From the Front Porch

We rural practitioners have many advantages over our more urban criminal defense brothers and sisters. Less stress (in theory), less traffic, better lifestyle… wait, I will not go into everything because I do not want any more city lawyers to move here! But one thing we do not have is access to expert witnesses. For example, if you Google “expert witnesses Dallas”, you can find scores of experts who will testify about seemingly every issue you can think of. Hell, some consulting firms are even looking to hire more. However, if you have ever tried to ask one of them to come, say, to Nacogdoches, their response is likely to be, “Where’s that?” followed by a huge fee. In all fairness, who can blame them? It will take several days away from the office for them to come to rural places.

So, what is an honest, hard‑working rural practitioner to do? My advice? Grab one of those dusty evidence books from law school and look up the learned treatise exception to hearsay. Texas Rules of Evidence Rule 803 (18) states that “Statements in Learned Treatises, Periodicals, or Pamphlets are not hearsay if a) the statement is called to the attention of an expert witness on cross‑examination or relied on by the expert on direct examination, and b) The publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. What does all that mean as a practical matter? You have the State’s witness testifying against some issue to the detriment of your client. You do not have an expert witness. But you can have the best book, manual, article from the world’s leading authority on the subject. How do you get this information before a jury? You call that to the attention of the expert witness on cross‑examination, then have them admit that is reliable. Once your book, article, manual passes legal muster, you get to read it to the jury.

I can hear the naysayers mumbling already. What if the State’s expert does not recognize that book, article, manual as a reliable authority? The State’s expert may say something like “I’ve never heard of it!” The framers of this rule must have seen that excuse coming. So as a safeguard, they put it that you can ask the Judge to take judicial notice of your expert materials. What if the Judge will not take judicial notice of it? Make an offer of proof. As a practical matter, that gives Judge’s something to worry about. They may change their position and let it in. At the very least, you may have an excellent issue for appeal. And you do not need to pay $5k for an expert to come to your rural location. You may only have to pay for the book or print out the article. This is one way in which we can all educate ourselves as experts, and this is a reasonable alternative on a rural court‑appointed attorney’s budget! So, the next time you are faced with an issue that requires expert witness testimony, do not despair. Get busy and do the research and find that learned treatise that provides the argument you’re searching for. When you have met the evidentiary burden for using a learned treatise in trial, you can then convey to the jury in your style the substance of that information and why they should consider its value in their deliberations. You do not have to drone on. Nowhere in the rule does it say you cannot read it with enthusiasm and charisma! Another upside to this is you do not have to worry about your expert witness being a gun for hire or someone who does not know what he is talking about. Also, let us not forget that the jury has observed your attention to detail and preparation on your client’s behalf. The information being given to the jury has received the court’s blessing and should be argued as having an expert’s seal of approval.

Let’s face it, the practice of criminal law can get, well, messy. For example, let’s say you’re in court with your client. As he fumbles for a pen to sign a reset slip, a packet of cocaine falls out of his pocket right in front of you and the bailiff. You are now an eyewitness to a new offense. What should you do? Well, under Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct, you can’t be the “lawyer before the tribunal” and be a witness in a case, unless you meet the requirements of the rule. That would apply to the current case in which you representing the client, and the new cocaine possession case that occurred before you. Why both? Because the new case could be used in the punishment trial of the old case, which means under Rule 1.15 (a)(1), you must terminate employment/appointment on the old case and refuse employment/appointment on the new case. I don’t think it’s safe to assume that most of us can see the logic in this approach.

Unfortunately, your ethical quandaries may not necessarily end there. What if you are subpoenaed? Let’s say the state wants you to testify against your old client regarding the packet of cocaine that fell out of his pocket in the middle of court. This is where things get dicey and confusing. The problem stems from the fact that information about your client is protected by attorney‑client privilege. This privilege applies to confidential information and non‑confidential information. Due to the fact that either type of information is protected, you must invoke the concept of confidentiality under the disciplinary rules of professional conduct. This is where many prosecutors and judges may question your sanity, but it is true. Therefore, if the state wants you to be their star witness, you can’t just sing like a canary. Instead, after being sworn in and getting the usual preliminary questions out of the way, you need to invoke Rule 1.05 (c)

(4) to protect yourself from any disciplinary allegations made by your former client. Wait to see if the Judge orders you to. If not, keep your mouth shut. If the Judge does, you should have legal protection from any ethical grievance made by your client, if you choose to testify since Rule 1.05(c)(4) is permissive. Hopefully, this will never happen to you. If it does, remember your client has the right to be protected from you revealing confidential information, including privileged and non‑privileged information. Your duty of confidentiality can be a.) waived by your client, though unlikely or b.) overcome by the Judge ordering you to testify. So, before you start testifying, invoke Rule 1.05 and wait for the Judge to decide. If you ever feel jammed up, you can always call the State Bar of Texas Ethics helpline at (800) 532‑3947. They are always there to help us. I also want to thank State Bar Ethics Attorney Ellen Pitluk for her assistance in helping me with this article. As always, take care, good luck, and have fun!

Marco Polo describes a bridge, stone by stone.
“But which is the stone that supports the bridge?” Kublai Khan asks?
The bridge is not supported by one stone or another,” Marco answers, “but by the line of the arch that they form.”
Kublai Khan remains silent, reflecting. Then he adds: “Why do you speak to me of the stones? It is only the arch that matters to me.”
Polo answers: “Without stones there is no arch.”¹

He was an incredibly imaginative writer, Italo Calvino – the sort of dexterity with words and images that make you want to put the book down from time to time and just clap. In Invisible Cities, he has a young Marco Polo talking to an aging Kublai Khan – the former regaling the latter with some tales of the magic that used to be his empire, so many beautiful moments spun from exploring the simplest of things: bridges, for example. Arches and stones. Eight weeks after the Concho Valley Public Defender’s Office has officially began accepting appointments, those are precisely what I find myself thinking about: arches, and the stones that compose them.

In an earlier article, I wrote about how we had set out to lay the foundation for a brand‑new public defender’s office in rural West Texas. It was an intensely personal piece: one focused on how we sought to discover the values we collectively held dear and rooting our earliest decisions in those values. It dwelt a great deal on the importance, to us, of building an enduring culture – one that emerged in the most welcome way from the collection of people and experiences who had decided, for whatever reason, that San Angelo was the place they wanted to be a public defender. The joy of that stage in our creation was the time we were able to dedicate not just to putting the stones in place in a way that felt right to us,  but finding and examining the stones themselves. And now, it’s the arch that we’re looking at – what does it mean to be eight weeks into an open and operating office, our gaze shifting from behind to ahead, with so many decisions and people gathered in the most wonderfully unique side‑by‑side way. Now that the stones are together, the question: what is their strength? How can it sustain? The line of the arch – is it strong?

