Criminal

Client Relations Communication Perjury

Part of the world is going through all the music is out there about love lost, love found, love problems, love gone bad, another love song and these are two of my favorite people Kelly Willis and Bruce Robinson. Their whole new album is called “Cheater’s Game”.
And so you see how troubling all of this is and you look at how then these relationships that explode out of control and end up in our criminal justice system and what kind of problems that they cause for us. Well the first thing you have is you have people who will never admit they have done anything wrong.
You also have people who will sit in your office and lie to you. The victim has a big black eye and she is saying “I’ve failed down the stairs, I am sorry you are paying me and I don’t believe that” and then you have all these people that have confidence of everybody that they’ve ever known who turned out to be somebody totally different. So what are we talking about is a big issue in family violence cases. Yes! It is lying, it is such a bad problem there is even a paper on it called “Perjury in Domestic Violence Cases” where they close some statistics. Where they said that “90%, up to 90% of victim’s recount before the case goes to trial” and in this article it talks about perjury is at war with the criminal justice system.
Well my client thinks the criminal justice is this clown, they really cannot believe that they have been arrested and actually probably the cop out of be a clown suit. The wife is saying it didn’t happened pleased don’t take him I lied on 911, I really don’t want you to prosecute and my clients going to jail anyway. They come in to your office and they say this is going to be the easiest case to get dismissed because my wife or girlfriend or my husband or boyfriend is not going to testify, they are not going to say anything and we end in these very difficult circumstances in these family violence cases. So what’s the first thing we have to worry about? We as lawyer under the ethical rules cannot knowingly offer evidence that we know to be false so that’s very important that there are two couple mental states we have to knowingly put it up there on the witness stand and we have to know it to be false.
We have to try to talk the witness out of the perjury. And please forgive me that I use husband and wife there, I represented lots of woman charged with it, lots of partners, lots of now brothers and sisters, household members but the still the vast majority tends to be husband and wife. So you are talking to the wife about not committing perjury just because she hates the police. They have just gotten into her life, this is all a bit misunderstanding and she wants to do whatever she can to fix this right.
So what you explain and what works well for me is to explain the confidential communication does exist but it does not exist for a future crime. So if you are in my office telling me that you are planning on committing perjury, that’s not covered but a confidence along with my client that I want to be sure under if you are tampering with the witness and you are trying to get this witness to change her story or his story then that is a future crime and that’s not covered by the rules. So what is tampering witness? It’s if he coerces a witness here she coerces a witness to testify falsely. What’s aggravated perjury? It is in THE penal code with intent to deceive with knowledge of the statements meaning, a person makes a false statement that is material. He did not hit me, well that’s a little different than what you told police and here is the 911 case where you said “he did hit you”, so you need to be very careful because what other cases do both defendant and the victim show up in your office together. Holding hands and loving each other and they are trying to talk to you about how they hate the government and they want the government out of their lives. They think it’s ok to lie. We however cannot be involved in perjury; we do not want to be charge with tampering with the witness. The lawyer also has a duty not to obstruct justice.
This is a separate rule of violation under the rules of professional conduct 804-A that an attorney can be charge with the obstructing justice. We can be charged with perjury if we put this information on but here is the out. Here is the place where it says but you have to be a lawyer and that is that none of this is triggered, the perjury, the tampering of the obstructing justice if the lawyer only believes the evidence to be false, but does not know it to be. This is the big difference; this is where we have to use our judgement. They come in to our office and in this case, in this particular hypothetical there was only arguing and maybe an apartment with very thin walls so the 911 tape is a neighbor so there is no statements by the victim when police get there she is crying and upset and he is angry and so they take him to jail, they come to your office there is no statements. Everybody suspects something was going on but nobody knows it. If she wants to gets on the stand and says nothing happened you have an obligation to put the witness on the stand that your client wants to put on because you do not know it to be false.
The other big area for criminal defense lawyers is the avoiding the subpoena issue. How many of us gotten that call on Sunday night and the jury trial is on Monday morning and there was this panic phone call: “OMG! OMG! I’ve been subpoena to my husband trial do I have to show up. You cannot tell them not to show up. The rules of disciplinary procedures are very specific. A lawyer shall not obstruct another lawyer’s access to evidence. A lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information. A lawyer shall not engage in conduct intended to disrupt the judicial proceedings. You cannot tell a subpoenaed witness to not show up.
Well so what is a Valid Subpoena? Does it have to be delivered by hand? No! You look at the code of criminal proceeding reading the subpoena within the hearing of the witness. Delivering it of course, electronically transmitting the subpoena and mailing a copy by certified mail. Now these may not get an attachment, it may not get content if they can’t prove it but the witness is telling you they have received the subpoena. You cannot tell that person not to show up for court because not only is it an ethical rule violation but look at tampering again.
