Proposed Change to Rule of Privilege in Texas Criminal Cases

I wrote last year about the interplay of Texas Disciplinary Rule of Professional Conduct 1.05 and Texas Rule of Evidence 503, and their surprising cumulative effect on the attorney-client and work-product privileges in Texas. Now the Court of Criminal Appeals proposes amending Rule 503 to remove the “special rule of privilege in criminal cases”:

(2) Special rule of privilege in criminal cases. In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.

(PDF of proposed rule change.)

The effect of the rule change will be to bring privilege in Texas criminal cases in line with privilege in civil cases and, coincidentally, with what most Texas criminal lawyers thought the rule was. Now, things that the lawyer learns by reason of the attorney-client relationship will be treated as “unprivileged client information” rather than “privileged information.”

In Texas before the rule change, there was no such thing as “unprivileged client information” in criminal cases. Because the rules of evidence made everything

Unprivileged client information is still confidential, and cannot be freely disclosed by the lawyer, but it may be revealed, according to Rule 1.05, in more situations than privileged information can. For example, “when the lawyer has reason to believe it is necessary to do so in order to carry out the representation effectively” she can reveal unprivileged confidential client information, but not privileged client confidences.

Why the change? I’ve no idea.

The Code

A man has gotta have a code to live by. (So does a woman.)

I think most lawyers don’t have one.

What’s yours?

Prosecutors and Judges: How is this Possibly Okay?

Today (January 29th) I got a fax from the prosecutor on a misdemeanor case. The fax contained:

A Motion to Disclose Experts; and

An order granting that motion.

The motion carried a certificate of service claiming that the motion had been served on me on the day the motion was filed or before. It had not been served on me before today. In fact, the prosecutor had to call me this afternoon to ask for my fax number.

In the order, dated January 25th, the judge wrote that the motion came on to be heard and considered “after proper and timely notice to the Defendant”, and granted the motion, ordering me to disclose my experts by Friday.

So not only did the prosecutor not serve me with a copy of the motion before it was filed, but she didn’t serve me with a copy of the motion until four days after the order had been granted.

My civilian readers need to know that this is not an unusual event. Indeed, this is pretty much par for the course when a prosecutor bothers to get such an order signed. They routinely file such motions without notice to the defense and routinely present them to judges who grant them ex parte. If there is a prosecutor or a judge who does not engage in this conduct, I don’t know who it is.

Prosecutors:

First, what are you doing, presenting motions to judges without the other side present and, indeed, without notice to the other side? That’s ex parte contact, which is generally unethical, and no exception to the general rule applies here.

Second, what are you thinking, filing documents with the court with fictitious certificates of service? Not only is that unethical, but it’s also a crime: tampering with governmental records. Look it up. On second thought, don’t bother. It’s Texas Penal Code Section 37.10(a)(1). It’s a class A misdemeanor unless you intend to defraud or harm another (arguable — defrauding the court?), in which case it’s a state jail felony.

(So congratulations: in the course of prosecuting a class B misdemeanor, you’ve committed a more serious crime. Call home and tell your mother; I’m sure she’ll be very proud.)

I know that the Harris County District Attorney’s Office has never bothered a whole lot with the rule against ex parte communications with judges, leaving such ethical breaches to the discretion of the prosecutors. I know that the Office takes a somewhat laissez-faire attitude toward the signing of pleadings as well. And I know that you guys feel bulletproof, because (a) nobody has ever held your feet to the fire to actually follow the Texas Disciplinary Rules of Professional Conduct; and (b) it would be the Harris County DA’s duty to prosecute a tampering-with-governmental-records case, and everybody knows the DA’s office is never going to prosecute a prosecutor for breaking the law in the course of her duties.

But the times? They are a-changin’. The public no longer holds the delusive belief that you can do no wrong; there’s going to be a new DA a year from now, and there’s a reasonable probability that it will be someone who doesn’t approve of prosecutors and cops breaking the rules, someone who has no qualms about prosecuting prosecutors for the “little” crimes like this one that some of you commit every day. And the limitations period for even misdemeanor tampering is two years.

Maybe you guys will blame Chuck Rosenthal for this too. He keeps his own counsel, you’ll say. I’m not buying it.

When such a fundamental rule (the foundation for fairness in an adversary system, so basic that we actually learn it in law school) as that forbidding ex parte judicial contact is so routinely ignored, that’s proof that the rot spreads farther than just the sixth floor. It wasn’t Chuck’s job to teach this young prosecutor, and every other young prosecutor, that ex parte contact with the judges is a no-no.

