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Harris County We Have a Brady Problem

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For years, Texas and particularly Harris County, has struggled with the concept that prosecutors are to seek justice, not just convictions, and further they are to disclose favorable evidence, mitigating evidence, and even impeachment evidence. You know, the Brady stuff! Well Texas wins loses again and requires the Court of Criminal Appeals to affirm that prosecutors must disclose favorable evidence, regardless of the prosecutor’s individual belief in the evidence, and plea deals with witnesses.

Brady imposes a duty upon the prosecution to disclose impeaching, mitigating, and exculpatory evidence to the defense. And, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.[1]

In United States v. Bagley, the Supreme Court held that the duty announced in Brady required automatic disclosure of evidence that “might have been helpful in conducting the cross-examination” even when the defense did not request the disclosure of that helpful information.[2] Additionally, in Giglio, the Supreme Court held that the prosecution must disclose evidence of offers the prosecution gives to witnesses that may induce witness testimony noting that “evidence of any understanding or agreement as to a future prosecution would be relevant to [the witness’s] credibility and the jury was entitled to know of it.”[3]

Despite Brady being the law of the land since 1963, a number of Harris County prosecutors (and former prosecutors) have come under fire for their tactics in a series of cases. In particular, courts have criticized their understanding, or lack thereof, as it relates to Brady and their obligation to turn over evidence. While not every Brady violation was the same, the consistent factor is their general misunderstanding as to what Brady actually means or encompasses. What’s particularly interesting is that each of the prosecutors in question has worked as Harris County prosecutors. None of the offending prosecutors were young or inexperienced as lawyers. Instead, they were senior prosecutors handling some of the most serious cases.

In the series of cases outlined here, prosecutors testified that Brady permits a prosecutor to determine whether favorable evidence is sufficiently worthy of belief or sufficiently certain to warrant disclosure.

The “I didn’t believe it, so I didn’t have to turn it over” Misunderstanding

The rule announced in Brady does not create an exception for a prosecutor, even acting in good faith, to fail to disclose evidence the prosecutor deems unworthy of belief. DiSimone v. Phillips, a Second Circuit appeal, best summarizes why a prosecutor’s personal judgment cannot be factored into the Brady equation: if there [are] questions about the reliability of the exculpatory information, it was the prerogative of the defendant and his counsel – and not of the prosecution – to exercise judgment in determining whether the defendant should make use of it. To allow otherwise would be to appoint the fox as henhouse guard.[4] As the fox cannot guard the henhouse, the general rule must require disclosure and permit the defense team to form its own conclusions regarding the strength of the evidence.

Ex parte David Temple and Kelly Siegler/Craig Goodhart

In a circumstantial case, Kelly Siegler convicted David Temple of murdering his wife. Plaguing the case was a Brady claim – the prosecution team and law enforcement did not disclose the identity of an alternative suspect until the proverbial 11th hour during trial. And, even amidst the 11th hour disclosure, the disclosure was wholly inadequate and omitted thousands of pages of police reports and other evidence.

In his 19-page findings of fact, Judge Larry Gist noted at least 36 instances of prosecutorial misconduct; he painted a picture of a prosecutor willing to win at any cost and failing to follow her duty to disclose, or timely disclose, evidence favorable to the defense. Judge Gist concluded that Siegler withheld material Brady evidence that suggested an alternative perpetrator – and not Temple – committed the murder in this case. The trial court’s findings emphasized: “[O]f enormous significance was the prosecutor’s testimony at the habeas hearing that apparently favorable evidence did not have to be disclosed if the State did not believe it was true.”

Ex parte Linda Carty and Connie Spence/Craig Goodhart

Prosecutors Connie Spence and Craig Goodhart convicted Linda Carty as a party to capital murder following the kidnapping and murder of her neighbor. While habeas relief was ultimately denied, the trial court still found Brady violations in the prosecutors’ flawed understanding of their Brady obligations.[5] Again, the Harris County prosecutors determined they did not have to disclose evidence which they deemed untrue or unreliable. In fact, Spence testified during the writ hearing, “That’s kind of why I’m a lawyer, is to make those judgments.”

In this case, prosecutors failed to disclosed witness statements that conflicted with or were inconsistent with what they represented to defense. The trial court indicated if these statement had been disclosed, defense counsel would have been able to use them for impeachment of other witnesses. (Can we say favorable impeachment evidence?) Prosecutors also failed to disclose a witness statement stating the witness did not believe Carty to be a danger to society. (Can we say mitigating evidence?) Additionally, prosecutors failed to disclose a deal with another witness – the deal being that the witness would not receive prison time if Carty were convicted and received the death penalty. (Ok, let’s just say these prosecutors made the trifecta of Brady violations: failing to disclose exculpatory, mitigating, and impeachment evidence!)