A person commits tampering if they coerce a witness to withhold testimony, elude legal process summon seeing him to court or absent himself from a proceedings to which he has legally summoned. We don’t want to be charged with tampering with the witness and so you look at penal code what does coercion mean? Well I didn’t coerce them, they called in and asked for my advice. Well coercion divide penal code is a threat as you could have imagined it’s communicated to commit an offense to inflict bodily injury, to accuse the person of an offense but this one; to expose a person to hatred, contempt, or ridicule. I thought that was purpose of my cross examination.
Right! Isn’t what we do? Isn’t that cross examination–so have I coerced the witness to not appear because I’m going to cross examine them about what a lying thing they are and how many different stories they’ve had and all the extra marital affairs so all of sudden have I tampered with the witness. The other one I like is to harm the credit of the person. How many times have we had the victim saying “he is the sole provider, we need him back at work, I stay home with the kids, we don’t have any money”. Is it coercion that she is not going to be able to have that pay check if he goes to jail. Tampering with the witness, so the legislator was really concerned about this and they had two bills going on track at the time that this paperwork was done and they are identical.
HB3060 is identical to senate bill 1360 and they are companion bills but senate bill 1360 is the one that actually passed. So please make that note in the paper if you are looking at this bill. All you have to do is click up on the little tab that says companion bill and the one that passed 1360 is there. It raises tampering for family violence cases to second degree felony or the most serious offense if the defendant has previously been convicted of family violence.
It defines coercion in family violence cases as “an act of family violence under the family code that is done with the intent to cause the unavailability or failure of the person to comply with the subpoena. Look at that family code definition 71.004 you know that is where they really expanded the definition of family violence. Family violence means an act by a member of a family or household with the intent to result in physical harm all of that we remember or that is a threat that reasonably places a member in fear of imminent physical–that’s a class C, that’s a class C assault all of sudden will be boost strap up into tampering with witness a felony offence. So also in that bill now it’s senate bill 1360 again is the one that’s gotten passed or waiting for see of governor vetoes it. We don’t expect that to happen on Sunday but it also amends 3848 of the court of criminal procedure for offenses involving family violence and it allows all relevant evidence, all relevant evidence to determine that coercion.
It adds a new section to our code of criminal procedure 38.49 of forfeiter by wrongdoing. The Forfeiture by wrongdoing section forfeits the confrontation rights if proven by preponderance of the evidence that a party has unlawfully procured the unavailability of a witness. So the 6th amendment right to confront and cross examine your witness is going to be forfeited. Your Crawford issue is going to be forfeited in these family violence cases if they can prove by preponderance of the evidence that the party had wrongfully procured the unavailability. So the evidence that party has engaged or acquiesced in wrongdoing that was intended to and did procure the unavailability is admissible.
So it’s almost a circular argument where are the witness is not here so all the evidence is going to be admissible why the witness is not here. There is the hearing outside the presence of the jury and the proponent in this case which will almost be the district or county office is not required to show that the sole intent was to wrongfully cause the witness’s unavailability so get to forfeiture you don’t have to prove that only intent was unavailability or that the actors actions constituted a crime or that any statement offered was reliable. Really? Really they don’t have to offer reliable statements so the victim services person calls the phone number of victim and says “Debby is supposed to be in court on Monday” and the person on the other end says she has left the state, the defendant has threatened her and she left town, click bye. That’s going to come in, that’s going to decide whether my client has 6 amendment right to confront and cross examine the witnesses that he has forfeited his right because this statement has to be reliable. I think there is going to be some interesting issues with this. The other part of the statute says the conviction for the tampering or retaliation creates a presumption of forfeiture by wrongdoing. So you get him convicted of the felony.
The next trial is the assault there forfeiture by wrongdoing is a presumption. Well the problem for this statute, there is this little Supreme Court case, right on point about forfeiture and family violence cases that turned out to be a murder case. A man murdering his girlfriend but the Supreme Court said “no wait a minute, forfeiture by wrongdoing does require a showing that the defendant engaged in the conduct designed to prevent the witness from testifying. You cannot back in to it and say “well she is dead so he must have prevented her from testifying. Giles has some great language about saying. The judges can’t make the determination because of defendant is guilty therefore he lost his right to confrontation and they said that simply being charged with murder of the declarant does not automatically allow the introductions of the statement.