Somewhere within these questions lies the thrust of where we are in as an office, the “you’re open, what now?” stage. It is a continual process of examination and re‑examination: those decisions we made, those processes we set up, those values we grounded ourselves in – how are they now that they’re being battle‑tested?

With that, I’d like to discuss what our phase two of opening a public defender’s office has been like: the assessment. And reassessment. And reassessment…

Break things

Some of my more formative professional moments have taken place in restaurants that are about to open. The team is hired and trained, the menu is the product of months of taste‑testing and experimentation, and there comes a moment of recognition that things are as ready as they ever will be. And then, the opening. The kitchen runs behind, the server stumbles with the register, the drinks come out slowly. Depending on the strength of the restaurant’s founding moments, what happens then isn’t a crumbling, it’s a resilience – some recognition that what we prepared for needs tweaking, and it is only on the strengths of our preparation that the swift and lasting adjustment is possible. And, invariably, good restaurants do just that: recognize the failing, pivot to the fix, and ground it all in the notion that this was precisely the un‑ expected turn that a strong operation can handle.

For our office, there was great emphasis on just that, that what we are setting up will, at times, break – it’s bound to. The issue, though, is not in the breaking, it is in the opportunity that presents as a result – how to fix.

Adventurousness

One of the questions that guides our office is: “Whoever wrote the rule?” The task here is to look at a thing we’re dealing with, recognize the traditional forces at play, and then explore space around adventurous solutions. Or, as James McDermott might call this: “Why say no to something unless you have to say no to it?”

An example of this, for our office, has to do with magistration. I have only ever worked in rural public defender offices, and though I have always wanted to be present in some capacity at the moment of magistration, it has never really been functionally possible. As an office, we decided that based on some of the particularities of our service area that we could be present at magistration from day one.

The rule – especially in rural areas – has always been that an assortment of forces has prevented counsel from being able to be present magistration proceedings. We explored this as an office – examined our personnel, the sustainability of our decision, and the role we wanted to play by being there – and decided that it was the right move. And, it has paid dividends – the early data confirms what is hardly surprising: counsel at a bond‑setting leads to good results.

Leadership is a team sport

I will always believe, in every phase of existence, a public defender’s office needs to create space for both delivery and reception of divergent views. Your stroke of brilliance might feel to everyone else as something short‑sighted, and the only way to check the strength of what you’re building is to gauge how comfortably disagreement is voiced, how readily it is welcomed, and what action steps result. There may be no better skill in these moments than some sort of silence, coupled nicely with some follow‑up questions.

Critical to the doors‑newly‑open phase of our office have been the regular meetings of both our leader‑ ship team and entire staff where we have tried to create space to report back on things that work and things that don’t. This can create uncertainty and concern – fine. In an ideal outcome, the temporary nature of each of those emotions turns to reward and confidence when the expressed concerns are attentively handled. There is something transcendently human about being heard, and if it’s something we preach regarding our client engagement, it should certainly be something we bring back to the office.

Humility is a value that matters tremendously to our office, and it means so many different things: that no single person is bigger than what we’re trying to do, that there’s a perpetual recognition of what more we can learn and how much we can grow, and that how we operate – and the decisions that guide our function – are ones that feel most right to us, where we are. The challenge in a series of articles like these is, for me, a personal one: how do I share what feels true for us without presuming that there is some transitive value to everyone else?

And the answer? I have no idea. My hope is that there might be some marginal utility to the simple sharing of a lived experience of assisting in the creation of a public defender office. I have learned there may be solidarity in uncertainty, that there may be comfort in going to bed at night wondering about the rightness of a decision, that there may be calm in knowing that this work can be rugged, and that all of it is magnificently okay.

Stones will gather into bridges – what a privilege it is to do the gathering.

Typical Scenario:

Defense lawyer to County Attorney: “Good morning, Henry, where’s the lab report on that little bit of green leafy stuff for my college kid?”
County Attorney: “Aw, hail, I don’t need a lab report.”
Defense lawyer: “Yes, you do.”
County Attorney: “Naw, I don’t. Deputy Bobby Joe has seen a whole bunch of marijuana; based on his training and experience, he can tell what’s marijuana and what’s not.”
Defense lawyer: “Well, we both know that idiot doesn’t know a Twinkie from a Moon Pie, and his training and experience don’t count now that hemp is legal.”
County Attorney: “Guess we’ll just have our Constitutional non‑lawyer County Judge decide that. He’ll be plenty fair, he learned everything he knows about the law from me and his Uncle John Bradley.”

Ever heard THAT before?! No kidding, we all have. But never fear. Below in a condensed form is a handy, printable/put it on your electronic device list of responses we think you can use to great effect. We have organized them by the law/testing, and by practicality.

We are not biochemists, we are lawyers, so this is not intended to be a scientific paper. For those of you who wish to dive deeper into the science, e‑mail Daniel Mehler at daniel@mehlercannabis.com for links to various excellent papers.

First to the law/testing, in no order of importance:

1. Marijuana and hemp have the exact same scientific definition in our Marijuana is defined as Cannabis sativa L at Texas Controlled Substances Act (TCSA) Chapter 481.002. Hemp is defined as Cannabis sativa L at Texas Agriculture Code Section 121.001. The difference is that under the Agriculture Code definition of hemp the concentration of tetrahydrocannabinols must be “not more than 0.3 percent of the dry weight basis” or the substance is illegal. The term tetrahydrocannabinols is defined in the TCSA at Sec. 481.103.
2. The old concept of “my training and experience” no longer works since the definitions have changed. We skeptics always doubted the officer had the required expertise to say it’s marijuana, but now that does not matter. Only a valid laboratory test can determine the amount of THC More on testing to follow.
3. Cannabis sativa L is a very complex plant. The commonly used term THC is NOT a scientific term, it is one created by various legislatures including ours. The illegal stuff contains Delta‑9 Tetraydrocannabinol. The legal stuff contains Cannabinol (CBD) and not much Delta‑9 THC. The atomic composition of both is exactly the same ‑ C21H30O2 ‑ but those molecules are arranged slightly differently. These are called isomers, that is molecules with the same atomic composition with different structures. That is vitally important when it comes to testing.
4. All cannabis plants, be they hemp or marijuana, contain molecules called a terpenes. Terpenes are the molecules that produce an aroma. There are thousands of them in nature. For instance, the terpene pinene gives pine cones its aroma. The terpene limonene gives a lemon peel its scent. These same compounds, terpenes, also give hemp and marijuana their distinct odor. There is no difference in the terpenes found in hemp or marijuana as they are both varietals of Cannabis sativa L.. This means that no human nor canine, cop or otherwise, can tell the difference between the smell of hemp versus marijuana.
5. Testing of hemp and marijuana is fraught with problems.
   1. If a lab is testing cannabis with a Gas Chromatographi, with Flame Ionization Detection (GC‑FID), it is heating the cannabis with a flame. Heat changes molecules a bit and we already know the atomic composition of CBD and THC are the same. That little bit of change due to heat may turn a legal substance (hemp or CBD) into an illegal substance (marijuana or THC) in the lab as a function of the testing protocol.
   2. A liquid test without heat, High Performance Liquid Chromatography (HPLC) is a better testing methodology, but is still fraught with issues as cannabinoids are pushing the boundaries of what the science of chromatography is capable of.
   3. Only tiny samples are tested and loads of hemp or marijuana varies greatly in quality and chemical content, even between individual flowers from the same plant. The DPS has admitted in its manual entitled TPS Seized Drugs Manual on page 55 that the “1%” testing procedures cannot determine THC THC content is crucial to know. Was this high‑grade marijuana or hemp that came back slightly over the 0.3% threshold? Remember that intent matters in these prosecutions and that specificity in the testing is necessary to properly advocate for or inform our clients.
   4. How a defendant who gets his/ her case dismissed but wants the “hemp” returned is beyond the scope of this article.
   5. DWI due to marijuana and MTR’s due to “hot UA’s” are also beyond the scope of this article. Suffice it to say, however, there are very serious problems proving impairment due to marijuana use. Tolerance, wildly varying elimination rates, and what inactive metabolites mean are issues for another day.

Now to practicality and possible persuasive arguments, in no order of importance:

1. “Come on, why not dismiss for Community Service? My client is going to get more ‘rehabilitation’ from helping out unfortunate folks than anything the court can do.” It can be actual community service or a contribution to the food The Code of Criminal Procedure at Article 42A.304(f) permits food bank/Veteran’s Programs contributions. Heck, in our little county (under 50,000) contributions can even be made to 501(C)(3) non‑profits.
2. “Your docket is pretty crowded and it’s crowded with assaults, thefts, and the like. Let’s get rid of this ‘might be marijuana’ case so you can spend your time on the other cases.”
3. “Speaking of theft cases, especially shoplifting, those are the ones that get you votes from your merchants. Spend your time making your merchants happy.”
4. “Your County Commissioners may like fine money, but they don’t like delays, backed up cases, labs fees, jury trials, and all the other things that go along with court fights.”
5. “When marijuana eventually gets de‑criminalized, we all know expunction of old cases is going to be part of the legislation. Why in the world would you waste time on a case that will go away in the future? De‑criminalization is a just a matter of when, not if.”
6. “Many of your colleagues in the District and County Attorneys Association are refusing to even file these cases. They know the days of unlimited resources to prosecute are over. And they aren’t a bunch of liberal pot lovers, they are practical men and women… and so are you.”
7. “My client is a college/high school kid/going into the military/comes from a good family, etc. Here are his transcripts/year book clippings/character references. Yeah, maybe sometimes he acts stupid, but you can’t fix that, so stop trying.”
8. “If they ever figure out a way to test, it’s going to cause long delays and clog your docket even worse than it is now.”
9. “Don’t try using that silly ‘unlicensed transportation’ stuff on me. We both know that the hemp law in Agriculture Code 122.101 is intended for growers not average folks.”
10. And our favorite, surely to be true in rural areas as well as urban ones – “WHO REALLY CARES ABOUT MARIJUANA THESE DAYS? No one, is the answer, including you, Mr. Prosecutor! Be honest with me, we are old friends. It’s not much more than a revenue raising law now. Let this kid help out our less fortunate citizens with community service. You still look good, the locals get a benefit, he stays a student/employed person, and he is a bit wiser.”

We hope this article will bring you good outcomes. If it doesn’t, use it to make a solid record for appeal, waive your fee for the appeal, waste the prosecutor’s time on the appeal, and use your eventual victory to your advantage in the future. You will more than make up for the uncharged appellate fee!

What do I know?

When I was deciding what to write for this column, I wanted to discuss the differences between practicing law in rural areas and urban areas. Also, I wanted to give some pointers for those of us who choose to practice out in the sticks. However, in order to discuss the differences, one should know something about both situations, right? The first thing that dawned on me was, what do I know about practicing in an urban area? I have been practicing in a rural setting for nearly 28 years. So, in writing this column I have done my best to draw on information that I have received from my friends who practice in larger cities as well as personal experiences in dealing with big city lawyers.

You’re not going to get a lot of hard‑hitting legal analysis from me. Not here anyway. The law and procedure in Texas are the same, whether you practice in the country or in the city. The difference between the two is not with the law, but rather how we practice the profession.

Can’t we just all get along?

One of the first differences between practicing in the country and the city that comes to mind is the fact that, out here, lawyers seem to get along with one another better than they do in the city. I’m not sure why. Maybe it’s because there are not as many lawyers, and we all know each other much better than our counterparts in the city do. Maybe it’s because we see each other a lot. Not only do we see each other at the courthouse, but we also see each other at the grocery store, at church, at a Friday night football game, and at our children’s and grandchildren’s soccer games and other events on the weekends.

This is not to say that “we are all in bed together.” That’s a myth that some people believe about hiring a lawyer from a small town for a case pending in said small town. I don’t hear it as much as I used to, but there are still some that believe it. It’s nothing for some of us to engage in a long, bloody, acrimonious fight at the courthouse for hours or even days then go have a beer together when it’s all over. Believe it or not, it is possible to represent your client vigorously, and to the fullest extent of your ability, and still be courteous and civil with opposing counsel and the Court. Heck, some of us are actually very good friends. Many years ago, I went on an Elk hunting trip to Colorado with a group of guys that included criminal defense attorneys, the elected District Attorney, a criminal investigator with a local police department, and a probation officer, among others. Not a single case was decided or even discussed on that trip.

A lot of irons in the fire

Another difference between the country lawyers and city lawyers is that out here, we don’t generally get to specialize. That’s just the nature of making a living. In the larger cities a lot of attorneys are able to focus on specific practice areas like criminal defense, family law, civil litigation, real estate, and the list goes on and on. There are some lawyers that even sub‑specialize. For instance, there are some lawyers that handle only DWI cases, or drug cases, etc.

