A Motion to withdraw indicates that the attorney thinks that his client is going to perjure himself, this is in the press, the weekend before the lawyer is trying to pick the jury in this case. So as you can imagine, it was all over the press, the talking as we were saying, he got to be that he thinks he is going to lie and after this trial was over, the lawyer admitted that was some of the issues with the client so this happens, big surprise.
Mom files a grievance against her son’s lawyer. So you try to dissuade him, you try to file your motion to withdraw but if it’s a highly publicized big media show, file it in camera so that you can reveal that the perjury is going to occur.
So the steps that we have to take as you got to record your efforts that you tried to persuade your client to not commit perjury. This is where Richard Anderson says, it’s a good idea to get another lawyer to come talk your client, so his bar license will be on the line. But it is good advice to have somebody else document that you tried to talk him out of it. File your motion to withdraw under 1.15 you can say that rules of professional conduct require it. Under B it says you are entitled to withdraw if the client is asking you to commit a crime or fraud or trying to use the lawyer to perpetrate a crime or fraud but the one most often you use and the one that makes the most is 7.
Other good cause exists including professional considerations that require my termination. That’s the best language to use, yes it’s the vague ethical issues. Yes it telegraphs to the judge or client’s going to commit perjury but you will keep your bar license.
So Nix v. Whiteside is a big SC case exactly on point about this; In that case the lawyer talked the client out of testifying by telling him if you commit perjury I am going to withdraw and I am going to tell the court. Well the client was convicted, did not testify, was convicted and filed writs of ineffective assistance of counsel saying he was denied his right to a lawyer because his lawyer was threating him.
The court said “no this is not ineffective assistance of counsel and that the attorney acted properly”. You have the right to tell your client you have to withdraw, you have the right to tell him you have to reveal the perjury.
So the same rule applies in Texas, rule 1.05; the lawyer is excused from the rules of confidentiality and he can reveal the perjury to the court to prevent a fraud on the court. So what are the duties of a prosecutor under the Texas rules, we have specific prosecutor duties 3.09 but also all the rules of Professional Conduct apply to our prosecutors even though they think they may not, they do apply. They have the ethical duty in representing these victims in protective orders but did they have the same sort of conflict when they were turning around and representing them and prosecuting the criminal case.
1.02 states that a lawyer must abide by the client’s decision. Well this only comes in to play right after she’s got in the protective order and then she doesn’t want to cooperate. She doesn’t want the criminal case to go forward. She doesn’t want to testify. This is putting the prosecutor’s office and an ethical bind. So they try to obtain valid waivers but can they really limit their representation and this waiver of conflict of interest has to be after full disclosure and consent and as we know it says that even then the lawyer is not excludes it from conflict rules if the lawyer reasonably believes that the client will be materially affected.
Again she is going to say “I don’t want this criminal case to go forward”. This is a huge dilemma for prosecutor’s offices. They also have some specific rules in the code of criminal procedure that state they can’t dismissed or delayed the criminal case for a civil case. Specifically I heard testified in the legislature that there were some prosecutors who would not file family violence cases till the divorce has been filed, that’s in the code that that’s not legal and that decision to follow protective order and it has to be made without regard whether they is a criminal complaint.[Audio Ends]