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Ethics & The Law - Page 8

Ethics and the Law: Santa Claus and the Grievance Committee Are Watching You

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Growing up in West Texas, you might find that a case of whiskey around the holidays was better than a pot of gold. Abilene, in Taylor County, was a dry county at that time. From the courthouse to the junkyards, many a deal was made and the wheels were greased with a quart of whiskey. Most times it was unethical and sometimes illegal, but it happened a lot. All professions have a code of ethics that prohibit gift giving for personal gain. The holidays are here and you will see a lot of gift giving at the courthouse. Under Canon 4D (4)(b) of the Texas Code of Judicial Conduct, a judge may only accept a gift from a friend for a special occasion and only if the gift is fairly commensurate with the occasion and relationship. Advisory Opinion No. 194 on Judicial Ethics includes court staff in that rule. Canon 4D(4)(c) holds that a judge or family member may not accept any gift from a person whose interests have come or are likely to come before the judge. Last year in one of the larger cities of our state, a delivery truck was backed up to the back door of the courthouse and cases of booze were unloaded and taken inside. It went unreported. To stay out of trouble it is always better to follow the rules, or report it when you see it under Rule 8.03 of the Texas Rules of Professional Conduct.

There are close to 90,000 lawyers in the state, and like all people, some have some serious problems. As this paper is being written, several lawyers are in trouble—like the judge in Aransas County for spanking his child, a Houston lawyer for spanking his private parts in front of his neighbor and secretary, and another for allegedly participating in a plot to kill his wife. Some of our hotline calls have been from desperate lawyers who were in bad situations. The TCDLA hotline has been there as a resource for them to use to help them follow the rules and to resolve personal issues.

In Abilene, B Western movies were shown every Saturday at the Metro Theatre. As youngsters, we would spend the day watching our cowboy heroes—Gene Autry, Roy Rogers, Hopalong Cassidy, and Lash LaRue to name a few. These movies were morality plays with crooked ranchers, judges, sheriffs, and cattle rustlers. Never wavering and never compromising, the cowboy heroes always saved the day and road off into the sunset. Western heroes had their own cowboy code of ethics.

The original “king of the cowboys,” Gene Autry was a true patriot. At the height of his movie fame, Gene volunteered for the Army during World War II, sacrificing his career over service to his country. During this holiday season, you will probably hear many Christmas songs written by Gene and his famous rendition of “Rudolph the Red Nosed Reindeer.” Gene’s Cowboy Code—simplistic and old-fashioned—rings just as true today as it did over 60 years ago:

Gene Autry’s Cowboy Code

  1. The cowboy must never shoot first, hit a smaller man, or take unfair advantage;
  2. He must never go back on his word, or a trust confided in him;
  3. He must always tell the truth;
  4. He must be gentle with children, the elderly and animals;
  5. He must not advocate or possess racially or religiously intolerant ideas;
  6. He must help people in distress;
  7. He must be a good worker;
  8. He must keep himself clean in thought, speech, action, and personal habits;
  9. He must respect women, parents, and his nation’s law;
  10. The cowboy is a patriot.

If you are having an ethical dilemma, call the TCDLA hotline to get “Back in the Saddle Again.”

Ethics and the Law: Shine a Light

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We are getting an excellent response to the ethics hotline. Please be assured that no matter where you are in the great State of Texas, the ethics committee is here to help you. For those of you who practice in Houston, Austin, San Antonio, Dallas, and Fort Worth, there is a whole different legal world in some of the other 254 counties. Growing up in West Texas, I saw many injustices done to the underdogs in our society. It still happens. Once many years ago, one of my Houston clients had a son in trouble in Palo Pinto County and hired me to defend him. I got Ron Goranson and Norman Maples to help me. The judge in Palo Pinto County was a snuff-dipping judge who asked me what all those books on the counsel table were. I told him, “Judge, it’s the code of Criminal Procedure,” and he said, “I don’t care what it is, get it off the jury table.” I did what he told me because I did not want to spend the night in Palo Pinto. Norman Maples was cross-examining the officer straight out of a TCDLA book. The judge was not impressed. He revoked our client’s probation and gave our client 4 years. Ron and I were happy just to leave town. This was before any strike force, hotline, or anything of the sort. Now there are 3,193 people to help. Do not be afraid to ask for help. You are not alone.

