Many times a lawyer’s business gets put on the streets when he posts a message on a listserv. Although information put on a listserv is supposed to be confidential, it gets leaked to the wrong person. The TCDLA Ethics Committee created the hotline specifically for criminal defense lawyers with criminal law issues. The messages we get are confidential to the caller. We may use the question only as an example in an article, but names and identifying information shall remain confidential. Lawyers continue to talk about their cases in the elevators at courthouses across the state. Several times prosecutors have heard the conversation and reported what they heard. Recently in Houston after a bad day in court, a defendant was mouthing off and said, “I think I will just go to Mexico.” A prosecutor ran and told the judge. Guess what? The defendant was put in custody and his bond was revoked. In the modern world we live in today, people are emailing, tweeting/twittering, “googling,” instant messaging, recording and posting text videos, and essentially living on Facebook. As soon as you take a case, your client should be advised, and it should be ordered mandatory, to stop all these things. Remember what Racehorse Haynes says: “E” in email stands for evidence. Social media sites are a gold mine for evidence against your client and the complainant. Use it to your advantage if you can obtain the information ethically.
They call it attorney-client privilege for a reason. Sitting around in a bar talking about your client’s case is a too frequent event and should not be done. If you need help on a case, get a mentor or call a lawyer friend. Remind them it is confidential. When you get hired or appointed on a case, ask your client to sign a waiver of the attorney-client privilege if he wants his mother, dad, wife, girlfriend, boyfriend, or anyone else to have information about the case. Warn the clients not to discuss their case with cellmates.
Recently a cellmate confessed to a capital murder to a man I was representing. Since my client was facing a long trip to the federal prison, the information he got from his buddy was passed on to a federal prosecutor, and my client’s long trip turned into a short trip. There is always a danger of retribution, so make sure you tell your client he or his family could be in danger. Yes, it does happen in the movies, but also in the real world. Wives, girlfriends, and even mothers have ended up in the witness protection program for giving information to the government.
There has been much discussion about the pending legislation of reciprocal discovery. TCDLA is obviously against that. For the present, we need to remain vigilant as lawyers during plea negotiations to invoke the “keep your mouth shut” rule. Finding a nugget of helpful information in your client’s case makes you want to shout it from the rooftop. Resist the urge. When you show your hand in good faith to a prosecutor in the course of plea negotiations, nine times out of ten you have just done your client a disservice. The prosecutor then talks to the witnesses and “magically” their story changes or something is added to help them make their case. I have overheard prosecutors talk to an officer after I, in good faith, tried to point out that the officer’s report did not adequately state probable cause for a stop. The prosecutor told the officer what he needed to say to make sure there was probable cause, and then told me, “Oh yeah, the officer forgot to put in report that your client ran a stop sign.”
Knowing when to keep your mouth shut is one of the hardest lessons to learn. Down the road, reciprocal discovery (if it passes) will very much change how we work. Use the tools that we have now while we have them. With the endless resources of the prosecution, our current appellate climate, and pending legislation twisting in the wind, there is no room for error when dealing with the prosecution. We have many cases, but those clients have but one life. Keep your mouth shut.
People used to get drunk and make phone calls, but now it is put on the internet world for all to see. Please call the ethics hotline rather than letting the world know about your ethics question. You are running the risk of the information being passed to the wrong person. When you hear someone say, “It is only minor surgery,” it’s only minor if it is happening to someone else. All our cases are big because they are big to the people we are representing. Look back in your history books or talk to someone who has been in war and they will tell you about the posters in store windows during World War II. There was always a danger of sabotage because of things said by people in the military or people working in the military field. An innocent conversation could be disastrous. The poster said, “Loose Lips Sink Ships.” Call the hotline at 512-646-2734.