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Ethics and the Law: Behind Closed Doors

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

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

HCCLA Letter:

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

Dear Judge Hill:

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

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

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

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

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

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

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

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

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

Memo from Belinda Hill to prosecutors:

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

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

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

Here’s why:

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

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

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

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

A lawyer shall not:

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

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

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

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

Here are some practice tips to avoid trouble:

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

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

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

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

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

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

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

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

Ethics and the Law: Born to Be Wild

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ethics and the Law: No Man Is an Island

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As you get older, you realize no man is an island. This thought came to me at the Rusty Duncan award ceremony when I saw John Dietz, Bill White, John Boston, Ron Goranson, Scrappy Holmes, Tim Evans, and a few others. Travis Bryan was not there. Travis is now a District Court Judge in Bryan. Back then, he was like the rest of us, working as a defense lawyer. Rusty Duncan had also been part of our group at the Huntsville Trial College. We had many things in common and became fast friends. We were all young lawyers, but luckily, had trained under great lawyers like Charles Tessmer, Roy Minton, Jim Skelton, Warren Burnett, Racehorse Haynes, and other great ones. Some of the students went on to become great lawyers. Some went on to be wasted space.

Every now and then people come along who go above and beyond the call of duty: Audie Murphy, the most highly decorated soldier of WWII, Alvin York, who single-handedly captured numerous German enemies killing his comrades. We in the criminal defense bar do not wear uniforms and carry weapons with us as we do our jobs. We do our jobs by standing up to the tyranny of the government. We do our jobs by filing motions for discovery, investigating our clients’ cases, trying cases, and appealing cases. A lawyer has taken an oath to zealously represent the client, doing it right and ethically.

When you are in the military and do not follow your oath, bad things happen. The same is true for lawyers. Some lawyers brag at cocktail parties and other places, “I am a lawyer,” and then never follow their oath. It happens every day in every courtroom across the state. They get the check to the bank and head for the golf course or Paris. The client calls and wants to know what happened to that man who claims to be the greatest lawyer in the world on his website or billboard. What happened to that man or woman who told me they could save the day? As my friend Ken “Dude” McLean used to say, “Most of them have not read a case since Plessey v. Ferguson.” He also said the same thing about the judiciary.

Every now and then people rise above others and do remarkable things to help their fellow man. The people I selected on the ethics committee are such people: Don Davidson, Jack Zimmerman, Robyn Harlin, Ray Fuchs, David Sheppard, David Zavoda, Joe Pelton, Greg Velasquez, Joseph Connors, Cary Hart, and Michael Mowla. Gerald Goldstein and Cynthia Orr are such people. Bobby Mims is also one of those people. Randy Schaffer and Josh Schaffer are also among them. Terry Gaiser is one. Audley Heath is one. 

As I noted once before, my bronco-riding rodeo friend said, “When you deal with some people in West Texas, you better have your tennis shoes on tight because they are going to be tough.” When Robb Fickman, who is from Midland, found out what was happening in Edna, Texas, he was like Col. William Travis at the battle of the Alamo. He sent out a message for help to save a fellow lawyer from possible jail and great agony. Lawyer Fickman mobilized up to 70 men, women, and boys and girls to go to Edna in support of a lawyer being railroaded by a prosecutor. They all worked together as a team and it turned out to be a happy ending. If you think this is an isolated case, you must still believe in the Easter bunny.

Prosecutors and judges across the state ignore the Constitution. There are some good judges and prosecutors. Let’s give them the benefit of the doubt and believe that they just don’t get it. It is a sad state of affairs when a prosecutor in Houston gets recognized for doing the right thing. He did what his oath requires. It happens so infrequently that it makes the news when the oath is followed.

We need to be professional when we “remind” the judges and prosecutors what their oath is and what the Constitution, statutes, and cases say.

Like David Crockett said, “Be sure you are right, then go ahead.” He died fighting for what he thought was right.

Even if you do not like, have no use for, and simply can’t stand the judge, always show respect for the position. It is always humorous when someone gets appointed or wins an election for a judicial bench and then says: “I want to be a public servant. I am willing to take a cut in pay.” It is a long-standing joke that is not true. Nine times out of ten the new judge has not been very successful as a lawyer. Otherwise they would not be trying to get on the public trough. They know that once they get there, unless they are caught in a devious act, they will stay for what seems forever. There are a few exceptions. There are a few judges who were actually successful criminal defense lawyers in Houston—such as Sherman Ross and Denise Collins. But many have ascended that well-greased wheel to their thrones from the district attorney’s office. Judges are then sent to “Judges School,” where they master the art of “overruled” and “move along,” and “I gotta move my docket.”

Warren Burnett, when as he said he was in a sporting mood, used to ask the judge, “Your Honor, from what to what do you want me to move along to?” Lawyer Burnett was a smooth operator. More than once he would go to the funeral of a judge, as he said, “to make sure the bastard was dead.” Remember Rule 8.03. You have a duty to report unethical behavior of prosecutors, judges, or defense lawyers. Lawyers complain but then do nothing. It is time to stop complaining and take action. Ex-parte communications are unethical and should be reported. Also, when prosecutors lie or hide evidence, it should be reported.

