Ethical Considerations in Criminal Law Practice

Good! These Programs in these rooms today are going to be set up for kind of an open Q and A also. So I’d say whether it’s in here or in the other break out rooms if you would just take, you know give whoever is up there 10 or 15 minutes and then if you got a question just interrupt and raise your hand because we would all kind of rather tailor these to whatever some specific need or question may be than just running through the stuff. We’ll follow the, you know, the poop that’s in there but if you have questions well go on though. You can always read this. I would suggest on the—at least the one I did, I can’t speak for anybody else if take it out set it over by the toilet, it’ll make some kind of fun reading in there, at least in mine. I put some ethical questions in there, to sort of pounder over. I’m not going to necessarily say there’s any correct or incorrect answer on some of them but by God, there are some of step we need to think about. Kind of like things like if, anybody in here take some appointment cases? Yeah! Why we are the only ones that get wacked! If the judge does 80% of his work during indigent defense, he didn’t cut his salary, does he? And if you’re appointed as to add light on the case or to a civil case, they don’t cut your fee do they? It’s just us and that’s wrong.

So because we’re kind of like—here I’m going to run to the, and I don’t have a whole bunch of this up here so we are going to had fill with it. I’m going to start you at the tail end. So if we don’t get anything else done at least we get this. Always remember; never, never, never, never lose your sense of humor. Always put your client first and we cannot be distinguishing between—and we will hit this later in paperwork called free clients, reduced fee clients, Court appointed clients, full rate clients, we’re treating them all the same and we all know because what we do just take the heat or get another job.

And you can’t get in, you can get in trouble for talking too much but not when you’re talking to the client and never forget; why we do what we do. It is not always about the money. You can’t get a date if you don’t ask somebody out; you can’t catch a fish if you don’t have bait in the water. You won’t get your fee if you don’t take care of your clients and you don’t ask for and demand your fee.

If you have any questions any time please call in here, just raise your hands and holler out. If you think you can be a help, if I can be a help for anybody that you call and if you can help somebody else do it and think what you found here at these meetings and here through TCGLA’s; is everybody a member? Good! That’s what it’s about because with TCGLA you’re never alone. We all have difficult clients and it’s easy to turn it into just a regular ordinary client. It’s simply communicating with them and treating them respectfully! It really, really is simple. On top of that, if you’re not starving to death, you get to say “no” to people. Learn to say “No”. That calls out a bunch of them! I’m going to through just a few of the things that aren’t going to be in the paper. Then we’re going to follow a little bit and everybody will read the rest of the meat in it for your convenience and for your entertainment.

If you just take one nugget out of here, well then I’ll consider it a win. Is that too loud if I just press it here? No? Is that ok? I’ll tell you what’s not in the paper. And I just sort of had a little piffany and figured out this formula; Most of us as lawyers are pretty poor math people but this is what you need to know; if you do not run your business, your business will run you and if it runs you it will run you into the ground. We sell our time and our knowledge and our expertise and they need to pay for it. We can put up with anybody as a client, if they’re paying in full and on time. The difficult client turns into a good, easy, normal everyday client because we don’t mind calling them. We don’t mind taking 5 calls a day from them. We don’t mind the 5:30 call, because that’s what we do and we’re getting paid for it. When you watch the folks that are getting in trouble, the folks that are getting grievances filed on you—is there anybody that has not had grievance filed on him yet?

They send you the letter, it puckers you up you open it up and it says somebody’s filled this on you, but we found there’s nothing there. Ok, put it over in the file with it, they’re coming and especially if you’re like me, most of my clients that we try cases on are in TDC. I’m not can stand up here and says; oh I win all these cases and do all this stuff. No! Most of my guys we try are in TDC and they got plenty of time and they will spend that time filing on you. So here’s if, keep this in mind because I want everybody in here to do well and make a lot of money and life is so much better and the client is not a problem anymore because they’re paying us and we are ok for putting up with them and if they’re jerk we charge them more. Tell them that you’re a jerk, you got to pay more!

