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Ethics and the Law: Ethical Issues Dealing with an Incompetent Client

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At one point or another, you will be faced with a client with a mental condition that raises an issue as to whether they are competent. The constitutional standard for competency to stand trial asks whether the defendant has a sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding and whether they have a rational as well as factual under‑ standing of the proceedings against them.1

Often times, there are going to be cases where there is no doubt about the client’s competency or lack thereof. But what about the close cases? Even more difficult, what about the client who is adamant that they are competent when there is evidence to suggest otherwise? Or the client whose mental illness impairs their ability to make critical choices about their case?

These specific scenarios raise numerous ethical questions that are not easy to address or answer. These include, in no particular order, questions about the duty of loyalty, the duty of candor to the court, and the need to maintain confidentiality.

Don’t Go Runnin’ to the Court (Except for Funding)

When confronted with a client — appointed or retained — who appears to lack that fundamental “reason‑ able degree of rational understanding,” it is important for criminal defense lawyers to first embrace one of our most fundamental obligations: maintaining the confidences of the client. This is critical to developing an effective defensive strategy, while ensuring that the client’s rights are protected.

Many times, we see where lawyers, upon learning that the client has some mental illness or appears to have some mental illness, immediately notify the court (which inevitably places the State on notice) of what they have learned in their discussions with their client about their possible mental impairment. This is presumably due to the requirements set out in Article 46B of the Code of Criminal Procedure. Triggering those statutory requirements, however, may either not be necessary or punitive to the client. For instance, if a client is released on bond but is found to be incompetent and ordered to be transferred to a mental hospital, that is a substantial restriction on their freedom. Even worse, it is typically not due to any conscious choice or decision on their part. The more prudent course of action is utilizing an ex‑ pert that operates under the umbrella of the attorney‑client relationship and is able to consult with both the client and the attorney confidentially about the client’s mental condition. If you are appointed to represent a client or the client does not have the funds to retain a forensic psychologist, you should first file an ex parte motion for the assistance of an expert pursuant to Ake v. Oklahoma to evaluate the client before going to the court and invoking the procedures set out in Article 46B.004. You want to be careful to include enough information to get the court to approve the funding (e.g. “funding is needed for the appointment of a psychologist to help assist counsel evaluate any possible mental conditions and their impact on the defendant’s role in the alleged offense”), but not blatantly “suggest” the defendant may be incompetent to stand trial so as not to trigger the requirements of Article 46B.

All this is consistent with newly implemented Rule 1.16 of the Texas Disciplinary Rules of Professional Conduct titled “Clients with Diminished Capacity.” This rule, which upon closer inspection was obviously in‑ tended to apply to clients in the context of non‑criminal settings, nevertheless encourages lawyers to rely on others to “protect the client” with diminished capacity.2

This course of action is also preferable because it allows you to rely on an expert in the field of psychology to support or dispel any belief you as the criminal defense lawyer may have about the client’s mental capacity and ability to consult with you, rather than have to make those difficult determinations on your own.

To Disclose or Not Disclose?

Once you have the insight and opinion from your psychological expert regarding your client’s mental capacity, the next ethical conflict deals with whether there is an ethical obligation to disclose that information to the court and the prosecutor.

Again, as discussed previously, upon the court being presented with a suggestion that the defendant is incompetent, the court is required to take certain steps including appointing a “disinterested expert” to examine the defendant and report on their competency. In certain circumstances, however, a finding of incompetency could result in further harm to the client. What, if any, ethical obligation is there to disclose the fact that a defendant does not possess the required mental capacity to understand the proceedings against them? What happens when, for instance, during a plea colloquy, the court inquires of the attorney whether they believe the defendant is competent to enter their plea?

Rules 3.03 and 3.04 of the Texas Disciplinary Rules of Professional Conduct speak about, as titled, “Candor Toward the Tribunal” and “Fairness in Adjudicatory Proceedings,” but, like other rules, give little explicit guidance with how to deal with a situation like this. Comment 1 to Rule 3.03 makes it clear that “The advocate’s task is to present the client’s case with persuasive force.” However, “[p]erformance of that duty while maintaining confidences of the client is qualified by the advocate’s duty of candor to the tribunal.”

In some cases, disclosing the client’s incompetency to the prosecutor can be beneficial. Once the prosecutor realizes the possible impediment they face to prosecuting the defendant, a prosecutor might be compelled to dismiss the charges or offer an alternate resolution that does not require a plea or a trial. However, what happens when the disclosure has the opposite effect? Instead of agreeing to dismiss the charge, the prosecutor could insist on commitment or other harsh alternative to try and restore the defendant’s competency. In the federal criminal justice system, for instance, upon a finding of incompetency, the court “shall commit the defendant to the custody of the Attorney General” who “shall hospitalize the defendant for treatment in a suitable facility.”3 What if the defendant is released on bond (as is the presumption in federal cases) and suffers from an intellectual disability that cannot be treated with medication or therapy? One can see the harmful and cruel consequence that comes from disclosing the client’s incompetency in that scenario.

Again, there is no clear guidance from the Rules, their commentary, or any Ethics Opinion with how to make these determinations.

Who Gets to Call the Shots?

Only adding to these dilemmas, what happens when the client’s lack of competency or other mental impairment leads them to make choices that you, as the criminal defense lawyer, knows is not in the best interest of the client. For instance, what if the client does not want to be found incompetent even though your expert and your diligent review of that expert’s opinion leads you to conclude otherwise?

In the Preamble to the Rules, in the Section titled, “A Lawyer’s Responsibilities,” it states generally, “In all professional functions, a lawyer should zealously pursue client’s interests within the bounds of the law.” Comment 6 to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct, states,

Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer.

That is a lot of power and responsibility for us as lawyers to assume. But what about the role the client plays in the attorney‑client relationship?

Rule 1.02 of the Texas Disciplinary Rules of Professional Conduct sets out limits for both the lawyer and the client. The Rule starts with the mandatory provisions where the client has the ultimate power to make decisions. As they relate to us as criminal defense lawyers, a lawyer shall abide by a client’s decisions (a) “concerning the objectives and general methods of representation,” and (b) after consultation with the lawyer, “as to the plea to be entered, whether to waive jury trial, and whether the client will testify.” The Rule then continues with the exceptions, which provide, among other things, that “A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation.” Comment 1 to the Rule explains the interplay between the role of both the client and the attorney:

Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the objectives to be served by legal representation, within the limits imposed by law, the lawyer’s professional obligations, and the agreed scope of representation. Within those limits, a client also has a right to consult with the lawyer about the general methods to be used in pursuing those objectives. The lawyer should assume responsibility for the means by which the client’s objectives are best achieved. Thus, a lawyer has very broad discretion to deter‑ mine technical and legal tactics, subject to the client’s wishes regarding such matters as the expense to be incurred and concern for third persons who might be adversely affected.

