richard a. anderson of counsel to burleson, pate & gibson ... · 2414 n. akard, suite 700...

Ethics and Attorney Misconduct

Richard A. AndersonOf counsel to

Burleson, Pate & Gibson2414 N. Akard, Suite 700

Dallas, Texas 75201

State Bar of Texas26 Annual Advanced Criminal Law Courseth

July 17-20, 2000San Antonio, Texas

Chapter 10

Ethics and Attorney Misconduct Chapter 10

2

Table of Contents

I. CLIENT-LAWYER RELATIONSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A. Competent and Diligent Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. Effective Assistance of Counsel, as set out in the cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .B. Scope and Objectives of Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. What are the Bounds of the Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. Some Case Law Examples: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C. Rule 1.03 Communication with the Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .D. Fees in General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. Unconscionability of Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. Fees Paid to Court-Appointed Attorneys Under Art. 26.05. . . . . . . . . . . . . . . . . . . . . . . . . . .3. Cash Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4. Third Party Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

E. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1. Communication Between Attorney and Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F. Conflicts of Interest: General Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1. Representing CoDefendants Where There is a Conflict of Interest is a Violation

of the Right to Effective Assistance of Counsel Guaranteed by the Sixth Amendment. . . . . . . .2. Examples: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3. Other Examples: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4. "Chinese Walls" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5. Potential Conflict of Interest Can Be Waived By CoDefendants. . . . . . . . . . . . . . . . . . . . . . . .6. Procedure in Trial Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7. Disqualification of Defense Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8. Tactical Considerations: Evaluation of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9. Tactical Considerations: Trial Tactics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

G. Conflicts of Interest: Prohibited Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1. Rule 1.08(h) Retaining Lien for Unpaid Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. Prior Representation as a Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

H. Organization as Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1. The comments assist the Texas lawyer to interpret this new Rule 1.12. . . . . . . . . . . . . . . . . . .

II. LAWYER AS COUNSELOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A. Rule 2.01 Lawyer as Advisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .B. Imputed Disqualification of Fellow Attorneys: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

III. LAWYER AS ADVOCATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A. Rule 3.02 Minimizing the Burdens and Delays of Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .B. Rule 3.03 Candor Towards the Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. The comments provide further help in this touchy area. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. Perjury Problem. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C. Handling Evidence, Physical or Otherwise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1. Handling Incriminating Physical Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

D. Rule 3.05 Maintaining Impartiality of Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E. Rule 3.06 Maintaining Integrity of Jury System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F. Rule 3.07 Trial Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


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1. Lawyer's First Amendment Rights are Abridged When Acting as Counsel. . . . . . . . . . . . . . . .2. When Not Acting as Counsel, a Lawyer Retains His First Amendment Rights. . . . . . . . . . . .

G. Rule 3.08 Lawyer as Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


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H. Rule 3.09 Special Responsibilities of a Prosecutor1. Codification of Prosecutorial Ethical Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I. Frequently Encountered Instance of Conflict Between Prosecutor Conduct and Ethical Standards .1. Dealing with Unrepresented Criminal Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. Holding Private Parleys with the Court about Pending Cases. . . . . . . . . . . . . . . . . . . . . . . . . .3. Failure to Disclose Mitigating Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4. Improper Communication with Discharged Jurors: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. Remedies for Prosecutor's Unethical Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1. Need for Action: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. TattleTale DR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

IV. NON-CLIENT RELATIONSHIPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A. Rule 4.01 Truthfulness in Statement to Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .B. Rule 4.02 Communication with One Represented by Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . .C. Rule 4.03 Dealing With Unrepresented Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .D. Rule 4.04 Respect for Rights of Third Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

V. LAW FIRMS AND ASSOCIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

VI. PUBLIC SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

VII. INFORMATION ABOUT LEGAL SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A. Rule 7.01 Communications Concerning a Lawyer's Services . . . . . . . . . . . . . . . . . . . . . . . . . . . .B. Rule 7.02 In-Person or Telephone Contact with Prospective Clients . . . . . . . . . . . . . . . . . . . . . . .

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION . . . . . . . . . . . . . . . . . . . . . . . . . . .A. Rule 8.02 Judicial and Legal Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .B. Rule 8.03 Reporting Professional Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .C. Rule 8.04 Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

IX. CONTEMPT BY ATTORNEYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A. Old Disciplinary Rule on Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .B. Civil Contempt/Criminal Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .C. Texas Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. Criminal Contempt Punishment: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. Must Have Hearing: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3. Personal Recognizance Pending Hearing: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4. Right to Habeas Corpus If No Personal Recognizance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5. Show Cause Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6. Appeal from finding of contempt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7. "Restraint" is Jurisdictional to Writ Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8. Bail Pending Hearing Court of Criminal Appeals on Habeas Corpus. . . . . . . . . . . . . . . . . . . .

D. The Federal Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1. 18 USC 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2. Rule 42. Two types of Contempt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3. Warning Favored. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4. Summary Contempt Disfavored. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


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5. Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E. Examples of Contemptuous Conduct by Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


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1. CLIENT-LAWYER RELATIONSHIP

a. Competent and DiligentRepresentation.

Rule 1.01. The rule is a little more specific thanthe former DR 6-101.

(a) A lawyer shall not accept or continueemployment in a legal matter which the lawyer knowsor should know is beyond the lawyer's competence,unless:

(1) another lawyer who is competent to handle thematter is, with the prior informed consent of theclient, associated in the matter; or

(2) the advice or assistance of the lawyer isreasonably required in an emergency and the lawyerlimits the advice and assistance to that which isreasonably necessary in the circumstances.

(b) In representing a client, a lawyer shall not:(1) neglect a legal matter entrusted to the lawyer;

or(2) frequently fail or carry out completely the

obligations that the lawyer owes to a client or clients.(c) As used in this Rule, "neglect" signifies

inattentiveness involving a conscious disregard forthe responsibilities owed to a client or clients.

Comment Six gives an elucidation as to what isCompetent and Diligent Representation:

6. Having accepted employment, a lawyer shouldact with competence, commitment and dedication tothe interest of the client and with zeal in advocacyupon the client's behalf. A lawyer should feel amoral or professional obligation to pursue a matteron behalf of a client with reasonable diligence andpromptness despite opposition, obstruction orpersonal inconvenience to the lawyer. A lawyer'sworkload should be controlled so that each mattercan be handled with diligence and competence. Asprovided in paragraph (a), an incompetent lawyer issubject to discipline.

i. Effective Assistance ofCounsel, as set out in thecases.(1) Deceptive Trade

Practice Act -Tort Standards.

The Texas Deceptive Trade Practices Act(DTPA) was enacted in 1973 to protect consumers

from deceptive and fraudulent business practices.Tex. Bus. & Comm. Code Ann. sec. 17.41 et seq.(1973). The courts may construe "services" and"consumer" to include an attorney who sells legalservices to a client. DeBakey v. Staggs, 605 S.W.2d631 (Tex. Civ. App. Houston 1980), aff'd 612S.W.2d 924 (Tex. 1981) (attorney failed to timelyobtain a name change); Barnard v. Mecom, 650S.W.2d 123 (Tex. Civ. App. Corpus Christi 1983,no writ) (attorney retained client's settlement funds).Parker v. Carnahan, 772 S.W.2d 151 (Tex. Civ.App. - Texarkana 1989); Lucas v. Nesbitt, 653S.W.2d 883 (Tex. Civ. App. - Corpus Christi 1983).

