The newly formed ethics hotline has been hot. We have received numerous calls, and the hotline has turned into a helpline for lawyers with ethical and procedural questions. All the co-chairs have been invaluable. Many lawyers never had training on how to handle a criminal case and how to get cases in an ethical manner. Times have changed and now lawyers run wild ads on television, which are reminiscent of Cal Worthington, the California car dealer who would appear on commercials riding elephants trying to sell cars. Mary Flood, a Harvard-educated lawyer who does public relations work for Androvett Legal Media & Marketing, says over 90 percent of websites are misleading. Get your website approved by the State Bar before putting it up. The quality of your representation is what counts most. When I first met lawyer legend Percy Foreman, he said if you are being a lawyer for the money, do something else. He said if you do a good job as a lawyer, you will always make money. He made plenty.
Follow these simple tips that will help you on your cases:
- Get a contract or letter of acknowledgement;
- Build your file with a copy of the relevant statutes, punishment ranges, and lesser included offenses;
- Be, look, and act professional;
- Have file in shape so if another lawyer has to take it over, it will be organized in case you drop dead or get shot by an angry client;
- Be available to your client throughout all times of the day and night. If you want an 8 am–5 pm job, go work for the government;
- Read books on famous lawyers like Earl Rogers, Gerry Spence, and Clarence Darrow. They became famous for a reason;
- Get help from TCDLA members or utilize hotlines;
- In case of punishment or to aid in plea-bargaining, get a complete social history of your client. It will explain and not excuse what your client has been accused of;
- Improve weaknesses by attending seminars and staying awake through them;
- Ask questions. Lawyers are always willing to help comrades;
- Build relationships with court personnel. One bailiff was my friend and he would always give the jury charge to the person I thought should be the foreman;
- Carry a copy of the penal code and/or code of criminal procedure with you. I also highly recommend reading books written by Ray Moses, who tells you how to do everything from what to wear to what to say and how to handle cases. Jim Skelton’s search and seizure workbook is another great resource. Look up the Criminal Law Institute for the search and seizure information.
Learn to be in charge of the courtroom. Percy and Racehorse Haynes have been called the Kings of the Courtroom because they took control. Judges or district attorneys do not respect those who give in. Sometimes not giving in will result in an allegation of contempt against you, so carry a motion for a personal recognizance bond in your briefcase just in case—it will allow for your immediate release. You never know when you will need it. See § 21.002(d) of the Texas Government Code regarding the personal recognizance bond. Also carry a motion to prevent ex-parte communications between judges and assistant district attorneys. It is unethical for a judge to discuss cases ex-parte. Your oath is to your client, not to be friends with the judge. Let them know you are aware of those rules. The Commission on Judicial Conduct is there for a reason.
Sometimes it may be in your best interest to record conversations with clients. In Texas, the recording of phone calls and other electronic communications is allowed when one party to the conversation consents to it. The following is an article—entitled “May a Lawyer Electronically Record a Telephone Conversation?—written by co-chair Greg Velasquez of the El Paso County Public Defender’s Office regarding tape-recording calls.
May a Lawyer Electronically Record a Telephone Conversation?
Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the conversation.1 This is called a one-party consent law. With the consent of one person or party to the conversation, recording the conversation is not a violation of the law.
“One-Party Consent” Statutes
Thirty-eight states and the District of Columbia have adopted “one-party consent” laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents.2
“Two-Party Consent” Statutes
Twelve states require the consent of every party to a phone call or conversation in order to make the recording lawful. These “two-party consent” laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Consent must be obtained from every party to a phone call or conversation if it involves more than two people.3
Texas’ wiretapping law is a “one-party consent” law. Texas makes it a crime to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents.4 But, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.5
The law does not cover oral communications when the speakers do not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.”6 Therefore, you may be able to record in-person conversations occurring in a public place—such as a street or a restaurant—without consent.
Also, a recording device in plain view is presumed to be used with the consent of all persons who can see it.
Texas Lawyer and the Professional Ethics Committee for the State Bar of Texas
May a lawyer electronically record a telephone conversation between the lawyer and a client or third party without first informing the other party to the call that the conversation is being recorded?
