The other big issue under conflict of interest is that it says it becomes immediately apparent that the lawyer’s responsibility has adversely effected by the responsibility to another client. That’s clear in these family violence cases. Oh! but I’ve lawyers tell me wait you can get a disclosure. Write a consent, they all have been informed, everybody agrees, not so fast. The rules have a caveat, it says even if all of that happened, if the lawyer still thinks that the client is going to be materially affected, you cannot engage in this conduct. So even with the full disclosure with the signed dis consent to the–you are going to represent both the husband and you are going to help the wife dealing with the prosecutor’s office. If you know that they are going to materially affected, you cannot do it.
So you need a referral out, you need to get her another lawyer so she can talk to somebody else. The other big issue is that we really end up in the circumstance, what really happens is that we are really in position of representing him or representing the person accused of the assault and the unrepresented person wants our advice and they clearly misunderstand our relationship. The come in, they tell the story that they want to know how to fix this to get the government out of their lives. We have a responsibility under the rules of evidence to make sure that an unrepresented person who misunderstands the lawyer’s role. The lawyer has obligation to correct that understanding which is what I explained as I represent him, I do not represent you. If you go to jail for lying to the police, I will not be representing you and that seems to get their attention because they really do have their head in the stand in these cases.
So the other big issue that happened in family violence cases “Ok, ok, ok well I can’t lie, can’t change my story but I just don’t remember what happened now” right. “I was on drugs”, “I was drunk”, “I was high”, “I have a mental illness”, “I hadn’t taken my medication” and so the victim wants to say I don’t remember what happened but we need to be very careful of the government using this witness against our clients. Because there is some very good law that party may not call a witness primarily for the purpose of impeaching that witness with evidence that would be otherwise inadmissible.
Putting a witness on the stand and saying isn’t it true you told the cops that Mr. Defendant beat you up and they say I don’t remember. Isn’t it true that you told the police that x and that’s what these cases say that is not proper? There is one case from Fort Worth that is a family violence case and it’s white. In that case they did hold that it was proper for the state to call the witness the victim even though they knew that she was going to deny her statements that she told the police reason being it proper. The lawyer didn’t object under Crawford. So we have to object to the statements where the wife is up there and saying I don’t remember what happened and they want to read the police report to her. The defendant didn’t object and the court found that the state had not called her for the solved reason impeaching her. So in that case say it loud it in. What other big issue do we have in these cases are clients. Many times wants to change their story.
They want to say whatever they need to say to get out of these cases and they will sit in our office and talk about committing perjury and so we got to be very careful how you handle these circumstances to watch out for your bar license. So what are we supposed to do? Across the country there is about three different ways that jury section handles perjury about the defendant. Some of them says you put the defendant on the stand and you just let him tell his story. You don’t ask any questions, it’s just a narrative the defendant on the witness stand. The problem with that is that your restrictions are also recognize you are telegraphing to jury; you don’t believe your client. So other jury says no no no the lawyer is excused from the duty to reveal the perjury only if it is by their clients well as you can imagine Texas doesn’t follow that rule. It requires you take a reasonable step to remedy any perjury by the defendant.
The accused has the right to counsel, accuse has the right to testify, the accused has the right to confidential communication but he doesn’t have the right to assistance of counsel to commit perjury. The rules make it very clear so what are we supposed to do. We have to try to dissuade the clients from committing perjury. You have to file a motion to withdraw but be careful. I give you this highly publicizes case as and example of how to be careful with your motion to withdraw. This was a big case in Waco where Pastor accused of killing his wife and shortly before the jury was supposed to be summoned on Monday his lawyer file some motion to withdraw and we all know what happened right. The judge denies it right because it’s so close to the jury trial so the motion withdraw against denied and under the rules of evidence and the rules of professional conduct it specifically says even when we absolute right to withdraw.
We have good cause for terminating the representation if a judge tells us to continue we have to continue so here is this lawyer, he is trying to do the right thing, he got files to motion withdraw and judge tells him “no you are going to trial on Monday morning” and so what happens, well we get the talking heads, right. This is some guy that is a Director of Law and Ethics and they called the Professor and they said “well professor what does all this means?” “Well if disclosing the nature of the conflict would potentially harm the client. The attorney would only be able to offer vague reasons”.