparing your client, witnesses, and materials that you intend to present. Sometimes you will find that the DA in marginal cases would rather have a case no-billed than explain to the complaining witnesses and supervisors why they dismissed a case. Preparing all the investigation, research, and assembling documents takes many hours. Prepare a booklet for each grand juror, the prosecutor, your client, and the original for your file. Even if your case gets indicted, if grand jurors had questions, the DA may realize the case is weak and you may end up with dismissal, reduction of charges, or in a better position to strike a deal.

David Sheppard, co-chair of the Ethics Committee from Austin, helped a lawyer who needed to know if she could ethically talk to a person in jail who had a lawyer about an unrelated case. Here is what he says:

Lawyer A needs to talk to a defendant in jail who has Lawyer B. Lawyer A needs to talk to person regarding another case not related to case involving Lawyer B:

Applying Rule 4.02, it appears that your contact with the prisoner about his possible testimony in your case is not prohibited. The prohibition applies to situations in which “the lawyer knows (the person being contacted) to be represented by another lawyer regarding that subject.” The operative term, of course, is “regarding that subject.” While the prisoner did have counsel, that representation was related to another case . . . not the case against your client.

There isn’t a lot written on this issue. Of interest, though, is ABA Formal Opinion, 95-396 (July 28, 1995), at 14 & n.42, which says that if the government has indicted a defendant for one crime, the rule does not prohibit the prosecutor from communicating with the defendant, either directly or through investigators, about a different crime. This approach, of course, has been adopted by the courts: McNeil v. Wisconsin, 111 S.Ct. 2204 (1991), and Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999). So, if it’s okay for the prosecutor… it’s okay for the defense counsel.

Ethics and the Law: Beauty Is in the Eyes of the Beholder

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Sometimes I hear a new client badmouthing his previous lawyer where I am almost certain the lawyer believes he got his client the deal of the century. Beauty is truly in the eyes of the beholder. The key is making sure the beholder shares your same vision of what beauty is.

Clients who think you have done a great job for them will tell their friends and family about your performance. It is important to comply with ethical rules, but it is also important to have satisfied clients. That is not always possible, but too often lawyers believe they have gotten their clients fantastic deals without truly knowing the clients’ view on it. What you may think is beautiful work may very well be considered an ugly deal to the person who accepted it. Something changes in a person after a few months in prison—that sweet deal is suddenly not looking so sweet. That former client is now an angry inmate plotting ways to retaliate against his victorious lawyer, who has long forgotten his case and the so-called great deal he got him.

On the other hand, if a client truly has gotten a great deal, it is important that he see it that way, even if it means he may have to spend some time in jail. It is not his gratitude you are seeking, but a mutual understanding between you and your client.

Whether relaying good news, bad news, or a mediocre plea offer, it is important to stay in touch with your clients on a regular basis. Failure to communicate is the primary source of most grievances. It is a good idea to call your clients even when there is no news. Clients do not always understand how slowly the wheels of justice can turn, so they begin to assume you are not doing anything on their case. While that may be true, there are often good reasons for that. Explaining the delays can go a long way in keeping your clients satisfied.

It is also important to remember that your client is not a lawyer. Several times I get contacted by defendants’ families who do not understand the legalese of a fellow lawyer. First, after getting the client’s consent, I call the fellow lawyer to let him know his client has contacted me. Most times the fellow lawyer is grateful, and most of those times, the fellow lawyer allows me to be hired as co-counsel to act as the interpreter. Being raised on the north side of Abilene surrounded by the junkyards and my dad’s auto repair shop has given me many advantages. Talking street language enables some clients to truly understand what is going on with their case. Do not talk down to your clients and do not talk above them. Gauge their intellect, but practice speaking to your clients in plain English. Impressing them with your extensive knowledge of penal codes may have worked for you in law school, but it does no good in the real world if your clients do not understand you. They are facing critical decisions that will impact their lives long-term. It is essential that they understand what is happening in their case and what is expected of them. When in doubt, ask your clients to sign a document after each meeting, whether at your office or in jail, that states you have met with them and they fully understood the discussion.

Finally, do not make promises or guarantees you cannot keep. If a client believes you promised him certain victory, then rest assured once he finds himself sitting behind bars, he will be filing a grievance. Make certain the client understands every plea negotiation and all its terms. Be careful in your wording that nothing you say to them could be misconstrued as a promise or a guarantee. Even if the odds are looking good, giving a false impression of victory could backfire on you later. We can no more predict what a judge, jury, witness, or prosecutor will do than we can predict the winning lottery numbers. There are far too many variables beyond our control to make such wild promises or guarantees, so never promise any favorable outcome.