The trial court concluded: the State was operating under a misunderstanding of Brady at the time of the Carty trial; the State’s Brady obligation was determined on a ‘case by case’ basis and was resolved with a ‘judgment call’ based on ‘gut instinct;’ and at the time of the Carty trial, the Harris County District Attorney’s Office did not believe that impeachment or exculpatory evidence needed to be disclosed if the prosecutor did not find the testimony credible.”

The “it’s not a deal that has to be disclosed” Misunderstanding

The prosecution must disclose evidence of offers the prosecution gives to witnesses that may induce witness testimony. This goes to the witness’s credibility and the jury is entitled to know any potential motivating factors in the witness’s testimony favoring the state.

Rather than split hairs over what constituted an “understanding or an agreement,” in Burkhalter, the Texas Court of Criminal Appeals “[found] it unrealistic to draw a line between an outright promise not to prosecute and a very real inference not to prosecute.”[6] In Duggan, the Court reaffirmed its holding in Burkhalter: “we decided that it was judicially imprudent to attempt to distinguish express agreements between the State and a testifying accomplice from those agreements which are merely implied, suggested, insinuated or inferred.”[7] With no distinction between implied, suggested, or inferred agreements, the prosecutor is to disclose any and all agreements.

Ex parte Edward McGregor and Elizabeth Shipley Exley

Edward McGregor was tried and convicted of capital murder and sentenced to life in prison. McGregor was tried in Fort Bend County. Harris County prosecutor Elizabeth Shipley Exley served as co-counsel for the State in the Fort Bend prosecution as she was simultaneously prosecuting a separate murder case involving McGregor, but in Harris County. The Fort Bend case was considered the “stronger” case and preceded to trial first. After McGregor received an automatic life sentence in Fort Bend County, Shipley dismissed McGregor’s Harris County case.

In a highly circumstantial case, Shipley relied on three witnesses who each claimed to hear McGregor “confess” to the murder. One of the witnesses was currently serving time and wanted a recommendation for parole in exchange for her testimony. The other two witnesses were jailhouse snitches who served time with McGregor pre-trial and wanted better deals in their own pending cases.

Ultimately all three testified under the direct examination of Shipley. Each was cross-examined and each denied receiving any benefit for their testimony. However, at the habeas hearing, evidence showed that each received a benefit and each had testified falsely about such benefit.

Shipley testified there was no specific promise for a deal, only that she “could” rather than “would” notify parole or the pending court of the witnesses’ cooperation. She believed, so long as there was no specific deal, there was no obligation to disclose it. In this case, Shipley made good on her promise that she “could” help after each testified; therefore, they were not testifying under a deal. In fact, the she and the State argued that it need not disclose rewards, agreements, or understandings for consideration unless there has been a firm promise – a quid pro quo – made before the witness testified. In other words, so long as there is no “binding contract” in place prior to the testimony, Brady obligations are not triggered. Clearly, her “understanding” was at odds with Giglio and other precedent.

Ex parte Kenneth Headley and Rob Freyer

Kenneth Headley was convicted of murder based on the testimony of one eyewitness, Rebecca Broussard. Unknown to trial counsel, Broussard had been given quite the deal in exchange for her testimony. She would receive misdemeanor time-served on her two new felony charges in exchange for her testimony at the grand jury and again at trial.

Rob Freyer, former Harris County prosecutor and current Montgomery County prosecutor, testified first there was no deal; however, evidence of “the deal” was nonetheless presented and the prosecutor was impeached.

The deal was memorialized in Broussard’s grand jury testimony. At the conclusion of Broussard’s testimony, Rob Freyer stated that “we all know…that you will be given a sentence under 12.44A for two crimes that you have and…you’ll get credit for all the time that you get in.” In response to this, Rebecca Broussard replied that this was indeed her understanding. This deal was never disclosed to the defense.

After being impeached with the deal, Freyer changed his position. Instead of contending there was no deal, Freyer testified he would have “brought this out” during the direct examination of Broussard had he tried the case himself, thus there was no duty to otherwise disclose the deal.[8] Again, the prosecutor was found to have a misunderstanding of actual Brady obligations.

Taken together, these four cases illustrate that even senior prosecutors within the Harris County District Attorney’s Office fundamentally misunderstood the duty to disclose favorable evidence and demonstrate the need for further clarification of a prosecutor’s duty of disclosure. While these examples represent a small cross section of Harris County prosecutors, it does show a systemic pattern of misunderstandings related to prosecutorial obligations stemming from Brady and its progeny.

[1] Brady v. Maryland, 373 U.S. 83, 87 (1963).

[2] See United States v. Bagley, 473 U.S. 667, 678 (1985).

[3] Giglio v. United States, 405 U.S. 150, 154–155 (1972).