So out new forfeiture by wrongdoing section needs to overlay with Giles. You need to raise the constitutional issues that the Texas State legislature cannot over rule a US SC decision. So what are the issues that we have with this is victim always wants us to represent them in addition to the defendant, right? So what do the rules say; this could be a potential conflict of interest, the lawyers, we couldn’t represent both of them if they were getting divorced. It also says you can’t represent them if the substantially related matter in which the person’s interest are materially and directly adverse to each other. What is that mean? She is in her office telling you that she lied to the police. She lied went to the police when she said he hit her.
Well the problem is she now wants to tell the truth. She now wants to say that that didn’t happen. The problem is that’s a crime she is made a false report to police officer. If I tell her to be truthful, I’m telling her to admit that she has committed a crime, that is obviously a conflict of interest if I am representing him in his assault case because yes that’s good for us but no that’s not good for her.
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”.
Such a motion would indicate 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.
There is also a specific prohibition against mediation. Every other topic case has encouraged to mediate but in our code we have a specific prohibition against mediation. Well really the unrepresented is also the biggest problem for the prosecutors because what happens at these protective orders many times is they are there representing the victim and the defendant shows up unrepresented.
Now the prosecutors may know that the criminal case is coming, I have clients routinely arrested at the protective order on the criminal charge. So the prosecutors know that they are going to have a criminal case and yet my client just knows that if they can just tell this prosecutor their side of the story, this protective order won’t go forward. They have the same obligation to the defendant to make sure he does not misunderstand their position because they are putting themselves in the position of becoming a witness in the case and the ethical rules specifically prohibit that. 3.08; the lawyer cannot be a witness in the case, so the prosecutor cannot go up and get my client side of the version at the protective order.
Article 1.051 was a big change in the way that unrepresented defendants were handled and a lot in misdemeanor cases because it prohibits again we are recognizing that prosecutors have a very powerful position. They should not communicate it to unrepresented defendants about waiving that right to counsel until that client has had a chance to ask for a court appointed attorney, had it denied and not obtained court appointed attorney or waived the right to do so.
So we even have that in the code that the prosecutors are not supposed to be talking to these unrepresented defendants. So what other duties do prosecutors have under the rules 3.09 is our Brady rule and it’s very clear that they have a duty to timely disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the defendant.
Nowhere in there and then the next one is on mitigates offense on punishment, nowhere in there is a materiality. Nowhere in there does it say that it has to change the outcome of the case. They have a duty to give the Brady material. Nie Fong from North Carolina held onto his DNA evidence that exonerated the Lacrosse team until after he was re-elected DA. He was forced to resign as DA, he lost his bar license and he was arrested and imprisoned for his Brady violation.
So they became a lot of issues with what can Texas do to try to do better job at policing the prosecutors. There was house bill 328 that would have raised official impression to a 3rd degree felony. If there was as a result of the bready violation and it would have completely eliminated any statute to limitation issue on ready violence’s to prosecutor, try to take their bar license as you can imagine how spell 328 did not passed but senate bill 825 did. And 825 established that yes there is statute of 4 year of limitation and that’s the problem whenever perusing a prosecutor through the grievance system is all of this bready material out comes win. Well in the red hearing that is 10, 20 and more in case 25 years later you get all this information that in fact this Brady material was not turned over the 4 year statute limitations is long gone on filing grievance on those prosecutors. So senate bill 825 says the 4 years begins when the wrongfully imprisoned person is released. A new statute limitations encouraging the state bar to persue these violations against prosecutors. It also prohibits private reprimands and there is a bill to require that one of the three hours that prosecutor do his own prosecutorial misconduct. As you know senate bill 1611 is our new discovery bill, it also mandates and requires that Brady be disclosed in the bill as the time that this was prepared there was that certificate for the prosecutors were going have certify that they had complied with Brady and they did not want that.
So that came out and we got our discovery bill. So what we are wondering if this is going to change the way the prosecutors are handled in the State of Texas. I guess we will wait to see. I want to shift gears a little bit and talk about our Grievance Process in the state of Texas because I did have the opportunity when I volunteered for the State bar committee to travel all over the state. Hear defense attorneys from all over the state and grievances from all over the state and I can tell you the number one question that I get asked that is of a concern to criminal defense lawyers is “can we charge flat fees”. That’s what we really want to know right. I understand that and the rules do not prohibit it, for some reason with all of the changing of the potential rules that all got flushed and we didn’t change the rules.
There was a big concern that the rules prohibited flat fees. What the issue is, that there is this terrible ethics opinions out there that says that a non-refundable retainer cannot be placed into an operating account and that’s a big issue is this rule 611 but as you talk to state bar people they will tell you rule 611 is just an ethics of opinion it’s like an [inaudible] opinion.