Be mindful of these things and you should have more content clients: 1) Make sure your clients understand their case, including their options, the deals they accept, the terms of those deals, the consequences of non-compliance, etc.; 2) communicate with them often, using clear simple language; and 3) never make promises or guarantees to a client you cannot keep.

TCDLA Ethics Committee Hotline: 512.646.2734
Robert Pelton, Chairman (Houston)
Jack Zimmermann (Houston)
Robyn Harlin (Houston)
Ray Fuchs (San Antonio)
David Sheppard (Austin)
David Zavoda (Odessa)
Joe Pelton (Abilene)
Greg Velasquez (El Paso)
Joseph Connors (McAllen)
Don Davidson (Bedford)
Doug Barlow (Beaumont)

Below is an article written by co-chair Don Davidson from Bedford, Texas, about Ethics Opinion #619.

 A common source of irritation for attorneys—and especially criminal defense attorneys—is a former client’s request that the attorney send him the attorney’s file after the representation is concluded. Of course, in the criminal defense context, such a request is often made in anticipation of filing a habeas application for ineffective assistance of counsel. So the attorney has the double irritation of being asked to comply with what is often a costly and time-consuming request (since the prudent attorney will copy the file before sending it to the client), while also potentially providing ammunition for the client to try to use against him. No wonder many attorneys faced with such a request ask the question, “Do I really have to do this?” In most cases, the answer is, “If you would like to keep your bar card in good standing, yes.”

Ethics Opinion #570 (May 2006) analyzed this issue in the context of an attorney’s notes, and concluded that the attorney does indeed have to provide those notes to the former client upon request. The justification for this conclusion is that the file belongs to the client, and Rule 1.14(b) of the Rules of Disciplinary Conduct requires an attorney to promptly deliver to the client any property to which the client is entitled. Several Texas courts have come to a similar decision. See, for example, In re George, 28 S.W.3d 511, 516 (Tex. 2000), and Hebison v. State, 615 S.W.2d 866, 868 (Tex.App.—Houston [1st Dist. 1981] no writ).

Opinion #570 does list three exceptions to this general requirement (and there may be other exceptions as well). For example, the attorney would not have to furnish his file to a mentally ill client if doing so could seriously harm the client. Another exception is when releasing the file would violate a duty the attorney owes to another person. However, the third exception is the one which comes up most frequently—when doing so would violate a court order restricting further disclosure of discovery documents. I have seen this sometimes in federal cases, where the government is trying to keep discovery documents from becoming public knowledge and jeopardizing an ongoing investigation.

Recent Opinion #619 (June 2012) approaches this problem from a slightly different angle, concluding that a prosecutor may condition disclosure of discovery documents on defense counsel’s agreement not to provide copies of the discovery to the defendant and to return the discovery documents at the conclusion of the case. This avoids the problem by removing the documents from the defense counsel’s file, so that they are long gone by the time the client requests a copy of the file.

On the other hand, what if the prosecutor conditions discovery on the defense attorney’s promise not to provide a copy of the discovery to the client, but there is no court order and no requirement to return the documents at the conclusion of the case? (I have had this situation arise in some federal criminal prosecutions.) In such cases, I get the client’s voluntary written consent to discovery on those terms. My consent form explains, among other things, that the client normally has the right to obtain his file at the conclusion of my representation, but that if discovery is conditioned on me not providing a copy of the discovery to the client and the client refuses to consent to discovery on those terms, then I may be denied access to discovery that could be helpful in representing the client. And the form includes the language: “With the foregoing in mind, I agree to waive, now and forever, my right to receive a copy of that portion of your files which contains government reports and records which you agree not to further disseminate.” I recommend this procedure, or something similar, for any attorney faced with discovery on such terms.

Ethics and the Law: Making Silk Purses

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Who says you can’t make a silk purse out of a sow’s ear? In 1921, a group of chemists proved you can. Their handiwork is on display at MIT and the Smithsonian Institution. As criminal defense lawyers, it is our duty to at least try. It is not impossible. It just takes a little effort, ingenuity, creativity and human compassion.