(2) Constitutional StandardThe standard for retained and appointed counsel is

the same: "Counsel reasonably likely to render andrendering reasonably effective assistance," Hurley v.State, 606 S.W.2d 887 (Tex. Crim. App. 1980);Hernandez v. State, 988 S.W.2d 770. (Tex.Crim.App. 1999) Strickland v. Washington, 462 U.S. 1105(1984); Butler v. State, 716 S.W.2d 48 (Tx. Crim.App. 1986); Ex parte Roland Cruz, 739 S.W.2d 53(Tex. Crim. App. 1987).Cantu v. State 930 S.W.2d 594 (Tex.Crim.App.1996)

(3) TestStrickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984) Test for determiningeffectiveness of counsel is whether counsel's conductso undermined the proper functioning of theadversary process that the trial cannot be relied on ashaving produced a just result. There is a strongpresumption of reasonableness. Defendant must alsoshow that but for counsel's errors there is areasonable probability the outcome would have beendifferent.

(4) Presumption in Favor ofCounsel

Because of the difficulties inherent in making theevaluation, a court must indulge a strongpresumption that counsel's conduct falls within thewide range of reasonable professional assistance.Strickland, supra; Hill v. Lockhart, 474 U.S. 52(1984); Butler, supra; Ex parte Adams, 707 S.W.2d

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646 (Tex. Crim. App. 1986). Investigation of the

(5) Caveat for (1) Knowledge of the Law.Specialist As a general proposition, counsel's ignorance of

It seems logical to assume that a certified applicable law, either prior appellate decisions orspecialist will be held to a higher standard, although pivotal statutory provisions, will be held ineffectivethere are no cases as yet. Such a holding could lead assistance of counsel. For a comprehensive and lucidto unanticipated exposure. See, e.g., Griffith vs. discussion, see Clinton and Wice, Assistance ofKentucky, 107 S.Ct. 708 (1987), in which the Counsel in Texas, 12 St. Mary's L. J. 1 (1980).Supreme Court of the United States held that any (2) Time Spent.new constitutional rule of criminal law or procedure It is axiomatic that the brevity of time spent inannounced by the court will automatically be applied consultation, without more, does not establish thatretroactively to all convictions on appeal or otherwise counsel is ineffective. Jones v. Estelle, 632 F.2d 490,not yet final at the time of the Supreme Court 492 (5th Cir. 1980).decision. Therefore, is a certified criminal law (3) Duty to Investigate.specialist bound to know all criminal law issues "In other words, counsel has a duty to makepending before the Supreme Court of the United reasonable investigations or to make a reasonableStates so as to advise client to appeal in order to decision that makes particular investigationspreserve the point for possible retroactive application unnecessary. In any ineffectiveness case, a particularof a favorable United States Supreme Court decision not to investigate must be directly assesseddecision? for reasonableness in all the circumstances, applying

(6) Additional Burden . . . and when a defendant has given counsel reason toon Defendant to believe that pursuing certain investigation would beShow Harm. fruitless or even harmful, counsel's failure to pursue

"An error by counsel, even if professionally those investigations may not later be challenged asunreasonable, does not warrant setting aside the unreasonable. "Strickland v. Washington, 462judgment of a criminal proceeding if the error has no U.S.1105 (1984), Burger v. Kemp, 483 U.S. 776effect on the judgment. The defendant must show (1987). Failure to obtain DNA test results - counselthat there is a reasonable probability that, but for ineffective. Wisconsin v. Hicks - 549 N.W.2d 435counsel's professional errors, the result of the (Wis., June 25, 1996)proceeding would have been different. A reasonableprobability is a probability sufficient to undermine (4) Examples.confidence in the outcome." Strickland, supra; Hill, i. Reliance upon discussions with prosecutor,supra; Butler, supra; and Ex parte Adams, supra. without more, is inadequate. Ex parte Raborn, 658 S.W.2d 602 (Tx. Crim. App. 1983). Butler vs.

(1) A criminal defense attorney's response to a State, 716 S.W.2d 48 (Tex. Crim. App. 1986).clientdefendant's intention to commit perjury, Defense counsel must investigate law and facts andconsisting of an attempt to dissuade the defendant cannot rely on discussions with district attorney.from committing perjury and a threat to withdraw ii. If an appointed attorney requires thefrom the defendant's representation and disclose his assistance of expert witnesses to prepare a defenseperjury, are not ineffective assistance of counsel which is strongly indicated under the facts, andaccording to the two pronged test in Strickland, government resources are available to pay for thesupra. See also, Nix v. Whiteside, 475 U.S. 157 expertise then it is a denial of effective assistance of(1986). counsel not to seek the expert assistance. See United

(7) Preparation and where the court stated: "When an insanity defense is

Case.

a heavy measure of deference to counsel's judgments

States v. Fessel, 531 F.2d 1275 (5th Cir. 1976),


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appropriate and the defendant lacks the funds to 1999) secure private psychiatric assistance, it is the duty ofhis attorney to seek such assistance through 18 (10) Advising ImmigrantU.S.C. 3006A(3). "Where trial counsel fails to Clientsrequest the appointment of a psychiatrist at state Although Texas has yet to address this directly.expense, especially the appointment of a psychiatrist Trial counsel=s failure to advise his immigrant clientat state expense, especially when evidence of guilt is about the almost certain deportation as a result ofvirtually uncontested and the only defense issue for plea was ineffective. People v. Sandoval, 86development is the sanity of the accused at the time Cal.Rptr.2d 431 (Cal. Ct. App. 1999)of the offense, trial counsel has been ineffective. Exparte Duffy, 607 S.W2d 507, 520 (Tex. Crim. App.en banc 1980). It is not clear whether this would beconsidered ineffective in light of the court of criminal i. What are the Bounds of theappeals decision in Hernandez v. State, 988 S.W.2d Law?770 (Tex.Crim.App. 1999) Rule 1.02. Widens the scope from DR7-101:

iii. Appeal - Ex parte Dietzman, 790 S.W.2d 305(Tex. Crim. App. 1990). There is some authority (a) Subject to paragraphs (b), (c), (d), and (e), (f),that failure to file a PDR is ineffective assistance on and (g), a lawyer shall abide by a client's decisions:appeal. Colorado v. Valdez, 789 P.2d 406 (Colo. (1) concerning the objective and general methods of1990). representation;

iv. Failure to pay Bar dues results in attorney (2) whether to accept an offer of settlement of asuspension, trial counsel is not per se ineffective. matter, except as otherwise authorized by law;Reese v. Peters, 926 F.2d 668 (7th Cir. 1991); (3) In a criminal case, after consultation with theMinnesota v. Smith, 464 N.W.2d 730 (Minn. App. lawyer, as to a plea to be entered, whether to waive1991). However, see People v. Tin Trung Ngo, jury trial, and whether the client will testify.Calif. Ct.App. 6th Dist. (08/21/95) - failure of (b) A lawyer may limit the scope, objectives andattorney to maintain minimum CLE hours. general methods of the representation if the client

v. Representation by an attorney suspended by consents after consultation.the State Bar is not per se ineffective. Cantu v. State, (c) A lawyer shall not assist or counsel a client to930 S.W.2d 594, (Tex. Crim. App. 1996) (Baird, J. engage in conduct that the lawyer knows is criminaland Mansfield, J., concurring) or fraudulent. A lawyer may discuss the legal

(8) Duty to a client and may counsel and represent a client inCommunicate connection with the making of a good faith effort toPlea Offers. determine the validity, scope, meaning or application

Failure to communicate a plea offer is ineffective of the law.counsel, per se, if defendant ultimately receives a (d) When a lawyer has confidential informationhigher sentence. Ex parte Wilson, 724 S.W.2d 72 clearly establishing that a client is likely to commit a(Tex. Crim. App. 1987). criminal or fraudulent act that is likely to result in

(9) Sleeping In and property of another, the lawyer shall promptly makeOut of Court reasonable efforts under the circumstances to

