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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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Waller County Jail Report

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  The Waller County Civilian Commission report is finally out, and you can read it here:

Recommended Police and Jail Practices

We finished our review, and our report! Joined by Hon. Craig Washington, Hon. Morris Overstreet, Juan L. Guerra, Randall Kallinen, and Paul Looney, I spent countless hours trying to help the citizens of Waller County. In an epic move, Sheriff Smith invited us in and gave us unfettered access to his domain: people, places, and practices. We came and went as necessary. We interviewed whomever we wanted. We looked at whatever we chose. And, ultimately, we created 9 recommendations that have the potential to change law enforcement:

  

  • Better screening for mental health and illness
    • use of video (Skype or other technology) can provide immediate access to a physician
    • additionally, the same video equipment can provide immediate contact with a magistrate to set or review bond or even provide a personal recognizance bond to shorten jail stay
  • Police worn body cameras
    • develop policies to record and store all police interactions
  • Language and demeanor issues
    • address use of derogatory language
    • eliminate the stigma and treat others with dignity and respect
  • Counseling and fitness to serve for officers and jailers
    • mental health is just as important as weapon proficency
  • New jail facilities
  • Booking processes and information sharing
  • Digital reporting
  • Public information
  • Separation between jailing and policing

To be sure, every person in every agency can improve. We only hope our roadmap with some specific improvements can bring about greater respect for both the authorities and the citizens.

While it is sad that it took a suicide to bring change, better that change comes!


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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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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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DNA Errors: Big Deal or Not?

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Have you seen the news? The FBI has announced errors in its database which is used across the nation and in Texas. In two prior blog posts (on separate sites), I addressed this issue.
August 7, Just How Accurate is DNA?, HCCLA.org (with memo downloads)
September 18, FBI DNA Calculation Errors, HCCLAtv.com

Today, Fox 26 News visited with me to get a perspective on just how big this problem is.
As I told Andrea Watkins, Fox26 News, the problem will be large simply because each case will have to be identified and then reviewed to see what impact the DNA results may have had on a particular plea-bargain or jury verdict. Ultimately, this will amount to thousands of cases locally as the errors have existed and been perpetuated since 1999.

The problem is that errors in the statistical database could have caused an inflated reliance on a match. For example, instead of the probability of a particular DNA sample matching a suspect or defendant being 1 in 1 billion, it could be that it is only a 1 in 100 chance of belonging to the same person. This certainly changes the landscape and statistical chance of the DNA being left by the same person.

This problem is compounded in “mixture” cases. A mixture case is where two or more persons have contributed to the sample. We often see swabs collected from crime scenes where the analysis reveals the DNA of two individual people. The statistical errors, once corrected, can cause a scientific result which once included a suspect to now exclude that same person because of the lack of strength in the probability of the result matching. (I hope that makes sense. Essentially, science sets limits. If the probability falls below the lower limit, it is no longer considered a scientific match; so if the recalculation falls below, it is no longer considered reliable.)

Of course correcting each DNA statistical calculation will not ultimately help every defendant or suspect. But i will change the scientific reliability in some cases; therefore, each case will have to be analyzed to see whether or not it is affected.

This is a huge undertaking. It will take time. And, it will certainly add to the backlog in crime labs and the overall turn-around on testing old as well as new evidence.

In any event, I’m staying on top of this and will continue to report what I can.


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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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To Plea or Not to Plea?

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As a takeoff from my presentation today at Texas Criminal Defense Lawyers Association’s Defending Juveniles, I wanted to share an outline of how to approach advising your juvenile client to plea or not to plea.

What is a Plea?

In this context, a “plea” is similar to a plea-bargain in a criminal case. A “plea” is to enter a plea or “true” (or no contest) or “not true.” A plea of “not true” results in proceeding forward toward a trial by court or jury. A plea of “true” is an admission and judicial confession to the delinquent conduct in question as alleged in the petition. A plea of “true” can be made with an agreed recommendation from the prosecutor or without.

A plea of “true” made to the court is an adjudication hearing. Because adjudication hearings cannot be waived, it is the plea of “true” coupled with the juvenile’s confession (or agreement to stipulated facts) that gives the juvenile court an evidentiary basis upon which to find the juvenile has engaged in delinquent conduct and thus becomes an expedited adjudication hearing.

To Plea or Not To Plea, Who Decides?

Ultimately, it is always the client’s decision whether or not to enter a plea of true. Texas Disciplinary Rules of Professional Conduct Rule 1.02 states a lawyer shall abide by a client’s decisions in a criminal case (and by extension juvenile cases), after consulting with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.

Though the plea to be entered and the waiver of a jury trial are each left to the client, the rule requires that client’s decision to come after consultation with the lawyer. Failure to provide adequate information for the client to make a decision about whether to have a jury trial or whether to accept a plea offer can result in an attorney being sanctioned by the State Bar. It is imperative that you not only convey offers (if any) and discuss whether to proceed to trial but also consult with the client the consequences of each decision. The client must understand the trial process and its pros and cons along with the evidence that is likely to be admitted.

Should I Advise My Client to Plead True?

First, you must know your case, your client, your prosecutor, your judge, and your options. Sometimes the question to plead true is more easily made.

Know Your Case

Sounds simple, but attorneys must investigate their client’s case before advising the client on how to proceed. At a minimum, this requires (1) reviewing the petition for alleged facts and potential defects, (2) discussing the allegation with your client, and (3) reviewing the prosecutor’s file, including evidence and other items provided through discovery. Often, knowing your case goes beyond these basics and will include an independent investigation into the facts and circumstances of the alleged offense. Where appropriate, seek an appointed investigator to assist in your investigation, subpoena records, and interview witnesses.