One must ask themselves whether these same principles apply to a client who is incompetent. In McCoy v. Louisiana, ‑‑ U.S. ‑‑, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018), the Supreme Court held that the defendant in that case had absolute control over the decision to admit guilt despite his lawyer “reasonably assess[ing] a concession of guilt as best suited to avoid the death penalty.”4 This decision by the client was sacrosanct despite the client being “an unruly client” who “faced a strong government case.”5 It is worth noting, however, that the Court considered that the trial court “had determined that McCoy was competent to stand trial.”6

This is where the first step in dealing with a potentially incompetent client — obtaining a psychological expert to assist in your defense — can be of assistance. By having your own expert with their own observations of your client’s mental capacity, it will be easier to justify the decisions that you as the lawyer make to accomplish what is in the client’s best interests. In other words, if some mental illness is affecting the client’s ability to make certain decisions about the case, from an ethical perspective, it will help you making those decisions when you have the input from an expert in that field to weigh in and support your decisions.

However, there are always going to be situations where you must weigh the client’s autonomy and ability to decide for themselves what is in their best interest. In this regard, it is important to note that competency is not always clear and distinguishable. While a client’s mental illness may impede their ability to make certain decisions such as whether to plead guilty or not, they may possess enough capacity to set out what their objective is.

Even though the court’s assessment of a defendant’s competency to stand trial is a black and white determination, competency exists in degrees.7 A client may be competent enough to participate in a murder trial and yet that same client may not be competent to stand trial for a complicated financial conspiracy case. A client may be able to understand the roles of the actors in the court room and yet think aliens are coming to testify against him. As Justice Blackmun once stated, “Competency for one purpose does not necessarily translate to comptency for another purpose.”8

When addressing the court’s inquiry, keep in mind the continuum that competency exists on; then deter‑ mine whether for the purposes of the case the client is competent to proceed with trial, such that they can understand the charges against them, the roles of court officers, and be able to assist in their defense to the degree that their participation is required.

Conclusion

Dealing with a client with mental illness that lacks competency undoubtedly presents a criminal defense attorney with numerous ethical dilemmas. Only complicating matters is the lack of clear guidance from the Rules and their commentary, as well as differing perspectives as to what the attorney’s role is when representing an incompetent client. To help navigate this difficult territory, it is always best to have a psychological expert to assist both the attorney and the client. But one must be prepared — and well read on this issue — in order to ensure that the attorney is not only complying with the law, but their ethical obligations as well.

As always, the TCDLA Ethics Committee is here ready to advise and assist you with these ethical dilemmas.

Federal Corner: July/August 2022

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In United States v. Vargas, the Fifth Circuit addressed a tricky question—how should a recent Supreme Court decision limiting the deference owed to an agency’s interpretation of its own regulations affect a district court’s deference to the commentary found in the Guidelines Manual?1 After likening Guidelines commentary to “an agency’s interpretation of its own legislative rules,” the Supreme Court announced the following rule in Stinson v. United States: “[C]ommentary in the Guidelines Manual that interprets or explains a Guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that Guideline.”2 That level of deference may no longer be appropriate. In 2019, the Supreme Court clarified how and when a district court should defer to an agency’s interpretation of its own regulations.3 That opinion—Kisor v. Wilkie—addressed the level of deference described in Stinson and noted that it applies only if “the regulation [at issue] is genuinely ambiguous.”4 Whether Kisor overruled Stinson was an open question in the Fifth Circuit for almost three years, but on May 31, 2022, a three‑judge panel held that Stinson remained good law.5 This resulted in a short opinion authored by Judge Cory Wilson, which affirmed the appellant’s classification as a career offender.6 The panel nevertheless expressed sympathy with Mr. Vargas’s legal claim.7 It also noted a pending circuit split concerning Kisor’s effect on Stinson.8

On appeal, Mr. Vargas attacked the commentary to the Guidelines Manual’s career‑offender provision. He qualified as a career offender, the district court found, “because the instant offense, as well as . . . prior convictions for possession with intent to distribute amphetamine and conspiracy to possess with intent to manufacture and distribute methamphetamine, qualified as controlled substance offenses.”9 The Guidelines Manual, in the substantive text of Section 4B1.2, defines the term “controlled substances offense” to include “an[y] offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.”10 According to Section 4B1.2’s commentary, this definition “also ‘includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’”11 In light of Kisor, Mr. Vargas pitted the substantive text against the commentary. The “plain text” of Section 4B1.2 was unambiguous, he argued, and did not account for inchoate crimes.12 He then pointed to Kisor’s clarification of the standard announced in Stinson and asked the Fifth Circuit to declare Section 4B1.2’s commentary unworthy of deference.13

To prevail, Mr. Vargas needed to overcome both Stinson and the Fifth Circuit’s 1997 opinion in United States v. Lightbourn. The latter opinion addressed the Sentencing Commission’s statutory authority to de‑ fine drug conspiracies as career‑offender predicates.14 The Fifth Circuit determined that the Commission had appropriately “draw[n] its authority from the general guideline promulgation powers” granted to it by Congress.15 Lightbourn, Judge Wilson noted, “did not cite Stinson or otherwise expressly defer to the Guidelines commentary,” but since Section 4B1.2’s commentary provided “the sole source of authority for including in‑ choate offenses” within the relevant definition, “its hold‑ ing implied deference” to the commentary.16 A published opinion later adopted that implicit holding and thereby “rendered any implication of deference in Lighbourn explicit.”17 Lightbourn and its progeny thus foreclosed Mr. Vargas’s claim. To escape the effect of that authority, he needed to establish “an intervening change in law.”18

Kisor, Mr. Vargas argued, provided just that. There, the Supreme Court addressed the level of deference described in Stinson and explained that it “does not ap‑ ply ‘unless the regulation is genuinely ambiguous.’”19 “[B] efore concluding that a rule is genuinely ambiguous, a court must exhaust all the traditional tools of construction.”20 These include the “careful consideration of ‘the text, structure, history, and purpose of a regulation.’”21 Such analysis “will resolve many seeming ambiguities out of the box,” but if “genuine ambiguity remains,” a court may defer to an agency’s interpretation of its own regulations if that interpretation is “reasonable” in light of the regulation’s text.22

Stinson allowed for greater deference and without regard to ambiguity. There, the Supreme Court “considered whether and when the Sentencing Commission’s commentary to the Guidelines should be given binding interpretive effect” and treated Guidelines commentary as “akin to an agency’s interpretation of its own legislative rules.”23 At the time, that meant Guidelines commentary was “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that Guideline.”24 In Kisor, the Supreme Court rejected this approach as a “caricature” of the appropriate analysis.25