In rural areas, we tend to handle more than one kind of case, and in some instances several. I have always done criminal defense. It’s my passion. I majored in criminal justice in college. Most of my friends in college wanted to go into law enforcement of some sort. Not me. I wanted to practice criminal law. However, it’s very difficult if not impossible to make a good living doing just criminal defense in a small town. I have always practiced family law as well. In my career I have also done civil litigation (DTPA, Contract Disputes, Personal Injury / Medical Malpractice) and probate. For many years I was a title examiner and closer for a local title company. Rural practice just seems to be more diverse.

I have found that my experiences in other areas of the law have served me well in my criminal law practice. For example, I have received many referrals from other attorneys to represent people, who had criminal charges pending, in their divorce case. The referral may come from a divorce attorney that does not feel

comfortable handling both cases, so they refer both to me or sometimes just the criminal matter. Either way it’s good for business. For years, we had an attorney here that practiced only family law. She was board certified and very well respected. There were several times when she would hire me, and pay me well, to advise she and her client on complex real estate issues in large estate divorces. This was simply based on my knowledge and experience with not only family law, but also real estate law and financing.

Stay Educated

Staying educated is important no matter where you practice. In order to be competent, one must stay current on all developments in the area or areas of law in which they practice. There are many ways to accomplish this. You can attend CLE conferences in person or online. You can do self‑study. Personally, I find that I get much more out of continuing legal education if I attend in person. When I’m at the conference I’m a captive audience. I don’t have the phone constantly ringing, fires to put out, and office staff needing answers every few minutes. I’m there to listen, learn, and network. Networking… we’ll get to that in a minute.

The downside to rural practice as it relates to continuing legal education is that if you practice regularly in different areas of the law, you need to attend CLE in those areas to stay current. This can be time consuming and expensive. However, I find that it is worth the time and expense because it helps me to better serve my clients.

Networking – making and maintaining relationships

Again, networking and relationships are areas that are important no matter where you practice. However, I believe that they have tan extra level of importance for rural lawyers. Networking and maintaining relationships help to build business. The more people we know and associate with, the more channels for referrals of business. Also, the more attorneys that we know from other areas of the state that practice in our field, the more sources we have to discuss issues and bounce ideas off of one another. In rural areas it is vitally important to build and maintain relationships with those in the community, not just the lawyers. These are the people that will be on our juries. As criminal defense attorneys, we all know that more criminal cases go to jury trial than any other type of case.

Also, in rural areas, where we practice more than one area of the law, we have to be mindful to always be professional and courteous to others that are opposing parties in a case. If we are not, someone might wind up on one of our juries and hold that against us. I have tried many jury cases where there were several people on the jury panel that were either former clients (divorces, real estate transactions) or the opposing party in a case in which I was involved (mostly divorces). If the ex‑wife or ex‑husband of one of my former divorce clients winds up on that jury, it would be very detrimental for my client if they decided to hold a grudge against me.

For example, in one criminal jury trial, there was a lady on the panel that was the opposing party in a divorce case that I had previously handled. I flagged her immediately as someone that I did not want on my jury. During the State’s voir dire, she indicated that she knew me because I represented her ex‑husband. We approached the bench to do further examination outside of the presence of the whole panel. During that discussion she told the Judge that she did not hold anything against me because although I represented her husband, I was always professional and courteous with her. My client and I decided to not strike her. It went well. The case ended in a hung jury and she was one of the not guilty votes.

It also helps to maintain a good working relationship with law enforcement, when you can. There have been several times during my career when I called up someone with local law enforcement to ask questions and get help. If you don’t have a good working relationship with law enforcement they generally won’t talk to you. Again, for example, there have been several times when I was representing someone in a child custody case, and my client thought that the other party was up to no good but didn’t have any solid information. A couple of phone calls later I knew what they were doing, and whom they were associating with. These officers that provided information showed up at my hearing and willingly testified.

Recently, I represented a defendant in a large EOCA (Engaging in Organized Criminal Activity) case. The initial discovery was very large. It took me quite some time to go through it. Once I did, I was unable to find where my client was involved with the criminal organization. I called the lead investigator on the case, whom I have known for many years. I asked him to explain to me where my client was involved with the EOCA case. He basically told me that he believed my client was a drug user, but not involved with the EOCA. I asked him if he would relay that information to the D.A. He did. I spoke with the district attorney, and after a short time, my client’s case was dismissed. If I had not had a good working relationship with the detective, it would have taken months or years to have that case dismissed.

Stay on the appointment wheel

In rural areas, it is very important to stay on the appointment wheel, even when your practice is doing well, and you don’t think it’s necessary. If you continue to receive appointments, these can be great sources for referrals. I have even had previous court appointed clients hire me on new cases because they liked the way I treated them when I was appointed. Staying on the wheel keeps your name out there and almost always produces more retained clients.

Unknown waters

If you are an attorney from a larger urban area and you are representing a client on a case in a small town, please consider the following advice.

Ask questions. Call a local attorney in that area and get the lay of the land. Many of us in TCDLA are more than happy to answer a few questions for our brothers and sisters. You will need to know all of the quirks about the Judge, the prosecutor, and how things are done. You need to know the local procedures of the Court.

Consider associating local counsel. A dog barks louder on his own front porch. In a rural community, these prosecutors who are used to working with the same defense lawyers day in and day out may not trust a lawyer coming in from a metropolitan area like they do the attorneys they know. If you are going to consider hiring local counsel, ask around, and be sure you associate someone who has a good working relationship with the Court and the prosecutor. Also, associate someone who the locals know is not afraid to try a case, and will if they have to. Finding someone who has a good working relationship with law enforcement helps also.

These are just some of my thoughts about practicing in a rural area. There are other areas to discuss, but I’ll save those for another time. Until then, remember:

“If you want to be successful, it’s just this simple. Know what you are doing, love what you are doing, and believe in what you are doing.”

‑Will Rogers

How do we make our client’s right to be free from illegal search and seizure under the Fourth Amendment important to jurors who feel that they have nothing in common with our client?  How do we help them understand that a constitutional right is not a mere “technicality”, and that we are not just attempting to use it to “avoid responsibility”? 

In Texas, and more particularly in rural areas, you will get the interest of many members of the jury panel by just mentioning the Second Amendment, “gun rights.” Here in East Texas, where some of us practice, gun rights can serve as an effective tool to focus the attention of jurors. The fear of the government taking away people’s guns is pervasive, and ignites strong passions from many potential jurors. The public is inundated with information from political campaigns on issues involving firearms. These beliefs are reinforced by television commercials, direct mail ads, Facebook ads, and speeches which stress the importance of protecting the right to bear arms. If that isn’t enough, advocacy groups such as the N.R.A. vet candidates and give ratings based on how pro-gun the candidates are, then mail the ratings to every registered voter (juror pool).