[4] DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006) (citations omitted).

[5] Trial Court’s findings and conclusions: “In considering the Brady violations cumulatively, in consideration of the evidence, in light of the entire body of evidence presented, including the trial testimony, the Court finds there is no reasonable likelihood it could have affected judgments returned by the jury and does not meet the Brady materiality standard.”

[6] Burkhalter v. State, 493 S.W.2d 214, 217 (Tex. Crim. App. 1973).

[7] Duggan v. State, 778 S.W.2d 465, 468 (Tex. Crim. App. 1989).

[8] In an interesting twist, a personal relationship was discovered between Freyer and the lead detective in Headley’s case. Based on that relationship, Freyer was removed from the case and another prosecutor was assigned to handle the trial.

 

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Lawyers Duty to Client Never Dies

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About a week after the heinous attack on Dallas police officers, media sought to understand more about the killer. They learned the gunman was honorably discharged from the military but knew he had been involved in some sort of sexual harassment. In their quest to fill the ever-growing hunger for details to report, the Associated Press reached out to the shooter’s prior military lawyer for an explanation.

Army lawyer Bradford Glendening was assigned to represent Johnson following an accusation of sexual harassment against him by a female soldier in his unit, Glendening said. Exactly what Johnson is accused of doing has not been made public.

Johnson deployed to Afghanistan in 2013, but was sent back to Texas with the recommendation that he be removed from the Army with an other-than-honorable discharge, said Glendening, who prepared the other-than-honorable discharge papers in September 2014.

However, Johnson didn’t actually leave the service until the following April, according to service records released by the Army that do not classify his discharge.

His attorney later learned that the discharge was honorable.

“I was shocked to see that,” he told The Associated Press by phone last week, less than 24 hours after the Dallas shooting. He said he never received final documentation on how Johnson’s case was resolved.

“Somebody really screwed up but to my client’s benefit,” he said.

Seems like a simple statement. Glendening, the gunman’s lawyer, filled in the basic details: a sexual harassment allegation, a recommendation that he be discharged other than honorably, and somebody really screwed up. Well, arguably he got that part right: someone likely did screw up. It seems Glendening revealed confidential or privileged information about his former client.

The attorney suggested that Johnson may have had other problems in his unit.

“It was not just the act itself,” Glendening said. “I’m sure that this guy was the black sheep of his unit. Every unit’s got one.”

This short media statement immediately became the topic of debate for lawyers across Texas. The thoughts and answers were varied. Some lawyers opined that it may not be “right” to have revealed privileged information, but there was no one around to sue for damages since the client is now deceased. Some flat out claimed there was no privilege when the client is dead. Neither of these opinions is correct.

The attorney-client privilege survives not only the attorney-client relationship, but also the client’s life. A lawyer cannot divulge confidential communications between his client and him ever, even after the client dies. Swidler & Berlin v. United States, 524 U.S. 399 (1998). Simply put, the attorney-client privilege is forever. And, this makes sense. Clients seek advice for a variety of reasons. Lawyers need to be able to provide accurate advice. This rule encourages clients to reveal even the most egregious facts to her lawyer, in confidence, so the lawyer may render the best possible advice knowing all the facts.

Professional rules for lawyers go even further:

The Rules of Professional Conduct generally are interpreted as protecting posthumous client confidences and all material relating to the representation of a client. The American Bar Association’s Model Rule of Professional Conduct 1.6 and similar state bar rules prohibit attorneys from disclosing information relating to their representation of a client without the client’s consent. A number of state bar opinions indicate that the ethical obligation to client confidentiality survives the death of the client. The purposes of the ethical rules on confidentiality overlap with goals of the attorney-client privilege and of work-product protection but also are said to be broader, in that they support the reputation of the legal profession. To the extent that the ethical obligation is seen as creating a duty to a client, the analysis that the privilege survives the death of the client would also suggest that counsel’s ethical obligations support the same result.

Texas Rules are similar. Disciplinary Rule 1.05 defines confidential information as including both privileged information and unprivileged client information.

“Privileged information” refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. “Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

As the Disciplinary Rule refers to Rule 503, Texas Rules of Evidence, it’s important to compare and include Rule 503:

503(b)(2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney–client relationship.

503(c) Who May Claim. The privilege may be claimed by: (1) the client; 19 (2) the client’s guardian or conservator; (3) a deceased client’s personal representative; or (4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity—whether or not in existence.
The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim the privilege on the client’s behalf—and is presumed to have authority to do so.