It does not have any weight, they don’t have to enforce it but it’s out there, so the issue became can a nonrefundable retainer can be placed into an operating account and this opinion says only if the fee in its entirety is reasonably earned and is retained solely for getting the lawyer’s service. So the fee has to be earned when it’s received. It has to say that it is because I am turning away other business and so now I am the lawyer on this case and it’s clear that these people have no concept of criminal law cases when they say it has to go into a trust account because we all know if we take a criminal case we can be on the hook till the judge lets us off and I’ve been even on the hook for cases for appeals that I haven’t been paid for because the judge did not let me off.
So the ethics opinion really did not make sense. If they payment that represents, if a payment is made and it’s actually for future services then it has to go into a trust account. So the rules require that any unearned fee must be returned to the client. Unearned fees belong to the client and therefore any advance fee must be kept separate and that means in a separate IOTA account.
So why was this such a big deal. This was such a big deal because of 3rd court of appeals issued an opinion about non-refundable retainers and they simply said in this case the lawyer had charged a non-refundable retainer said in his connect, nonrefundable but then he billed against it and the 3rd court of appeal said “calling it nonrefundable does not make it so”. This was an advanced fee an advanced fee for services in the future and because of that it had to be put into a trust account.
Unearned fees have to go into a trust or IOLTA account and records of that account have to be kept for five years. So this was a big issue when I was serving on the commission for lawyer discipline. We have a new state bar website Texasbar.com where they can add these things for lawyers and one of the things that we got them to do was to do a separate section for lawyers on trust accounts and if you see down there, there was actually a lawyers guy to trust accounts. This was written by our CPA and these are people who understand this and it’s a very good helpful hand if you don’t know how to setup IOLTA account, how to get this up and running to be sure that you do not come in to conflict with the rules. So what is the deal on flat fees, they can be earned at the time they are received but your contract needs to say that. This needs to say this fee earned when it’s received. It can be earned because the attorney is available and has given up other opportunities. But don’t bill against it and a nonrefundable retainer cannot be if it is not earned. So they really hate that word nonrefundable and they really want you to understand that retainer talks about future fees.
The issue is really whether the fee is unconscionable or illegal. Isn’t that really the case because our clients are not filing complaints of the state bar saying “oh my lawyer deposited that check in to wrong account. He didn’t put it in his trust account”. They are saying want their money back, he did not earned it. It’s really whether it’s an unconscionable or illegal fee but don’t fall into the trap of a billing against a nonrefundable retainer.
So what should we be concerned about? When I started this track with the state bar we had 69000 lawyers and in 5 years we went to 89000 lawyers in the state of Texas. About 8000 grievances were received every year, about 2200 were moved forward through the system and over 5000 are dismissed. So of those that proceed about 500 resolved every year, 137 suspensions, 40 private reprimands, 106 private reprimands and grievance referral. So why so many cases at the state bar, this was what I get out. Why they have dismissed. Well it’s because this is what they say, this guy walks around in front of state bar building. He really doesn’t like lawyers.
If you file a complaint against the lawyer, that says “I don’t like this lawyer” that is not a grievance. If you file a complaint that says “I don’t like my wife’s lawyer” that is not a grievance and it will get dismissed. This is the one that really ought to scare us, for years that personal injury lawyers and the family lawyers has thousands more grievance then we did. But the most recent statistics are that criminal lawyers are now have the most complaints filed by area of practice on criminal lawyers.
So what’s the number 1 complaint? Failure to communicate, you have a duty to keep the client reasonably informed about status of the case and to comply with reasonable request for information. Always get this question on. Tell my client he wants me to tell his wife, I tell his wife and all of his girlfriends starts calling. Yeah I understand, I have been there, I’ve done that, I know what you are talking about and that’s not a reasonable request for information and this rule is specific to the client. Now neglect used to be the number 1 complaint. It has a very specific definition, it’s frequently failed to carry out the obligation owed. So who can file the grievance? The client, the former client, the family members, the SBOT, judges–you get the kind of just of this, anybody can file a grievance.
We would have lawyers answer the grievance and say “this wouldn’t my client so I am not going to answer it” no. No, anybody can file a grievance and respondent is a lawyer who has a grievance filed against him so anybody can file but understand that neglect is good faith is not neglect. Just doing an unskilled act or a slight omission of a case maybe not filing every single ocean that you could have filed is not going to be considered neglect. Neither is malpractice, that is when lawyers tell clients that you know that deferred to adjudication, that’s not going to show up on your record, well that’s bad legal advice but that is not neglect.