Did Kisor overrule Stinson? Mr. Vargas argued yes, and that development, he claimed, would render Lighbourn’s implicit deference to Section 4B1.2’s commentary improper in light of its unambiguous “plain text.”26 That text—the “controlled substances offense” definition found in Section 4B1.2(b)—did not account for inchoate crimes.27 Given its clarity, Mr. Vargas maintained, the commentary expanding the definition to include conspiracies was no longer “entitled to deference.”28 The panel expressed sympathy with Mr. Vargas’s argument but ultimately determined that Kisor was too vague to overrule Stinson. “If we were writing on a blank slate,” Judge Wilson noted, “we might well agree with Vargas,”29 but to escape Lightbourn, he needed to show that Kisor “unequivocally overrule[d]” the precedent blocking his claim on appeal.30 This, the panel concluded, he could not do, as “Kisor did not discuss the Sentencing Guidelines or Stinson.”31 Although Kisor provided a hint as to how the Supreme Court might rule in the future, “a mere ‘hint’ . . . is not enough to circumvent” the Fifth Circuit’s “rule of orderliness.”32

Other jurists disagree. Sitting en banc, the Third Circuit Court of Appeals considered the same argument advanced by Mr. Vargas and sided with the defendant.33 It found that Kisor had “cut back on what had been understood to be uncritical and broad deference to agency interpretations of regulations” and then applied Kisor’s analysis to Section 4B1.2’s text and commentary.34 The Third Circuit determined that Section 4B1.2(b)’s substantive text unambiguously excluded inchoate crimes and rejected the commentary as unworthy of deference.35 The defendant, who had been classified as a career of‑ fender based in part on a prior “conviction for an attempt to possess with intent to distribute cocaine” was therefore “entitled to be resentenced without being classified as a career offender.”36

The Fifth Circuit may follow the Third Circuit’s lead and rehear the case en banc. Judge Wilson wrote the opinion in Vargas, and Judges Jerry Smith and Gregg Costa signed on to his expression of sympathy concerning Mr. Vargas’s legal claim. A prior unpublished opinion drafted by Judge Edith Jones and joined by Judges Jennifer Walker Elrod and Smith expressed the same sentiment.37 On top of that, Judge Wilson used a footnote in Vargas to acknowledge the existing circuit split.38 Mr. Vargas has since filed a petition for en banc rehearing.39 In the petition, he asked the Fifth Circuit to reconsider the panel’s opinion, and for support, pointed to circuit splits concerning both Kisor’s general effect on Stinson and the specific deference owed to the career‑offender commentary.40 The pending petition may well provide Judge Wilson and his sympathetic colleagues the opportunity to reconsider Kisor’s effect while “writing on a blank slate.”41

From the Front Porch: July/August 2022

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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.

Shout Outs

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Kudos to Laura McCoy and her co-counsel, Jeff Harrelson, whose client was found NOT GUILTY of capital murder in Titus County. It was a tough case, but an amazing outcome. Way to go!

Congratulations to Alex Bunin, who was awarded the 2022 Patrick Wiseman Award for Civil Rights, by the Civil Liberties & Civil Rights Section of the State Bar of Texas. The Wiseman Award is intended for lawyers who have made a lifetime commitment to civil liberties and civil rights in Texas. Tremendous, Alex!

A round of applause for Taly Thiessen, who fought victoriously on a difficult DWI motion to suppress. She won in the trial court that was just affirmed in the Fourteenth Court of Appeals! Great work, Taly!

Shout-Out to Wilvin Carter for receiving a NOT GUILTY verdict after a long fought battle with the court. His client was facing 25 years to life. Way to go, Wilvin!

Kudos to Drew Carroll who received multiple NOT GUILTY verdicts for his client, including murder, voluntary manslaughter, attempted murder, use of a weapon during a crime of violence. Outstanding job, Drew!

Congratulations to Angelica Cogliano who is thrilled to have won two for two in the 5th circuit, with the help of her co-counsel, Deniz!

A round of applause for Richard Banks whose DWI case dismissed! Great job, Richard!

Shout-Out to both Mike Head and Justin Weiner, whose client was facing a 25-life aggravated assault with a deadly weapon charge on a jury trial. Their client had been to TDCJ numerous times and had multiple allegations and instances of alleged violence. After two days of trial, Mike and Justin were able to use a self-defense issue and to expose the alleged victim’s lies to the prosecutor. They were able to negotiate the case to a time served Class A Misdemeanor plea. Previously, the only offer ever made was 20 years on the aggravated charge. Great work, Mike and Justin!

Kudos to Joseph Esparza and his co-counsel, Orlando Castanon, whose capital murder case in Maywas dismissed. They were able to find an independent witness the State was unaware of, who confirmed it was an act of self defense. Great work, Joseph and Orlando!

In the same month, Joseph defended a Senior NCO Drill Instructor who was being court-martialed for hazing, cruelty and maltreatment of junior soldiers, and violation of Army regulations. Ultimately, a trial with facts reminiscent of Full Metal Jacket, with both sides calling numerous witnesses, the jury members returned a big “NOT GUILTY” on all charges after 4 hours of deliberation.

Congratulations to John Convery, who was recognized with the first Lucien Campbell Lifetime Achievement Award for Leadership and Enrichment of the Criminal Justice Act Panel, the legal profession, and the public over a lifetime, presented by the CJA Panel Selection Committee at the SABA Federal Courts Committee Dinner. Tremendous job, John!

A round of applause for Leslie Bollier and her team, Gina Schroeder and Katherine Obando, on their recent win in a hard fought case. A deserving father was awarded primary custody by a jury, ruling in his favor on significant financial issues. Way to go, Ladies!

Shout-Out to Chad Hughes and Sarah Duncan Jacobs on a NOT GUILTY verdict. Way to go!

Kudos to Ryan Gertz who was honored with the Best Feature/Human Interest Story Award for “The Death of Insanity in Texas.” Great job, Ryan!

Congratulations are in order for Novert Mo Morales, who was sworn in as Chair of Hispanic Issues Section of the State Bar of Texas. Congratulations, Novert!

Shout-Out to Patty Tress who received a NOT GUILTY verdict in a Denton County jury trial! Despite the challenges she faced, justice prevailed. Great work, Patty!

Current Issue: June 2022

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Features

21 | Should You Ever Plead Misdemeanors Before Felonies? – By Dean Watts
23 | What’s in a Name? That Which We Call Weed/by Any Other Name Would Smell as Sweet – By Rick Cofer & Megan Rue
26 | Pretty Maps & Plea Bargains: Tips on Handling Cellular Records Analysis in Criminal Defense Cases – By Patrick Siewert
32 | Attacks and Hypocrisy During the Confirmation Hearings of Associate Justice-to-be Ketanji Brown Jackson – By Buck Files

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
8 | Editor’s Comment
10 | Ethics and the Law
15 | Federal Corner
18 | Shout-Outs
19 | From the Front Porch

Departments

4 | CLE Seminars and Meetings
38 | Significant Decisions Report

President’s Message: Room at the Table

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What an honor to be writing my first column as President of Texas Criminal Defense Lawyers Association! I remember how this journey began in the fall of 1999, when I was a proverbial baby lawyer in the Collin County Courthouse in McKinney, Texas. I was proud to have been assigned to my very first court‑appointed case and determined to figure out how on earth I was going to actually try the case. My partner in crime at the time, Darlina Crowder, and I were newly‑licensed, but so hungry, and it showed.