Sleeping through the client=s capital murder trial dissuade the client from committing the crime oris ineffective. McFarland v. Texas, 928 S.W.2d fraud.482(Tex.Crim.App. 1996) However, sleeping with (e) When a lawyer has confidential informationclient=s wife without a show of prejudice is not. clearly establishing that the lawyer's client hasHernandez v. State, 750 So.2d 50 (Fla. Dist Ct. App. committed a criminal or fraudulent act in the

b. Scope and Objectives ofRepresentation.

consequences of any proposed course of conduct with

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commission of which the lawyer's services have been falsely, to withhold testimony, or to elude process.used, the lawyer shall make reasonable efforts under TEX. PENAL CODE ANN. art. 36.05 (hereinafterthe circumstances to persuade the client to take cited as PEN. C.).corrective action. b. A person commits an offense if he alters,

(f) When a lawyer knows that a client expects destroys, or conceals any physical evidence with therepresentation not permitted by the rules of intent to affect the outcome of an investigation orprofessional conduct or other law, the lawyer shall official proceeding. PEN. C. Art. 37.09.consult with the client regarding the relevant c. Giving client advice to throw the gun in the riverlimitations on the lawyer's conduct. held to make a lawyer an accessory to the crime.

(g) A lawyer shall take reasonable action to Clark v. State, 261 S.W.2d 339, cert. den., 346 U.S.secure the appointment of a guardian or other legal 855 (1953).representative for, or seek other protective orders d. This rule broadens substantially thewith respect to, a client whenever the lawyer attorney's obligation to reveal what would otherwisereasonably believes that the client lacks legal be privileged information. Issue now is whethercompetence and that such action should be taken to lawyer civilly liable to damaged third party whoprotect the client. could have been warned by lawyer of client's

Comment Seven - Criminal, Fraudulent andProhibited Transactions:

A lawyer is required to give an honest opinionabout the actual consequences that appear likely to c. Rule 1.03 Communication with theresult from a client's conduct. The fact that a client Client.uses advice in a course of action that is criminal orfraudulent does not, of itself, make a lawyer a partyto the course of action. However, a lawyer may notknowingly assist a client in criminal or fraudulentconduct. There is a critical distinction betweenpresenting an analysis of legal aspects ofquestionable conduct and recommending the meansby which a crime or fraud might be committed withimpunity.

Comment Eight:When a client's course of action has already

begun and is continuing, the lawyer's responsibility isespecially delicate. The lawyer may not reveal theclient's wrongdoing, except as permitted or requiredby Rule 1.05. However, the lawyer also must avoidfurthering the client's unlawful purpose, for example,by suggesting how it might be concealed. A lawyer d. Fees in General.may not continue assisting a client in conduct that thelawyer originally supposes is legally proper but thendiscovers is criminal or fraudulent. Withdrawal fromthe representation, therefore, may be required. SeeRule 1.15(a)(1).

ii. Some Case LawExamples:

a. A person commits an offense if he offers orconfers any benefit on a prospective witness to testify

fraudulent conduct. See Tarasoff v. Regents ofUniversity of California, 551 P.2d 334 (Cal. 1976).

A new rule in the State Bar Code which requiresinteraction:

(a) A lawyer shall keep a client reasonably informedabout the status of a matter and promptly complywith reasonable requests for information.

(b) A lawyer shall explain a matter to the extentreasonably necessary to permit the client to makeinformed decisions regarding the representation.

Comment Two expands on the rule:The guiding principle is that the lawyer should

reasonably fulfill client expectations for informationconsistent with the duty to act in the client's bestinterests, and the client's overall requirements as tothe character of representation.

Rule 1.04:(a) A lawyer shall not enter into an arrangement

for, charge, or collect an illegal fee or anunconscionable fee. A fee is unconscionable as acompetent lawyer could not form a reasonable beliefthat the fee is reasonable.

(b) Factors that may be considered in determiningthe reasonableness of a fee include, but not to theexclusion of other relevant factors, the following:


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(1) the time and labor required, the novelty and difficult to determine whether a particular fee isdifficulty of the questions involved and the skill unconscionable within the disciplinary test providedrequisite to perform the legal service properly; by paragraph (a) of this Rule. The first is the

(2) the likelihood, if apparent to the client, that the subjectivity of a number of the factors relied on toacceptance of the particular employment will determine the reasonableness of fees under paragraphpreclude other employment by the lawyer; (b). Because those factors do not permit more than

(3) the fee customarily charged in the locality for an approximation of a range of fees that might besimilar legal services; found reasonable in any given case, there is a

(4) the amount involved and the results obtained; corresponding degree of uncertainty in determining(5) the time limitations imposed by the client or by whether a given fee is unconscionable. Secondly, fee

the circumstances; arrangements normally are made at the outset of(6) the nature and length of the professional representation, a time when many uncertainties and

relationship with the client; contingencies exist, while claims of unconscionability(7) the experience, reputation, and ability of the are made in hindsight when the contingencies have

lawyer or lawyers performing the services; and been resolved.(8) whether the fee is fixed or contingent on

results obtained or uncertainty of collection before (1) Other Sources:the legal services have been rendered. Nte that the Code of Professional Responsibility

Other relevant provisions include: determining what is a reasonable fee, however, ABA(c) A lawyer shall not enter into an arrangement Defense Function, sec. 3.3(a) states that in " . . .

for, charge, or collect a contingent fee for determining the amount of the fee in a criminal caserepresenting a defendant in a criminal case. it is proper to consider . . . the capacity of the client

(d) A division or agreement for division of a fee to pay the fee." See Kershner v. State Bar of Texas,between lawyers who are not in the same firm shall 879 S.W.2d 343 (Tex. App.--Houston [14th Dist.]not be made unless: 1994), holding that a $2500 fee for three to five

(1) the division is: hours of legal work is clearly excessive.(i) in proportion to the professional services

performed by each lawyer; (2) Burden of Proof:(ii) made with a forwarding lawyer; or urden of proving that the fee is reasonable is on the(iii) made, by written agreement with the client, attorney. Nolan v. Foreman, 665 F.2d 738 (5th Cir.

with a lawyer who assumes joint responsibility for 1982).the representation;

(2) the client is advised of, and does not object to, ii. Fees Paid to Court-Appointedthe participation of all the lawyers involved; and Attorneys Under Art. 26.05.

(3) the aggregate fee does not violate paragraph . An attorney appointed to defend an indigent(a). defendant in a criminal case may accept partial fee(e) Paragraph (d) of this Rule does not prohibit from the family, as well as fee from the court, as longpayment to a former partner or associates pursuant to as full disclosure is made. Texas Bar Ethics Op. No.a separation or retirement agreement. 348 (Oct. 1969). For a full discussion of the issue of

i. Unconscionability of Fees. Comment, CourtAppointed Attorney: UnauthorizedObviously contingent fees and fee-splitting are the Solicitation of Fees from Indigent Client, The Journal

more important areas of coverage, but the vague of the Legal Profession 171 (1982). definition of "unconscionable fee" is covered again in b In setting a "reasonable" fee under art. 26.05, theComment Seven:

Two principal circumstances combine to make it

does not list the client's ability to pay as a factor in

collecting fees in a court appointed case, see

court may take into consideration time spent on legal



11

research and investigation outside of the courtroom.Attorney General Op. H909 (Dec. Dec. 14, 1976).In Williamson v. Vardeman, 674 F.2d 1211 (8th Cir. One of the major rules of the State Bar is Rule1982), the court held that it is a violation of an 1.05:attorney's Fourteenth Amendment due process rightsto require said attorney to pay expenses incurred in (a) "Confidential information" includes bothindigent defense and that the said payment constitutes "privileged information" and "unprivileged clienta "taking" of the attorney's property without just information." "Privileged information" refers to thecompensation. information of a client protected by the lawyer-client

c. Even in Texas, the client's consent is required privilege of Rule 503 of the Texas Rules of Evidencebefore a referral fee can be made. Old Rule, DR or of Rule 503 of the Texas Rules of Criminal2107(A) (1) expressly required the client's consent. Evidence or by the principles of attorney-clientSee also, Fleming v. Campbell, 537 S.W.2d 118 privilege governed by Rule 501 of the Federal rules(Tex. App.--Houston [14th Dist.] 1976, writ ref'd of Evidence for United States Courts andn.r.e.), holding that a referral fee contract was void Magistrates. "Unprivileged client information"and unenforceable because client had not been means all information relating to a client or furnishedinformed and had not consented. by the client, other than privileged information,

iii. Cash Fees. reason of the representation of the client.Cash fees in advance must be deposited into trust (b) Except as permitted by paragraphs (c) and

account. All fees paid in advance are not yet earned (d), or as required by paragraphs (e), and (f), aby definition. Consequently, unless a lawyer had lawyer shall not knowingly:collected some kind of non-refundable retainer, any (1) Reveal confidential information of a client or aand all advance fees must be deposited into a trust former client to:account and withdrawn periodically as earned. Until (i) a person that the client has instructed is not toearned, said advance fees belong to the client, and receive the information; orhence must be placed in a trust account. Texas State (ii) anyone else, other than the client, the client'sBar Op. No. 391 (Feb. 1978; April 1978). representatives, or the members, associates, orFurthermore, an attorney may not keep the money in employees of the lawyer's law firm.the trust account at interest and retain the interest (2) Use confidential information of a client to thehimself. Texas State Bar Op. No. 404 (June 30, disadvantage of the client unless the client consents1982). Note rule of criminal conduct on cash fees in after consultation.excess of $10,000. (IRS form '300). (3) Use confidential information of a former client

iv. Third Party Payment of representation is concluded unless the former clientFees consents after consultation or the confidential

The payment of a fee by a third party is not per se information has become generally known.prohibited, as long as no potential for conflict arises (4) Use privileged information of a client for thebetween the interests of the client and the party who advantage of the lawyer or of a third person, unlessis paying the fee. See Wood v. Georgia, 540 U.S. the client consents after consultation.261 (1981). In addition, the Texas Disciplinary (c) A lawyer may reveal confidential information:Rules of Professional Conduct require that: the client (1) When the lawyer has been expressly authorizedmust consent after consultation; there must be no to do so in order to carry out the representation.interference with the lawyer's independence of (2) When the client consents after consultation.professional judgment; and information relating to the (3) To the client, the client's representatives, or therepresentation of the client must remain confidential. members, associates, and employees of the lawyer'sRule 1.08(e). firm, except when otherwise instructed by the client.

e. Confidentiality.

acquired by the lawyer during the course of or by

to the disadvantage of the former client after the



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(4) When the lawyer has reason to believe it is Attorney and Client.necessary to do so in order to comply with a court (1) Definitions of Privilegedorder, a Texas Disciplinary Rules of Professional Communication.Conduct, or other law. The privilege applies only when the person

(5) To the extent reasonably necessary to enforce claiming the privilege has as a client consulted ana claim or establish a defense on behalf of the lawyer attorney for the purpose of securing a legal opinionin a controversy between the lawyer and the client. or services and not for the purpose of committing a

(6) To establish a defense to a criminal charge, crime or tort and in connection with that consultationcivil claim or disciplinary complaint against the has communicated information which was intendedlawyer or the lawyer's associates based upon conduct to be kept confidential. McCormick, EVIDENCE,involving the client or the representation of the client. Sec. 91 pp. 18788 (Cleary ed. 1972).

(7) When the lawyer has reason to believe it is Examples:necessary to do so in order to prevent the client from (1) The attorneyclient privilege prohibits thecommitting a criminal or fraudulent act. disclosure of the substance of communications made

(8) To the extent revelation reasonably appears in confidence by a client to his attorney for thenecessary to rectify the consequences of a client's purpose of obtaining legal advice. United States v.criminal or fraudulent act in the commission of which Pipkins, 528 F.2d 559 (5th Cir. 1974). the lawyer's services had been used. (2) The obligation of a lawyer to preserve the

(d) A lawyer also may reveal unprivileged client confidence and secrets of his client continues after theinformation: termination of his employment. Thus, a lawyer

(1) When impliedly authorized to do so in order to should not attempt to sell a law practice as a goingcarry out the representation. business because, among other reasons, to do so

(2) When the lawyer has reason to believe it is would involve the disclosure of confidences andnecessary to do so in order to: secrets.

(i) carry out the representation effectively;(ii) defend the lawyer or the lawyer's employees or (2) Tests of Confidentiality.

associates against a claim of wrongful conduct; (1) Evidentiary Test.(iii) respond to allegations in any proceeding (a) Federal.

concerning the lawyer's representation of the client; "A communication is protected by the attorneyclientor privilege and we hold today it is protected from

(iv) prove the services rendered to a client, or the government intrusion under the Sixth Amendment ifreasonable value thereof, or both, in an action against it is intended to remain confidential and was madeanother person or organization responsible for the under such circumstances that it was reasonablypayment of the fee for services rendered to the client. expected and understood to be confidential. Thus,

(e) When a lawyer has confidential information disclosure made in the presence of third parties mayclearly establishing that a client is likely to commit a not be intended or reasonably expected to remaincriminal or fraudulent act that is likely to result in confidential. United States v. Melvin, 650 F.2d 641death or substantial bodily harm to a person, the (5th Cir. 1981).lawyer shall reveal confidential information to the (b) State. extent revelation reasonably appears necessary to Rule 503(b) LawyerClient Privilege, Tex. Rules ofprevent the client from committing the criminal or Criminal Evidence Effective 9/1/86: "A client has afraudulent act. privilege to refuse to disclose and to prevent any

(f) A lawyer shall reveal confidential information other person from disclosing confidentialwhen required to do so by Rule 3.03(a)(2), 3.03(b), communications made for the purpose of facilitatingor by Rule 4.01(b). the rendition of professional level services to the

i. Communication Between representative and his lawyer or his lawyer'sclient and made: (1) between himself or his




13

representative, (2) between his lawyer and his defense, said privilege is waived if the psychiatristslawyers's representative, (3) by him or his employed by the defense takes the stand and therepresentative or his lawyer or representative of the notes made by the psychiatrist may becomelawyer to a lawyer, or a representative of a lawyer admissible as a part of the "recollection refreshed"representing another party in a pending action and rule. See concurring opinion by Judge Clinton inconcerning a matter of common interest therein, (4) Ballew v. State, 640 S.W.2d 237, 244 (Tex. Crim.between representatives of the clients or between the App. 1982). Subsequently, in Burnett v. State, 642client and a representative of the client or (5) among S.W.2d 765 (Ct. Crim. App. 1982) (en banc), thelawyers and their representatives representing the Court of Criminal Appeals unequivocally held that asame client. A client has a privilege to prevent the recording of a conversation with the defendant madelawyer or the lawyer's representative from disclosing by a hypnotist employed by defense counsel wasany other fact which came to the knowledge of the protected by the attorneyclient privilege fromlawyer or the lawyer's representative by reason of the discovery by the State. attorneyclient relationship." (f) Polygraph Operator. Brown v. Trigg 791 F.2d

See Pittsburgh Corning Corporation v. Caldwell, 598 (7th Cir. 1986)861 S.W.2d 423 (Tex. App.--Houston[14th Dist.] (2) Not all Disclosures to Third Persons1993), which holds that once it is established that a Result in Waiver.document contains confidential communication, (a) Federal.attorney-client privilege extends to the entire The rule of waiver does not apply if the thirddocument. Except in the rarest of circumstances, persons are associates or clerical staff of thedocuments falling within the attorney-client privilege attorney. Himmelfarb v. United States, 175 F.2dare not discoverable, even when interwoven with 924, 939 (9th Cir. 1949) cert. denied, 338 U.S. 860factual information. (1949).