The expression takes the pessimistic view that it isn’t worth trying to turn something unpleasant or unrefined—such as a client with a drug addiction­—into something valuable—such as a human being deserving of a second chance. Don’t buy it and don’t give up on your clients. Society wants us to throw these people away, but that is not why we became criminal defense lawyers. People are always worth it. Transformation is always possible.

A Criminal Defense Attorney’s Guide:
How to Turn a Sow’s Ear into a Silk Purse

When you first interview a client, ask them for detailed background information by asking them to write out their life history. You will be surprised how many revealing facts you find that may help in trial and at punishment. It is important after all to understand how your client became a defendant in the first place. No one was born a sow’s ear. So how do you transform something so undesirable into something charming? Encourage your “sow’s ears” to start weaving themselves into silk purses as soon as you meet them.

1.  Start with their image: Advise your clients to get a haircut, a clean shave, and remove any visible piercings. They should also make an effort to conceal their tattoos and dress appropriately at all court appearances. First impressions are important.

2.  Other types of public images are worth mentioning, such as online personas. I usually tell my clients to immediately delete their Facebook, Myspace, Twitter, or other social media accounts. (The lawyer should first make sure that the advice does not result or aid the client in committing the additional crime of “Tampering With or Fabricating Physical Evidence” as defined by Tex. Pen. Code 37.09.) If they are unwilling to close their accounts permanently, I advise them to stop using them until all charges have been resolved (unless they need to remove certain negative content). Nothing says “please convict me” like a page full of foul language, obscene photos, or images of marijuana leaves posted by your clients or their friends.

You should also advise your clients to limit what they say, and who they say it to, in emails and texts. As legendary lawyer Richard “Racehorse” Haynes says: the “E” in email stands for “Evidence.” Many a problem has developed because of an email or text.

All blogging should stop as well. Blog posts can be taken out of context, and a few wrong words can result in serious consequences.

3.  Of course your client’s public image isn’t everything, so having them look like a silk purse is not enough. Silk may be a beautiful fabric, but it is also a resilient one, made of substance. Encourage your clients to become men and women of substance as well—if they struggle with addictions, insist they get treatment immediately and urge them to start attending support groups like Alcoholics Anonymous or Narcotics Anonymous.

4.  Counsel your clients to get involved in community or church activities. This will not only give them the emotional support they need, but could also provide witnesses who might be willing to help them later on. If your client attends church, speak to his preacher. A letter from a church leader can go a long way.

5.  Advise your client to enroll in some type of higher education or training courses, whether obtaining a GED or attending a university, community college, or vocational trade school.

6.  Lastly, keep in touch. Check on their progress. Many defendants are entering the criminal justice system for the first time and need every bit of guidance you can offer them. Good communication is essential, so be sure to advise them throughout the process.

Ultimately it is up to your clients to take the necessary steps toward self-improvement. They may not listen but as you know, many of them do not have positive role models in their lives and need this commonsense advice from you. It is our job to try to make them seem more palatable. In doing so we may also transform their lives, vastly improving their chances for success. No one said it was easy, but it is possible.

The work of a criminal defense lawyer is a serious undertaking and going it alone can be a scary job. Our new president has organized a very competent group of lawyers to help and continue the goals of TCDLA. The ethics hotline is our way of trying to provide immediate relief to a lawyer facing a crisis or ethical dilemma. Calls continue to pour in with large and small issues from members around the state. The stress of our jobs creates unique problems, and our committee is always here to help. Remember our oath is to our clients. We all know some of them can be very difficult to work with. Many have drug and alcohol addictions and/or emotional or mental health issues. These problems can be mild to severe. But it is possible, and it is in fact, our duty as lawyers to make silk purses out of sow’s ears.

TCDLA Ethics Committee Hotline: 512.646.2734

Robert Pelton, Chairman (Houston)
Jack Zimmermann (Houston)
Robyn Harlin (Houston)
Ray Fuchs (San Antonio)
David Sheppard (Austin)
David Zavoda (Odessa)
Joe Pelton (Abilene)
Greg Velasquez (El Paso)
Joseph Connors (McAllen)
Don Davidson (Bedford)
Doug Barlow (Beaumont)

Ethics and the Law: Raise Your Right Hand

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The past month has been busy with calls to the ethics hotline. Many calls have been regarding actions of judges and prosecutors and a few about fellow lawyers. Anytime you feel improper action is being taken by a judge or prosecutor, you are welcome to call the hotline. Lawyers are bad about just complaining and not taking any action. There are members of this organization who will help you take action. As I have mentioned before, no matter where you are, unless you do something besides talk about it, the bad behavior continues. The power given to judges and prosecutors will go unchallenged unless you take action. You may not win a popularity contest, but your client is the only one you need to be worried about. The “that’s the way we have always done it” or the “that’s the way it’s done here” won’t cut it. When you see improper behavior, report it. We have plenty of brave souls ready, willing, and able to help.