Which brings us to the judge, who, as it happens, reads Defending People.

Judge, what are you thinking? When you sign an order on the ex parte motion of a party, you call your impartiality reasonably into question.

Every day you take it upon yourself to help the baby prosecutors in your court be better lawyers: you give them little hints and pointers about how better to prosecute people. Now, that’s not really appropriate, but it’s going to happen however much I fuss — even if you don’t care whether the state wins, you naturally want the state’s inexperienced and poorly-trained lawyers who are in your court every day to become better lawyers. Right?

While you’re making the effort to make them better lawyers, do you think you could spare a thought or two for their ethical training? You know that I don’t think you should be taking it upon yourself to improve their litigation or trial skills, but nobody would consider you remiss in providing them with a little ethical guidance. Especially where the ethical rule involves the relationship between them and you, and is so critical to procedural justice and the appearance of fairness.

I realize that you probably didn’t know that the certificate of service was false. You took the prosecutor’s word for it. Clearly, that doesn’t work. But it doesn’t matter. You ruled on a motion ex parte, without giving the other side an opportunity to be heard. If you had made sure I had an opportunity to be heard, of course, you would have learned that the prosecutor’s certificate of service was false, and I would have had a chance to respond.

The times are a-changin’ for the bench as well. The Harris County Criminal Lawyers’ Association has filed three bar complaints against sitting judges in the last two years. More grievances are coming. Will any of those bear fruit? Maybe, maybe not — it takes more than just a righteous complaint for the Commission on Judicial Conduct to act against a judge. But it’s indisputably easier to not be grieved than to be grieved and win.

Aside from the criminal bar growing some much-needed collective backbone in recent years, there’s something else for you to consider: Dallas County. It is possible that Harris County’s Republican judges, like Dallas County’s, will need more than the anointment of the kingmakers in the local party apparat to keep their jobs. Judges who create the appearance of impropriety are more likely to draw opponents than judges who avoid it by scrupulously following the rules. Will these opponents win? Maybe, maybe not — the Dallasification of Harris County elections is purely speculative right now. But it’s indisputably easier to run unopposed than to run opposed and win.

What Tangled Webs . . .

The Houston Chronicle has an interesting column today by Lisa Falkenberg, in which she suggests that when Kelly Siegler described the 45,000 members of Houston’s Lakewood Church as “screwballs and nuts” she might not have been being entirely candid with the court.

The context: Kelly was trying a capital murder case. The defense made a Batson challenge, alleging that it appeared that Kelly had used a peremptory challenge to remove Matthew Washington from a pool of prospective jurors because of his race (Black).

When the defense makes a Batson challenge, the prosecutor must provide a race-neutral reason for striking that person. If the real reason for the strike is the person’s race, the prosecutor might well be tempted to provide whatever race-neutral rationalization jumps into her mind, whether it is entirely true or not.

Courts will accept just about anything as race-neutral justification for a prosecutor’s peremptory challenge of a minority juror. It doesn’t have to make a whole lot of sense. And, since nobody can read the prosecutor’s mind, the prospective juror (who has a right to serve regardless of his race) and the defendant are at the mercy of the prosecutor.

Was Kelly Siegler inventing a race-neutral reason to strike Mr. Washington (who, by Lisa Falkenberg’s account, viewed the death penalty favorably)? Or did she really think that all of the members of one of Houston’s largest congregations are screwballs and nuts, regardless of their race? (Incidentally, striking a juror because of his religion is unconstitutional too, but most lawyers aren’t aware of this.)

When I first read of the incident, I thought that Kelly in all likelihood didn’t really think of all Lakewood members as screwballs and nuts; I suspect that was probably the reaction of most criminal trial lawyers. But who knew that the public would care? The public seems to expect some rule-bending from their prosecutors in the name of obtaining convictions. Which would be worse in the eyes of the public: that Kelly was telling the truth about her opinion of Lakewood Church, or that she was lying to try to ensure the death penalty for an evildoer?

If the answer is that it would be worse if Kelly was lying to the court about her opinion of Lakewood Church — if the public is going to hold professional ethical breaches against the candidates for D.A. — then this becomes a different campaign.