Generally, confidential information should not be disclosed. While the rules (both disciplinary and evidentiary) provide for instances in which a lawyer may reveal confidential information and unprivileged client information, the exceptions have nothing to do with revealing information after the client’s death. The exceptions allow disclosure when authorized (expressly or impliedly) by the client or the representation, to defend the lawyer against claims of wrongful conduct, to apply with a court order or other law, to rectify a criminal or fraudulent act by the client using the lawyer’s services, and to prevent the client from committing a criminal or fraudulent act likely to cause death or serious bodily injury to a person, among other similar exceptions. But, nowhere do the rules allow for revealing confidential information because the client or former client is now deceased. In fact, Texas Rule of Evidence 503 is broader and extends the ability to claim the privilege to the deceased client’s personal representative, providing support for the privilege surviving the death of the client. Even after the client passes, his representative can still claim the privilege.

Remember, confidential information includes unprivileged information, which means all information acquired by the lawyer during the course of or by reason of the representation of the client. That’s very broad language. No matter the source of the information, any information acquired during the representation is subject to the rules of confidentiality.

And, because privilege survives the client’s death, all that broad information is forever the lawyer’s secret. It is her duty to maintain those secrets even where the media cries for answers; even when the former client is accused of some heinous act.

 

*Update:
Since posting, comments on social media suggest the privilege dies with the client. I have been unable to locate any Texas or Federal case to support such a position. But, there is a fairly recent case that distinguishes a “Corporation” as a client and holding privilege does not survive the death of a corporation: SEC v. Carrillo Huettel LLP, 2015 U.S. Dist. LEXIS 45988 (S.D.N.Y. April 8, 2015).

Additionally, see Dead Men’s Lawyers Tell No Tales: The Attorney-Client Privilege Survives Death by Jon J. Kramer
The Journal of Criminal Law and Criminology (1973-), Vol. 89, No. 3 (Spring, 1999), pp. 941-972.


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Prosecutorial Discipline

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disciplineFor decades, discipline for prosecutors was atypical and virtually nonexistent. Times are changing, though, it seems. First, Ken Anderson and Charles Sebesta and now line prosecutors.

In a case of first impression for disciplinary actions, Denton County prosecutor William Schultz found out the hard way that Brady has meaning beyond the courts. While the courts might impose a mistrial, vacate a sentence, or even possibly sanction a prosecutor, the State Bar Disciplinary Panel could enforce broader rules and even discipline. After withholding Brady information, the Board of Disciplinary Appeals pointed out the error of his ways (Schultz had assumed he could determine what was or was not Brady and therefore what was or was not to be turned over) and affirmed his partially probated suspension from the practice of law.

Now, former Williamson County prosecutor Mark Brunner has agreed to a fully probated suspension based on his lack of candor untruthfulness to the court. Brunner represented the State of Texas in a series of charges stemming from a bank robbery. During the prosecution, Brunner was able to reach a plea bargain with the defendant. Apparently, the plea was quite the bargain and even the court was concerned about it. Upon inquiry by the court, Brunner stated he had spoken to the victims and the bank owner and that they were satisfied with the plea agreement. Before the judge accepted the plea, he affirmatively stated, “… but for the acquiescence of this agreement by the victims in this case, I would not be going along with this agreement.”

The court, relying on Brunner’s assertion, approved the plea bargain and sentenced the defendant accordingly. However, Brunner had not spoken with the victims about the plea and none of them were aware of the plea agreement. And, Brunner did nothing to correct his false statement made to the court or relied upon by the court. Thus, the Panel concluded Brunner violated Texas Disciplinary Rule of Professional Conduct 3.03(a)(1): a lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

In his defense, Brunner offered:

When asked why he lied to the Judge, Brunner told KXAN via text message: “I answered the bar with my side of the issue. They obviously saw it otherwise. Id [sic] rather not fight it out with them in public. I had that option and I passed. So I’m still passing.”

While it is unclear whether Brunner was attempting to justify his conduct, he agreed to the discipline. He further agreed to the findings of fact which include the victims were unaware of the plea agreement. Much like defendants work plea bargains to mitigate punishment, perhaps Brunner feared a greater discipline. A fully probated suspension gives him the opportunity to continue practicing law uninterrupted. It certainly could have been worse.

All-in-all, this is a lesson in change for the prosecutorial bar. No longer are complaints simply dismissed. No longer do prosecutors get a pass for their conduct. The Bar is getting serious and it’s time to restore integrity to the prosecutor’s role.


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Good Deeds

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Criminal defense lawyer extraordinaire Mark Bennett has done his fair share of good deeds. As he can tell you, no good deed goes unpunished.

A true defender, Mark often comes to the aide and defense of his brethren in and around Harris County. He is head of the HCCLA Strike Force and responds to a “bat signal” whenever distress rears its ugly head.