(3) Agents of communications made in the presence of potentialAttorney. codefendants, codefendants or their counsel in

(1) In appropriate circumstances the privilege discussions of "team strategy." Continental Oil Co.may bar disclosures made by a client to nonlawyer v. United States, 330 F.2d 347, 350 (9th Cir. 1964);who had been employed as agents of an accused. Hunydee v. United States, 355 F.2d 183, 185 (9th

(a) Secretaries, file clerks, telephone operators Cir. 1965); In re LTV Securities Litigation, 89and messengers. United States v. Kovel, 296 F.2d F.R.D. 595, 604 (N.D. Tex. 1981).918 (2nd Cir. 1961); 8 Wigmore, Evidence, Sec. The rule of waiver does not apply if the privileged2301. communication is shared with a third person who has

(b) Law student, paralegal or investigator. a common legal interest with respect to the subjectDabney v. Investment Corp. of America, 82 F.R.D. matter of communication. Hodges, Grant &464 (E.D. Penn. 1979). Kaufman v. U.S. Government, Dept. of Treasury,

(c) Accountants. United States v. Kovel, supra. I.R.S., 768 F.2d 719 (5th Cir. 1985).See also, Parker v. Carnahan, 772 S.W.2d 151 (Tex. (b) Texas:App.--Texarkana 1989). The privilege does not apply to information that

(d) Interpreters. United States v. Kovel, the client intends his attorney to impart to others.supra. United States v. Pipkins, supra, at 563.

(e) Psychiatrist. United States v. Alverez, 519 Disclosure of privileged materials by a defendant'sF.2d 1036 (3d Cir. 1975). In a Texas case of first lawyer "standing alone" is not dispositive of the issueimpression, Ballew v. State, 640 S.W.2d 237 (Tex. of waiver and it does not create a "presumptive"Crim. App. 1982), the Texas Court of Criminal waiver Carmona v. State, 941 S.W.2d 949 (Tex. Cr.Appeals held that although the attorneyclient App. 1997)privilege extends to psychiatrists employed by the (3) Matters that Attorney May Reveal.

The rule of waiver does not apply in the case of











14

(a) Communications made by client in presence Haddad, 527 F.2d 537 (6th Cir. 1975), cert. den.,of third parties. United States v. Blackburn, 446 425 U.S. 974 (1976). In re Grand Jury ProceedingsF.2d 1089 (5th Cir. 1971). in the Matter of Pavlick, 680 F.2d 1026 (5th Cir.

(b) Identity of the client is not normally within 1982) en banc) the court held that an attorney couldthe privilege. Frank v. Tomlinson, 351 F.2d 384 (5th be required to disclose the identity of a client whoCir. 1965); In re Grand Jury Proceedings in Matter had paid legal fees for three drug smugglers, whereof Fine, 641 F.2d 199, 204 (5th Cir. 1981). Attorney the payment of the fees appeared to be part of aidentification of corporation later implicated in drug continuing drug smuggling conspiracy. In re Januarysmuggling activities was not privileged information; 1976 Grand Jury, 534 F.2d 719 (7th Cir. 1976), thethere is no connection shown between attorney's court held that the payment of a fee is not aestablishment of corporation for unnamed client and privileged communication since money itself isthat client's involvement, if any, in subsequent "nontestimonial."criminal activities). (g) The Fifth Circuit has held that work papers

Exceptions: Client's identity may be within the and tax records used by an attorney to prepare hisprivilege when revelation of the name will implicate client's tax returns are part of an accounting servicethe client in the criminal offense concerning which the and therefore do not come within the attorney-clientclient sought the attorney's legal advice. United privilege. United States v. Davis, 636 F.2d 1028,States v. Hodge and Zweig, 548 F.2d 1347 (9th Cir. 1043 (5th Cir. 1981), cert. denied, 454 U.S. 8621977 ). See also, Matter of Fine, supra at 204. (1981). See also, United States v. Cote, 456 F.2dLawyers hired to negotiate a plea on behalf of person 142 (8th Cir. 1972).who may have been involved in a fatal hit-and-runaccident cannot be compelled to reveal identity of (4) Other Considerations.client to parents of decedent in parents wrongful (1) It is a matter of common knowledge that thedeath action. Baltes v. Doe, 44 Crim. L. Rep. (BNA) normal operation of a law office exposes confidential2079 (Fla. Cir. Ct. 1988). professional information to non-lawyer employees of

(c) Fact that client visited with attorney at a the office, particularly secretaries and those havingcertain location at a certain time, e.g., State can force access to the files, and this obligates a lawyer toattorney to testify that client was in town on the day exercise care in selecting and training his employeesof the crime. Brasfield v. State, 600 S.W.2d 288 so that the sanctity of all confidences and secrets of(Tex. Crim. App. 1980). his client may be preserved. See generally, Former

(d) Attorney may be questioned as to their client's EC 4-5 and Former EC 4-6:whereabouts and whether they have had contact with (2) . . . a lawyer should be diligent in his efforts tothem. Matter of Grand Jury Subpoenas Served Upon prevent the misuse of such information by hisField, 408 F. Supp. 1169 (S.D.N.Y. 1976). employees and associates. Former EC 4-5.

(e) Attorneys may be questioned regarding (3) "The obligation of a lawyer to preserve thephysical characteristics of the client, such as confidences and secrets of his client continues aftercomplexion, demeanor, dress, (intoxication?). United the termination of his employment." Former EC 4-6.States v. Kendrick, 408 F. Supp 1169 (S.D.NY. (4) Procedural Aspects.1976). (a) Assertion of the privilege.

Exception: In Texas the attorney-client privilege i. Federal: The privilege belongs to the client, notprevents an attorney from testifying as to his the attorney, In re Grand Jury Proceedings, 517 F.2dimpressions of his client's mental capacity. See 666 (5th Cir. 1975); Wirtz v. Fowler, 372 F.2d 315,Pollard v. El Paso Nat'l Bank, 343 S.W.2d 909, 913 332, n. 37 (5th Cir. 1966). Cf., United States v.(Tex. Civ. App. 1961); Gulf Production Co. v. Ponder, 475 F.2d 37, 39 (5th Cir. 1973) (thoughColquitt, 25 S.W.2d 989 (Tex. Civ. App. 1930). Ponder court did not give this rule as a reason, it held

(f) As a general rule matters involving receipt of for other reasons that an attorney could not claim infees from a client are not privileged. United States v. response to IRS summons of his personal financial










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records that the number and size of the legal fees he S.W.2d 861 (Tex. Crim. App. 1980); Jackson v.had received from clients were confidential). But see, State, 516 S.W.2d 167 (Tex. Crim. App. 1974);Fisher v. United States, 425 U.S. 391 (1976) where Frost Nat'l Bank v. Mitchell, 362 S.W.2d 198 (Tex.the Court acknowledged that the privilege may be Crim. App. 1962); Hurley v. McMillan, 268 S.W.2draised by the attorney. 229 (Tex. Crim. App. 1954); Simmons Hardwareii. Texas: The attorney-client privilege is personal to Co. v. Kaufman, 8 S.W. 283 (1888); Flack's Adm'rthe client. Cruz v. State, 586 S.W.2d 861 (Tex. v. Neill, 26 Tex. 273 (1862).Crim. App. 1979); Burnett v. State, 642 S.W.2d 765(Tex. Crim. App. 1982). (5) Question of Law.