If something bad happens, file the motion for a PR bond under section 21.002(d) of the Texas Government Code. Remember that you are always entitled to a bond and a hearing in front of another judge.

The Lone Ranger had Tonto, Wyatt Earp had Doc Holiday, Waylon had Willie, Johnny Cash had June Carter, Roy Rogers had Dale Evans, and you have 3,200 TCDLA members to help. Just call the hotline number: (512) 646-2734.

Ethics and the Law: Bad Apples in Every Barrel

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Make sure when you get a new case it is done in an ethical manner. Since the beginning of time, some lawyers have been dishonest. There are bad apples in every barrel. We must all pay attention and not violate the rules.

Lawyers run deceptive ads, pay case runners, lie, and use other crooked methods to get cases. Lawyers have been caught taking stolen property, narcotics, and illegal proceeds just to get paid. Some get caught, some don’t. Lawyers have bragged they are golfing buddies, tennis buddies, and party buddies to get cases. They have been known to say “I’m the only lawyer who can get this done.” And some lawyers have an unethical deal with bail bondsmen. Attached is co-chair Chuck Lanehart’s article on the subject.

“Never Get in Bed with a Bail Bondsman”
by Chuck Lanehart

Early in my career, the great Lubbock lawyer Byron Chappell1 advised, “Never get in bed with a bail bondsman.” Most of the bail bondsmen I’d met were crusty, toothless old bastards with beer bellies, so I could not imagine why Lawyer Chappell would think I’d consider a sexual relationship with such a person. But I soon learned the meaning of my mentor’s metaphor.

I learned that the term “bail bond whore” describes an attorney whose practice depends largely on referrals from bail bondsmen. Byron believed bail bond whores joined plea bargain lawyers, penitentiary agents, and V-6 lawyers2 to threaten the reputation and livelihood of the stand-up, ethical-but-zealous criminal defense bar. (And he called every surety a “two-bit bondsman.”)

From the time some two-bit bondsman first collected a fee to spring some poor soul from the local lockup, unscrupulous lawyers everywhere have been known to pay kickbacks to sureties for referring clients. Not only will this shady dealing get you summoned to appear before the local grievance committee; it will get you hauled to the hoosegow. The practice is condemned by Rule 7.03(b) of the Texas Disciplinary Rules of Professional Conduct (TDRPC), which provides, “A lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting prospective clients for, or referring clients or prospective clients to, any lawyer or firm . . .”

The Barratry Statute, Section 38.12 of the Texas Penal Code, makes lawyer kickbacks to bail bondsmen (or others) a third-degree felony crime, punishable by up to ten years in prison:

(a) A person commits an offense if, with intent to obtain an economic benefit the person:
. . .
(2) solicits employment, either in person or by telephone, for himself or for another;
. . .
(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment; [or] . . .
(6) accepts or agrees to accept money or any­thing of value to solicit employment.

The more common “tit for tat” practice of a lawyer referring clients to bail bondsmen with the expectation the surety will return the favor is also illegal in Texas. The Texas Occupations Code, which regulates bail bond sureties, prohibits a bondsman from recommending an attorney or law firm to the surety’s client:

Sec. 1704.304. PROHIBITED RECOMMENDATIONS OR SOLICITATIONS; OFFENSE. (a) A bail bond surety or an agent of a bail bond surety may not recommend or suggest to a person for whom the bail bond surety executes a bond the employment of an attorney or law firm in connection with a criminal offense.
. . .
(e) A person commits an offense if the person violates this section. An offense under this section is a Class B misdemeanor.

Further, a Texas Attorney General’s opinion interprets section 1704.304(a) to prohibit a bail bond surety from recommending any lawyer or law firm, either in­di­vidually or by including the attorney or law firm in a selected list.3 An attorney who knowingly accepts such an arrangement also violates Sec. 1704.304(a), as a party to the offense.4

So, is there a way to get around all these rules for an enterprising lawyer who, say, wants to open his own bail bond business? Nope. That’s been on the no-no list for a long time. A 1957 ethics opinion interpreted Canon 24 of the old Texas Canons of Ethics, which were replaced by the current TDRPC. It is an ethical violation for an attorney who practices criminal law “to engage in the business of making bail or other bonds in criminal cases, whether he makes such bonds under his own name or an assumed name, or to be in any way connected with, or have any interest in, any company which is engaged in the business of making bail or other bonds in criminal cases, regardless of where such company maintains its office, and regardless of whether it advertises its business.”5

What about a lawyer making bail for his own client? Under the Texas Canons of Ethics, it was not unethical for an attorney to habitually engage in the practice of making bail bonds in criminal cases, if the attorney-client relationship existed at the time the attorney signed the bond.6 However, once such bail is posted, it is unethical under the TDRPC for the attorney to surrender the client’s bond, unless the attorney knows that the “client is planning to commit a crime, a fraud, or is about to refuse to comply with the terms of the bond.”7

