Ethics and the Law: With Liberty and Justice for All

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These as we all know are the last words to the Pledge of Allegiance to the Flag of the United States of America. Those who deny freedom to others do not deserve it for themselves. Lawyers continue to get into trouble. One former lawyer in Houston was sentenced to 40 years for stealing $9 million from his employer, and a lawyer in San Antonio was sentenced to 10 years for padding her pay vouchers. The DA investigator in the Houston case was caught selling the contraband involved and was prosecuted. The fox was guarding the henhouse. Prosecutors continue to hide evidence, as evidenced by a Harris County case involving a prosecutor who failed to disclose evidence. If police and prosecutors do their jobs honestly, they can get a majority of convictions, but they continue to lie.

A recent former member of the Harris County Criminal Lawyers Association and Texas Criminal Defense Lawyers Association stayed on the listserves after he went to work as an Assistant DA in Liberty County. On the listserves, he read emails about a pending case. Robb Fickman gathered a volunteer group and went to Liberty, Texas, to seek liberty for the unfortunate soul in that criminal case. Lawyer Fickman took about 15 lawyers, and their presence in the courtroom was noticed by the judge and prosecutor in question.

Paul Looney, the Houston/Hempstead lawyer, won a Franks hearing where a search warrant affidavit was filled with lies. Do not trust the prosecutors. Do your own investigation. Remember that your client is the most important person. Do not play grab-ass with the judge and prosecutor. Do not disclose your case to the prosecutors. It is amazing how fast they can correct the problem if you tell them what is wrong with their case. Running your mouth can cause many problems and end up hurting your client. Unfortunately, many lawyers—to get favor with their pals in the DA’s office—run and tell the prosecutors what is on the listserve. Bragging about what you can do will have disastrous results if your client goes away for a long time. DO NOT LET YOUR ALLIGATOR MOUTH OVERRIDE YOUR HUMMINGBIRD ASS. Be realistic with the client. Show all documents to your clients so that they know you are working on the case. You can be brilliant and do brilliant work, but you must send copies to your client so that he will know. This will avoid many grievances.

After meeting and talking to Michael Morton and Anthony Graves several times, I have to wonder about what goes wrong in our JUSTICE system. A crooked prosecutor who became a judge and crooked law enforcement is what goes wrong. Experienced honest police officers will tell you that if they and prosecutors do their job right, then the system will work like it should; when a judge looks at a prosecutor before he makes a ruling or decision, the system is not working right. This happens every day in courtrooms in Texas and other states.

Be prepared, know your client, and be professional when in court. If you see bad behavior, be like Charles Goodnight, the man on whom the book and movie “Lonesome Dove” was based. He said that he did not like rude behavior in a man and would not tolerate it. He didn’t and we shouldn’t. File a complaint as described below. If you need help call Robb Fickman in Houston. He knows how to get it done. If you see a lawyer doing wrong, report it as prescribed below.

Lawyer Anne Ritchie, who is on my legal team, followed her oath while in the Navy and is following it now as a lawyer. She is one of the smart lawyers in our group, and she has set out below the rules to follow. Lawyers across the state continue to complain about bad treatment by judiciary. If the complaints are legitimate, then this article may help you get some relief. Make sure you are doing your job properly. Be on time, file your motions on time, have your client to court on time. Prepare a memo that tells your client’s life history so that when the judge asks you about your client you will be able to do something besides just stand there and scratch. Many judges do try to do the right thing, and the info about your client can be helpful. When the prosecutor says that defendants all have excuses, they are all the same, be prepared to show that, no, they are not the same—MY CLIENT IS DIFFERENT. Get photos, school records, any awards, and other things. Get releases signed by the client to get all records. You will be amazed at the results when you show the prosecutor a well-written memo about your client.

Then, if after all your proper behavior, you get bad behavior, file a complaint.