52 weeks in year, we can’t work 52 weeks, if you just take Christmas and New year and Thanks Giving out we’re really 50 weeks. That makes it come, comes out easy in the formula, alright? But it’s really less, so this is a high number by roughly 2 weeks or another 80 hours. 40 hours a week, 50 weeks in the year. 40 times 50 equal 2000. You got 2000 hours to sell and we want people to pay for them. Now we’re not with the big firms and we don’t cheat people so we don’t get to bill 2000 hours but here is the formula and I’m just going to pick numbers out of the air; if you said,” I want to make $250,000/year” drop the three zeros off the end and divide 250 by 2. What’s the answer?
$125.

$125 an hour is your right, that’s your affective rate if you could bill you’re hours. You have grossed $250. If you want to make $500,000, drop the three zeros, 500 divided by 2 is what?

$250/hour, $250 an hour and I just kind of came across this and it works every time say,” Oh I want to make a $100,000” this is your gross numbers; $100,000 drop the three zeros divide it by 2, it’s $50. Here is the problem; if you’re not keeping up with your business, you don’t know how much it’s costing you to run your outfit, if you can get down in the $30 an hour range, it’s a one staff and minimal rent that only leaves you $20, out of your $50 after you pay your overhead. Now that’s $20 net before taxes. If you pay 30% in taxes and you pay your entire 15% social security because we are all self-employed right? Anybody here working for some big firm outfit? One…
Audience: I work for government.

Well you’ve got government taking care of you; they’re paying half a year social security then. That means that out of that that you have left, your $20. You’re sending $9 to the government; you’re making $11 an hour. Oh no wonder you got difficult clients, you’re not spending the time, you are not calling them back, hell I’m not doing anything for $11/hour. Fishing! Hunting and then when the court pays you something less than that than your overhead; now you’re working for free and every client becomes a difficult client because let me tell you; when you tell mom and home or the kids “I cannot come to your baseball game, I can’t be at the birthday party because I’m working for Billy bob for free”, now you got problems at home and that is not good. So if no one does anything else and gets out of here, because we, it’s going to fix you on the client part of it, go home and immediately double your fee. Immediately and even if you lose half of your clients, you’re still making the same amount of money but you only working half as long. Your clients are happier, you’re happier, your family is happier. You need to get paid for what we do and then it’s a great world and we can keep all our clients happy because what do we end up?

We end up with this. Now I’m going to tell you, I’m in court this day and I refused to take this case. I ultimately ended up with it because I end up being the 2nd and 3rd and 4th client in lots of cases. The Judge,” are you asking the court to appoint you an attorney?” “Oh yes sir!” “Do you understand the charge against you is capital murder?” “oh yes sir” you realize that could result in the death penalty?” “Oh yeah, yes sir!” that’s one of the possible results in this state. “You’ve been resident in state long?” “No” “You received the indictment?” “No” “Ok. Well you’re here for arraignment” Judge had already said, “ok I want to put you on this guy, come up!” and I said, “no judge, I’m not going to do it!” “You’re not going to put me on a capital case when he shows up for arraignment in your court”.

“Well let me think about it in a minute because if I’m going to appoint you a lawyer, I would like to give it some thought!” then he asks,” DA you going to sink the death penalty?” “for the record we will be seeking the death penalty your honor” Now here’s the defendant,” is he going to be a good client?” “That’s what I ask for too you know, eye for an eye and tooth for a tooth did it I’m guilty of the murder charge. I plead guilty to murder. That’s only fair you know, you know I took life and I feel like I should give my life you know. That’s the way the Bible reads it” Now the court’s eyes are little bugging out here.

the state is grinning like a Cheshire Cat. Is it important now?

they are thinking,”Woho! If that’s just not a statement blurted out, that’s coming in, I don’t know what it is. The courts,” I know what you’re saying, I don’t know that I agree with what you’re saying but I know what you’re saying” Defendant,” Yes sir” This, it’s just horrible! Well what happens is; he gets two very, very good defense lawyers and he raises so much unmitigated cane with them, that they are forced to get of the case. After that little comment is appealed and the appellate court says,” That are not coming in “Great lawyering by those two guys because let me tell you I think it’s coming in, I wouldn’t have known what to do with that. It’s coming in. Well what happened is, state screwed up part of the appeal and that helped.