After court, we were heading onto the elevator with our shiny new briefcases, and we were lucky enough to be approached by a couple of great lawyers, John Hardin and Chris Hoover. They said we should sign up for this organization called TCDLA. We even got a discounted rate, so why not? I filled out my application and faxed—yes faxed—it back the same day. The rest, as they say, is history.

My 23‑year TCDLA journey has been filled with many great adventures, some challenges along the way, but most all, many cherished friendships. And I’m grateful for every single second of the journey so far. My family and I are so blessed to be part of this incredible group of people.

I would also like to thank the Past‑Presidents who have led this organization with such valor, especially immediate Past‑President Michael Gross, who has paved the way for me. Michael, I have said this before, you are one of the finest lawyers I’ve ever known. You were a fearless leader, and as always, an officer and a gentleman. Thank you for your service.

Over the next year, I want to work relentlessly to make sure that everyone in TCDLA‑‑all 3,500 of us‑‑is afforded the same experiences and opportunities I have had. My vision is simple: to make sure there is room at the table for everyone. I hold in the highest esteem the tenets of inclusion, diversity, and the institutional knowledge that we all bring from our wealth of experiences – inside the courtroom and beyond.

What does that vision entail, you ask? Well, first and foremost, I want everyone to realize they have an individual seat at the table. All lawyers who are committed to protecting the individual rights of the criminally accused are welcome in TCDLA ‑ whether you have been practicing for less than a year, or for many decades. We want to celebrate – and tap into – the fresh ideas and innovation of all the younger lawyers as well as the institutional knowledge of those that are seasoned and battle‑tested. The TCDLA tent is as enormous as the State of Texas, and all are included inside.

I also truly value and want to recognize our diverse membership ‑not just because that is the progressive thing to do these days‑ but because diversity breeds excellence. Proverbs teaches us that “Iron sharpens iron; one person sharpens another.” And to me, that is the beauty of a diverse tent – diversity that is celebrated by including every gender, race, ethnicity, geographic background, political and religious belief – and perhaps most especially – diversity of thoughts, ideas and dreams. The more diverse we are, the more inclusive we become, the more room we make at the table – our organization becomes even greater, we become even better lawyers and we thrive more as individuals. Iron truly sharpens iron.

I see this upcoming year as the greatest opportunity of my career… to serve all of you. My TCDLA journey, which started many years ago when those elevator doors opened in a Collin County Courthouse in McKinney, Texas, is only complete when I have finished doing all I can to help every TCDLA member fulfill their lifetime journey.

Executive Officer’s Perspective: Welcome to the Family

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“One thing I know for sure is that family is not defined by blood.”

—Jessica Scott

TCDLA is proud to celebrate the 35th Annual Rusty Duncan Advanced Criminal Law Course, scheduled for June 16‑18, 2022, in San Antonio. Named for the late Honorable M. P. “Rusty” Duncan III of the Texas Court of Criminal Appeals, this course is designed to cover state law and scholarly topics as well as cases from the past year that impact your practice today. Who is Rusty Duncan? you ask.

Honorable Maurice Palmer “Rusty” Duncan III celebrated life between 1945 and 1990. He ended his career as a judge on the Texas Court of Criminal Appeals, 1987–1990. Before becoming a judge, Rusty was Board Certified in Criminal Law and practiced criminal defense out of Denton, Texas. He volunteered in a number of ways: chair, State Bar’s Committee on the Study of the Insanity Defense in Texas, 1982–1983; co‑chair, State Bar’s Penal Code and Criminal Procedure Committee, 1982–1984; member, Senate Committee on Development of a Criminal Code of Evidence, 1983–1984; and editor, Voice for the Defense, 1984–1987. For a more exciting and detailed story about Rusty, see this June 2019 article.

At the end of Rusty Duncan, our current don of TCDLA, Michael Gross, will pass on the TCDLA legacy to incoming President Heather Barbieri. It has been a pleasure working with Michael this year. During the Board meeting we will swear into the TCDLA family the new slate of officers, seven renewing board members, and 13 new board members. Afterward, everyone will head to Rosario’s for a time‑honored traditional lunch. Together TCDLA will continue becoming stronger as we unite, supporting and protecting each other.

Under President Michael Gross’s leadership, the Executive Committee, TCDLA Board, and committees have continued to meet and work hard despite the craziness of everyone having to go back to court all at once. It has been wonderful to work with each group this year. Read next month’s article to see highlights of our committees’ efforts this year. If you want to become more involved as a TCDLA member, we are accepting Committee Interest forms for 2022‑2023, due July 1, 2022. We have more than 25 committees to consider! The form can be found on the website—or email ksteen@tcdla.com.

A huge thanks to TCDLEI Chair Laurie Key and the TCDLEI Board Members for providing more than $50,000 in scholarships for attorneys enduring hardships, travel stipends, and a 3L scholarship. We will have a silent auction at Rusty Duncan to raise funds for next year. It is YOU who can make this happen!

April showers brought exceptional CLE blooms. For two days in Austin we presented Women in the Law and Their Male Allies—with course directors Betty Blackwell, Jessica Canter, Julie Hasdorff, Michelle Ochoa, and Cynthia Orr—and Race in Criminal Justice—with course directors Thuy Le and Monique Sparks. The interactive events presented outstanding speakers, resulting in stellar evaluations. We thank the Texas Court of Criminal Appeals for funding this event and allowing travel stipends for many who had not been to these events (or any) in a long time. It was a great group to be with—very empowering.

Another special event in April featured our third cohort of Future Indigent Defense Leaders (FIDL). TIDC,  HCPDO, and TCDLA  joined to present FIDL 3.0. After four years, the partners were able to bring Gideon’s Promise to Texas. The class, meeting April 22 to May 3 in San Antonio, consisted of 30 Texas attorneys who all practice in a public defender office or whose practice consists primarily of indigent defense. Gideon’s Promise involved an intense two‑week training in teaching new attorneys a client‑centered holistic approach.

Each session began with entrants at breakfast together and ended with dinner and evening activities. There were no breaks during the day to maximize all available hours. Faculty planned each night for an hour or two after group events and returned bright and early to prepare their rooms. I had the opportunity to participate, and I was amazed by how close everyone became by the second day. The presentations and group activities were inspiring— leaving me wanting to get out into the world and make a difference.

Our 16 faculty members, led by Jon Rapping, Sean Mayer, and Zanele Ngubeni, came from all across the country, including several from Texas. Staff members Kathleen Casey Gamez, Sarah Grace, Rick Wardroup, and Keri Steen worked endless hours behind the scenes to make sure the first‑ever Texas Gideon’s Promise was a success. We are now working towards TCDLA hosting a Texas program. Thank you to the faculty who traveled from far and wide, as well as to our Texas TCDLA members, staying a week or better for these intense sessions!

Our May DWI Defense Project seminar also proved its usual resounding success. Course directors Larry Boyd, David Burrows, and Frank Sellers and their speakers elaborated on the Yellowstone seminar theme: “The whole world’s a test, son.”