There’s another situation involving attorneys who make bail for clients that has been addressed by the Texas Commission on Professional Ethics.8 The law allows an attorney to enter a plea of guilty or no contest on behalf of a client in Class C misdemeanor cases in justice court or in municipal court.9 May a lawyer who serves as bail bondsman for his client add to the court’s form of bond a provision in which the client agrees that, if the client fails to appear in court, the attorney is authorized to enter a “no contest” plea that will result in a fine and may result in the issuance of a warrant for the client’s arrest? Such an arrangement—in violation of Rule 1.02, Rule 1.06, and Rule 1.08—“is a prohibited business transaction between lawyer and client that is not on terms fair and reasonable to the client, creates an impermissible conflict of interest for the lawyer, and impermissibly purports to eliminate the lawyer’s duty to consult with, and abide by the decision of, the client concerning the entry of a plea.”10

In a similar scenario, it is okay for a lawyer to include in his contract a provision calling for the client’s agreement, in advance, that the lawyer may enter a plea of “no contest” or “guilty” on the client’s behalf for Class C misdemeanor in municipal court, even if the attorney is on the client’s bond. The lawyer must be careful to make sure the client is able to make an informed decision about the plea, and there must be no significant likelihood that the client will have an opportunity to defend the case.11

So, what would Lawyer Chappell do? He would try to find a way to avoid using bail bonds altogether to extricate his client from jail, because “There are many ways to skin this cat.” A magistrate has the au­thor­ity to authorize a cash bond12 or a personal bond,13 so what’s the harm in asking? Or, Lawyer Chappell might file a writ of habeas corpus under Texas Code of Criminal Procedure Article 11.01 et seq. If the state is unable to establish probable cause after a hearing on the writ, the client must be released. If all else failed, Lawyer Chappell might negotiate the lowest possible fee and hire a “two-bit bondsman,” but you can bet he would never get in bed with the bail bondsman.

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: 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: 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: “Girl on the Billboard” – By Robert Pelton

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When I drove from Houston to Huntsville to see a client, it was a tossup on who had the most billboard ads: lawyers or fried chicken places. Was it the smiling faces of lawyers and their staff, or someone eating a chicken leg? Seeing those billboards reminded me of the song “Girl on the Billboard.” “Girl on the Billboard” is a song about a truck driver who falls in love with a picture of a scantily clad woman he sees on a billboard along his daily freight route on Route 66. As he sees this young woman daily, the truck driver begins to fantasize about having a relationship with her. One day, the truck driver goes to the home of the artist who painted the billboard and asks for the young woman’s contact information. The painter then informs him that the “girl wasn’t real,” and that he’d “better get the [censored] on his way.” Brokenhearted by the reality that his fantasy girl was not real, the truck driver goes along his way on the highway wailing, “You’ll find tiny pieces of my heart scattered every which a way.” Sound familiar?

When I drive from Houston to Abilene I see billboards by lawyers stating that they are the “Slammer,” the “Jammer,” the “Hammer”—“we win our cases,” and “we don’t plead cases out.” Then I walk in the walls of the prison and see the results of some of these lawyers. While waiting for my client, I talked to several inmates who were mopping the floor and checking in laundry, and they told me stories of what their lawyers told them and then what happened.

All public media advertising must comply with Rule 7.02 of the Disciplinary Rules of Professional Conduct in that it cannot be false, misleading, or create an unjustified expectation about the lawyer’s qualification or services. The rules were created to protect the public. When I hear from an expert on advertisements that the majority of ads do not meet the criteria set by the State Bar, I can’t help but remember those men I met at the jail. Remember, we are dealing with living breathing human beings who were sent to prison like caged animals, so when it comes to advertising we must be careful not to create ads that would leave prospective clients brokenhearted like the truck driver. Most ads have to be reviewed to comply with ethical rules. The contact information for the State Bar advertisement review is 1-800-566-4616, or .

Article by Don Davidson of Bedford, Texas:

A person walks into your office and wants to talk about hiring you. You quickly ascertain that this person already has a lawyer with whom he or she is dissatisfied, and is therefore looking to replace that lawyer. You instantly remember that Rule 4.02(a) of the Rules of Professional Conduct prohibits an attorney from speaking with a person who is represented by another attorney without that other attorney’s consent. What do you do? Do you have to call the other attorney and get his permission to talk to his dissatisfied client? Fortunately, the answer is no.

Rule 4.02(d) expressly trumps 4.02(a). Rule 4.02(d) says: “When a person… 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.” The comment to Rule 4.02 is even more explicit: “Paragraph (a)… 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.” [Emphasis added.]

Of course, Rule 4.02(d) presumes that the client approaches the lawyer, and not the other way around. So soliciting a represented person to change lawyers would not fall within this exception to 4.02(a). In addition, the comment reminds us that we must still comply with Rule 7.02, which prohibits a lawyer from making false or misleading communications about (1) the lawyer’s qualifications or services, or (2) another lawyer’s qualifications or services.

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