The one that we have the biggest concern with is ineffective assistance of counsel that may or may not be neglect depending on what happened. Just having an allegation of ineffective assistance does not necessarily translate to agreeable offence. So what’s our duty upon termination? This is the next big issue on when people have an issue about with their lawyer and this is one that commonly is misunderstood in the state of Texas but the file belongs to the client.
We have a duty to return the file upon being terminated even if we haven’t been paid and this generates a lot of grievances. So what also we also tend to be in a position of representing attorneys who are being convicted of a crime and what happens that is called compulsory discipline that a lawyer shall not commit a serious crime. I love this though, it was written by a lawyer so the definition of a serious crime is a felony involving moral turpitude or any misdemeanor theft or barratry.
So conviction of a crime if you are advising your client lawyer about deferred adjudication, deferred adjudication counts, if they take deferred adjudication for a class C shop lifting theft that they can be disbarred, deferred adjudication counts but on the serious felonies, felonies involving moral turpitude that is not possession of cocaine.
So that’s a SC case, possession of cocaine is not a serious felony involving moral turpitude and therefore neither would felony DWI that falls under the compulsory discipline. The person they also have lots of other problems and there client may be filing neglect charges but under the compulsory section, they would not be subject to being disbarred just for the conviction of crime. The SC said that even when a lawyer has completed their probation for one of the serious felonies, in this particular case it was a serious felony theft that they had completed and discharged the probation, they could still be disbarred because it’s totally up to the board of disciplinary appeals whether they are going to suspend the lawyer or disbar the lawyer.
So I want to take few minutes to talk about barratry, when I give this speech around the state, lots of young lawyers really do not understand what barratry is. It is in person or by phone solicitation of the client. The advertising rules have really confused lawyers about what barratry is but it’s very clear under the Penal code, you cannot go up to a client who are a person who looks lost at court house or lost at the jail and says “hey I am lawyer can I help you”. If you communicate by that person, in person or by phone to someone concerning the professional employment when neither that person or someone acting on their behalf has requested it, that is barratry. This does not include communication that’s been initiated by family, so mom calls “will you go see if my son is out of jail” that is not barratry to go see the son though the son hasn’t requested it.
If you see your prior client has a warrant out for their arrest and you want to call him and let him know, that’s not barratry but if somebody you have no prior relationship with and in person or by phone you solicit them for employment. The legislature is so upset with barratry and so concerned about it that in 2009 they actually amended this section to try to put some teeth into it including phone calls.
In Bailey V. Morales of 5th Circuit held that this was unconstitutional as to chiropractors who were soliciting but the State V. Jiminez said it was not unconstitutional when chiropractors are soliciting for attorneys. In our fields just switch out chiropractor for bail [inaudible].
That’s what happens a lot, that is in fact is barratry and they can be prosecuted and the lawyer can be prosecuted and if he saw that it is compulsory discipline or in fact you can lose your bar license. Now why is this all so confusing is because the Moore v. Morales case held that the other parts of it can be unconstitutional violation of lawyer’s free speech rights.
Lawyers have commercial free speech right to advertise, to mail out mass solicitations saying you have a case I want to represent you to advertise on TV.
The 5th circuit reinstated the prohibition against contacting accident victims within 30 days based on the SC decision that came out earlier the same year but that does not apply to criminal cases, so they are still so mad about it, then last session they created a totally new cause of action. Our very conservative legislature that do not like civil lawyers, do not like law suits, have law suit and tort reform bill boards everywhere, created a new cause of actions to sue lawyers for barratry. They want us to sue each other, they want us to go after each other for barratry and it’s in the government code, the client can void the contract based on barratry within 4 years and another attorney can sue for the attorney’s fees and as long as they have reported it to state bar of course but they really wanting is personal injury lawyers, right, the big fees. So that is what they are really wanting but they also added that there can treble damages. This was all effective Sept. 1st 2011, we are just beginning to see these cases where lawyers are going to sue each other over the way that the person got the case.
So what happens when the state bar gets a notice of misconduct and they have decided to go forward, they didn’t dismiss it. They send the lawyer a written rule violation, Texas being the unique place it is. The lawyer in State of Texas, the only state in the entire US can elect the district court and a jury trial on their grievance but understand that only a private reprimand is only available through the local grievance committee. So that’s the reason that almost all the grievance go to the local grievance committee because if the lawyer elects for district court, they elect for that jury trial and they are found to have engaged in unethical conduct, they cannot get a private reprimand.
So what used to drive me crazy is a biggest “no, no” is not responding to the grievance. You get some grievance that kind of on its face needs to go forward, we need to do more investigation and then the lawyer doesn’t respond. We would have dismissed it because it wasn’t a good grievance but he has got a second grievance now 8.04 says that it is Misconduct to fail to timely furnish the bar or district grievance committee, any information has require by the rules of evidence, so respond to the grievance.