Also, on tap was the May 13 SBOT induction, featuring over 1,000 attorneys. TCDLA staff attended and welcomed each of those new attorneys interested in criminal defense.

Want to get to know the TCDLA family better? Join us in South Padre Island July 13 for Trainer of Trainers. The new format this year will be interactive (and did I mention fun?). Come if youwant to become a speaker or pick up new skills from veteran speakers. Each year the Trainer of Trainers program plays an essential role in providing the best quality speakers! The event also includes two additional days of Fun‑in‑the Sun CLE, with speakers from all over the State. Besides training, relationships are renewed or built, and families get to know each other and make plans for the next Padre gathering. There are many opportunities for you to participate if you want, or you can just take some “me” time. On the last day, we host a TCDLA, TCDLEI, and CDLP orientation. If you are not already on one of the boards or committees, you are still welcome to attend and learn more about them.

Finally, I look forward to working this year with Heather Barbieri as she takes over the presidential responsibilities in June. Under her leadership, we will continue developing and maintaining solid bonds, supporting Texas criminal defense attorneys and, most importantly, our TCDLA family! Always remember: The TCDLA staff members are here to assist. If it’s information you need or a service we can provide, don’t hesitate to contact us.

Editor’s Comment: June 2022

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Anymore I dread turning on the news every morning. I used to be a news junkie, but I just can’t handle it. I used to watch the news on TV while I got ready, and then I’d listen to NPR on my way to drop my oldest son off at school and then on my way to the office. Aside from the fact that each day’s news seems to only be more depressing than the day before, I have reached my limit on the injection of political ideology into the legal system. I know ‑ it’s always been there, and it always will be, but it seems that the American legal system has recently become the pawn in the game of politics. And that’s a dangerous path to traverse. The issue has become so pervasive that I have asked my friend and former Editor, Sarah Roland, to co‑write this column.

Take for example Operation Lone Star; no greater waste of money and resources may have ever been undertaken just so the Governor can use human beings as puppets to try to claim victory for his party and mouth off to the President of the United States. And now, the Governor is helping fund  this  Operation with over $30 million diverted from the already troubled Juvenile Justice Department. Meanwhile, the rights of hundreds, if not thousands, of criminal defendants hang in the balance while a few of our brothers and sisters, like Angelica Cogliano who is a member of this editorial board, fight to protect their bare minimum constitutional rights. Thank you to those in this fight.

Another example is the recent leak of the draft opinion from the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization. It’s unprecedented. There’s no real point to address the merits of the legal analysis in Dobbs yet since this is just a draft, after all. And we’re not here to argue whether abortion should be legal or not (you can likely guess both of our viewpoints), but how are we to feel confident in our system of justice if the highest court in the land no longer has dignity and is simply playing politics, or worse, has become relegated to a political pawn of whichever party is in power. Let us be clear, whichever side of the political spectrum leaked the opinion, it was wrong. Unprecedented. And what real purpose did it serve other than to further fuel a raging, incessant fire? However, should we be surprised? Please read Buck Files’ article in this issue regarding the embarrassment that was the Ketanji Brown Jackson confirmation hearings. This may have been the straw that broke the camel’s back. Not only was an unquestionably qualified judge attacked, but our criminal justice system and the very work we all do every single day was blistered by the senators who played politics to demean her; not her credentials but her character. What was the character flaw that she was attacked so vehemently for? Being a criminal defense attorney. Protecting the constitutional rights of people in the most impossible of situations. Ensuring that our constitution means something for everyone. Since the SCOTUS does hear criminal cases, what a welcome relief that there will now be one justice who has done what we do. A justice who understands what it’s like to not just stand beside, but stand up for, the constitutional rights and protections that all of us enjoy and that many often take for granted. The very realistic hope is that Ketanji Brown Jackson will bring a different perspective to the Court. There are three sitting justices who were once prosecutors. Now there will be one former public defender.

How are we supposed to fight the ever‑unpopular political problems that we deal with every day; like our clients’ mental health problems and how that plays into their defense, or Veterans in the criminal justice system, or marijuana cases and the discrepancies in how those cases are treated state‑wide, when the very fact of doing the work we do regardless of the subject matter of a particular case is under attack in the halls of congress? It feels like we are in a whirlwind these days with everything in the news and with courts rushing to unclog the COVID backlog as if it can be done in a matter of a few months. We are going nonstop and making that ever uphill climb. But we have to remember to take care of ourselves. This month – May – is Mental Health Awareness Month. And we are all acutely aware of the criminalization and warehousing of those who suffer from mental illnesses. That’s the appalling reality of our criminal justice system. We fight against it every day one case at a time. But we can’t be effective advocates if our own mental health hangs in the balance.

So, let’s take care of ourselves and lean on each other and continue the fight to which we have all been called. We need to encourage each other and build each other up. Let us support each other and be sensitive to one another. We continue to learn from each other by using resources like this magazine and the countless CLE opportunities TCDLA makes available each year. It’s good that it’s almost time for Rusty so we can gather with the folks across this State who take the same punches we do on a daily basis and break bread together and maybe imbibe a little and rejuvenate our batteries. We’re in this together.

Jeep Darnell & Sarah Roland

Ethics and the Law: Conflicting Interest in Criminal Cases

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As we all know, the privilege of being an attorney comes with a lot of responsibilities.

In the same way that doctors and nurses are more effective in treating their trauma patients if they, themselves, are not vicariously wounded, we as attorneys are most effective when we are able to retain a certain level of professional detachment from the trials and tribulations of our clients. We still serve their best interests, of course, and we may care a great deal about them and the outcome of their case(s), but we never actually become one of the, per se, adversaries in the legal conflict.

As part of this, society places certain demands on us. These aren’t just window dressing. Rather, the rules put in play by these societal demands are what have allowed our profession to survive and even thrive over a large portion of human history.

The interplay between societal expectations and an attorney’s professional independence and need for income can often leave the criminal defense attorney feeling they are subject to moving targets of conduct.

Criminal defense attorneys are often solo practitioners with small offices and small staff, but the standards we must uphold are just as high as any white‑collar attorney in the largest firm in the state.

The Texas Disciplinary Rules of Professional Conduct (“TDRPC”) puts those societal expectations into the rules governing attorneys licensed to practice in Texas. One of the tenets of these expectations is that we will be able to represent our clients zealously, free from any conflict of interest.

  1. You cannot represent opposing parties.
  2. You cannot agree to representation if the work
    • involves a substantially related matter where the new client’s interests are materially or directly adverse to another client or the firm; or
    • reasonably appear that it is or will become adversely limited by your responsibilities or interests
  3. Representation okay in (b) if no material affect to either client and each affected/ potentially affected client gives fully informed consent.

The general rule on conflicts is found in TDRPC 1.06. Part (a) is easy enough and self‑explanatory.But (b) starts looking like some of our statutes, so it may be more easily understood in reverse and using an example.