I have faced Kelly Siegler in the courtroom only once and had no complaints about her conduct (she was sitting second with a young prosecutor on a kilo case; she tried the usual older-female-prosecutor head games on me; I am immune, and I won), but if professional ethics are important to this election, I expect some of my colleagues who have dealt with her directly more than I may weigh in.

Trial Insurance

Gideon wrote today about the cost of jury trial, noting that many citizens-accused with retained counsel can’t afford to pay for a jury trial. He asked,

Who can do something to avoid this? Should clients always assume they will go to trial and hire only attorneys they can afford? Should attorneys not charge a subsequent trial fee, but merely a one-time flat fee? Should lawyers charge hourly rates instead?

The answer to the last question is “no”, as Scott and I have both argued. Even if hourly billing on criminal cases were a good idea, it wouldn’t provide the solution that Gideon seeks because clients would still, before trial, have to come up with enough money to cover all of the time that the lawyer might have to put into the trial.

The answer to the second question is “yes”. Clients should always assume they will go to trial, and should hire only lawyers they can afford.

The answer to the first question is “the courts and retained counsel can do something to avoid this”. If the appellate courts would set the bar a little higher on effective representation and the trial courts would require lawyers to have something more than a pulse to represent the accused, more of the working poor would get the help of professional public defenders or court-appointed counsel; that’d be the greatest solution to the problem of the prohibitive cost of trial.

The retained lawyers who give a damn and do a good job can do a little to mitigate the cost of jury trial as well, and without great personal sacrifice. In his reply, Scott addressed Gideon’s third question: “The practice of breaking up the fee is usually a sound one, since most cases don’t go to trial and it would improper to charge for services that are neither rendered nor needed.” In a sense this is true: if a lawyer would accept a split fee of $10,000 for a plea or dismissal and $50,000 more to try a case, it wouldn’t be fair (all else being equal) for her to have charged a flat $60,000 to someone who didn’t go to trial.

(There’s nothing inherently improper about a consumer paying for something that he doesn’t ultimately use. People buy books that they don’t read. They buy electronics, and buy extended warranties that they neither need nor use. They buy casualty insurance to insure against possible losses that never materialize. The potential for impropriety in fee setting arises because of the unique status of the lawyer and her unique relationship with the client.)

If a lawyer charges $10,000 for a plea or dismissal and $50,000 more to try a case, she might include in her one-time flat fee the cost of trial, discounted to account for the probability that the case will not go to trial. The lawyer would, in this way, share with the client the risk that a trial will be required.

For example, she might say to the client, “if you wanted to pay a split fee I would charge $10,000 for a plea or dismissal and an additional $50,000 for a trial. You would have to deposit the cost of trial in my trust account before representation began.” This last provision is reasonable because resources have a way of evaporating once the lawyer is committed to the case. She might continue: “Based on my experience and my understanding of your case, it appears to me that there’s a 30% chance that your case will go to trial; I’m willing to split the risk with you and take a flat fee of $25,000 to handle your case, including a trial if necessary. If you agree, you will not have to pay any more for trial, and you will not pay any less for a resolution short of trial.”

(This won’t work in all jurisdictions, because some agencies that oversee lawyers’ ethics interfere more than others with lawyers’ and clients’ ability to contract. Also, as in any exchange of money for lawyers’ services there is the potential for a conflict of interest; here, the lawyer, who has been paid all she will be paid for a trial, must resist any tendency she might have to influence the client not to try the case.)

The clients who do not ultimately go to trial will wind up having paid more than they would had they hired a lawyer who charged a split fee. The clients who do ultimately go to trial wind up paying less.

The lawyer, if she correctly assesses the probability that her cases will go to trial, makes the same in the long run as she would with a split fee. She also has the satisfaction of knowing that her clients who gave up their Sixth Amendment rights didn’t do so because of the money. Best of all, she’s provided jury trials to some people who couldn’t otherwise afford them.

Logical Extreme

Something that should cheer those who hold that “The Sun rises and falls on the sole question of the client’s interest” and feel that “if serving the client harms another, so be it” . . . .

Here, if the federal government is to be believed, is a lawyer who doesn’t just pay lip service to the notion that the client’s interests are paramount, but truly “without hestitation and in a moment . . . would sacrifice another for the sake of [his] client.“

A Reader Writes

A friend in Tennessee writes:

Your November 29, 2007 post seems to me to be potentially irresponsible and potentially unethical. How many times have you gotten your clients into more trouble? I bet you would not admit it if you had.