In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from apparent conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest. The Texas Disciplinary Rules of Professional Conduct prescribe terms for resolving such tensions. They do so by stating minimum standards of conduct below which no lawyer can fall without being subject to disciplinary action. Within the framework of these Rules many difficult issues of professional discretion can arise. The Rules and their Comments constitute a body of principles upon which the lawyer can rely for guidance in resolving such issues through the exercise of sensitive professional and moral judgment. 

Under Rule 3.09 of the Texas Rules of Professional Conduct, if you see unethical behavior, report it. If a prosecutor is unethical, report it. Last year in Houston alone, three jurists were convicted and two went to jail. Even as this article is being written, several judges in the Houston area are under investigation. A lawyer is under indictment for taking money for allegedly telling clients he could fix their case, and two Houston prosecutors are in danger of being held in contempt of court. In Shelby County, the district attorney is being looked at for taking money instead of prosecuting.

We all want to be on the six o’clock news, but be careful when you have a high-publicity case. Read Rule 3.07 of the Texas Rules of Professional Conduct on trial publicity. This is especially true in small towns where the case will be tried. If it is a case where there is no doubt of your client’s guilt, or if it is a close call, get your client to express remorse publicly as long as you do it according to Rule 3.07. Potential jurors will see this on television or in the newspaper. Even if your client does not testify, viewers will remember what your client said, not what you said. Remember, the famous Russian philosopher Robb Fickman said, “Don’t let your alligator mouth overload your hummingbird ass.”

Remember, wherever you can get help (Rule 1.01—Competent & Diligent Representation) to make sure your client is getting a fair deal, use it. To keep myself out of trouble, I will not mention some of those counties where to see the district attorney, you have to wait hours and then watch him swat flies while talking to you. The judge does what the district attorney wants because he was the district attorney before he ascended to the bench. To read the Motion to Disqualify the District Attorney by Lawyer William “Dangerfield” McCoy, please click on the link below. He is a man of courage and is taking his oath seriously, the way we all should.

Ethics and the Law: Following the Law

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Since the beginning of American history, there has been a fight for democracy and freedom. We, as Americans, have the Constitution and Bill of Rights to guide us. Thousands of men and women have died on the battlefield, or have been emotionally or physically wounded to defend our way of life. Criminal defense lawyers are in the law enforcement business, just as are police officers, deputies, federal agents, and all other members of the constabulary. Our job as criminal defense lawyers is to make sure the state and federal laws are followed. When cases are dismissed because of legal errors, some people claim they got off on legal technicalities. That is not true. They got off because someone did not follow the law. Many of the cases we win are not because we are legal geniuses but because the judge, prosecutor, or constabulary did not follow the law. When these individuals lie, cheat, or hide evidence, they are dishonoring all the veterans who served this great country. It should make you mad when they do these dishonorable acts. There was a high profile case in Houston a few weeks ago where the prosecutor took it upon himself to tell a jury, after a not guilty verdict, of all the bad acts he could not present during trial because of the judge’s ruling. There were allegations that the prosecutor violated Texas Disciplinary Rules of Professional Conduct Rule 3.06. The following motion, shared with me by a fellow attorney, should be filed if you have concern:

CAUSE NO. 1745634

STATE OF TEXAS § IN THE COUNTY COURT

  1. §AT LAW NO. 5 OF

JOHN DOE § HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION TO PROTECT THE FAIRNESS OF FUTURE JURIES

TO THE HONORABLE JUDGE OF SAID COURT:

  1. The Defendant in this case has a prior criminal history which will not be admissible in the guilt/innocence part of this criminal trial absent the Defense opening the door; which it will not do. Defense Counsel is concerned, should this case end in a “not guilty” verdict or with a discharge of a hung jury, that the prosecutors may improperly attempt to share their knowledge of the Defendant’s prior criminal history with discharged jurors in an attempt to adversely influence future actions against other defendants. A prosecutor can easily do so by telling discharged jurors defendant’s prior criminal history; that during the guilt/innocence part of the trial a jury cannot be told of that criminal history; that the defendant’s history shows a disrespect for the law; that defendant shows a predisposition to break the law; and defendant this predisposition is evidence that committed the crime he was charged with. Of course, the fear here is that the discharged jurors will leave believing that all criminal defendants have hidden prior criminal histories. In support hereof, Counsel for the Defendant would show:
  2. Texas Disciplinary Rule 3.06 of Professional Conduct is entitled “Maintaining Integrity of Jury System.” Section 3.06(d) provides in pertinent part:

After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not . . . make comments to a member of that jury that are calculated merely to harass or embarrass a juror or to influence his actions in future jury service [emphasis added].