One thing I was very proud of was a grievance referral program. It is a new program set up by the state bar for minor misconduct, no allegations of theft, it can’t have substantially harm the public and the lawyer has to say “I want to do better, I want to go CLE, I want to go law office Management, I want to learn how to run my office better” and what is the benefit if the lawyer will go through the grievance referral process, they will get their grievance dismissed.
So it is possible to even recognize that you may have made a mistake, we have lots of lawyers who end up going through divorces or death in their family and for some reason they just neglected a case and they come in, they throw themselves on their sword and say “I am so sorry what can I do to do better”
, they can go through this grievance referral program and have their grievance dismissed.
So how can you avoid all of this? As you know you just don’t even want to be in the grievance system right. Have a written contract, please if you have heard nothing else I say have a written contract. Communicate with your client someway, email, phone, just keep a record, return the file if you are terminated. Keep your address with current with SC, that is now a rule. It wasn’t a rule when I first started that you have to have your address current, we had lawyers that liked to move around whenever they got too many grievances, they just move to another jurisdiction you know. Come try to skirt the grievance system.
So the SC says “no, you got to keep your address current with the state bar”. Don’t represent co-defendants that will always get you a grievance. Have a trust account for all these that are advanced fees and answer the grievance.
We are required to have this little notice in our office that tells clients how to file a grievance and so I try to tell people that about some of the good things that state bar actually does and the client attorney assistance program is one of those. They are setup before any grievance is filed to actually try to intervene on behalf of the lawyer with the client to find out what’s the problem is. Had it not return the phone calls, had it not returned the file. Do they really just need to know what’s going on their case.
So if a lawyer gets a call you have a friend that says something called CAAP is calling me from the state bar return the phone call, just pick up the phone and return the phone call. It may save a grievance from being filed. There is new ethics hotline where there is a lot more people there working that can give ethical opinions to lawyers. There is law office management and there is Texas lawyer assistance program.
I am very big fan of the Texas lawyer’s assistance program for one and only one reason. In the professional world the Denis has always had the highest suicide rate. That didn’t get in to the medical school right? We have surpassed the Denis. More lawyers are committing suicide every day because we have a difficult job to do. I used to play this video called practicing from [inaudible] of depression but it’s a little depressing so I will tell you where to find it. It is a great video. If you have a friend, if you have a colleague, if you know somebody that is struggling with depression play this video get them to watch it. Nothing that is reported to lawyers assistance program ever goes to the grievance committee. Just because you say “I think this lawyer needs help, I think this lawyer is in trouble”, it is not going to get to the grievance committee so try to reach out and try to help him. It’s at the Texasbar.com. These you can get the rules, you can get the grievance form, you can find out a lawyer’s history.
We know and what I want you to take away is that state bar understand and I was volunteer with the state bar because I have my own private practice by the way but I was volunteered on this committee with the state bar. We know how difficult it is to practice criminal law and we know how difficult our job is.
[50:23 – 51:35 Presentation Courtroom Demeanor video playing] What we do is not easy. We know that, so what I tell me clients in family violence cases is understand love means never having to call 911, right? And for lawyers on family violence cases please be aware they can be very hazardous to your law license. I really appreciate speaking to you, enjoy this topic, I am here if you have some questions. Thank you very much.
Speaker 2: Welcome back everybody our next speaker is Oscar Pena, he is a 3rd generation criminal defense lawyer. He is a TC award member; he was born and raised in Texas. He still maintains his small private practice with the public and criminal defense, particularly drug conspiracy cases, violent crime, sexual abuse cases. He graduated from University of Texas Law School, he received his JD in 1997. After graduation he went to work for his grandfather with his dad who are both criminal defense lawyers. He is active in both federal criminal state courts and he has tried 5 -10 jury trials a year. His license is State Texas, US Southern and Western district of Texas as well as US 5th circuit. Oscar is married, has 4 sons, he is play writer, [inaudible] folder. Please welcome my cousin Oscar Pena.
[Clapping] Oscar: Hi everybody, my name is Oscar Pena, I am from Laredo Texas and as Ray told you I am a lawyer and sometimes I write plays when last–which he didn’t tell you is that the last play he told you about Manila Folder was actually about a—it was a comedy. It was about a prosecutor who got arrested with a transsexual prostitute and you know I come out of that play and people often asked me “well is that autobiographical?” I tell them “no of course not. I’ve never been a prosecutor”.