So we got these guys. Now, I end up with him, I traded a horrible ad sexual assault because bad things were happening for this capital case, so attorneys; we switched. I got on it. Thankfully I was able to take a deal and take death off the table. So now I got this ‘Yahoo’ by myself.
What we have to learn to do is; redirect our clients and train them so the first thing I do when I go in, ”talk to them” of course he’s going to tell me how to run the boat right? Not just run it but where it’s going and he is the captain of the ship. No, that is not happening so I stop him I flay of my arms at him and I gave him a little tirade about,” By God let me just tell you before you tell and then you can tell me what you want” we’re not doing at this. Well you know I’m tired of DA’s office and “by God we’re not taking the plea, well if you accept it” “but I’m not” we’re trying this and we’re going to get ready to go and he decides; oh ok this guy’s going to fight for me because why; that’s what we’re supposed to do. He became a very easy client to deal with.

Now he did take a guard down, after he got him down in pending he said,” I’m doing this for you because I like you, don’t ever do something like you just did again because it may not be a nice guy like me that does this to you” let him up, the guard never told anybody that it happened but me that I’m aware of. Now, his arm was sour for about 3 weeks because it was almost wrenched out of socket. My doctor in this case says, ”This is the worst killing he’s ever done in his entire life” and he’s retarded. Beat to the pulp, rested and then picked up the lam and then beat him some more. This is a grievance waiting to happen.

How do you fix it? That’s what we are in here today for, how do we fix it! What we’re really doing, dealing with the difficult client is protecting yourself from the grievance. It’s by taking care of the client, it’s easy. You communicate with them, you write it down. I just redirected him. I don’t want him filing on me. He’s going to file on somebody File on somebody else but me. So, I handily deliver to him an address. Taxes commission on jail standards. He needs to be doing something.

Right? And he doesn’t need to be filing stuff against us and he doesn’t need to be righting us a bazillion us a letters and telling us how we’re cruddy lawyers and that we work for the state and all these horrible things that we hear over and over. These are mostly single sheets because if the forms that they can send in to the jail standards and complaining to the sheriff’s department are one page, one page.

These are his grievances; this stack. You want this coming in on you or you want it go in to somebody else. Somebody else! Now when they do complain to the jail standards, jail standards has to respond just like we have to respond to the bar and they fix a lot of stuff in the jail.
They make them put on hair nets, they make them give them utensils to eat with; now here’s your fork the week, keep it. They make them serve hot meals, they make them give them a towel! You can keep them busy and now, these folks are looked up to by the other inmates because they’re getting them hot meals now. They’re not having the guy come serving a food without anything on his hand with his thumb in the mashed potatoes. They’re getting towels, they’re getting regular showers. It’s he or going to be somebody else or its going to be you. Redirect them, train them and here’s where it starts, here’s what you get. This one took almost year to fix, this is the only one I’ve ever had that has gone all the way up. I just the get the letters I say ‘proof’ and that’s in there! You get that letter.

This starts May 28th 2011 from the ‘client attorney assistance program’ anybody heard of ‘CAP’? Yeah here’s where you start. So that’s where it gets, in CAP says; Oh we got this stuff and this guy says something is wrong and it’s always, you’re not communicating with them they can’t get any information, they can’t talk to you, you won’t respond something, is the biggest pile we get. “Billy Bob expressed concerns about his difficulty in communicating with you regarding illegal matter you handled for him”. May 26th 2011, June 7th 2011.