  1. Comment 1 of Rule 3.06 provides, in pertinent part, that:

[to] safeguard the impartiality that is essential to the judicial process, . . . jurors should be protected against extraneous influences . . . after the trial, communication by a lawyer with jurors is not prohibited by this Rule so long as he refrains from . . . making comments that intend to harass or embarrass a juror or to influence action of the juror in future cases [emphasis added].

  1. Comment 1 for Rule 3.09 provides in pertinent part that:

special responsibilities of a prosecutor provides first and foremost that “a prosecutor has a responsibility to see that justice is done and not simply to be an advocate. This responsibility carries with it a number of specific obligations among these is . . . [that] a prosecutor is obliged to see that the Defendant is accorded procedural justice [and] that the Defendant’s guilt is decided upon the basis of sufficient evidence . . . [and not evidence of predisposition].”

  1. Accordingly, where a case ends in a not guilty finding or where a jury is discharged because it is hung, and, where a Defendant had a prior criminal history, it is a violation of the Texas Disciplinary Rules of Professional Conduct for a prosecutor to disclose, intentionally or recklessly, that a defendant had a criminal history because it will create a presumptive predisposition in the minds of those jurors that any future criminal defendant likely has a criminal history too, and, that the future defendant was likely pre-disposed to commit the crime in issue.
  2. Comment 4 to Section 3.06(d) is clear that a violation of the aforementioned rule is a serious matter. It says, in pertinent part, that:

[b]ecause of the extremely serious nature of any actions that threaten the integrity of the jury system, the lawyer who learns of improper conduct . . . towards . . . a juror . . . should make a prompt report to the court regarding such conduct. If such improper actions were taken by . . . a [prosecuting] lawyer, either the reporting lawyer or the court normally should initiate appropriate disciplinary proceedings [emphasis added].

  1. Hence, it is equally clear that where a prosecutor makes such a disclosure that both the defense lawyer and the judge are obligated to initiate a disciplinary proceeding. Here it is far more comfortable to avoid the problem all together by having the court issue a precautionary order to maintain the integrity of the jury system by protecting future jurors. Moreover there is no harm to the State by the issuance of the requested order.

PRAYER

  1. WHEREFORE PREMISES CONSIDERED, should this case end in a “not guilty” or discharge of a hung jury, this Honorable Court is respectfully asked to instruct the prosecutors herein not disclose the Defendant’s prior criminal history. The Court is also asked to order the prosecutors to instruct their fellow prosecutors, agents, and employees not to make this same disclosure.

Respectfully Submitted,

THE THIESSEN LAW FIRM

By: _____________________________

MARK THIESSEN

SBN 24042025
1017
Heights Boulevard

Houston, Texas

Tel: (713) 864-9000

Fax: (713) 864-9006

We have had several calls through the TCDLA hotline where members were faced with prosecutors threatening to file additional charges if the defendant did not plead. When faced with this situation, remember Rule 3.09, which forbids a prosecutor from threatening to prosecute a charge where the prosecutor knows it is not supported by probable cause. Have these rules handy to show them when you get these threats.

Remember these few tips to help yourself be a good lawyer:

  1. Remember your oath is to zealously defend your client, not to be buddies with the judge or the district attorney.
  2. All conversations in jail or conference rooms at the courthouse may be taped—they will probably not be admissible as evidence, but may be used by your opponent.
  3. If relevant, have your client sign releases for you to obtain their information. HIPPA, business records, school, military, etc. These records can help your case. It takes time to get these records, so start as soon as possible after you identify the need for them.
  4. Keep a log of all jail visits and have your client sign waivers allowing you to discuss the client’s case with the client’s family and friends.
  5. Always investigate and interview witnesses immediately. Tape-record all of your conversations with witnesses—do not assume anything.