Friend, aside from being an unfriendly thing to say, that last bit is a bet you would certainly lose. You must be mistaking this blog for some sort of advertising. No, I pretty much let it all hang out here — wins, losses, and outright thrashings. I write this blog for the other criminal defense lawyers, not for clients, and if I can impart a lesson to those who are treading the same paths that I tread, I will. If I had clients who had received bad results because I tried to find ways to beat their cases, I would say “. . . but this approach doesn’t always work so well.”

If I were convincing people to try to fight when there was some substantial risk that they would get whacked harder for trying to fight, that might be irresponsible. If I were misleading them into hiring me, that would certainly be unethical.

But this approach works very well, and the answer to your question is “never”. I have never gotten any of my clients into more trouble by doing due diligence instead of rushing them down to plead. Never.

Now, bear in mind that the people who come in looking for the quick copout are almost always accused of misdemeanors (people don’t come into the office looking to plead guilty to a felony “just to get it over with”), and always out on bond. In the jurisdictions in which I practice, it is almost never true that the first offer is the best offer, and it is almost never true that an accused who is on bond is best served by pleading guilty on the first court appearance.

The worst-case scenario for a client whom I’ve convinced to allow me to actually do my job (instead of just accepting his opinion that an immediate guilty plea is the best option) is this: I review the facts and the law, I discover some reason that the client must plead quickly (for example, the State has missed the true felony charges that could have been filed, and we need to jeopardy-bar them as soon as possible), and I help the client plead guilty immediately. That scenario is very rare, and that’s the absolute worst-case: no worse than if he hadn’t hired me.

The best-case scenario is that I find a way to beat the case (truly about half the time under these particular circumstances): to get it dismissed, to win at trial, or to otherwise get some outcome that can be expunged from the government’s records.

In the balance of cases, the fact that I perform due diligence, look for a way to win, and litigate what can be litigated results in final plea offers at least as good as — and usually significantly better than — the clients’d've gotten by pleading guilty straightaway.

Ethics are funny. We have rules laid down by the organizations that regulate lawyers; we lawyers talk about “legal ethics” but these are not really ethics but law. Then all of us have our own principles of right and wrong that govern our behavior regardless of the sanction that attaches. These principles really are ethics, and they’re intensely personal.

A lawyer who helps his clients plead guilty without carefully exploring the possible defenses is in dereliction of his duties; a lawyer who allows her clients, untutored both substantive and procedural law, to make the decision to discard their constitutional rights without input from the lawyer abdicates his responsibilities. These are the “lawyers” whom the clients pay a pittance to when they decide they don’t want to pay someone (me or someone else, it doesn’t really matter to me) real money to fight for them. In the case of those lawyers, I’ll call your “irresponsible and unethical” and raise you a “shameful.” Boooooo.

Letter or Spirit?

[Edited 11/7/2007 to ensure compliance with TDRPC 3.07. Discretion is the better part of valor.]

When defending a client, my general style is to go riiiggghhhtttt up to the line and lean waaaaaayyyyyyy over. In one white-collar trial once, a long time ago, I asked a question of a witness today that the prosecutor thought crossed over the line. The prosecutor, when the jury was sent out, started talking at me about how I’d just “made my reputation.” “This is not the last case we’ll have together, you know that,” he said.

(I marked it down in my calendar: after practicing law for years, at 4:30 on a Thursday afternoon, I had made my reputation with a single eight-word question.)

Why would that prosecutor expect me to do anything other than make putting my client in prison as difficult as possible? If I had been representing him, would he have wanted me to ask that particular question? Hell, yes (and for the same reasons that it so incensed him)! But prosecutorial sanctimony (a trait necessary to that field of the profession) wins out, and that day hadn’t been going very well for him anyway, so he got mad. (It would have helped my client more if it had happened at the beginning of the day instead of the end.)

Now, I’m not going to violate my personal ethics for my clients. I’m not going to break the law for my clients. I’m not going to disregard a lawful court order for my clients. Beyond that, though, nobody who’s trying to put my client in prison is going to get any breaks from me on a case unless the benefit to that client outweighs the detriment. I would never trade away my zealous advocacy for a client for the possibility of a better result or an easier time on some future case or a better reputation in the DA’s office.