If you were to poll an average jury panel, it would be surprising if even a few could list the amendments to the U.S. Constitution and the corresponding rights that are associated with them. However, the one thing that Texans are more passionate about than BBQ and football is guns. Ask a panel what the Second Amendment protects and 9 out of 10 potential jurors would likely answer correctly.

So how does a criminal defense attorney get a panel member to be as passionate about a client’s Fourth Amendment rights as he or she is regarding their own Second Amendment rights? You must connect the importance of the juror’s Second Amendment rights to your client’s Fourth Amendment rights. They must understand that only by preserving the defendant’s constitutional rights can they preserve their own.

Relevant Rights:

Regardless of your interpretation of the Second Amendment, in Texas it is widely believed to be a safeguard of one of our most important individual rights. That belief presents an excellent opportunity for criminal defense lawyers to relate to jurors the importance of our other individual rights. If applied in the appropriate setting, such a discussion could help potential jurors appreciate and value other constitutional rights such as the Fourth  (or Fifth, Sixth, etc.) Amendments to the U.S. Constitution (as well as Article 1, Sections 9 and 10 of the Texas Constitution).

Most of us have little or no experience trying cases with actual Second Amendment implications, which makes it easy to dismiss the subject as having little to no relevance to our practice. However, after a recent acquittal in a misdemeanor DWI trial, we were surprised by a post-trial question from the foreman of the jury. The foreman asked: “Do you practice Second Amendment Law?” Mike was a bit perplexed but responded: “Yes, I practice criminal defense law which includes many different areas including issues related to the protection of individual’s constitutional rights.” The foreman went on to say that while deliberating, the jury disregarded evidence of intoxication due to their concerns about possible government abuses of the defendant’s constitutional rights, which were presented to the jury by the inclusion of an instruction in the jury charge under Article 38.23 Texas Code of Criminal Procedure. These concerns were bolstered by the foreman’s inherent distrust of the government due to his belief that the government was attempting to violate his rights under the Second Amendment.

This led us to understand that jurors in Texas believe strongly in their own individual rights when they feel they are threatened by the government and they will enforce violations of the rights of others, when they make the connection. The key is engaging the jury early in voir dire regarding potential law enforcement overreach regarding the rights that Texans are most passionate about. You can force an all or nothing approach to protect everyone’s constitutional rights, including your client’s.

Getting them to care early:

Many attorneys miss opportunities to plant seeds early on in the trial process. Voir dire is the best opportunity for establishing trust and laying the groundwork for the “ah ha” moment for those that will serve on the jury. Introducing Article 38.23 to the panel in a carefully crafted manner is an effective way to lay such a foundation. The Texas Code of Criminal Procedure Article 38.23(a) states:

Art. 38.23. EVIDENCE NOT TO BE USED.  (a)  No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

If you have a case predicated on a traffic stop or any other encounter with the government that does not involve a warrant, consider whether you can make an Article 38.23 argument. It is important that you not only expose the panel to this concept, but also locate those who will, and those who will not, uphold the Constitution.

Remember, Texas gives us two “bites” at the suppression “apple”. Even if the Judge denies your Motion to Suppress in a pre-trial hearing, you can still argue the suppression issue to the jury. The following is an excerpt from a transcript of a voir dire in a trial that resulted in an acquittal in a felony drug charge tried to a jury:

“[I]n Texas, the people who established our laws a long time ago felt that they trusted jurors to make decisions about the legality of stops, searches and seizures. They put in the law what’s called Article 38.23 of the Code of Criminal Procedure. What it says is that if you as a juror hear evidence but then you believe that the evidence was seized by the government illegally, or if you have a question about the legality of that seizure of the evidence, then you’re required by law to disregard that evidence that you have already heard, and you cannot consider it for any purpose.”

After explaining the general nature of Texas Code of Criminal Procedure Article 38.23, the next key step is explaining what it requires of the jurors. Using an extreme hypothetical can demonstrate the importance of the law to the panel. An example used in the same voir dire:

“So, hypothetically, if you were to serve on a murder case and you’re a juror in a murder case and the only evidence that you see is a video recording of the murder taking place that undoubtedly shows the person to be guilty but that video recording was seized illegally by the police officer, you would be required by law to disregard that evidence and find that person not guilty.

That is a difficult concept because in Texas we value our Constitution, we value our rights to be free from illegal searches and we trust jurors to help make that decision.”

It is important that you phrase this in a way that lets the panel know this is a difficult concept, but a worthy one. Like most difficult concepts, when you ask someone on the panel if they can follow the law, you will get a lot of these types of responses: “maybe”, “I think I could”, and “I guess I need to know more about the facts.” You must press for a commitment that the juror will follow the law or, in the alternative, a statement that they will not commit to follow the law, making the juror subject to a challenge for cause.

This is where the Second Amendment comes in again. Another voir dire excerpt showing the transition:

Mike: Do y’all agree that the Constitution is important? How many of us believe the provisions of the Constitution should be upheld? How many of us possess firearms? Own guns? Mr. May, what would you do if the government came to get your gun?

Venireperson May: I’d probably raise a lot of hell when the police showed up.

Mike: And, Mr. May, who do you think enforces the Constitution against the government if they come to get your guns?

Venireperson May: Who enforces it?

Mike: Yes, sir.

Venireperson May: People.

Mike: Do you think if the people won’t stand up for the Fourth Amendment that they’re going to stand up for the Second Amendment?

Venireperson May: Probably not.

Mike: And is the constitution there to protect us or to protect the government?

Venireperson May: To protect the people.

Mike: And what does it protect the people from?

Venireperson May: The government.

Mike: And are police officers a branch of the government?

Venireperson May: I guess.

Mike: Thank you, Mr. May. So how many of us are willing to stand up for our Constitution? And how many of us are willing to do that by serving on a jury and applying the law as it relates to the Constitution? And how many feel like if we’re not willing to do it, nobody else is going to do it? I can tell you, it’s a difficult concept, but it is why in Texas we trust jurors to do that.

Using the murder hypothetical may appear extreme, but you want to make sure that each potential juror will follow the law in even the most extreme circumstances. This works for two reasons: 1) by getting the potential juror to accept the idea of disregarding evidence of a murder, disregarding evidence of methamphetamine, etc. is less of a problem; and 2) it “smokes out” jurors who truly cannot follow the law even if they thought they could.