Ethics and the Law: Professionalism

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The newly formed ethics hotline has been hot. We have received numerous calls, and the hotline has turned into a helpline for lawyers with ethical and procedural questions. All the co-chairs have been invaluable. Many lawyers never had training on how to handle a criminal case and how to get cases in an ethical manner. Times have changed and now lawyers run wild ads on television, which are reminiscent of Cal Worthington, the California car dealer who would appear on commercials riding elephants trying to sell cars. Mary Flood, a Harvard-educated lawyer who does public relations work for Androvett Legal Media & Marketing, says over 90 percent of websites are misleading. Get your website approved by the State Bar before putting it up. The quality of your representation is what counts most. When I first met lawyer legend Percy Foreman, he said if you are being a lawyer for the money, do something else. He said if you do a good job as a lawyer, you will always make money. He made plenty.

Follow these simple tips that will help you on your cases:

  1. Get a contract or letter of acknowledgement;
  2. Build your file with a copy of the relevant statutes, punishment ranges, and lesser included offenses;
  3. Be, look, and act professional;
  4. Have file in shape so if another lawyer has to take it over, it will be organized in case you drop dead or get shot by an angry client;
  5. Be available to your client throughout all times of the day and night. If you want an 8 am–5 pm job, go work for the government;
  6. Read books on famous lawyers like Earl Rogers, Gerry Spence, and Clarence Darrow. They became famous for a reason;
  7. Get help from TCDLA members or utilize hotlines;
  8. In case of punishment or to aid in plea-bargaining, get a complete social history of your client. It will explain and not excuse what your client has been accused of;
  9. Improve weaknesses by attending seminars and staying awake through them;
  10. Ask questions. Lawyers are always willing to help comrades;
  11. Build relationships with court personnel. One bailiff was my friend and he would always give the jury charge to the person I thought should be the foreman;
  12. Carry a copy of the penal code and/or code of criminal procedure with you. I also highly recommend reading books written by Ray Moses, who tells you how to do everything from what to wear to what to say and how to handle cases. Jim Skelton’s search and seizure workbook is another great resource. Look up the Criminal Law Institute for the search and seizure information.

Learn to be in charge of the courtroom. Percy and Racehorse Haynes have been called the Kings of the Courtroom because they took control. Judges or district attorneys do not respect those who give in. Sometimes not giving in will result in an allegation of contempt against you, so carry a motion for a personal recognizance bond in your briefcase just in case—it will allow for your immediate release. You never know when you will need it. See § 21.002(d) of the Texas Government Code regarding the personal recognizance bond. Also carry a motion to prevent ex-parte communications between judges and assistant district attorneys. It is unethical for a judge to discuss cases ex-parte. Your oath is to your client, not to be friends with the judge. Let them know you are aware of those rules. The Commission on Judicial Conduct is there for a reason.

Sometimes it may be in your best interest to record conversations with clients. In Texas, the recording of phone calls and other electronic communications is allowed when one party to the conversation consents to it. The following is an article—entitled “May a Lawyer Electronically Record a Telephone Conversation?—written by co-chair Greg Velasquez of the El Paso County Public Defender’s Office regarding tape-recording calls.

May a Lawyer Electronically Record a Telephone Conversation?

Federal law

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the conversation.1 This is called a one-party consent law. With the consent of one person or party to the conversation, recording the conversation is not a violation of the law.

“One-Party Consent” Statutes

Thirty-eight states and the District of Columbia have adopted “one-party consent” laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents.2

“Two-Party Consent” Statutes

Twelve states require the consent of every party to a phone call or conversation in order to make the recording lawful. These “two-party consent” laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Consent must be obtained from every party to a phone call or conversation if it involves more than two people.3

Texas Law

Texas’ wiretapping law is a “one-party consent” law. Texas makes it a crime to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents.4 But, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.5

The law does not cover oral communications when the speakers do not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.”6 Therefore, you may be able to record in-person conversations occurring in a public place—such as a street or a restaurant—without consent.

Also, a recording device in plain view is presumed to be used with the consent of all persons who can see it.

Texas Lawyer and the Professional Ethics Committee for the State Bar of Texas

May a lawyer electronically record a telephone conversation between the lawyer and a client or third party without first informing the other party to the call that the conversation is being recorded?

In November 2006, the Professional Ethics Committee for the State Bar of Texas issued Ethics opinion No. 575 and answered the question.7 The Committee stated the following:

It is recognized that there are legitimate reasons a lawyer would electronically record conversations with a client or third party. Among the legitimate reasons are to aid memory and keep an accurate record, to gather information from potential witnesses, and to protect the lawyer from false accusations.