While reviewing the prosecutor’s file (offense report and other discovery) is a good place to start, it is rarely the end of your inquiry into the case. Once you have reviewed the offense report, statements and all other materials in the prosecution file, you should discuss the items and reports with your client. Are there other witnesses you should send an investigator to interview? Do you need to subpoena dispatch records, MDT’s, blood records, CPS records, medical records, audio and video recordings, social media records, etc? Do you need an expert to evaluate some forensic conclusion?

Essentially, you should prepare your case for trial. Review the elements of the alleged offense and determine whether or not the prosecutor can prove each and every element. Know which witnesses can be used to prove each element. Know whether or not those witnesses are impeachable. Know whether or not evidence will be available for trial.

Know Your Client

Not only must you discuss the offense allegations and evidence with your client, but you must also know your client and his history: court history as well as school and mental histories. Has your client been involved in the juvenile court system before? Has your client been a discipline problem at school? Did your client behave in detention while this case has been pending? Does your client skip school regularly? What kind of grades does your client make in school? Does your client see a therapist or psychiatrist? Has your client been hospitalized for mental issues? Does your client have a drug problem? Has CPS been involved in your client’s life? The answers to these questions and so many more can paint the picture of your client. A picture that can either help or hurt as assess whether or not a plea is appropriate.

Talk to your client and his parents. Get a history independent from that provided by probation. Depending on your client’s history, you may also need to speak with teachers, counselors, and others.

Know Your Prosecutor

When advising your client whether to plea or not, you must know your adversary. Is he reasonable? Can he try cases? Is he going to make a reasonable offer, or is there wiggle room in his offer to plea? Is he willing to offer deferred prosecution? Is he willing to dismiss one or more counts for a plea on another count? Is the judge likely to undercut his recommendation? Is his recommendation tied to “office policy” and therefore non-negotiable? Is he going to attempt to fix a weak case if you point out problems with the prosecution? Will he be reassigned before your case concludes?

Knowing your prosecutor is likely the least important part of this discussion, but it is still something you need to consider when advising your client on whether or not to plea, especially if that plea is with an agreed recommendation from the prosecutor.

Know Your Judge

Knowing your judge is just as important as knowing your case and your client. Knowing your judge is important in understanding whether an agreement with the prosecutor is a good deal for your client. Would the judge grant your client a deferred prosecution over the prosecutor’s objection? Would the judge allow your client to remain in the home on disposition despite the fact that the prosecutor wants a local residential commitment? Is it likely that the judge would find no disposition necessary? Is the judge likely to grant a motion to suppress? How likely is your judge to grant or deny certification requested by the prosecutor? How likely is the judge to follow probation officer recommendations? Will the judge request or require a urine test prior to considering a request for deferred prosecution?

If you don’t know these answers, it’s time to find out before you can fully and properly advise your client.

Know Your Options

In this context, outside of the option to plea or proceed to trial, you must also know your options, especially for disposition. Generally speaking, your options are: (1) no disposition, (2) probation, or (3) confinement. Probation can be in the child’s home or in a residential facility. Confinement can mean locally or within TJJD.

The court has available a myriad of options and programs within the system (juvenile probation) but is not tied to only those within the system.

Does your client’s family possess the resources to seek non-county resources such as therapy or drug treatment outside of the probation department? Does your client qualify for mental health or drug programs? When will your client be eligible to have his record sealed under each available scenario? Does probation have other resources that may be better tailored to your client’s need then those proposed by the prosecutor? Does your client’s family have the ability to supervise your client in an informal program (diversion) or will your client require more stringent rules? Would entering a plea on a lesser-included offense better serve your client’s interests? Will your client be required to register as a sex offender? Will a plea result in a suspended driving privilege?

All this and more must be known or explored by the lawyer so that they lawyer can competently and appropriately advise the client. Only the informed client can make the decision to plea or not to plea.


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Prosecutor Accountability?

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Texas leads the nation in convicting innocent people. Appalling! This is not a lead to be proud of.

According to the National Registry of Exonerations, Texas led 2013 in convicting innocent people, and over the years, Texas has always remained in the top four states for convicting innocent people.

Convictions of innocent people can be linked to a variety of sources from junk “scientific” evidence to poor eyewitness identification. And while not always a contributing factor, prosecutorial misconduct certainly adds to the problem.

In New York, legislation has been proposed to create a State Commission on Prosecutorial Conduct. The idea is similar to State Commissions across the nation which deal with judicial conduct. The commission becomes an investigatory body able to review complaints against prosecutors and determine disciplinary measures where appropriate.

Prosecutors have the ability and unfettered discretion to deprive citizens of their liberty. This is a tremendous power which historically goes unchecked. Currently, prosecutors enjoy immunity for most of their actions; they cannot be successfully sued for even egregious acts of misconduct. They are shielded by appellate courts who find misconduct but excuse it as “harmless” error. They are subject to great abuses of power because there is no effective oversight.

New York is trying to change that. Perhaps it is time for Texas to take a true lead and setup our own Commission on Prosecutorial Conduct, a system of checks and balances that might hold prosecutors liable for this misdeeds when they make their own rules.

With abusive prosecutors like Ken Anderson, Charles Sebesta, and Kelly Siegler, Texas needs to step up and find accountability in a system of justice that no longer undermines public trust.

Prosecutorial abuses, like any other abuse, cost the taxpayer hundreds of thousands of dollars. Prosecutorial abuses undermine the fairness and integrity of our system of justice. Prosecutorial abuses must stop.


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