(b) Burden of Proof. (1) Federal: Existence of the privilege is for thei. Federal: The burden of proof to demonstrate an court to determine, without the intervention of a jury.

attorney-client relationship is on the person asserting Rule 104(a), F.R.Evid. the privilege. C. McCormick, Evidence, Sec. 88, p. (2) Texas: "The questions of privilege and waiver179 (Clery ed. 1972), cited in United States v. Kelly, . . . were for the trial court to determine and not for569 F.2d 928, 938 (5th Cir. 1978). Burden of proof the relator as a witness." Ex parte Lipscomb, 239to disprove waiver of privilege is also on party S.W. 1101, 1103 (Tex. 1922). claiming the privilege. Weil v. Investment/Indicators,Research and Management, Inc., 647 F.2d 18, 24 (6) Procedure for Federal(9th Cir. 1975). See also, VIII J. Wigmore, Evidence Judicial Review of Sec. 2292 p. 554 (McNaughton rev. 1961). AttorneyClient PrivilegeHowever, see Pavlick, infra: Claims in Summons and

Where the government makes a prima facia Subpoena Situations. showing that an agreement to furnish legal assistance An order enforcing an IRS summons under 26was part of a conspiracy, the crime or fraud U.S.C. Sec. 7602 is appealable. Claims of privilegeexception applies to deny a privilege to the identity of are ordinarily not heard at this stage, but such claimshim who foots the bill - and this even though he be a with respect to documents are permitted in the 5thclient of the attorney and the attorney is unaware of Circuit. United States v. Davis, 636 F.2d 1028,the improper arrangement. Such an arrangement, of 1039 (5th Cir. 1981).course, need only be an effective one, need not be An order enforcing a grand jury subpoena orexpressed, and might in a proper case be found to compelling testimony is not appealable. In re Grandarise. In re Grand Jury Proceedings in the Matter of Jury Proceedings (Fine), 641 F.2d 199, 201 (5th Cir.Pavlick, 680 F.2d 1026 (5th Cir. 1982). 1981).

It seems that even cursory investigations by inside Claims of privilege are usually litigated atcounsel may be subject to the crime-fraud exception. contempt proceedings for refusal to testify and theFor example, where corporate counsel communicated most common method of review of such orders is bywith employees regarding their immigration status appeal of the contempt order. United States v. Ryan,while they were not authorized to work in the United 402 U.S. 530, 533, 91 S.Ct. 1580, 29 L.Ed. 85States; these mere communications were held to be (1971).Ain furtherance@ of criminal activity. Therefore the Attorney/client privilege and Fifth Amendment doCourt held that the communications were subject to not bar government deposition of attorney as adisclosure under the crime fraud exception. In re: witness in a property forfeiture. U.S. V. Saccoccia,Grand Jury Proceedings (Appeal of the Corporation) 57 Cal. 1587 (8/28/95)..87 F.3d 377 (9 Cir. 1996) The 5th Circuit recognizes a unique procedure forth

ii. Texas: The party claiming the existence of the judicial review of privilege claims where the attorneyprivilege must show that the confidential is unwilling to risk contempt. In such cases, thecommunication was made when the relation of anonymous 3rd party client the real person interestedattorney and client in fact existed. Cruz v.State, 586 in claiming the privilege may intervene in the














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enforcement proceedings. The order of enforcement violation of this Rule, or if multiple representationis immediately appealable by the clientintervenor. In properly accepted becomes improper under this Rule,re Grand Jury Proceedings in Matter of Fine, supra, the lawyer shall promptly withdraw from one or moreat 201202. representations to the extent necessary for any

Of course, the aggrieved client can always move remaining representation not to be in violation ofat his subsequent trial for exclusion of any evidence these Rules.obtained in violation of his statutory or (f) If a lawyer would be prohibited by this Ruleconstitutional rights. United States v. Ryan, supra, from engaging in particular conduct, no other lawyerat 532, n. 3. while a member or associated with that lawyer's firm

f. Conflicts of Interest: General Comment Two elaborates on loyalty:Rules. A fundamental principle recognized by paragraph

This rule adopts the language of Rule 1.7 of the ABAModel Rules of Professional Conduct.

Rule 1.06 Conflict of Interest: General Rule.

(a) A lawyer shall not represent opposing partiesto the same litigation.

(b) In other situations and except to the extentpermitted by paragraph (c), a lawyer shall notrepresent a person if the representation of thatperson:

(1) involves a substantially related matter inwhich that person's interests are materially anddirectly adverse to the interests of another client ofthe lawyer or the lawyer's firm; or

(2) reasonably appears to be or become adverselylimited by the lawyer's or law firm's responsibilitiesto another client or to a third person or by thelawyer's or law firm's own interests.

(c) A lawyer may represent a client in thecircumstances described in (b) if:

(1) the lawyer reasonably believes therepresentation of each client will not be materiallyaffected; and

(2) each affected or potentially affected clientconsents to such representation after full disclosureof the extent, nature, implications, and possibleadverse consequences of the common representationand the advantages involved, if any.

(d) A lawyer who has represented multiple partiesin a matter shall not thereafter represent any of suchparties in a dispute among the parties arising out ofthe matter, unless prior consent is obtained from allsuch parties to the dispute.

(e) If a lawyer has accepted representation in

may engage in that conduct.

(a) is that a lawyer may not represent opposingparties in litigation. The term "opposing parties" asused in this Rule contemplates a situation where ajudgment favorable to one of the parties will directlyimpact unfavorably upon the other party. Moreover,as a general proposition loyalty to a client prohibitsundertaking representation directly adverse to therepresentation of that client in a substantially relatedmatter unless that client's fully informed consent isobtained and unless the lawyer reasonably believesthat the lawyer's representation will be reasonablyprotective of that client's interests. Paragraphs (b)and (c) express that general concept.

i. Representing CoDefendantsWhere There is a Conflict ofInterest is a Violation of theRight to Effective Assistance ofCounsel Guaranteed by the SixthAmendment.

a. The mere fact that one lawyer represents morethan one codefendant does not automatically establisha conflict of interest. Burger v. Kemp, 483 U.S.776(1987). However, in a capital murder case sincethe procedure for imposing the death penalty focuseson subjective considerations of the individualoffender, representing codefendants in such a casehas been held to be per se ineffective counsel by theCalifornia Supreme Court in People v. Chacon, 73Cal. Rptr. 10, 447 P.2d 106 (S.Ct. Cal. 1968), andthe Texas Court of Criminal Appeals in Ex parteMcCormick, 645 S.W.2d 801, 806 (Ct. Crim. App.1983) (en banc) has strongly suggested that it may,itself, also hold at the next opportunity.

b. Most courts utilize the "substantial



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relationship test" In resolving conflict of interest CrL 1056 (1955).issues relating to former clients. In Duncan v. d. However, trial of a defendant without adequateMerrill Lynch, Pierce, Fenner & Smith, Inc., 646 representation by counsel is fundamentally unfair andF.2d 1020 (5th Cir. 1981), cert. denied, 454 U.S. the requisite government involvement for Fourteenth895, 102 S.Ct. 394 (1981), the Court held: Amendment purposes is present whether or not the