Tailoring to fit your facts:

Once this point is established, the next step is to relate it back to a hypothetical more similar to the facts of your case. The following was taken from the same transcript and shows a transition from the murder hypothetical to a traffic stop:

[Let’s s]ay the officer said, I stopped the car because the right taillight wasn’t working. You get the video as the juror, you look at the video, and the right taillight is working. Don’t know why he said it wasn’t, but it was. Now, any evidence obtained as a result of that stop, what would we do with that evidence? We would disregard it. Okay? And if you couldn’t tell whether or not it was working and you had a reasonable doubt as to whether or not the stop was legal, those doubts as to whether or not the stop was legal, those doubts are taken against the government, against the State. And if you’re not sure whether or not it was legally obtained, you throw it out. Okay? That’s the way the law is set up in Texas. That’s what is required.

Beware, though, of Standifer v. State, 59 S.W.3^rd 177 (Tex. Crim. App. 2001), which prohibits improper “commitment questions”.  Be sure you are familiar with those limitations! 

Sample Charge:

The inclusion of an Article 38.23 charge must be based on a question of fact that can be answered by the jury. Again, this requires a conflict within the evidence/testimony. Something as simple as an officer stating “I thought your lights may not have been on” should be enough for the argument and inclusion of the instruction. A sample charge:

You are instructed that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

You are further instructed that before an officer has the right to make a temporary investigative detention of a defendant, the officer must have a reasonable suspicion that the defendant is connected with some criminal activity that is or has occurred.  To justify an investigative detention, an officer must have specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances.  The test for reasonable suspicion is not whether conduct is innocent or guilty, but the degree of suspicion that attaches to noncriminal acts.

Now, therefore, before you consider the testimony of Officer “X” concerning their observations of the defendant after his detention, you must first find beyond a reasonable doubt that the officer had such reasonable suspicion, and if you do not so find beyond a reasonable doubt you will disregard such testimony.

This instruction allows you to make a dual layer argument for an acquittal by telling the jury to first make a decision regarding the Article 38.23 charge before even considering the ultimate question of guilt/innocence. The goal is to get the jurors to deliberate on the legality of the stop, which creates an additional hurdle for the prosecutor.

In closing argument, you can then argue the jury has a “short” analysis or a “long” analysis depending on their Article 38.23 decision. Argue that each analysis will ultimately reach the same conclusion. We refer to this argument as a “parallel argument.” The arguments are consistent but involve a separate analysis to reach the same conclusion, “not guilty”.

Conclusion

Closing argument will allow you to bring your case back around to the foundation that you laid in voir dire.  Conclude the Second Amendment and Fourth Amendment comparison in a manner something similar to this:

The government is not here today to take away your Second Amendment rights, but what they are asking you to do would deprive him of his Fourth Amendment rights.  Are you going to stand up for the Constitution today?  More importantly, if you do not stand up, who will?  The sacrifice of the Fourth Amendment today forfeits the Second Amendment tomorrow.  Only you have the power to stop it.

This connection of the Second Amendment to the Fourth Amendment may sway a juror who might feel that they have nothing in common with your client and no empathy for your client’s situation to your side.  Help them understand they are defending their Second Amendment rights because in Texas, rural Texas especially, Second Amendment defenders are not likely to back down from an opportunity to defend their rights!

My Story

As I sit and ponder what to write in this article I am taken back to a time in my life when earning a living was as good as going to Las Vegas, putting $500,000 on red of the roulette wheel, and hoping that I win. Farming for a living is as good as gambling. This is my story.

The Past

Raised as a son of a share-crop farmer in Eastern Central Texas I have my share of memories that have shaped the man I am today. You see, from an early age of seven, my father put me to work driving tractors, chopping weeds, hauling hay, and feeding cows on the farm. As a child I worked from sun up to sundown. Sitting on a John Deere tractor through my teens I had a lot of time to consider my future. Long hours working beside grown men with my hands. Real Blue-Collar work.

I always wanted to be an attorney.  I felt at a young age a desire to help people. More especially, people who may not be able to defend themselves, be it from poverty, lack of education, or upbringing. I was raised in a very small rural community of 1300 people near the Trinity River. Even to this day, the poverty level is still around 70% of the population.

I graduated from high school in 1988 achieving just about everything you can in high school. The work as a farmer’s son paid off teaching me how to persevere and never give up on my dreams. Accepted to Texas A&M University-College Station I joined the corps of cadets.  I stayed seven days and due to homesickness, I withdrew and went back to the farm.

Family

At the age of nineteen I married and soon had a family of four children to raise. Adopting my wife’s two daughters who were three and four, and two sons born by the age of twenty-two, with my dreams on hold, I did what I knew and returned to farming in 1990. I farmed, enduring droughts in 1996 and 1998 that devastated the crops and more precisely my financial situation. Losing hundreds of thousands of dollars due to the weather is a hard pill to swallow.

I continued fighting the good fight, farming, while raising my four children.  On September 11, 2001, the world, and my life, changed forever. The realization of my own mortality sunk into my soul.  For the first time in my life, I no longer felt safe in the United States. I realized that the same country I grew up in was not guaranteed to my children. I felt fear, but more than fear, I felt the desire to ignite my dreams of becoming an attorney. And the journey began.

Back to College

I earned an Associate’s Degree from Navarro College in 1990. But as you may know, a Bachelor’s Degree is a requirement for law school. So, I enrolled in an online program through Texas A&M University-Commerce. I achieved a Bachelors Degree in 2005 in Business.  My preparation for law school entrance had begun. In the meantime, I started the MBA Program at the same University.

Getting Accepted to Law School

There were days upon days I felt like I was fighting windmills, like the stories of Don Quixote. The LSAT, it was a huge obstacle in my way, so I enrolled in a LSAT Preparation Course in Dallas.  Driving 140 miles to Dallas and back home daily I learned how to take the test, and make a high enough grade to apply for law school. I gathered my reference letters and all other items necessary to complete the one-stop computer-based application process to law schools. When my LSAT scores came in, I anxiously sent out admission requests to every law school in Texas.

My first choice was SMU-Dedman School of Law.  But I really didn’t think I was smart enough to get accepted, much less graduate, from such a prestigious school. I started receiving acceptance letters. South Texas College of Law, Texas Tech, Texas Wesleyan (now Texas A&M University School of Law), and lastly SMU. It was a no-brainer.  SMU here I come.