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assessing the situation

Fairly recently (recent being a relative term when waiting on the State Commission on Judicial Conduct), a local judge was issued a private sanction after improperly detaining a colleague who was simply wanting to communicate with her client. Mark, and many others, rapidly appeared to assist. Mark took the lead, assessed the situation, and worked out an appropriate settlement. The judge withdrew her order of custody and released our colleague.

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researching remedies

In the aftermath, the State Commission on Judicial Conduct completed an investigation and issued a private sanction. During that investigation, the Commission took statements from those who witnessed the incident in whole or in part. (I know because I spoke to executive director, Seana Willing, who asked for my statement. I also spoke to the private investigator working for the judge’s attorney regarding the judicial complaint.) At the conclusion, the Commission determined a private sanction was appropriate.

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everyone willing to help

Fast forward: good deed done, now comes the punishment. Just last week, Mark had a case in said judge’s court. He took on this case last minute (yet another good deed) after the death of a colleague. He had a legitimate reason to request a very short continuance to cover a legal matter that could substantially affect his new client. His request was met with hadn’t he “just asked her for another day yesterday” and he “was losing credibility.” In Mark’s explanation about just taking over the case in an unforeseen tragic circumstance, the judge responded, “well, no good deed goes unpunished.”

And there you have it. Mark performed a series of good deeds only to have his credibility attacked. Retaliation for his assisting colleagues and providing a truthful statement to the Commission. Oh, and did I mention, when he wrote about all this, he learned just a little bit more about the judge and retaliation.


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(il)Legal Copycat

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In what Internet universe would a lawyer steal the words and work of another and not expect to be caught or called out? Why would a lawyer post “news” on their website by simply trolling the Internet and stealing others news? And, if a lawyer were going to do so, would they just take the easy way out and simply copy what the State Bar has already curated and pass it off as their own?

If you are a lawyer at Brown & Musslewhite in Houston, you would be lazy, plagiarize steal content, and pass it off as if some “author” in your firm wrote it.

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Jeff Musslewhite earned his law degree from The University of Baltimore School of Law. Apparently this is one school that doesn’t teach criminal law or copyright. Hell, they may not even teach ethics. Well, maybe it’s not fair to blame the school. After all, his law partner Lori Brown attended the University of Texas and didn’t learn the basics either.

Instead of creating and publishing their victories, successes, thoughts, and business plans, they have a “news” feed that does nothing but regurgitate the blog posts curated by the State Bar of Texas’ Texas Bar Today blog. The folks over at Texas Bar Today spend time reading and then passing on relevant information by providing links to various lawyers’ posts. When they do so, they identify the original writer, giving a link credit to the author, and simply send the interested reader directly to the original post.

Apparently, that’s too much work for the lawyers at B&M. They would rather just copy the work of the Texas Bar Today folks, create a fake author page, and link the readers back to themselves. By creating fake author pages, they give the appearance of the author writing or working for them. And trust me, I do not write for them, and I certainly would not work for them.

To be fair, their posts begin with “Written by JOANNE MUSICK” and “Originally published by JoAnne Musick.” Yet, when you click the link for JOANNE MUSICK, it circles right back to their site and a handy-dandy collection of everything they copied from me (which is only 2 [correction: 4, 2 as JoAnne Musick and 2 as JoAnneMusick] posts so far – but I’m not the only one they are copying – they have also copied HCCLA and HCCLA’s Reasonable Doubt).

They say imitation is flattery. Well, I’m not flattered. I find myself, much like Ruth, pissed:

When you like my blog work, I’m pleased. When you link to my site, I’m flattered. When you request a reprint, I’m delighted. When you rip off my work, even with an attribution, I get pissed!

You like my writing? Great! Let me know and I’d probably give you permission to use it. Want to curate like the Texas Bar Today folks? Great! Give proper links and I wouldn’t care. But don’t just blatantly utilize my words to enhance your google presence and seem relevant.

The interesting questions: Is this their work ethic? Do they really do real lawyer work? Or do they just copy others? Didn’t we learn in grade school that plagiarism was wrong? If they show deceit in their website, will they deceive a client? The court?

I have no desire to find the answers to these questions. I would never hire a lawyer engaging in such practice. It’s unethical and just plain wrong. Color me offended and sad that they have chosen to use my name and my words to try and make themselves look better. Don’t try to make yourself look better; be better!

Update: see what they are copying here


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The File: Whose is it?

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Important information for attorneys and their clients. Clients: know the file is yours and you are entitled to it (with a possible exception for some materials). Attorneys: know what to turn over and when.

Common Attorney Questions: My client (or former client) wants a copy of his file, can I charge him copy fees to make a copy? What if he didn’t finish paying, can I hold the file until he does?

Texas Disciplinary Rule of Professional Conduct Rule 1.15: Upon termination of the attorney-client relationship, a lawyer must take steps to protect the client’s interest including surrendering papers and property to which the client is entitled.