Now I love this and I responded to him. So they send him a letter, they don’t even get his name in it right. They get it up here on the address but they don’t even get the “Dear Mr.” correct. It’s some other poor guy’s name. “Please find enclosed a copy of Attorney Cahill’s response to your letter dated May 26th. “I will be closing our file on this matter right we are done, no you are not!” October 25th; the office of Chief disciplinary counsel of state bar has received the above reference of grievance a copy of which enclosed for your information” this officer examined the grievance and determined that the information alleged does not demonstrate professional misconduct or disability. Pursuant to the Texas rules of disciplinary procedures this matter has there for been classified as an inquiry and have been dismissed “wohoo we’re done right?” No!

November 18th,” Dear Mr. Cahill the complainant has appealed!” They’re eating up with time, that’s all they’ve got and we’re the target every signal time. Write it down, write it down, write it down, document it, document it, document it because you are going to have to respond to this stuff, and if you’re doing everything you’re supposed to be doing; writing it down and communicating, most of them don’t squall too loudly, except for our clients; Because they’re in TDC and because you have got a ‘5 to 99’ knocked down to ‘2 to 20’ which I consider a win, may be they have figured out that bought in to your, bought in to your excellent advocacy that it’s not really an intent to deliver case.
Look we just knocked 80 years off, I’m calling that a win. The client who’s sitting in jail not may be calling it a win. So we’re already to November Mr. Cahill he’s filed an appeal.

Appeal to classification decision, this office to the board of disciplinary appeals. The board of disciplinary appeals will notify you their decision. Then…you just got to love this guy, so this is November 18th we’re up to, so we’re getting’ a good chunk of a year already we’re having a fiddle with this stuff.

November 20th, client rights amongst all the other after he gets done with the tirade. Then now is a real reason I wrote to let you decide if you want to pay now or pay after I get out and sue you. This was an appointed case, I actually—the judge had previously kicked me of the court and County said, that was, and the other judge said,” I don’t know Cahill, I’m not the senior judge I can’t keep it here but you got to stay on some big of the issue you got”. “Hey Judge I’d be glade to. Just start paying me by the hour and I’ll do it at a reduced rate” and get there round a $100 something on it $125, $90 somewhere in there. That judge keeps me on because I’m the 3rd attorney on this guy and he already filed grievances on the other’s before he ever even got even close to trial. Well I had him sit in there with the jury panel and then he decided,” Well that plea offer look pretty good he took it” but then he didn’t like it because what; he’s sitting in jail, so it must be our fault my fault. “When I get out I’ll sue” you got $11,063.85 to sell me out. I figure if you want to pay me now then send me $5k.

If you want to settle this out of court then draw up the legal purpose, legal papers and mail the funds. I wrote a big note on the top of here “did not respond” so then of course you think okay well it probably done “oh no” now you get the letter from the board of disciplinary appeals! The board grants the appeal, finding the complaint alleges a possible violation, as the Texas disciplinary rules of professional conduct. “We’ll now return the case to the office of the Chief disciplinary counsel for investigation and determination whether there is just cause to believe the attorney has committed professional misconduct” Well then you get the next one Dec 21st .

This is to me the others to him and they Cc me, “the board of disciplinary appeals granted the complaints appeal and it’s now classified as a complaint” and then pursuant to 201, the Texas rules of disciplinary procedure,” you are required to provide of your response directly to the complainant” attached to my response is a 121 exhibits because what he have to do; you got to send him the entire file now alright because you are respondent to the nice people who potentially can take your ticket.

So it’s a 121 exhibits. He has received a copy, his complaint was; I didn’t give him a copy of the file, all of the file. He got copies of everything and I got letters in there to him in this 121 exhibits it was saying; Hey I’m sending this to you again please hang on to it this time don’t lose it” we lost his file, he want another file and I told him,” no!” so he says,” I won’t communicate with him” then you says; I’m not giving him all of it because I’m not giving my notes, I’m not giving him my doctors notes, I’m not giving him my investigator notes, I’m not giving him the witness statements that we went out and talked to.

My doctor wrote me a real nice ‘CYA’ letter, you got to get it on these guys that says, in this one, this was the RE on this case was probably 3 and half inches listing all of the sexual assault of a child, ad sexual assault, possession of child pornography you name it it’s listed in there. The witnesses we talked to made us promise made him swear to him that we would not give this guy; we wouldn’t even tell them what state they’re in much less what city.