Robert Fickman, West Texas lawyer now in Houston, is one of the men who will stand up and help you. He is a real Don Quixote. He has filed and helped file several judicial complaints in the past few years. You don’t have to grin and bear it. Take action against these overbearing individuals. Call the hotline, and if we don’t have the answer, we will find someone who does. There are hard-working men and women all across the land who get up, go to work, take care of their family, and make one mistake that, depending on the severity, can change their lives forever. They get involved in the legal system, and our job is to make sure their rights are protected. Do not let them be abused because they may be poor or not the brightest light in the room. Spend time with your clients and their family. Find out what causes the misbehavior and help do something to correct it. NA or AA meetings are good places to start. One of my childhood friends has a daughter who was always making bad decisions that put her in the legal system. After years of legal problems, it was discovered she had an orange-size tumor in her brain. That went a long way to explaining the reason for the poor decisions. Get help for your clients. They are more than just dollar signs.

Some well-respected lawyers chose not to be concerned about what the judiciary thought. Warren Burnet, one of our greatest lawyers, once went to the funeral of a judge with whom he had many dealings. It was no secret there was no love lost between them. When asked why he went to the funeral, Lawyer Burnet replied, “I wanted to make sure the bastard was dead.”

The “why can’t we just get along” won’t cut it. We all can’t just get along when people ignore the Constitution. Do not sell yourself short. It takes a certain amount of intelligence to get a law degree and pass a bar exam. We can’t all be Richard “Racehorse” Haynes, but we can all do our best to represent our clients. Buck Files, one of our TCDLA members, is now President of the State Bar, and is a man with honor and integrity. He will make sure we are not like Rodney Dangerfield—not getting any respect. When you see fellow lawyers going off the deep end, don’t ignore them. The State Bar does have a few good things besides discounts on motel rooms and car rentals, one being the Lawyer Assistance Program (800-343-8527).

Reach for the brass ring and do all that you can for your client. Write an article for the bar journal, get involved in your local criminal bar association, and learn from experienced lawyers. If we work together, we can make positive changes, and the next time when we see the bar journal, we can give the 100,000 members of the bar something to read about other than obituaries and disciplinary actions. Remember, every time a judge or prosecutor ignores the Constitution, they are showing disrespect for all the men and women who served their country in the military. When you see people like Jack Zimmerman, Bobby Mims, or any other veteran, make a point of thanking them for their service to our great country.

Phone Numbers for the Hotlines:

Lawyer Assistance Program       1-800-343-8527
TCDLA Hotline                           512-646-2734
HCCLA Hotline                          713-518-1738
State Bar Lawyer’s Ethics Hotline     1-800-532-3947

The oath for lawyers is to the client and Constitution, while the oath for judges and elected/appointed officers is to the Constitution and laws. The military oath and oath for lawyers are very similar. A lawyer’s oath is to the client and Constitution, not the judge or prosecutor.

Lawyer’s Oath:

THE STATE OF TEXAS

      I, ___________, do solemnly swear that I will support the Constitution of the United States, and of this State; that I will honestly demean myself in the practice of the law, and will discharge my duties to my clients to the best of my ability. So help me God.

Oath for Judges and elected/appointed officers:

      I, ____________, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ____________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.

Military Oath:

                I, ____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

Ethics and the Law: From Loco to Laredo

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Cowboy lawyer Gary Trichter is about to ride into the sunset like all cowboys do when the job is done. He has done his best to do the job he was elected to do. All the co-chairs have helped greatly in my quest to help our members. If you do not know them, you should reach out to them because you will never meet a finer group of people. TCDLA has made great progress this year, and the hotline has at times turned into a crisis hotline for some of our members having personal issues. We must continue to band together because the State Bar has offered little help for criminal practitioners defending the underdogs and those in our world who are accused of the worst of crimes. Watch the 6 o’clock news in any of the larger cities and it is shocking to see what some members of our society do to each other. As criminal defense lawyers it is our job to do our best to defend those people who do hideous acts. One tip for you is to do a three-generation family tree, and once you see where our clients have come from, it will help explain and not excuse their behavior. Being a real serious lawyer will change your life dramatically. You have a hard time relating to what I call normal people. You find yourself dealing better with dysfunctional people. All this takes a toll on your personal life, and that is why lawyers have higher alcohol, drug, and suicide rate than other professions.