Texas follows a rule that the “file” belongs to the client, thus it must be surrendered to the client upon request. Lawyers may make a copy for their own files, but the file must be surrendered to the client upon request. Ethics opinion 610 makes it clear that lawyers may not hold a lien on the file, thus, regardless of whether the client has fully paid his bill, the lawyer must turn over the file.

Exception: Under the Michael Morton Act, a lawyer is prohibited from providing copies of the discovery provided by the state to the defendant (or others). The rule specifically states that a lawyer may allow a defendant (or certain others) to view the material but may not allow that person to have copies. Before allowing a defendant to view the material, a lawyer must redact identifying information. Because this material is excepted from disclosure to the client, a lawyer must keep this information separate so that it is not provided to the client in the event the client requests his file.

New legislation (HB 3791) clarifies the recent open question on whether a lawyer can turn over a DWI video to his client. Some lawyers believed the video could not be turned over to the client under the MMA because it was discovery received from the state under the MMA. Some believed it could be. The legislator cleared up the inquiry by amending CCP 2.139 to state specifically that DWI videos are available to the person stopped or arrested on suspicion of intoxication offenses. The DWI video includes video of the (1) stop, (2) arrest, (3) conduct of the person stopped during interaction with officer including SFSTs, or (4) procedure in which a person’s breath or blood is taken.

CAUTION FOR LAWYERS: Be careful with requests from subsequent attorneys for the client’s file. Only the client may request transfer of the file to the new counsel. In an interesting case, appellate/habeas counsel contacted former counsel for the client’s file. The former counsel refused to provide the file absent the client’s consent. The trial court then ordered former counsel to turn over the client’s file, over the client’s objection. In In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013), the Court of Criminal Appeals issued a mandamus to prohibit the trial court from finding the attorney in contempt and to reverse the trial court’s order that the lawyer turn over the file. The Court recognized that since 1918 the Supreme Court of Texas has held that the file belongs to the client and without the client’s consent, the lawyer could not turn over the file.


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Just Because You Can, Doesn’t Mean You Should

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Sure, a prosecutor can choose to prosecute a case, but that doesn’t always mean he or she should.

Trace Cocaine Cases

Years ago, then Harris County District Attorney Pat Lykos made the choice to decline prosecution of trace amounts of cocaine. This didn’t mean she approved or condoned cocaine possession. It didn’t mean cocaine cases were not prosecuted. It simply meant she chose to use her limited resources for more serious cases, cases involving more than just residue. Under her watch, trace amounts of cocaine meant residue left on a baggie or pipe; something that was may not even be seen, and certainly was not capable of being used, but could be tested for or seen through a microscope. While she was widely criticized by her opponent in the next election cycle for her position, it made sense and it freed up judicial resources and taxpayer money to focus on more serious crimes.

Since her defeat and the return of the prosecution of trace cases, we saw a large increase in these cases which necessitated the creation of a separate “state jail court” as we called it. This extra court had to be staffed and operated seven days a week just to handle these cases. This court had to be funded by the tax dollar. In this court, cases would languish on the docket, with defendants mostly sitting in jail unable to afford a bond. Defendants in this court were rarely offered treatment and simply moved on from the county jail to the state jail, eventually to return to Harris County and begin the cycle again.

Perhaps it is time once again to consider whether or not these cases should be prosecuted.

Interestingly, with that extra court tied up on such relatively small cases, we saw other courts becoming backlogged as well. This October, the state jail court was repurposed and became what we call “impact court.” Impact court is a trial court meant to ease the backlog of felony cases, many of which are sexual assaults, robberies, and murders. Certainly seems we should have focused resources on these cases all along and not worried so much about trace cases.

Small Marijuana Cases

Jeff McShan, spokesperson for the Harris County District Attorney’s Office, told the Texas Tribune in June, misdemeanor courts are now a mess and are backlogged with more than 10,000 marijuana cases. To ease this logjam, the District Attorney created its First Change Intervention Program aimed at removing non-violent low-level marijuana cases from the courts.

Not only was this program designed to divert cases from the court, it also sought to easy jail overcrowding by diverting these non-violent citizens from the local jail.

The program, in terms of a participant’s completion has been largely successful; however, in terms of diversion the program has been less than stellar. Diverting only about 19% of the program’s participants from the jail and the courthouse, the program has made little impact on these valuable resources.

Perhaps it is time to rethink prosecution of these cases. The District Attorney could easily force a diversion in almost all these cases but chooses not to.

Assault / Domestic Disturbance

Here, you will notice i didn’t use the term domestic violence. Certainly, true violence whether domestic or otherwise, should not be tolerated. But here, I’m talking about disturbances that are routinely prosecuted despite the participants’ desire.