Thus, to disqualify his former counsel, the moving responsible governmental official is aware of theparty must prove not only the existence of prior conflict. Stephens v. United States, 595 F.2d 1066,attorney-client relationship but also that there is a 1069 (5th Cir. 1979); Cuyler v. Sullivan, 446 U.S.genuine threat that confidences revealed to his former 335 (1980). counsel will be divulged to his present adversary. e. In order to establish a violation of the SixthThe party seeking disqualification is not required, Amendment, a defendant who raised no objection athowever, to point to specific confidences revealed to trial must demonstrate that an actual conflict ofhis former attorney that are relevant to the pending interest adversely affected his lawyer's performance.case. Instead, he "need only to show that the matters Cuyler v. Sullivan, supra; Gonzalez v. States, 605embraced within the pending suit are substantially S.W.2d 278, 282 (Tex. Crim. App. 1980); Ex parterelated to the matters or cause of action wherein the Parham, 611 S.W.2d 103 (Tex. Crim. App. 1981)attorney previously represented him." Wilson P. (en banc); Slater v. State, 646 S.W.2d 528, 531Abraham Const. Corp. v. Armco Steel Corp., 559 (Tex.App. 1 Dist. 1982); Simons v. State, 805F.2d 250, 252 (5th Cir. 1977); In re Yarn S.W.2d 519, 521 (Tex. App.--Waco 1991). Processing Patent Validity Litigation, 530 F.2d 83, f. Once the defendant demonstrates that his89 (5th Cir. 1976); T.C. Theater Corp. v. Warner counsel had a conflict of interest and that saidBros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y. conflict adversely affected the lawyer's performance,1953). he need not demonstrate any specific prejudice to

Party seeking disqualification of opposing counsel obtain relief. Cuyler, supra; Gonzalez, supra; Exbears the burden of proving "substantial parte Parham, supra; Calloway v. State, 699 S.W.2drelationship". Once established, the court will 824 (Tex. Crim. App. 1985).irrebuttably presume that relevant confidential g. The Sixth Amendment may arise from conductinformation was disclosed. In re American Airlines, of the governments attorneys.The defendant=s caseInc., AMR, 972 F.2d 605 (5th Cir. 1992). Denial of was remanded for an evidentiary hearing in U.S. v.a motion to disqualify is not an appealable collateral Amlani, 111 F.3d 705 (9 Cir. 1997) when theorder, and the standard of review on appeal is abuse prosecutor repeatedly made disparaging remarksof discretion. In re Dresser Industries, Inc., 972 F.2d about the defendant=s counsel in front of him. The540 (5th Cir. 1992). See also Insurance Co. of prosecutor allegedly made statements to theNorth America v. Westcapden, 794 S.W.2d 812 defendant and his wife that his defense counsel did(Tex. App.--Corpus Christi 1990); NCNB Texas not care about him, was incompetent, and could notNational Bank v. Coker, 763 S.W.2d 398 (Tex. prevent the defendant=s conviction. The Court held1989). that if the prosecutor truly made these statements to

c. Nothing in the Sixth Amendment requires trial the defendant and the defendant acting on thosecourts, themselves, to initiate inquiry into the comments retained different counsel for trial then thispropriety of multiple representation. Absent special conduct constituted a violation of the defendant=scircumstances, trial courts may assume either that Sixth Amendment right and the defendant=smultiple representation entails no conflict or that the conviction should be vacated.lawyer and his clients knowingly accepted such riskof conflict. Cuyler v. Sullivan, 446 U.S. 335, 100 ii. Examples:S.Ct. 1708 (1980). Limitation: Conflict between a. A and B, codefendants to murder,lawyer=s personal interests and those of client may represented by same courtappointed lawyer.not be as clear. See Beets v. Collins, 5th Cir., 58 Testimony developed that B may have perpetrated the

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actual killing, but the lawyer was prevented from county prosecutor's office, the issue of whether aexploiting that testimony to mitigate A's case, prosecutor must recuse himself if he somehow wasbecause the more he mitigated A's case, the harsher involved in the defense of the accused before hisB's case appeared. Under these circumstances the employment with the District Attorney's Office,prejudice was obvious and the case was reversed. arises in an en banc decision of the Court of CriminalFoxworth v. Wainwright, 516 F.2d 1072 (5th Cir. Appeals, State ex rel. Eidson v. Edwards, 7931975); Ex parte Parham, 611 S.W.2d 103 (Tex. S.W.2d 1 (Tx. Crim. App. 1990). Crim. App. 1981) (en banc). In that case, the judge of the 104th District Court

b. Where trial counsel represents all parties of Taylor County, Texas, disqualified the entirecharged with joint possession of a large quantity of District Attorney's Office "to avoid the appearance ofmarijuana and trial counsel puts one of said parties impropriety." The trial court judge felt this was aon the witness stand and elicits testimony that proper response in light of the fact that an Abileneinculpates other defendants likewise represented by attorney, who was appointed by the trial judge tosaid counsel, there is both a conflict of interest and a represent the defendant in several cases, and did soshowing that said conflict adversely affected the for several months until the attorney was appointedlawyer's performance and the case is reversed. judge of the County Court at Law No. 2 of TaylorGonzalez v. State, 605 S.W.2d 278 (Tex. Crim. App. County, withdrew from representing Clayton and1980). later resigned being judge and then became employed

c. Where defendant's attorney concurrently by Eidson as an assistant district attorney.represents a prosecution witness at trial, or whereattorney has previously represented such witness onother occasions, there is a conflict of interest and ashowing that said conflict adversely affectsperformance. United States v. Martinez, 630 F.2d361 (5th Cir. 1980).

iii. Other Examples:a. County attorney's disqualification to defend

criminal cases extends to his partners and associatesin all courts throughout the state whether privatelyemployed or court appointed. Tex. Op. No. 323(Oct. 1966).

b. Where an attorney is a city judge and also amember of a law firm, it would be improper for himor another member of his firm:

(1) To represent civil litigants in a suit ancillaryto criminal proceedings determined by him in hiscapacity as a city judge.

(2) To represent defendants in a criminal actionin another court where the arresting officers are citypolicemen.

(3) To represent Civil Service employees of thecity at hearings before the Civil Service Commissionof the city.

(4) To represent defendants convicted in the citycourt upon appeal to a higher court.

(5) In the context of a small or medium-sized

The issue was whether the trial judge wasauthorized to grant the motion to disqualify Eidsonand his entire staff from prosecuting the defendant.The Texas Court of Criminal Appeals felt that bypreventing the Taylor County District Attorney andhis entire staff from participating in the prosecution,the trial court had constructively removed the DistrictAttorney from his elected office with respect to thatparticular case. The court felt that only undernarrow, statutorily defined circumstances may a trialcourt remove a district attorney and his office. "Ifthere is a conflict of interest on the part of the districtattorney or his assistants, however, the responsibilityof recusal lies with them, not with the trial courtjudge." Id. at 6. The Court of Criminal Appealsgoes on to note that they are not in any way sayingthat Texas prosecutors are immune from the Code ofProfessional Responsibility. They distinguish inFootnote No. 6 at Page 6 that "[T]here is quite adifference in the relationship between lawyersworking in private law firms and lawyersrepresenting the State." The American BarAssociation Committee of Professional Ethicsrecognizes that:

[T]here are substantial reasons against treating theState as a private enterprise. The Committee hasruled that other Government lawyers should not bedisqualified from handling matters in which an







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associate was involved in his or her former private See the facts of Eidson, 793 S.W.2d at 3.practice. The Committee concluded that when an The Court does not wish to imply that a defendantindividual attorney is separated from any would be left without recourse if the prosecution'sparticipation in matters affecting his former client, failure to recuse itself violated his due process rights.the vicarious disqualification of a Government If, for example, a prosecutor who had previouslydepartment is not necessary or wise. represented a defendant, later personally prosecuted