Lydia Clay-Jackson is a lady I have known for close to 30 years, and she will bring new ideas and a lifetime of experience to TCDLA. She is also a woman who has risen to the top of her profession, and I hold her in the highest regard. She knows how to kick ass and take names and will make sure TCDLA continues to be the best bar association in the U.S.

A recent study shows that in federal court the majority of defendants are found guilty and cut deals with the government, so be wary of lawyers who make promises to defendants that cannot be met. That is the source of many grievances. From Loco to Laredo and everywhere in between, Texas has close to 100,000 lawyers. The great lawyers do not all live in Houston or Dallas, even though some think they do. We have great lawyers all across the state. On the other hand, not all lawyers behave as they should (as Don Davidson discusses in his article about Candor Toward the Tribunal, below)—and that includes prosecutors and judges. No matter where you are in Texas, do not put up with bad behavior from a judge or a prosecutor. Call the hotline or the strike force for help. And remember Texas Rules of Professional Conduct 3.09, which forbids threatening to prosecute a charge that is not supported by probable cause.

Disciplinary Rules of Professional Conduct Rule 3.03

by Don Davidson, Bedford, Texas

I can only imagine the horror the habeas attorney must have felt when he read these words in the Court of Criminal Appeals opinion:

In reaching this conclusion, we wish to remind Applicant’s habeas counsel that he is an officer of the court and is obligated under Rule 3.03 of the Disciplinary Rules of Professional Conduct not to mislead this Court. [citation omitted] In the future, we encourage habeas counsel to take greater care in his legal arguments and to be cognizant of Rule 3.03.1

Rule 3.03 of the Disciplinary Rules of Professional Conduct requires the utmost honesty and candor from an attorney toward a court or other tribunal. In his dealings with the court, Rule 3.03(a) forbids an attorney from knowingly (1) making a false statement of material fact or law; (2) failing to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) failing to disclose an unprivileged fact in an ex parte proceeding if the attorney reasonably believes the tribunal should know of that fact to make an informed decision; (4) failing to disclose authority in the controlling jurisdiction known to be directly adverse to his position, unless already disclosed by the opposing counsel; or (5) offering or using evidence known to be false.

Of course, outright deceit and dishonesty will quickly run afoul of Rule 3.03. So goes the tale of an attorney who apparently got involved in a scheme to defraud the legitimate heir of a senile, elderly lady. The attorney had the old lady sign a new will—despite a diagnosis of dementia—and when he could not get a notary public to come to the hospital to notarize the lady’s signature on the self-proving affidavit, he took the self-proving affidavit to the notary. Since a self-proving affidavit, like any affidavit, must be signed in the presence of the notary, the affidavit was clearly invalid. But the attorney nevertheless filed it with the probate court, essentially vouching for its validity. When the truth came out, he found himself disbarred.2

Inexperience and stupidity are not defenses to a Rule 3.03 violation. Thus, an attorney was sanctioned for apparently trying to protect the interests of a former client by filing bankruptcy schedules on the client’s behalf, but without the client’s knowledge or consent.3 Another attorney was sanctioned for filing papers with the court on behalf of clients he did not represent.4

Before filing any document with the court, an attorney should be aware of Comment 2 to Rule 3.03, which states that “an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or a representation of fact in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.” Thus, an attorney who sent a letter to a court stating that a bankruptcy case had been reopened, and therefore a bankruptcy stay might be in effect, was sanctioned when it was later discovered that the bankruptcy clerk had told him that the file had not been reopened, and that he had never even bothered to visit the bankruptcy court to check the file.5

An attorney’s duty to be honest and candid with the court exists even if he is acting on his own behalf as a party to a lawsuit, rather than on behalf of a client. 6 In fact, the duty applies even when the attorney is not involved in the case at all. 7

And in the case of the duties under 3.03(a)(1) and (2), those duties “continue until remedial legal measures are no longer reasonably possible.” Thus, in some cases, an attorney has an affirmative obligation to correct a prior false statement, or to disclose a previously omitted fact, “as long as there is a reasonable possibility of taking corrective legal actions before a tribunal.”8

Winning a case is fun; I’ve never met a lawyer who didn’t want to win. But Rule 3.03 makes clear that we cannot do so at the expense of our honesty and integrity. If you neglect your duty to be honest and candid with the courts, a court may one day “remind” you of that duty in one of the court’s opinions—if you’re fortunate.