So I said,” I’m not turning this over, it is a danger and a problem to the witnesses and I made a promise to them and I’m not going back on my promise, take by bar card, do whatever you want but I’m not doing it. I’m not giving my notes up” I think the rule said we had to so I got stuff in here that doesn’t need to get out. I’ve got stuff in there like this letter let me give you an example, from the doc that says,” this is the most horrible guy I’ve ever dealt with in my entire carrier and oh by the way he meets every single one of the criteria to be the most horrible person in the world”

He said out in that letter which would give them a lay down civil commitment if the guy ever did get out. One note the exhibit no 1 was, it was that letter, that simply said I can’t let this stuff out it would harm my client. I can’t let out this other stuff it will harm the witnesses, but you got to respond. Now I’m up in January doing this. You know how much you get paid for all your time doing that? 0. But it’s coming so protect yourself by doing what we need to, dealing with the difficult client turning them into a good client.

He was great all the way through, the almost trial until he sits in jail long enough, prison and decides’ God I’m not liking it in here. The other times I’m in here must not have been this bad. So he files this stuff, it gets kicked and my biggest complaint is; if the bar keeps doing this to us, it’s all these guys are doing, they’re just saying; I want another copy of my file. Oh you’re not going to send me another one and pay for it? I’ll just file on you and I have plenty of time and I will keep taking it up until they say; well, God to get rid of this guy we’re going to have to go let him you now see what it is. And then we’re forced to send him another copy of the file and respond to all this stuff.

Now I tell you when I got that in, that that last one that comes in if you do this the way I’m telling you, suggesting comes in Dec 21st probably by January 2nd I had everything boxed up in a box and I sent it up to him. And I said here it is, and I send out the copy to the client because if you have written everything down and you have responded to every letter, to every phone call you just bundle it up and ship it to him. What I changed in the practice in the office is; we did not routinely clip the responsive letter that we sent out to the letter that that came in or clip the responsive letter that came in to the one we had sent out.

Now when we send one out, that’s in response to, we just staple them together and put them in the file. Because the longest time it took me was getting words answer to this letter and course I’d taken it apart so many times and copied it and send him other stuff. Staple them together, I shipped it out. Ok there’s the end of it. But that’s the kind of folks we deal with but, if we train them by answering their phone calls, talking to them, being respectful to them, they quit all that nonsense. This guy didn’t file on me he used to send me notes but he’s turned blind in prison now, I still get some words from him, he sends the sheriffs and notes every now and then.

He was so bad that when we got done with him, the judgment was signed by the judge, the clerk took it over file stamped it, they took my guy straight down from the court house into a car and want straight to TDC and that’s no easy feat. That’s how bad some of them are and we deal with them. But I tell you he was really pretty personable likeable guy. They searched him before they brought him to court, because they put not only the short band on him but they put the leg where he can’t move fast. They searched all his stuff, they gave him one little package that he could go to TDC with. I actually mailed his other junk to some family member within about two weeks he filed another complaint, against the sheriff, on the sheriff’s letterhead.

Now, how we got it out the jail, how he got it into TDC, because you know as bad as he was and they bringing him like that, they ain’t missing any place to search and we deal with very smart people; some of them, in a twisted sort of way. So they’re coming back to get you, but it really is easy; it’s communication, communication, communication, write it down, write it down, write it down! Brainy’s going to be in later this morning in today, he’s going to kind of go through the communication and court appointment stuff and doing that’s… I didn’t put that in any of mine in this one. The fee part of it and contracts is going to be in this morning too that’s, the real money I’m just going to tell you; double your fee right now every single one of you. You’re not charging enough. And the worst that can happen is you lose 50% of your folks which you will not, which then put you at the worst you’re making the same amount of money and then working half as much.