Ethics opinion No. 575 p.2.

The Committee also stated “No provision of the Texas Disciplinary Rules of Professional Conduct specifically prohibits a lawyer’s unannounced recording of telephone conversations in which the lawyer participates.”8

The Committee was of the opinion that the Texas Disciplinary Rules of Professional Conduct did not generally prohibit a lawyer from making undisclosed recordings of telephone conversations in which the lawyer is a party, provided that certain requirements are complied with.

The Committee cited Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct: “(a) A lawyer shall not: (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” and the Committee stated that it did not believe that an undisclosed recording of a telephone conversation by a party to the conversation could be termed to involve “dishonesty, fraud, deceit or misrepresentation” within the meaning of Rule 8.04(a)(3). Thus, a Texas lawyer’s undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(a)(3).

The Committee concluded that the Texas Disciplinary Rules of Professional Conduct did not prohibit a Texas lawyer from making an undisclosed recording of the lawyer’s telephone conversations provided that (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute a serious criminal violation under the laws of any jurisdiction applicable to the telephone conversation recorded, and (4) the recording is not contrary to a representation made by the lawyer to any person.

Ethics and the Law: Introducing…

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Robert Pelton, the former President of the Harris County Criminal Lawyer’s Association (HCCLA), Associate Di­rec­tor for TCDLA, and Feature Articles Editor of the Voice, will be writing a regular column on ethics and the law.

Texas Criminal Defense Lawyers Association (TCDLA) President Gary Trichter has recognized the need for an ethics committee to help members. One of the top priorities for the committee was to establish an ethics hotline for criminal defense lawyers. Protocol is as follows: Call the hotline at 512-646-2734 and leave a message. It will then be routed to me, or to a co-chair. You will get a call or several calls within 24 hours. If it is an emergency, you can call me at my office at 713-524-8471 or on my cell at 713-829-0678. The hotline has already received numerous calls and all questions have been answered. The job of a lawyer is serious business, and the committee’s goal is to help members if they have ethical questions. We are in the job of enforcing the U.S. Constitution and Texas law. It is important for a lawyer to know the law and how to ethically practice the law. Having a grievance filed or a writ for ineffective assistance can be a disastrous event.

It is very important to set up a file properly with copies of the complaint, information, indictment, statute, punishment range, and all notes or reports. Keep a log of each time you talk with the client. When you first get hired, remember the attorney-client privilege. Do not discuss the case with any of the client’s family or friends without a waiver. Always get the waiver in writing, even if it is something as short as “I waive attorney-client privilege as to _______. I fully understand the consequences” (signed by client). Many times the client’s wife, husband, or best friend can turn out to be the worst enemy.

The TCDLA Ethics Committee is made up of the following members:

Robert Pelton, Chairman, , 713-524-8471, 713-829-0678 cell

Jack Zimmerman—Houston, www.texasdefenselawyers.com, 713-552-0300

Robyn Harlin—Houston, , 713-697-5900

Ray Fuchs—San Antonio, , 210-226-5757

David Sheppard—Austin, , 512-478-9483

David Zavoda—Odessa, 432-580-8266

Joe Pelton—Abilene, , 325-676-9100

Greg Velasquez—El Paso, , 915-546-8185

Joseph Connors—McAllen, , 956-687-8217

Don Davidson—Bedford, , 817-355-1285

Doug Barlow—Beaumont, , 409-838-4259

No one is immune from client complaints. Sooner or later, no matter what you do, a client may claim you have done something wrong. If that happens, be prepared to defend yourself. Many lawyers have been accused of misconduct. F. Lee Bailey, part of the O. J. Simpson Dream Team and one of the most famous lawyers in America, wrote a book, The Defense Never Rests. Bailey was disbarred for misconduct while defending one of his clients. At last account he finally rested and is living in Florida.

Future topics will include the following:

  1. How to get business ethically
  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. Investigators, polygraph operators
  12. Tape-recording rules
  13. Motions to withdraw
  14. Pretrial publicity
  15. What to say and not say to the media
  16. Personal habits—alcohol-drug problems
  17. How to 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 your practice
  25. Social networking, Facebook, Twitter
  26. Blogs
  27. Website
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