In fairness to the prosecutor (because I’m a fair guy), I think he thought that I was violating at least the spirit of a motion in limine, if not its letter. But I was within the letter of the order, and such orders don’t have spirit; they have to be specific to be enforceable. If you’re trying to hide the ball from the jury, and you get the judge to tell me not to talk about baseball games or balls, don’t be too surprised when I start talking about bats or gloves.

Am I wrong?

Compassion Revisited

One commentator to Scott Greenfield’s recent post, The Battle Lines are Drawn, wrote:

If you are worrying about harm to others you are in the wrong line of work. Your sole duty is a duty of zealous advocacy to the client. We don’t have a duty to do justice. Harming others is part of the job if it serves the client.

While I agree withe the last two sentences — we don’t have a duty to do justice (even if we knew what justice was, we wouldn’t have a duty to do it), and harming others to help our clients is occasionally part of the job — I couldn’t disagree more with the overarching sentiment. I’ve written on several occasions about how compassion is a part of the profession; criminal defense lawyers are compassionate — they have to be to take care of the people whom the rest of society condemns.

The commentator suggests that there is something wrong with a criminal defense lawyer feeling compassion for people other than his clients.

To the contrary, a lawyer who truly feels compassion for his client is going to feel compassion for others as well.

I don’t want to hurt anyone else; I try to avoid hurting others in my practice. Generally, by good fortune and skillful practice, I succeed. Sometimes, however, it is inevitable that someone will be hurt. When it is inevitable or necessary I accept it, but I regret it.

The federal government has created a system in which people can benefit themselves by harming each other. It’s an unethical, unjust system, and it’s neither necessary nor inevitable. We’re not, in the main, talking about getting rapists or arsonists off the street; we’re talking about putting people in prison for drug crimes, for commerce. This is one of the great evils of our time.

When people let the government pit them against each other, they give up power (freedom) to the government. Criminal defense lawyers, who are supposed to be fighting for freedom, become the government’s accomplices in usurping freedom. I’m looking at the big picture, and, with all due respect to those lawyers who choose otherwise, I decline to participate.

The Ethics of Snitching 2

Norm Pattis writes about lawyers who won’t help people snitch (hat tip to Scott Greenfield); he draws an analogy to the practice of medicine:

I would not consider myself well served by my doctor if he were to announce that a life-saving treatment was available, but that he would not prescribe it because, well, it offends his sensibilities. I want options from my doctor. I want intelligent choices and an assessment of the risks and benefits of my options. Perhaps limping through the rest of my life with one leg would be awkward; but I might prefer that course to death. The choice is mine.

The doctor analogy is interesting because doctors are seldom presented with situations in which they might heal their patients by making other people sick. When they are faced with such situations, they generally don’t proceed without consent from the person who will be injured (consider, for example, bone marrow transplants).

When we defenders help our clients cooperate, we may improve their lives, but we make people’s lives worse as a direct result of our work. The problem is not that we are helping the government, but that we are hurting other people; despite the fact that the law smiles on defendants who make other people’s lives worse, we may refuse to participate.

The truth is that we are sometimes called upon to choose between our own interests and our clients’. If a client wants you to knowingly present false testimony, what do you do? If a client wants you to whack a witness, what do you do? If a client wants you to help him flee before trial, what do you do? Even though perjury, murder, or flight might be in the client’s best interest, you wouldn’t help him in those ways.

“But,” you might say, “those things are illegal.”

So what? Contrary to popular belief, we don’t give up our souls when we become lawyers. We don’t obligate ourselves to permit the government to define right and wrong for us. Some illegal things are ethical, and some legal things are unethical. If we feel something is unethical, we can refuse to do it whether the government approves of it or not.

Two hypotheticals:

First, suppose that the government passes a law saying that a criminal defendant might, by killing a person whom the government deems to have committed a crime, shorten his own sentence. Suppose further that the law provides that a killing in such circumstances is justified. Will you help a client legally murder a drug dealer? Or might you put your own ethics — your own “vision of yourself” — first and decline?

Suppose instead that you are opposed to the death penalty, and that a client facing prison has an opportunity, in exchange for the possibility of a lighter sentence, to testify in a trial in which the government seeks to kill a person. Will you help him do so? Or might you put your ethics first and decline to help the government put a person to death?

If your answer is that in one of those scenarios you might choose your own ethics over your client’s best interest, but that you wouldn’t otherwise refuse to help an accused person cooperate with the government, then we are haggling about the price.