  1. My law partner represents Client A against Adversaries X, Y, and Z.
  2. X later comes to me and asks me to represent him in a new matter against/involving Client A, I must turn away X as a potential new client (“PNC”) if I conclude that the new matter is related, in some substantive way to the already existing matter where Client A is the existing client and PNC X is the adversary.

This is because the new matter with X would be substantially related to the preexisting matter with Client A and PNC X’s interests are already materially and directly adverse to the interests of another client (Client A). Restated—if a new matter, with a new client, would be directly and materially adverse to a current client of the firm (here Client A), is factually unrelated to any current or previous representation of A, there is no conflict of interest, and no waiver is needed. However, in typical fashion, the comments urge you not to take on such representation—even though the rules just said it’s okay. Rule 1.06, cmt 11.

It is also important to note that the above applies only in state court. In federal court, the Dresser doctrine applies, which requires consent from an existing client before the attorney/firm can take on any new matter adverse to the existing client—whether it is related or unrelated. (Following ABA Rule 1.7)

Since a conflict of interest can result in an attorney being required to withdraw from all representation, return funds, lose out on future funds, and face potential complaints, the best practice is simply to avoid conflicts from the beginning—but how?

  • Interview carefully
  • Know your clients
  • Client Acknowledgements
  • Secure additional counsel
  • Don’t forget the “former” clients
  • Document, document, document

Facts: In 2017, wife meets with lawyer A to discuss a potential suit for divorce. They have a 45‑minute consultation. Wife doesn’t hire Lawyer A and doesn’t take any further action to file for divorce. This summer, husband comes into see Lawyer B—who is Lawyer A’s long‑time partner. Husband wants to file for divorce. Lawyer A doesn’t remember anything about the consult and did not keep any documentation.

Question: Can Lawyer B represent Husband?

Answer: No. Tex. Comm. Prof. Ethics, Op. 691 (2021).

Explanation: Under TDRPC 1.06 (b)(2), the duty of confidentiality extends not just to current clients, but former clients and even prospective clients. Id. This duty may attach even without an attorney/client relationship. Id. Lawyer A owes Wife the duty of confidentiality, which limits his ability to represent Husband in a suit for divorce from Wife, against Wife’s wishes. Id.  Lawyer A’s disqualification is imputed to Lawyer B. Id.

Rule 1.06(b)(2) is not limited to conflicts between a prospective client and an existing one. Id. Rule 1.06(b)(2) forbids representations that reasonably appear to be “adversely limited by the lawyer’s or law firm’s responsibilities to . . . a third person.” Opinion 691, supra. A lawyer’s duty of confidentiality to a prospective client is the kind of “third‑person” responsibility that may result in a conflict under Rule 1.06(b)(2). Id.

The fact that the Lawyer A claims to be unable to remember all or some of the information disclosed by Wife is not determinative of whether a conflict exists under Rule 1.06(b)(2). Id.

In the opinion of the Committee, based on the limited facts presented, Lawyer A’s previous consultation with Wife creates a conflict of interest that would prevent Lawyer A from representing Husband in divorcing Wife. Given that Lawyer A’s consultation with Wife lasted 45 minutes and related to the same matter as the proposed representation of Husband, the Committee believed a reasonable lawyer would conclude that Wife likely shared confidential information during the consultation  that  could be significantly harmful if revealed or used against her in a divorce from Husband. Accordingly, the Committee concluded that Lawyer A’s duty of confidentiality to Wife reasonably appears to adversely limit his ability to represent Husband in divorcing Wife and that Rule 1.06(b)(2) therefore prohibits that representation.

Opinion  691,  supra. Rule 1.06(f) provides for the vicarious disqualification of Lawyer B: “If a lawyer would be prohibited by this Rule [1.06] from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.” Id., TDRPC 1.06. Since Rule 1.06(b)(2) prohibits Lawyer A from representing Husband in divorcing Wife, Rule 1.06(f) automatically extends that limitation to Lawyer B and any other lawyer currently in Lawyer A’s firm. Opinion 691, supra.

The Committee noted that “[t]he firm‑wide imputation of conflicts arising from relatively brief prospective client interviews may in some cases lead to harsh results, but the language of Rule 1.06(f) currently allows for no exception.” Id., compare TDRPC 1.06(f) with ABA Model Rule 1.18 (limiting imputation of prohibition arising from consultation with prospective client, subject to certain conditions).  The Committee has proposed adding a new rule modeled on ABA Model Rule 1.18, but as of May 1, 2022, the proposed Texas Rule has not yet been adopted. See 83 Texas Bar Journal 618 (September 2020).

In the above scenario, it was assumed that Wife was unwilling to consent to Lawyer A’s or Lawyer B’s representation of Husband. However, it should be noted that a lawyer may be able to proceed with a representation generally prohibited under Rule 1.06(b)(2) with the effective consent of both the former prospective client and the proposed client. Opinion 691, supra. Effective consent under Rule 1.06(c) can only exist if: (1)“the lawyer reasonably believes the representation of each client will not be materially affected;” and (2) consent is given only after “the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any” is disclosed to all parties. TDRPC 1.06(c). It should also be noted that Wife may place limitations on its consent, such as an agreed screening arrangement whereby Lawyer A would be prohibited from participating in the representation or disclosing Wife’s confidences to any other person. Opinion 691, supra. Screening will not avoid a “former prospective client” conflict unless all parties consent to the arrangement, as required by 1.06(c). Id.

Former clients can be excellent sources of referrals, but they can also be the source of a conflict.

TDRPC 1.09 governs conflicts of interest with former clients.

  1. Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former
    1. in which such other person questions the validity of the lawyer’s services or work product for the former client;
    2. if the representation in reasonable probability will involve a violation of Rule 1.05; or
    3. if it is the same or a substantially related matter
  2. Except to the extent authorized by Rule 1.10 (Govt to private employment), when lawyers are or have become members of or associated with a firm, non of them shall knowingly represent a client if anyone of the practicing alone would be prohibited from doing so by paragraph (a)
  3. When the associated of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyers shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a) (1) or if the representation in reasonable probability will involve a violation of Rule 1.05 (Confidentiality)The following situation was recently posed to the TCDLA Ethics Committee:

Facts: Court appointed Lawyer to represent Client A in a criminal matter. Case is set to go to trial. Client A has been detained at the local jail pending trial and has recently been accused of perpetrating sexual assaults against other inmates.

During an interview about the extraneous allegations, Client A tells Lawyer that he was the victim of sexual assaults at the jail, including by Mr. X, who is a former client of Lawyer’s.

Prosecutor wants to introduce extraneous sexual assault allegations in punishment. Mr. X is not the victim of the extraneous that the State intends to produce, but rather the perpetrator of another, separate incident. The State is not aware that Mr. X exists at this time, and Mr. X would not likely be called to testify against Client A, unless the State chose to call him to rebut Client A’s evidence of sexual assault in the jail.