Law School

At the age of thirty-six I appeared on SMU Law Campus eager, but terrified, of what was to come.  Remember, I am a country boy, shy, timid, afraid to speak in crowds. Yet, I planned on conquering my fears, and I did. The night program is where my law school career began. A maximum course load of no more than nine hours a semester. After the first full year I petitioned the University to allow me to attend full time. My request accepted, I retired from farming after seventeen-years, once again a full-time student.

It was my goal to finish law school in three years. Now mind you, I finished the first year with only eighteen credit hours.  Summer School, full-time Fall and Spring semesters, I made the round trip of one-hundred and forty miles a day for two years. I always went home daily so I could wake up, serve my kids breakfast, and take them to school. I look back on those three years of law school and cannot believe I actually succeeded and graduated. Me, a country boy, a share-croppers son, the first person to go to college in my family.

Time to Work

After passing the bar exam I hung my own shingle in my small hometown of 1300 people. And people came. I was alone running a law office with no training other than law school. I succeeded. I was now “helping people.”  Many who could not help themselves.  After one year I moved my office to the county seat. Seven years later I opened a second law office in the county just north of my home county.

Courage to Perform

When I have a bad day, I just think about my children’s faces. Seeing each one in my mind. I tell myself “I have a mission to defend the Constitution of the United States of America to my best ability with fairness to all.” The whole time hoping I can make a difference for my children’s future by defending those who cannot fight for themselves. 

It has all been worth it. And I wouldn’t change a thing if I had a chance to do it again. My struggles have led to my passion to perform at the highest level. I now have six children, four grown, and two boys seven and eight years old. I thank them for giving me the courage I need to step out every-day against the oppression of the government. Owing the drive, perseverance, and courage I muster up on a daily basis to face adversaries, States Attorney’s, Federal Attorney’s, and Courts to my children. I do it for my children with love in my heart. 

I have saved clients lives from life in prison. Helped families fight for their children. Protected innocent victims of abuse. All a part of my “mission” to seek justice in this world.

In 1974, John Graves published Hard Scrabble, a wide-ranging series of essays about his ranch near Glen Rose. The writing – “observations on a patch of land,” as he described it – meanders his property beautifully. He offers some armchair history, a lay of the land itself, and spends his time showing you the trees and describing all the birdsong and guessing at why the creek runs differently now than it did before. You’re walking with him, really, and trusting the gentle clip of your nicely-paced tour guide – happy that he seems particularly adept and knowing when to chat and when to let the world speak for itself.

Fourteen years earlier, Graves did something similar in Goodbye to a River. It was his homage to a portion of the Brazos River that he had known and loved quite intimately, one that appeared ready to change course with the construction of a series of dams. So, he took his dog, hopped in a canoe, and spent a few weeks traveling. You’re with him as he hunts, you feel the chill of autumn and the warmth of his fire – it’s as if he handed you a paddle, too, and asked for a little help from time to time.

He did it all again a few years later in From a Limestone Ledge, which, on its cover, was described perfectly: a celebration of “the casual but constant observation of detail, the noticingness of rural life.” More essays, more description, more questions, more thoughts. It was almost as if Graves spent his life quietly watching and hearing, comfortably quiet in his pauses between books, and offering up what I would consider to be the most magical writing about “place” I have come across.

When I moved to rural Texas (Beeville, more specifically) to begin my work as a public defender – what Graves may describe as when I “put my boots to earth with a mingled set of feelings” (Hard Scrabble, p. 44) – I was continually searching for the words that seemed to flow so easily from Graves. I was trying to understand a world I hadn’t known before, and his sentences became the soundtrack to my curiosities – it was as if he had decided to do something that felt resonant: tip the balance in favor of listening and looking and wondering.

On people: “There were cattle kings and horse thieves and half breeds and whole sons of bitches and preachers in droves and sinners in swarms.” (Goodbye to a River, p.200).

On the lovely dynamic between rain and land: “Hence, it depends not only on rainfall year by year but also on the way the land receives and handles the rain.” (Hard Scrabble, p.53).

On aging and time: “’Maybe it is, at that,’ said his grandfather, nudging dark loose earth with his toe and feeling in old hurts the certainty of rain. ‘We feed the dirt, and the dirt feeds us.’” (Hard Scrabble, p. 139).

Rural Texas mystique is (and always will be) a mine for creative plundering. There is a fierce identity to it, and a romance that accompanies its exploration. And, I firmly believe that defense lawyers whose practice carries them into the hard scrabble of Texas, will do well spending time with the likes of John Graves. He is not there to give you the answer, but he does prod you along to truly soak in what’s around.

His genius is to give the lesser known a profound, authentic, feeling identity. With him, you are not between other places, not described in reference to elsewhere, not on a road between somewhere you might know (Fort Worth) and somewhere else you might know (Abilene) – you are in Somervell County, and being there is just right. There is a depth of humanity that exists in each of Graves’ paragraphs, and with a level of simplicity that is reassuring. We, as lawyers, are also at our best when we can take in the complexities that lie before us and speak about them with some combination of plainness and straightforwardness and minimalism.

That Graves writes about rural Texas – and, therefore, the idea that his writing is applicable to it alone – is to miss out on what he teaches about the ways in which we can all find identity (and, in turn, humanity) no matter where our place is. In her brilliant collection On Photography, Susan Sontag offers a mission that defense lawyers can certainly borrow: “There is one thing the photograph must contain, the humanity of the moment.” (p. 122). The humanity of the moment, the humanity of our client – the re-insertion of these photographs into a process built upon its proficiency at stripping away those very things – that is our non-stop mission.

As we have emerged from our hibernation over the last year-and-a-half and have gotten back to regular court appearances and jury trials, it is not hard to tell in many respects the landscape has changed.  This may be especially true for those of us who practice in rural areas and do not have the option of continuing to appear via Zoom.

I know from my personal experience that jury selection in rural towns can be challenging depending upon the nature of the charges. I have had several serious cases where we have held jury selection in the local civic hall, the DAV, or other various county structures that can hold more than 150 people at once based on the nature of the charge.  The older historic courthouses, while picturesque and beautiful, were not designed to accommodate 150 or 200 people or more.  Often times when you have a sexual assault or murder case in a small town where everyone knows everybody else’s business, you might have to have panels that big to get an impartial and fair jury. So, when we started to come out of that great pandemic hibernation and we are being sent to the local ag barn or exposition center to pick our juries, many of us had been to the local ag barn or exposition center before. 

