Ethics & The Law: Past Tense

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Below is a real question presented to the Ethics Committee by a member:

I have a client that I represented in a recent exoneration. The date of offense was 2001. The exoneration process started in 2014-2015. It is now complete.

Former client is considering getting case expunged. In preparation for that, he has asked for his complete file. There are several exhibits to the writ that were filed under seal, with specific exclusionary language regarding access – even by him – on the grounds of witness safety and protection of the investigation. However, there is other information in his file that isn’t covered by a court order and could be problematic. Names, addresses, phone numbers, inculpatory statements… I’m concerned about possible retaliation towards these writ witnesses. Also, in our file is sensitive information developed by the DA during their investigation, a copy of which was provided to me as discovery.

What are my options here? Am I obligated to turn everything that is un-sealed over to him? Am I required to redact anything before I turn it over to him? Do I have a duty to approach the court for guidance – which my client will see as opposing him? Has there been any change in the lack of applicability of 39.14 to these cases?

Any guidance you can provide would be greatly appreciated. Thanks so much!

ANSWERS

Keith Hampton

I think a court order cures almost all of these issues. I agree that if he has a lawyer, then go through him, but if not, then it sounds like he is a client who could misuse parts of the file. I think your ethical duties are broader than robotic obedience to a client’s demand. If I understand the circumstances (and I think I know the case), then I would ask for a hearing and let the judge redact or order you to refrain from disclosure. I am limiting my remarks to the ethics of what to do and not a civil suit or any other considerations.

John Wright

  • If there are some items that the attorney is sure she can simply provide to the client, I would recommend that be done right away.
  • Send the materials under a cover letter that says that the attorney has other materials that she is not sure the law will permit her to provide to the client, and that legal issue is now under review. The lawyer will do well to convey the idea that she is trying to be careful, not just recalcitrant.
  • The lawyer might consider asking the former client if he has a Texas licensed lawyer that will accept the file materials, and discuss them with him, knowing that the lawyer will have duties and obligations under the Michael Morton Act and the general duty to protect the rights of third parties.
  • If the former client persists in having all the materials sent to him personally, consider filing a suit in inter pleader under the civil rules. The theory of such a suit runs like this: I have possession of certain papers and property that may belong to the former client, third parties or to the court itself. The relief requested, after notice to the former client, the DA and all interested parties and a hearing, is that the court will decide what must be done with the papers and property. Once the court decides, the order can be appealed by anyone not happy with the outcome.
  • My overriding advice is to try to make nice with such a former client to the extent that is lawfully possible.
  • The client needs to be advised about the law on expungement so that process can be expedited.

Special thanks to Keith Hampton, JohnWright, and Sharon Bass.

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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March 2020 SDR – Voice for the Defense Vol. 49, No. 2

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