Any way my name is Oscar; I am a criminal defense lawyer from Laredo. I’ve been asked to talk about extraneous offenses and in particular rule 404 (b). Now we are starting out with comparison of the Texas Rule and the FRE and basically what you see is that it’s roughly the same thing in term of structure. It starts out with the prohibition 1 rule, the Texas rule calls it, it’s not admissible to prove the character of a person in order to show action in conformity therewith.
The Federal rule has a little bit different language but it’s basically the same thing “it says it’s not admissible to prove a person character in order to show that the person that the person character on a particular occasion the person acted in accordance with the character”. But essentially the same thing it’s just two different ways of saying propensity. Then the next part is of course the exceptions and this is almost word to word the same. Motive, opportunity, intent, preparation, plan, knowledge, identity absence of mistake or accident! That’s pretty much the same in both rules. What it doesn’t say there this laundry list is not exhaustive.
These are just some of the examples but the admissibility is not limited to those and then the 3rd part is of course the notice part. Now the only thing that is in the Texas rule that we don’t find in the federal rule is language down at bottom. This would be the bottom right for you all, other than that arising in same transaction and that refers to distinguish between Extrinsic evidence and Intrinsic evidence which we will get to in a few minutes.
Any way let’s see there we go. Extraneous means existing or coming from the outside; Black’s Law Dictionary says “anything that is beyond or foreign to the offense for which the party is on trial” but essentially that’s kind of mouthful but it’s essentially anything that is extraneous is just something that is not in the indictment. It is an easy way to remember it something that’s not in the indictment.
So let me put this in context a little bit. Number 1; its okay to be confused when you are studying rule 404 (b). I’ve been studying rule 404 (b) in preparation for Rusty Duncan for two and half months now and it is still confusing to me. You know some of the things, some of the ideas that you have to consider in analyzing 404 (b) issues, I have very indistinct borders. Some of the things overlap, a lot of these issues, it is difficult to distinguish them from each other. Sometimes it’s hard to tell what part of the rule you are dealing with. The distinctions that you have to make when analyzing 404 (b) are so fine sometimes that really it tells you a lot more about the judge making the decision than it does about the defendant who is on the trial and after reading this and studying it a lot, I have learned that pendulum seems to be swinging from the old days where it was hard to get these extraneous offenses in to now where it’s much easier.
So this is not a “how to”. If anything I hope to familiarize you with some ideas that you can then use to make your own arguments about 404 (b). The beautiful thing about 404 (b) is that nothing is clear cut. There are no right or wrong arguments, it’s only limited by your ability to create good arguments based on the case law.
Charles Allen Wright said that 404 (b) was one of the most hotly litigated and debated issues in evidence. So talking about being a play right, what better place to start is Broadway. Now Broadway 1973 case, this is the good old days. This is when things were really hard, extraneous offenses were very difficult to get in. This is Broadway story. Phillip’s grocery; a little place in Dallas receives a box—1971—receives a box of American Express traveler’s check so when they open up the box Mr. Philips I guess realizes that there are a hundred travelers check missing from delivery so of course he reports it to American Express.
About a month later George Broadway goes into a Uni Royal merchandising company in Dallas Texas and negotiates one of these traveler’s checks that were identified as missing from the shipment that went to the Phillip’s grocery. So he is arrested, put on trial and during the trial the govt. wants to produce evidence that he negotiated two other traveler’s checks from this same group and these traveler check were numbered sequentially. They were negotiated the day before he went in to the Uni Royal and they bore his signature. They were endorsed to him and that had a hand writing expert come in and say that it was his hand writing.

The court still didn’t let this extraneous evidence in. now think about that. I mean think about what would have happened today. This is a much different standard back then. This is a just 1973. This is what maybe; 40 years ago it was very difficult to get it. They couldn’t get this in, what could they get in? Well, the standard changed! You see, back then what they, back then and I changed, let me go back there… there we go. Back then what was required was similarity of the physical elements of the offense. Basically, you had, the extraneous offense and the offense charged in the indictment physically basically had to be the same thing. And then, the extrinsic evidence had to be established by plain, clear and convincing evidence. Then, Broadway dies! The death of Broadway! We had this case come along in 1978 Beechum, and they were pretty clear in Beechum. It says,” we think that Broadway runs afoul of the Federal Rules by imposing on the government too strict the standard and by requiring too close an identity of an elements.” So this is really beginning of an end here; Beechum! And we’re gonna be talking about Beechum a lot.