Client A would use the evidence of being sexually assaulted in jail for mitigation purposes as well as to rebut the allegation of sexual assault on him (i.e., that he has been sexually assaulted several times in the past to bolster his argument that he was the victim rather than the perpetrator of the offense).

Lawyer has no continuing obligations or responsibilities to X other than Lawyer’s obligations to X arising from X’s status as a former client.

Question: Is there a conflict under TDRPC 1.09(a)(2)?

Answer: Quite likely, yes.

Explanation: Rule 1.09(a)(2) prohibits representation of A in a matter adverse to X if there is a reasonable probability that (continued) representation of A will involve a violation of TDRPC 1.05.

Here, it seemed likely that the accusation against X would come out in trial. If that happened, it was quite plausible to believe something Attorney had learned about X during his representation of X may now be beneficial to A but adverse to X. While it was possible that Attorney might have been able to bring on secondary counsel for the guilt/innocence phase, who could then take over fully on punishment, such a situation would still likely trigger an investigation should a grievance be filed.

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may continue to represent a client in a proceeding after learning that the conduct of the lawyer’s former client may be material to the proceeding if: (1) the matter is not adverse to the former client; or (2) the matter is adverse to the former client but the representation does not question the lawyer’s work for the former client, the representation does not involve a matter that is the same as or substantially related to the matter for which the lawyer represented the former client, and the representation will not in reasonable probability involve a violation of Rule 1.05 with respect to confidential information of the former client. TDRPC 1.06. Regardless of whether the representation of the current client is adverse to the former client, the lawyer may represent the current client in the matter only if the lawyer complies with obligations under Rule 1.05 not to reveal confidential information of the former client and not to use confidential information of the former client to the former client’s disadvantage unless the former client consents after consultation or the information has become generally known. See Tex. Comm. Prof. Ethics Ops. 584 (Sept. 2008); 579 (Nov. 2007); 578 (July 2007); 527 (April 1999); 615 (April 2012); 608 (Aug. 2011); 598 (July 2010); 574 (Sept. 2006); 538 (June 2001); 494 (Feb. 1994); 607 (July 2011); 691 (June 2021); 627 (April 2013); 637 (Aug. 2013); 645 (Sept. 2014); 650 (May 2015); and 659 (July 2016).

“In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from apparent conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interests.” TDRPC Preamble.

In preparing this Article and the presentation that it stemmed from, I found myself going back to Attorney’s situation with Clients X and A and what I learned from the discussion with others on the TCDLA Ethics Committee. Our goal isn’t to win the grievance, it’s to avoid it entirely. In terms of avoiding a conflict, bringing on secondary counsel to take over punishment completely did exactly that. Since the evidence would only come out at punishment, and Attorney would no longer be representing A at that point, conflict would be averted. But the best bet for avoiding a grievance was for Attorney to get out entirely before trial on guilt/innocence. The Bar wouldn’t know the details up front and would almost certainly upgrade to investigate. This means a lot of stress on Attorney, hours spent answering the grievance, and maybe hiring of counsel. That’s a loss of time, money, and well‑being. Why chance it?

Federal Corner: June 2022

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While our lives were being upended by a pandemic, the Supreme Court and Congress have upended discrete aspects of federal sentencing that provide opportunity for forging new law that can help our clients. Other circuits have published decisions on three such issues: deference owed to Guidelines commentary, the criminal history bars in the new safety valve criteria, and whether prior marijuana convictions qualify as “controlled substance offenses.” The Fifth Circuit has not yet fully addressed these issues. Spot them, and potentially save your client significant time in prison.

  1. When the guideline commentary increases the advisory Guidelines range, rethink whether that commentary deserves deference.

The Third, Fourth, Sixth, and D.C. Circuits found that §4B1.2 controlled substance offenses do not include inchoate offenses. United States v. Nasir, 17 F.4th 459, 470 (3d Cir. 2021) (en banc); United States v. Campbell, 22 F.4th 438, 440 (4th Cir. 2022); United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019); United States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018).1 They did so based on a recent Supreme Court decision regarding when to give deference to agency decisions: Kisor v. Wilkie, 139 S. Ct. 2400 (2019). This Kisor‑deference argument has the potential to save our clients from higher sentences that result from guideline commentary that is harsher than the guideline text.

What does an agency deference decision have to do with the Guidelines?

The text of the Guidelines comes into effect only after being submitted to Congress for disapproval or modification. See 28 U.S.C. § 994(p). In contrast, the Guidelines commentary is not subject to congressional review.

In 1993, the Supreme Court compared the commentary to “an agency’s interpretation of its own legislative rules.” Stinson v. United States, 508 U.S. 36, 45 (1993).

Unlike Guidelines text, which must be followed, the Supreme Court applied the then‑prevailing agency deference framework of Seminole Rock, also called Auer deference,2 and said that the commentary should be followed unless it is inconsistent with the Guidelines text. Id. at 43. Practically speaking, this meant the Guidelines commentary was almost always applied. So, we defense attorneys gradually were lulled into a routine of applying the commentary without question.

Decades later, in 2019, Kisor “awoke us from our slumber of reflexive deference” to the agency interpretation of regulations. Nasir, 17 F.4th at 472 (Bibas, J., concurring). Kisor “cut[s] back on what had been understood to be uncritical and broad deference to agency interpretations of regulations and explain[s] that Auer, or Seminole Rock, deference should only be applied when a regulation is genuinely ambiguous.” Id. at 470. Rather than reflexive deference, Kisor says “a court must exhaust all the traditional tools of construction” before deciding that a regulation is “genuinely ambiguous[.]” 139 S. Ct. at 2415 (cleaned up). “Doing so will resolve many seeming ambiguities out of the box, without resort to Auer deference.” Id. And even when the regulation is ambiguous, the agency interpretation only warrants deference when it is “reasonable,” “authoritative,” a product of its “substantive expertise,” and a “fair and considered judgment.” Id. at 2416‑18 (cleaned up).

Because Guidelines commentary is treated as an agency’s interpretation of its own legislative rules, several circuits have applied Kisor to the commentary. See Nasir, 17 F.4th at 471‑72. Doing so, they have found, for instance, the §4B1.2(b) text unambiguous, meaning there was no reason to resort to the commentary. Id.

The Fifth Circuit has not squarely addressed how Kisor affects deference to Guidelines commentary. One panel found that it was bound by precedent, United States v. Lightbourn, 115 F.3d 291, 293 (5th Cir. 1997), to follow the §4B1.2 commentary adding conspiracy to the “controlled substance offense” definition. United States v. Goodin, 835 F. App’x 771, 782 (5th Cir. 2021). But the panel indicated that, if given a clean slate, it was inclined to agree with the Third Circuit. Id. at 782 n.1. That amounts to an en banc invitation in the right case.

United States v. Vargas, No. 21‑20140, may be such a case.3 A Fifth Circuit panel heard argument in Vargas in March 2022. Mr. Vargas argued Kisor had abrogated Stinson and that the panel was not bound by Lightbourn. But even if the panel does not agree, the en banc court or the Supreme Court may one day take the issue up and rule that deference is only due to the Guidelines commentary when the Guidelines text is “genuinely ambiguous.” Nasir, 17 F.4th at 471.