However, we were not prepared for not being able to clearly see a juror’s face because of the face-shield or mask.  The jury selection process has developed the sterile feeling of some type of laboratory experiment. How you navigate that particular type of problem depends to a significant extent on how your judge has been addressing and handling these types of issues since March of 2020. If the Court just does not care, it may be that you need to object that the Court is not taking the appropriate safety precautions to protect the prospective jury panel and court personnel. Remember, those folks must be there because they are appearing based upon the Court’s summons for jury duty but the rest of us are there because we are being paid to appear and do our respective jobs. 

Personally, I do not like the idea of wearing a face-shield or mask during jury selection. It detracts from the personal connection we are trying to establish with the jury. I do, however, believe it is the correct decision for everyone involved. This is in no way a political statement or position, but I do not want to be known as the person that potentially infects a prospective jury panel.  I believe for the time being as we get back to work in courthouses across the State, that we need to accommodate others and be aware of our surroundings and the fact those jurors are serving the community. Now, I know some judges who have told me they do not believe they can require anyone to wear a mask in the courtroom because of the Governor’s pending executive orders. While I do not agree with that position, I do respect how they have arrived at that decision, and ultimately it is the Judge’s decision to make. This is just one of the problems I have seen come up over the last six months as we have gotten back to work in court. I, for one, am thankful we have moved back into the courtroom. I do not believe we can be as effective via Zoom as we are in-person when protecting and advocating on our client’s behalf. 

I can see other issues which have begun to spring to life as we proceed to trial in a post-COVID environment. If I choose to wear a mask during trial for my protection and my client’s protection, should I be allowed to ask the prospective jurors what their feelings are regarding the wearing of a mask or face-shield? It appears the choice to wear a mask or to get vaccinated has somehow turned into a political debate. Is it appropriate for someone to object to proceeding to trial if the Court does not require all the prospective jurors, court staff, and personnel to wear a mask and take appropriate safety measures?  These questions and issues are fascinating to me because we all hold different beliefs of how they should be addressed and handled by those in charge.  Some believe its none of that person’s business and the government needs to stay out of my decision-making process.  Others feel we have people in charge to protect the community as a whole and especially the more vulnerable people in our communities. So, how we manage these types of issues becomes more delicate in a post- COVID environment because we certainly do not want a prospective juror’s perception of our beliefs to affect our client during trial. This is why, we look to the Court to call balls and strikes on these and many other issues which are fast approaching, as we get back to normal.

To that end, our Rural Practice Committee is in the process of organizing and putting together a cheat-sheet or tips for trial checklist for use in court as it concerns some of those issues which may be affecting our brothers and sisters in rural areas. There are no bad ideas or arguments as we start to formulate this tip sheet/checklist, so I would ask for everyone’s input and assistance in getting this project off the ground. 

If you have been in trial and faced a problematic issue, caused or exacerbated by the circumstances we currently find ourselves in courthouses throughout the State, please send us your thoughts but more importantly your solutions.  This is going to be an undertaking which takes our entire village, collective voice, and knowledge to deal with in the year ahead.  If you are able and willing, please help us in this endeavor which will benefit our entire membership.  You can contact us with your ideas, tips and thoughts by sending them to me at or to Melissa Schank at . As always, we and you are TCDLA Strong.

Criminal defense attorneys are an independent-minded group, especially in rural areas. Whether you came back home to practice law or ditched the big city headaches to practice in a small town, you have shunned the traditional law firm experience for one reason or another. Unfortunately, this independent streak can be accompanied by a selective interpretation of norms you must follow. One example is the requirement of having an IOLTA, which stands for Interest on Lawyer Trust Account. For advice on this article, I called Ellen Pitluk, an ethics attorney with the State Bar.  We discussed three common excuses typically heard among criminal defense lawyers for not keeping unearned legal fees in an IOLTA.

Excuse #1: I’m a criminal defense attorney, and I don’t handle these types of funds. IOLTA accounts are for civil attorneys with shiny shoes and rolling file folders.

Harsh reality: Wrong! The Texas Disciplinary Rules of Professional Conduct make no distinction between civil and criminal fees. The only difference is that we can NOT charge contingency fees in criminal cases. Rule 1.04(e).  I will not insult your intelligence by explaining why you don’t charge contingency fees in criminal cases, only to say if you do, stop now.

Excuse #2: I always charge a flat fee. My contract says my fees are earned when paid, and it clearly states it is nonrefundable.

Harsh reality: This is false. Rule 1.14 (a) of the Texas Disciplinary Rules of Professional Conduct says you must keep a client’s unearned fees separate from your law office’s operational funds or your own personal funds. So your contract says you’ve earned it. How? Imagine going into a doctor’s office, and they charge you a nonrefundable bill before they even examine you. How about going to an accountant and paying them a nonrefundable fee before they have even looked at your books. You would think something was fishy. So don’t do it. Period.

Excuse #3: I give back the money if there is a dispute, so what does it matter which account it’s from?

Harsh reality: If a client has a problem and files a grievance, you will get dinged. Hard. Once again, Rule 1.14 (a) clearly states you can’t commingle client’s funds with your funds. By depositing unearned legal fees in your operational or personal account, you have, in essence, commingled funds and violated Rule 1.14(a).  Remember the adage, “Follow the money?”  All it takes is one disgruntled client to complain.  Money issues are something the bar takes very seriously and commingling funds may result in a disciplinary sanction published in the Texas Bar Journal.

So what should you do now that you know these excuses will get you in big trouble? First, get an IOLTA account. Then, get a system in place that allows you to reasonably justify taking the money fee out of that IOLTA account. For example, charge by the hour and keep track of your time. Is this too much of a pain? Ok, put benchmarks in your flat fee contract. For example, you can spell out that you earn 25% of the total fee at the arraignment, 50% at the first pretrial hearing, etc. Just put in something that spells out your fee agreement. It’s not as hard as you think. See, Professional Ethics Committee Opinion 611 (September 2011) (discussion of nonrefundable fees and benchmarks).  You can also call the State Bar of Texas Ethics Helpline at 1-800-532-3947 for more detailed advice. The ethics attorneys will provide preventative ethics advice to assist you. These are great people, and they will take the time to help you with your questions.

In conclusion, I hope this has helped disabuse you of some common misconceptions about IOLTA accounts. Yes, they can be a bit of pain, but not unnecessarily so. And not having one is far worse.  For a guide on IOLTAs, see “A Lawyer’s Guide to Client Trust Accounts” at https://www.texasbar.com/Content/NavigationMenu/ForLawyers/ResourceGuides1/TrustAccounts/GuidetoTrustAccounts.pdf.  Special thanks to Ellen Pitluk for taking the time to speak with me about this article and to answer my questions! As always, take care, good luck, and have fun!