Texas Disciplinary Rules of Professional Conduct Rule 8.03 (Reporting Professional Misconduct) provides the following:

(a)   Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

(b)   Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

(c)   A lawyer having knowledge or suspecting that another law­yer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental ill­ness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyer’s report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b).

(d)   This rule does not require disclosure of knowledge or information otherwise protected as confidential information:

(1) by Rule 1.05 or

(2) by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program.

Tex. Disciplinary R. Prof’l Conduct 8.03 (1994), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (West 2013) (State Bar Rules art. X, § 9).

The appropriate authority mentioned in Rule 8.03(b) is the State Commission on Judicial Conduct. The Commission has jurisdiction over almost 4,000 judges across the state of Texas. State Comm’n on Judicial Conduct, Fiscal Year 2013 Annual Report, at 15 (2014) (available at http://www.scjc.state.tx.us/pdf/rpts/AR-FY13.pdf) (hereinafter FY13 Report). The Commission is not governed by the Texas Public Information Act, the Texas Open Meetings Act, or the Texas Administrative Procedures Act. Id. at 2.

One peer review program, as referred to in Rule 8.03(c), is the Amicus Curiae Program, which is available to all judges, whether or not they are attorneys. The program “helps locate resources and identify and treat impairments that may be affecting . . . judges’ personal lives and their performance on the bench.” Id. at 13. The Amicus Curiae Program was originally funded by the Texas Legislature, then the Court of Criminal Ap­peals, but since 2005 has had no funding. Id. at 13. It would be in the best interests of the members of the State Bar of Texas for that organization to provide some funding for the Amicus program since having mentally healthy judges on the bench is of benefit to all attorneys.

Should a lawyer know that a judge has violated a rule of ju­di­cial conduct “that raises a substantial question as to the judge’s fitness for office,” the lawyer has a duty to report that judge to the Commission. Tex. Disciplinary R. Prof’l Conduct 8.03(b). A complaint must be in writing; fax and email complaints are not accepted, but it may be made anonymously. A form for the complaint is available at www.scjc.texas.gov. The Commission may also initiate its own complaint based on media, court documents, the internet, or other sources. FY13 Report at 7. After its investigation, the Commission may make a decision of one of the following types:

  • Administrative Dismissal Report: This happens when the complaint fails to state an appropriate allegation.
  • Dismissal: This includes cases of insufficient or no evidence of misconduct, cases where the judge took appropriate remedial actions, and cases where there may be a problem, but it is not sanctionable.
  • Order of Additional Education: This may be ordered alone or as part of a sanction.
  • Private or Public Sanction: This happens when sufficient evidence supports a finding of judicial misconduct.
  • Suspension: A judge may be suspended after being indicted by a grand jury for a felony, or if charged with a misdemeanor involving official misconduct.
  • Voluntary Agreement to Resign: The judge may decide to re­sign in lieu of disciplinary action.
  • Formal Proceedings: These are reserved for particularly egre­gious complaints. The Commission may conduct a hear­ing or ask the Supreme Court of Texas to appoint a Spe­cial Master to hear the matter.

Id. at 9–10. Any order of additional education, public or private sanction, or public censure may be appealed to a Special Court of Review specially created by the Supreme Court of Texas. Id. at 10.

As attorneys, we do not want to cast aspersions on the ju­di­cial system on which we all rely, but sometimes, for the good of that same system, a complaint of judicial misconduct is necessary.

The complaint process is graphically illustrated by the following chart, provided by the Commission:

TCDLA
TCDLA
Robert Pelton
Robert Pelton
Robert Pelton is the former President of the Harris County Criminal Lawyers Association (HCCLA), Associate Director for TCDLA, and Feature Articles Editor of the Voice, as well as serving as editor and assistant editor of Docket Call. Among his many honors, Robert was named by H Texas magazine as one of the top criminal lawyers in Harris County (2004–2010) and one of Houston’s Top Lawyers for the People in criminal law (2004–2010), and he is listed in the Martindale Hubbell Bar Register of Preeminent Lawyers. Robert has offices in Abilene and Houston.
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