All too often we see cases where the police are called to a disturbance. Emotions are usually high as the police arrive and seek to determine what happened. Perhaps the two participants in the disturbance were upset. Perhaps they were arguing. Perhaps things got out of hand and one participant pushed the other back. Perhaps that push, meant to place distance between the two, resulted in one sustaining a red mark to her arm. That red mark is most often referred to as an injury and the other person is arrested, taken to jail, and prosecuted. Perhaps one party stretched or embellished in a moment of anger.

Now, should the “injured” party settle down and notify the prosecutor that things just got out of hand and she really doesn’t want her companion to be prosecuted, that case is immediately sent to the “family criminal law division” for follow-up and continued prosecution. In effect, the injured party is given no say in whether or not the prosecution goes forward.

Many of these incidents involve no real injury and no repeated violence. Yet, they are prosecuted.

Again, not that prosecutions of abuse should be ignored, but many of these instances do not amount to abuse. They are single instances of heated arguments.

Prosecutions, while great for business, must be taken with care and insight into the expenditure of valuable resources. Prosecution: just because you can, doesn’t mean you should.


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Lawyers and Social Media

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Attorneys have the option to use social media to enhance their careers and businesses. But each attorney should keep in mind a few precautions before sharing anything. Failure to take these seriously can cost lawyers their jobs, or worse, their bar licenses.
http://www.corpcounsel.com/id=1202738703474/Question-No-1-for-the-Lawyer-on-Social-Media-What-Not-to-Share#ixzz3nUfBnHZR

In her Corporate Counsel column, Julie Langdon cautions attorneys:

  1. Be Wary of Self Promotion
  2. Keep Your Client’s Information Confidential
  3. Know Your Social Media Discovery Limits
  4. Do Not Have Communications with Judicial Officers
  5. And…Think Before You Post

While written in a more general nature, these rules apply in Texas just the same. Part of my recent San Angelo presentation was Lawyers and Social Media: Is it really advertising?

social_media_strategy111In Texas, Rules 7.02 and 7.04 govern public media advertising, and yes, social media is a form of electronic advertising, especially where it is open or available to the public (think public law firm page on Facebook, public twitter posts attributed to “firm”). At a minimum, advertising must reflect the lawyer or law firm responsible and the principle office. Under Rule 7.07, lawyers are required to file a copy of advertising (including websites) with the advertising review committee of the State Bar. Generally, advertising via “tombstone” information is not required to be filed. Also, materials that are purely academic, editorial and educational in nature are not required to be filed with the review committee.

From the State Bar, Advertising Rules, Interpretive Comment 17:

The Internet and Similar Services Including Home Pages. (March 1996, revised May 2003, Revised 2010)
Part VII of the Texas Disciplinary Rules of Professional Conduct applies to information disseminated digitally via the Internet. A digitally transmitted message that addresses the availability of a Texas lawyer’s services is a communication subject to Rule 7.02, and when published to the Internet, constitutes an advertisement in the public media.

Websites

A website on the Internet that describes a lawyer, law firm or legal services rendered by them is an advertisement in the public media. For the purposes of Part VII of the TDRPC, “website” means a single or multiple page file, posted on a computer server, which describes a lawyer or law firm’s practice or qualifications, to which public access is provided through publication of a uniform resource locator (URL).

Of the pages of a website subject to these rules, many may be accessible without use of the site’s own navigational tools. Of those pages, for the purpose of this Interpretative Comment, the “intended initial access page” is the page of the file on which navigational tools are displayed or, in the case that navigational tools are displayed on several pages, the page which provides the most comprehensive index capability on the site. The intended initial access page of a lawyer or law firm’s website shall include:

1) the name of the lawyer or law firm responsible for the content of the site

2) if areas of law are advertised or claims of special competence are made on the intended initial access page or elsewhere on the site, a conspicuously displayed disclaimer regarding such claims in the language prescribed at Rule 7.04(b); and

3) the geographic location (city or town) in which the lawyer or law firm’s principal office is located. Publication of a link to a separate page bearing the required disclaimer or information required by Rule 7.04(b) does not satisfy this requirement.

Social Media Sites

Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements. Where access is limited to existing clients and personal friends, filing with the Advertising Review Department is not required.

Blogs

Blogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department. However, attorneys should be careful to ensure that such postings do not meet the definition of an advertisement subject to the filing requirements.

So, yes, social media sites and blogs can be advertising and in most cases are advertising. Remember all advertising must be filed with the Advertising Review Committee and approved.

Corporate Counsel hits the nail on the head: be wary of self promotion – this is the very advertising the Texas Bar cautions against in the rules. Posting “wins” or settlements can be misleading to the public and create a false or unjustified expectation for future clients. We know that every case is different, and your advertising must acknowledge and state such. So be careful with that self promotion advertising!