You got to charge more, and when you have that time, you can take care of your client, you can answer the phone, answer the phone in our office, return every single call and do it timely. Have a cold beer in the evening when you get back in from court, you need some down time. Most of time nobody’s going to be there and answer the phone at 6:30 at night, leave them a message, now it’s their turn,” call me back I’m returning your call, 6:30 PM on, I’m returning your call on 11:43 AM the same date. Call me back at your convenience” and the ones that are home; they love you, because when they answer the first thing you tell them is; you know Miss Billy blah blah I’m sure I hope I’m not interrupting your supper this is you know Brent Cahill.

Oh No, No that’s fine, that’s fine! They love you; no other attorneys call them at 6:30 at night. In fact most of the other attorneys have never returned their call. So this is what we want to get. I saved these for the last few months because they wanted me to come and do this deal,” Mr. Cahill thank you so much for all the help you gave me in court you will never be forgotten”

I agree to sign for 3 years; you know if you could get me from a 3G offense I’d appreciate that please. See how much back time I got and oh by the way thank you Mr. Cahill for your time and all work you’ve have done for me. Is my court date still going to be coming up,” thanks attorney Cahill for taking your time out to help me with my case. Hopefully I get reinstated in 27 August”. Well, I don’t know, maybe not!

you’d been a very good probationer! You’ve been a great attorney. Thanks! Now these, I don’t…does anybody else get this kind of stuff? Yeah!

Keep them! Because when you get an answers the grievance are going to file; like that 3G’s going to prison, that is not going to be present, female. That’s exhibit number one; thanks for spending all your time, thanks for helping me, you’re great! Well, now I’ve been sitting in here long enough you really suck as an attorney, you work for the state, you sold me out, you’re a whore for the judge. I like this when half way down. In the next letter you receive, I’ll be sending you money for a good Navasota Ham Burger!

You help will always be appreciated. I wish you, and yours, they did the ‘s’ out there, a happy thanks givin’ and very much Christmas! Oh by the way, could you please send me copies of my dismissal?

they may still file a grievance on you with a dismissal. They just send the thank you card. Even though you didn’t have to do it, you did it anyway and I thought about that, I said Goddamn at least they spend a minute looking through the card section. It was appreciated. This one came in just, here little bit ago,” thanks for taking your time, because that’s what it was about, it’s about our time. And advising me on the matter we talked about, I appreciate your willing to take the part of your day; Friday before the Memorial Day weekend and chat with me. There’s anything I can do for you just let me know”.

Now we’re supposed to put in the motions they told us that they all had to have motions in there; put three of them in the back as you don’t want to get stuck up in this power point, I don’t like power point!

These pinnae cases make great readings. The only person in the whole court house, probably the County that the judge hated more than my client; was me! And he lets in a lab report; there’s no dope, they’ve lost the dope. They said they tested it, they print out something, the guy gets up and he’s an actual liar, the judge calls him almost a liar; says he’s lying. He says,” oh I remember the case! I remember it testing it 5 years ago and bla, bla bla and I’ve never lost a report before or never lost…” “Where’s the file?” “Oh God Damn, lost that too”. “Where’s dope?” “We don’t know” “why did you store it? “Well because we got an order from the Court” “your honor I would like you to take a judicial notice” “you did never give him an order!”

So this is the due process and due course of law, there’s great stuff in it but when you’re filing these motions, have some fun! The smart people do this; I’m not in the real smart group. They’re the ones that are going to take it up. I’m not; I don’t like doing appellate work so I don’t do it. So I put in there thinking; well let me at least give them something to work with and if nothing else, make the robes, maybe they read it I don’t know.

Any finding of admissibility after such action by law enforcement agency shall no doubt be placed on every law enforcement laboratory bullets and boards and they cry of accident unintentionally no duty to preserve physical evidence shall ring throughout the laboratories and prosecutors’ offices of this state shifting in impossible and unconstitutional should burden on the defendant! I mean throw something in there, but these cases make a great reading.

Then about the 3rd time it goes up to court criminal appeals, they find some other deal and say,” Oh, well there’s a Brad