A shift to the limited Kisor deference for Guidelines commentary would mean courts would have to work harder to decide whether any given commentary should apply. See, e.g., United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021) (refusing to defer to the §2B1.1 commentary’s definition that “loss” for access device cards means $500 per card). And defense attorneys excel at working hard and using the complexity of issues to our clients’ advantage.

To recap:

  • The old: defer to Guidelines commentary unless inconsistent (Stinson).
  • The break: defer to agency interpretations only if regulation is genuinely ambiguous and interpretation warrants deference (Kisor v. Wilkie).
  • The possible  new: defer to commentary only after exhausting statutory construction tools to determine whether the Guidelines text is ambiguous, and then defer to commentary only if When your client appears to not qualify for safety valve due to too many criminal history points, think again.
  1. We know that having too many criminal history points can disqualify a client from safety valve, and safety valve can be important because it allows a district court to sentence below the mandatory minimum in certain drug cases.4 18 U.S.C. § 3553(f). The question is how many criminal history points is too many.

It used to be more than one criminal history point disqualified a client. 18 U.S.C. § 3553(f)(1) (2018).

Then came the First Step Act of 2018. It changed the criminal history requirements so that a defendant remains eligible if:

the defendant does not have‑‑

  1. more than 4 criminal history points, excluding … 1‑point offense[s]…;
  2. a prior 3‑point offense…;
    and
  3. a prior 2‑point violent offense[.]
    § 3553(f)(1).

In United States v. Lopez, 998 F.3d 431 (9th Cir. 2021), the Ninth Circuit held that the “and” in the new safety‑valve provision means “and.” In other words, a defendant’s criminal history points only make him ineligible for safety valve if he has more than 4 criminal history points excluding 1‑point offenses, a 3‑point offense, and a 2‑point violent offense. If a defendant only has a 3‑point offense and a 2‑point nonviolent offense, he would still be eligible. The Government filed a petition for rehearing en banc in Lopez in August 2021 that is pending.

A panel of the Eleventh Circuit initially ruled the opposite way (finding the “and” is disjunctive) but then vacated that opinion when it granted rehearing en banc. United States v. Garcon, 997 F.3d 1301 (11th Cir. 2021), reh’g en banc granted, opinion vacated, 23 F.4th 1334 (11th Cir. 2022). The Government filed its en banc reply brief in Garcon in May 2022.

The Fifth Circuit heard oral argument on this issue in February 2022 but has not yet issued a decision. United States v. Palomares, No. 21‑40247 (5th Cir.).5 Some district courts in the Western District of Texas have sided with Lopez and imposed sentences below the mandatory minimum sentence. Maybe you can also convince a court that “and” means “and.”

To recap:

  • The old: no safety valve if more than 1 criminal history point.
  • The break: the First Step Act of 2018 amended the safety valve
  • The possible new: only defendants who have more than 4 criminal history points excluding 1‑point offenses, a 3‑point offense, and a 2‑point violent offense are ineligible (Lopez).
  • Or at least: defendants who have more than 4 criminal history points excluding 1‑point offenses, a 3‑point offense, or a 2‑point violent offense are ineligible.
  1. If your client’s pre-2018 marijuana convictions are enhancing the sentence, consider whether those priors included hemp.

In United States v. Bautista, the Ninth Circuit held that a pre‑2018 Arizona marijuana conviction was not a §4B1.2 “controlled substance offense” (CSO). 989 F.3d 698, 703‑ 04 (9th Cir. 2021). As a result, Mr. Bautista’s §2K2.1 sentence of 30 months’ imprisonment was vacated for resentencing under the correct range of 15 to 21 months. Id. at 705. The Ninth Circuit followed these steps to reach the favorable result:

  1. Used substances listed in the federal Controlled Substances Act (CSA) to define “controlled substance” in guideline 4B1.2. United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012).
  2. Compared the controlled substance definition for the prior conviction to the §4B1.2 controlled substance definition that exists now at sentencing. See 18 U.S.C. § 3553(a)(4)(A) (ii); U.S.S.G. § 1B1.11.

The definition of “marijuana” at the time of the prior Arizona offense included hemp. At the time of sentencing for the new federal offense, the Agricultural Improvement Act of 20186 had removed hemp (cannabis with THC of 0.3% or less) from the “marijuana” definition. Thus, the prior Arizona conviction was broader than the §4B1.2 CSO definition because the former included hemp, and the latter did not.

In a recent unpublished Fifth Circuit decision, Judge Higginson indicated he thought the Bautista analysis was correct and should apply in the Fifth Circuit. United States v. Belducea-Mancinas, No. 20‑50929, 2022 WL 1223800, at *2 (5th Cir. Apr. 26, 2022) (Higginson, J., concurring).7 He thought the district court erred, albeit not plainly, by sentencing Mr. Belducea as a career offender based on pre‑ 2018 marijuana convictions. Id.; see also United States v. Abdulaziz, 998 F.3d 519, 524‑31 (1st Cir. 2021); United States v. Crocco, 15 F.4th 20, 23 n.3 (1st Cir. 2021); United States v. Williams, 850 Fed. App’x 393, 398 (6th Cir. 2021) (unpublished).

Some circuits do not define “controlled substance” in §4B1.2 as a substance in the federal CSA. See Crocco, 15 F.4th at 23 (describing circuit split). But the Fifth Circuit already incorporated the federal CSA in the materially similar drug trafficking offense definition of guideline §2L1.2. United  States v. Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015) (adopting Leal- Vega). “Because the qualifying prior convictions in § 2L1.2 and § 4B1.2(b) are defined in substantially the same way, cases discussing these definitions are cited interchangeably[.]” United States v. Arayatanon, 980 F.3d 444, 453 n.8 (5th Cir. 2020) (cleaned up). Under the holding and reasoning of Gomez-Alvarez, Judge Higginson finds that the Fifth Circuit defines “controlled substance” in §4B1.2(b) with reference to the CSA. Belducea- Mancinas, 2022 WL 1223800, at *2 (Higginson, J., concurring).

Note: While Bautista and Belducea-Mancinas were in the context of guideline §4B1.2, the argument could apply to other recidivist enhancements or categorizations, such as Armed Career Criminal Act serious drug offenses, and the serious drug felonies that can enhance drug sentences. See, e.g., United States v. Hope, 28 F.4th 487, 504‑05 (4th Cir. 2022) (in the ACCA context).

To recap:

The old: the Controlled Substances Act defined “marijuana” as any part of the cannabis sativa L. plant, regardless of the amount of THC.

The break: the Agriculture Improvement Act of 2018 amended the “marijuana definition” to exclude hemp, which is any part of the cannabis sativa plant containing TCH of 0.3% or less.

The possible new: prior drug convictions for which the least culpable act involved hemp may not be §4B1.2 CSOs or other drug recidivist enhancements.

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