Her additional points are well taken. Know that you likely cannot seek discovery by “friending” or otherwise attempting to retrieve information from opposing parties or witnesses, unless of course you disclose the purpose of your “friend” request. Know that you must keep client information confidential absent your client’s consent to disclose his information. Know that “friending” and communicating with judges and court staff could be ex parte communications which are prohibited. And always, know that you should stop and think before posting anything as nothing is truly private when posted on any social media or internet site.


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Can My Lawyer Give Information About My Case to My Momma?

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Confidentiality

Lawyers owe a duty of confidentiality to their clients. Lawyers cannot ordinarily reveal confidential information to anyone, absent the client’s consent. Sometimes momma (or daddy or wife or brother or anyone else) will call the lawyer to “see what is happening” or “see what is going to happen.” Often this is simply because the family member or friend is genuinely concerned about the legal matter and what is happening or about to happen. Sometimes it is because the family member or friend is just being nosey. In either event, lawyers owe a duty to protect confidential information and cannot share that information with family or friends unless the client has specifically authorized the lawyer to do so.

What is “confidential information”?

Under the Texas Disciplinary Rules of Professional Conduct, Rule 1.05 states: Confidential information includes both privileged and unprivileged information. Privileged information is that which is protected by the Rules of Evidence and is predicated upon the principle of an attorney-client relationship. Unprivileged information means all information relating to a client or furnished by a client, other than privileged information, acquired during the course of representation of the client.

A lawyer may not reveal confidential information of a client or former client, except as provided within the rules. The rules provide for some exceptions to this general rule:

  • when the client authorizes disclosure or consents,
  • when disclosure is necessary to further the client’s representation,
  • when the lawyer is defending against claims made by the client against the lawyer,
  • to prevent a client from committing a fraudulent act,
  • to comply with a lawful court order or other law,
  • to rectify consequences of client’s criminal act, or
  • to prove services rendered in collecting fee.

When momma calls or asks about the case or what is happening, the best course of action is for the lawyer to tell momma she represents her child and because of the attorney-client privilege she is not able to discuss the case with her. If the client insists on having the lawyer talk to momma or update momma, the lawyer should get that in writing from the client. But first, the lawyer should explain to client that the rules are there to protect the client and the lawyer can best protect the client by not divulging information to momma.

There will be legitimate reasons that a lawyer may freely talk to momma or others. For example, if momma is a witness, the lawyer can certainly interview momma about the events and circumstances surrounding what she witnessed. But in that case, the lawyer is gathering information rather than revealing information.

The bottom line is that information received from the client is protected by attorney-client privilege and  the lawyer may not reveal that information (unless one of the exceptions applies). Additionally, information the lawyer learns from any other source as a result of the representation is confidential, even though it may not be privileged, and may not be revealed.


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Why One Lawyer Shouldn’t Represent Co-Defendants

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Conflict Question Often Asked: Can I represent co-defendants?

The short answer: maybe you can, but generally you should not. The Texas Disciplinary Rules of Professional Conduct address this and other issues attorneys face.

Rule 1.06: A lawyer shall not represent opposing parties and a lawyer shall not represent a person if the representation of that person involves a substantially related matter in which that person’s interest are materially and directly adverse to the interests of another client.

While co-defendant representation is not always prohibited by the rules, Comment 3 provides that the potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.

Informed consent – Rule 1.06 comments: A client under some circumstances may consent to representation notwithstanding a conflict or potential conflict. However, as indicated in paragraph (c)(l), when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved should not ask for such agreement or provide representation on the basis of the client’s consent.

Comment 8 recommends that the disclosure of the conflict of interest and the consent be in writing. It would be prudent, the rules states, for the lawyer to provide potential dual clients with at least a written summary of the considerations disclosed.

Out for one, out for all – Rule 1.06: A lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute.

Knowing the rules above, it is clear as to why it is seldom a good idea to have the same lawyer represent more than one person in a criminal matter. Where two or more people are charged with acting together to commit a crime, they are referred to as co-defendants. Co-defendants will often have different alleged roles in the offense. This means they often have differing levels of culpability and mitigation. It is difficult for one lawyer to advise both when their interests are not always aligned. The classic example of conflict exists where the government seeks to “trade” one defendant for the other: the government will offer a great plea-bargain to one in exchange for that person testifying against the other whom they see as more culpable or dangerous. In that instance, does the lawyer tell client A to take the deal and testify against client B, even though that will harm his other client? Does the lawyer tell client A not to take the deal, risk greater punishment, and save client B?

Lawyers owe a duty of loyalty to each and every client (and former client). Thus, the lawyer cannot advise one client to harm another or refrain from harming another. Each is entitled to diligent and conflict free representation.

You can also view my HCCLA guest blog on the subject!


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