In November 2006, the Professional Ethics Committee for the State Bar of Texas issued Ethics opinion No. 575 and answered the question.7 The Committee stated the following:
It is recognized that there are legitimate reasons a lawyer would electronically record conversations with a client or third party. Among the legitimate reasons are to aid memory and keep an accurate record, to gather information from potential witnesses, and to protect the lawyer from false accusations.
Ethics opinion No. 575 p.2.
The Committee also stated “No provision of the Texas Disciplinary Rules of Professional Conduct specifically prohibits a lawyer’s unannounced recording of telephone conversations in which the lawyer participates.”8
The Committee was of the opinion that the Texas Disciplinary Rules of Professional Conduct did not generally prohibit a lawyer from making undisclosed recordings of telephone conversations in which the lawyer is a party, provided that certain requirements are complied with.
The Committee cited Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct: “(a) A lawyer shall not: (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” and the Committee stated that it did not believe that an undisclosed recording of a telephone conversation by a party to the conversation could be termed to involve “dishonesty, fraud, deceit or misrepresentation” within the meaning of Rule 8.04(a)(3). Thus, a Texas lawyer’s undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(a)(3).
The Committee concluded that the Texas Disciplinary Rules of Professional Conduct did not prohibit a Texas lawyer from making an undisclosed recording of the lawyer’s telephone conversations provided that (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute a serious criminal violation under the laws of any jurisdiction applicable to the telephone conversation recorded, and (4) the recording is not contrary to a representation made by the lawyer to any person.
- See Sec. 2511 (2)(d) of title 18 of the United States Code:
(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.
- District of Columbia makes it a crime to record a phone call or conversation unless one party to the conversation consents. See D.C. Code § 23-542. Georgia makes it a crime to secretly record a phone call or in-person conversation “originat[ing] in any private place” unless one party to the conversation consents. See Ga. Code §§6-11-62(1), 16-11-66. New Jersey makes it a crime to intercept or record an in-person or telephone conversation unless one party to the conversation consents. N.J. Stat. §§2A:156A-3, -4. New York makes it a crime to record to record or eavesdrop on an in-person or telephone conversation unless one party to the conversation consents. N.Y. Penal Law §§250.00, 250.05. North Carolina makes it a crime to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents. N.C. Gen. Stat. §15A-287. Ohio law makes it a crime to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents. Ohio Rev. Code §2933.52. Virginia makes it a crime to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents. Virginia Code §19.2-62.
- California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. See Cal. Penal Code §632. Florida makes it a crime to intercept or record a “wire, oral, or electronic communication” in Florida, unless all parties to the communication consent. See Fla. Stat. ch. 934.03. Illinois makes it a crime to use an “eavesdropping device” to overhear or record a phone call or conversation without the consent of all parties to the conversation. See 720 Ill. Comp. Stat. 5/14-1, -2. Massachusetts makes it a crime to secretly record an in-person or telephone conversation without the consent of all parties to the conversation. See Mass. Gen. Laws ch. 272, §99. Pennsylvania makes it a crime to intercept or record a telephone call or conversation unless all parties to the conversation consent. See 18 Pa.C.S.A. §5704(4). Washington makes it a crime to intercept or record a private telephone call, in-person conversation, or electronic communication unless all parties to the communication consent. See Wash. Rev. Code §9.73.030(1).
- See Texas Penal Code §16.02 (c). It is an affirmative defense to prosecution under Subsection (b) that:
* * * *
(4) a person not acting under color of law intercepts a wire, oral, or electronic communication if the person is a party to the communication or if one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of this state or for the purpose of committing any other injurious act.
- Caveat: This analysis does not cover international phone calls or recording of electronic video communications, e.g., Skype Video calling (a software application that allows users to make voice and video calls and chats over the Internet).
- See Texas Crim. Proc. Code §18.20 (2): “Oral communication” means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.
- The Committee also stated: “Moreover, applicable law does not generally prohibit such recordings in Texas by a participant to a telephone conversation, whether or not the participant recording the conversation is a lawyer. See section 16.02 et seq. of the Texas Penal Code and section 2511 of title 18 of the United States Code.”