Beechum was a Mailman! Orange Jell like orange like the fruit Jell Beechum! And Beechum was a mailman who liked to deliver the mail and sometimes on occasion he liked to open the mail and see what was inside. Anyway, the folks over at the post office got suspicious, so they’ve set him up in a sting and they gave him some envelopes with some silver dollars in there, I don’t know why they choose silver dollars! But, they gave him some envelopes with some silver dollars, told him to go deliver it and at the end of the day they found that the silver dollars were not delivered! So then, he arrives back at the post office only to find the Federal Agents waiting for him. They stop him, they search him and they do in fact find the silver dollars in his pocket. In addition to the silver dollars, they find 2 credit cards, not in his name! They do a little bit of research and they find that those credit cards were actually in the mail! And they had been mailed to the recipients 10 months earlier. And so, they, the government wanted to use possession of those credit cards to show, that he intended to steal the silver dollars. That’s what he was gonna, what he saying was, “well I intended to give the silver dollar back!” so the government countered by saying, “well then why didn’t you give those 2 credit cards back, you had 10 months to do it!” government says, “the obvious question is…” or rather the Court says, “the obvious question is why would Beechum give up the silver dollar if he kept the credit cards.” In this case the government was entitled to an answer. So that’s where the things began to change. And the government tells us, “hey! We’re changing the rule, but it’s gonna help you defendants. We’re doing you a favor! Don’t be afraid, we wanna help you.” They say, “Demanding that the government prove by excessive evidence eats physical evidence of the extrinsic offense. Well, hey that may affect increase its unfair prejudice.” What? The fact that they can put these words demanding that the government prove; each physical element may in fact increase its unfair prejudice to the accused. The fact that someone could actually put all those words in one sentence and still have allies is baffling to me. But that’s what it says. It says,” we’re doing you a favor. We’re… if we make em’ prove it too much, then it‘ll just be too persuasive, too prejudicial for you guys. So we’re gonna make it easier.” So question, the logical question is; if its gonna be overly prejudicial then why allow it in the first place?

So then, we have the ‘Beechum 2-step’. Basically, these are the 2 steps in Federal court and its very similar to the 2- steps that we’re gonna see in the state court, in a few minutes. But, the extrinsic evidence must be relevant to an issue other than character and the evidence must possess probative value that is not substantially outweighed by its undue prejudice. Now, what does that mean? It seems simple. I used to look at this rule and think; oh I know what that means, that’s easy. It makes sense to me, of course it does. Was until I really began to look at the rule very carefully and look at each and every word that… I really began to get an understanding of what this, this rule means.

Step one! Is it extrinsic or intrinsic? If it’s extrinsic then 404(B) applies and you have to go through that whole test and balancing. If its intrinsic then you skip 404(B), 404(B) doesn’t even apply and you go straight to 402 and 403 like you would with any other piece of evidence.

Step two! Is it relevant? Well of course it’s relevant. I mean, the 1940’s, they’ve been saying; extraneous offense evidence isn’t being excluded because it’s irrelevant! No they’re saying; it’s being excluded because of the harmful prejudicial effect to that it might have, the chance that it might create confusion. Sure it’s relevant, I mean Hell! The problem is that it’s probably too damn relevant. So, when we say relevant in step two; is it relevant? It’s in quotations really; is it relevant to something other than character? Is there a logical nexus to an element or to a defense? And the way to think about it is; is there a logical smoking gun? Does the extraneous evidence somehow corner the defendant and put him in checkmate, by way of logic? That’s what we mean when we say relevant.

Step three is of course ‘the balancing’. Probative value versus undue prejudice! So basically we have 4 distinct things that we have to consider when we’re looking at 404(B). We got extrinsic or intrinsic, is it part of the offense or is it not part of the offense, we’ve got relevance other than character, we have probative value and undue prejudice. Now, one of the interesting things about this is that; people often use the word relevance and probative as synonyms of each other. You know, obviously in court that’s not probative of the issue that we’re discussing here. What I really mean is that that’s not relevant to the issue. But here we got the 2 words; 2 distinct different things. As I said earlier; relevance is like a logical trap, a logical smoking gun. Probative value is something completely different here. So, when you hear these two things understand, that its event though it’s tempting to think that relevance and probative value are the same thing they are not. And I’ll explain that in just a few minutes. Let’s see; extrinsic or intrinsic. That’s the first thing we need to know. If its extrinsic 404(B) applies, if it’s intrinsic, it doesn’t apply. What makes it extrinsic or intrinsic; if its inextricably intertwined part of a single criminal episode, if it’s a necessary preliminary to the crime charged, or if it’s necessary to complete the story, than that would be considered intrinsic evidence and 404(B) would not apply.

Now one of the interesting things is; whether something that’s extrinsic or intrinsic isn’t inherent in the evidence…

[Audio Ends]
Francisco Hernandez

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