Ethics and the Law: A Real Change

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We hope with Buck Files the State Bar will pay more attention to the criminal bar. There are over 3,000 members in the Texas Criminal Defense Lawyers Association, 600 members in the Harris County Criminal Lawyers Association, and many others in the local bar associations throughout Texas. HCCLA, under the leadership of Earl Musick, has taken action in many ways, including meeting with the Sunset Commission in Austin with Cowboy Lawyer Gary Trichter and lawyer Robb Fickman, Czar of Texas. Ever since I began practicing law, I have heard lawyers complaining, but few ever took action. That is changing with lawyers like Gary, Earl, Robb, and others. According to Buck Files, only 20% know about the State Bar hotline. That is simple to understand. It has not been properly publicized and it has banking hours. TCDLA and HCCLA hotlines never close, and we have already helped many of our fellow members.

Many years ago at a DWI seminar, we were all honored that Percy Foreman, Richard “Racehorse” Haynes, and Warren Burnett were in attendance. Charles Tessmer was there in spirit. Lawyer Haynes was bragging on Gary Trichter and telling Percy Foreman all the issues Gary and others were raising. Percy was very attentive because he, the greatest lawyer in the world, had been convicted of DWI. Warren Burnett and Charles Tessmer were known to take a drink on social occasions. Today, a DWI can bring as many issues as a murder case—like the ALR hearing, possible occupational license, possible ALR appeal, possible DWI appeal, and motions that need to be filed. Some lawyers attempt to charge a flat fee for all these things. Some lawyers charge a fee for each item. Do you want a telephone hearing or an in-person hearing? If an in-person, do the officers get subpoenas to use ALR discovery device? When going to all these hearings, remember they are all grievances waiting to happen if you miss a date. Make sure you have a calendar system or have alerts on your computer.

With Buck Files as leader, we hope more attention will be paid to the criminal bar. The bar journal is filled with many good articles if your interests are contract, real estate, civil matters, or back-patting. Leaders of the criminal bar from the Houston area like Gary Trichter, Earl Musick, Robert Fickman, Chris Tritico, and many others from around the state have and are making great strides to let the bar and judges know we take our job seriously. If we lose a case, it is not just money, but about someone being locked in a cage and being branded a criminal for life. Pay attention to the timelines on all of your cases. Get a good system set up whether on a day-planner or on your computer.

Below are subjects we will be writing about. If you have ques­tions about one of these topics, please call the hotline.

1.  How to get business/bail bondsmen/referral fees
2.  How to set and collect fees
3.  Contracts or letter of acknowledgment
4.  Contempt
5.  Conflict of interest
6.  Attorney/client privilege
7.  Gifts to judiciary
8.  Ex-parte communications
9.  Grievance process
10.  How to set up a file
11.  Investigate, polygraph
12.  Tape-recording
13.  Motions to withdraw
14.  Pretrial publicity
15.  What to say and not say to press
16.  Personal habits—alcohol/drug problems
17.  Act like a lawyer
18.  Books that will help
19.  Seminars
20.  Board certification
21.  College of State Bar
22.  Advertising
23.  Closing practice
24.  Selling practice
25.  Keep records of client conferences, jail visits, phone calls, work done, work done by attorney (even if it is a fee contract, you may have to account for fee)
26.  Be careful what you say: Be careful in elevator or hallways
27.  Keep personal business personal
28.  Be careful trading work for legal service
29.  Suing client
30.  Check on requirements of pro-bono work
31.  Have list for client: go to church, AA, NA, job, school, medical, get work records
32.  Avoid burnout
33.  Do not bad-mouth other lawyers
34.  Check out clients’ background: social study, family tree
35.  Do not tell client you are judge’s best friend—even if you are
36.  Call court if running late
37.  Facebook, Twitter, social networking
38.  Blogs
39.  Building and maintaining a website
40.  Keep your word

Being a lawyer can be a rewarding, but it is a stressful job and it is important to make sure your client’s interests are looked after. While doing this, take care of your own health and well-being. Remember no one is indispensable.

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