Id. the defendant in the same matter, the defendant'sSeveral useful points are raised in the Eidson conviction would violate the Fourteenth Amendment

dissent beginning at Page 7. Beginning with an of the United States Constitution and Article I,analyzation of the difference between disqualifyingand removing an office or a particular lawyer, andalso touching on a point hinted at during the caseopinion, but not fully discussed: to wit, ChineseWalls.

iv. "Chinese Walls"A "Chinese Wall" is a device erected by a law

firm intended to "quarantine" a new member withconfidential information received from an adversaryof one of the firm's clients. On the civil side of Texaslaw lies an important case, Petroleum Wholesale, Inc.v. Marshall, 751 S.W.2d 295 (Tex.App.-- Dallas,1988, no writ). The facts of the case are succinctlysummarized in the concurrence of Wadley BloodBank v. Morris, 776 S.W.2d 271, 284(Tex.App.--Dallas 1989, no writ):

If during the course of the same litigation, LawyerI (the lawyer complained about) departs from Firm I,which is involved in the representation of Client I (theoffended party), and if Lawyer I then affiliates withFirm II (the firm sought to be disqualified), which isinvolved in the representation of Client II (adversaryin the same litigation), the mere affiliation betweenLawyer I and Firm II acts as an automaticdisqualification of Firm II to participate in thelitigation. A "Chinese Wall" between Lawyer I andFirm II will not remedy the situation. The reason:the rule or policy against dual representation hasbeen breached. Public policy forbids the relationship.

Most Texas cases have consistently taken theposition that Chinese Walls will not be recognized.It seems, however, that in the criminal law context,after the Eidson case that if the new prosecutor doesnot discuss the case with anyone else in the office andno one is allowed to discuss it in his presence, thatthis lack of participation equals a "Chinese Wall"sufficient to block off the appearance of impropriety.

Section 19 of the Texas Constitution.Id. at 6. See also, Indust. Accident Bd. v. Spears,

790 S.W.2d 55 (Tex.App.--San Antonio 1990,n.w.h.). Turbin v. Navajo County Superior Court,797 P.2d 734 (Ariz.App. 1990); 48 Crim. L. Rep.(BNA) 1076.

It would be improper for the attorney to hear casesas city judge where the party involved is or has beena client of the firm. Tex. Op. No. 116 (Sept. 1955).It is improper for an attorney who is mayor ormember of the city council to practice in municipalcourt or to represent defendants in criminal casesinitiated by police from the city where the attorneyholds office. Tex. Bar Comm. Op. No. 382 (1975).Query: What about county commissioners in countycourt or representing defendants in cases made by thesheriff's office?

c. Conflict of interest where defense attorneycarries on covert intimate relationship withDefendant's wife during murder trial. California v.Singer, 48 Crim. L. Rep. (BNA) 1350 (1990).

d. Classic conflict where defense counselrepresents both the defendant and the defendant's wifewho is the beneficiary of the victim's life insurancepolicy. McConico v. Alabama, 932 F.2d 1543 (11thCir. 1990), 48 Crim. L. Rep. (BNA) 1341.

e. Conflict created by non-attorney (staffmember). Occidental Chemical Corp. v. Brown, 877S.W.2d 27 (Tex. App.--Corpus Christi 1994).

f. District Attorney can prosecute a criminalcase where an Assistant D.A. is the complainant andfact witness. Stanley v. State, 880 S.W.2d 219 (Tex.App.--Ft. Worth 1994).

g. Client who gives attorney a bad check orstolen goods does not create a conflict of interest perse so as to cvoid a plea. DeLoro v. State, 712S.W.2d 805 (Tex. App.--Houston[1st Dist.] 1986).




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v. Potential Conflict of 1980); Pete v. State, 533 S.W.2d 808 (Tex. Crim.Interest Can Be Waived App. 1976). Where, however, an attorney or theBy CoDefendants. client timely objects to multiple or successive

If each client consents to the representation after representation a state trial judge must make anfull disclosure of the possible effect of such inquiry into the existence of any such conflict andrepresentation on the exercise of the lawyer's take appropriate measures to ensure that effectiveindependent and professional judgment on behalf of assistance of counsel is not impaired due to an actualeach client, then the lawyer may represent the conflict. Holloway v. Arkansas, 435 U.S. 475, 482multiple parties to the offense. Old DR 5105(C). (1978); Cuyler v. Sullivan, supra.

The Texas Court of Criminal Appeals has held An actual conflict exists if "counsel's introductionthat the right to conflictfree counsel may be waived, of probative evidence or plausible arguments thatif done so knowingly and voluntarily. Ex parte would significantly benefit one defendant wouldPrejean, 625 S.W.2d 731 (Tex. Crim. App. 1981); damage the defense of another defendant whom theJuarez v. State, 677 S.W.2d 285 (Tex.App. 1 Dist. same counsel is representing." Baty v. Balkcom, 6611984). The waiver of the right to conflictfree counsel F.2d 391, 395 (5th Cir. 1981). See also, Annotation,should include a showing that the defendant is aware Multiple Representation of Defendants in Criminalof the conflict of interest, realizes the consequences Cases as Violative of the ixth Amendment Right toof continuing with said counsel, and is aware of his Counsel Federal Cases, 65 L.Ed.2d 907983 (1980).right to obtain other counsel. Id. The Texas Courts have held that an actual and

Consider the example of several police officers significant conflict of interest exists where "onecharged with numerous illegal acts and all defendant stands to gain significantly by counselrepresented by the same attorney. Trial judge refused adducing probative evidence or advancing plausibleto proceed, feeling that there was a conflict between arguments that are damaging to the cause of athe interests of the several defendants. Defendants codefendant whom counsel is also representing."insisted on being represented by the same attorney. Ferguson v. State, 639 S.W.2d 307 (Tex. Crim. App.Held: Reversed. "If defendants may dispense with 1982); Amaya v. State, 677 S.W.2d 159, 162 (Tex.the right to be represented by counsel altogether . . . App. 1 Dist. 1984).it would seem that they may waive the right to havetheir retained counsel free from conflicts of (2) Federal Courtsinterests." United States v. Garcia, 517 F.2d 272 Although the constitutional considerations stated(5th Cir. 1975). above are fully applicable to federal courts, the

vi. Procedure in Trial Courts. federal trial judges to ensure that defendants are(1) State Courts afforded conflictfree counsel. See Notes of Advisory

Unless a state trial judge knows or reasonably Committee on Rules, 1979. That duty was codifiedshould know that a particular conflict exists, cf. in 1979 in Rule 44(c), Federal Rules of CriminalWood v. Georgia, 450 U.S. 261, 272 (1981), the Procedure, which states:federal constitution does not require a state trial judge Joint Representation. Whenever two or moreto sua sponte inquire into the existence of any defendants have been jointly charged pursuant topotential or actual conflicts due to multiple or Rule 8(b) or have been joined for trial pursuant tosuccessive representation. Cuyler v. Sullivan, 446 Rule 13, and are represented by the same retained orU.S. 335, 34647 (1980); Calloway v. State, 699 assigned counsel or by retained or assigned counselS.W.2d 824 (1985). The Texas Courts have who are associated in the practice of law, the courtrepeatedly held that trial counsel was the primary shall promptly inquire with respect to such jointresponsibility for advising the prospective clients of representation and shall personally advise eachpossible conflicts of interests in their positions. defendant of his right to the effective assistance ofGonzalez v. State, 605 S.W.2d 278 (Tex. Crim. App. counsel, including separate representation. Unless it

federal courts have historically placed a duty upon










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appears that there is good cause to believe no conflict Counsel, 20 AM. Crim. L. Rev. 227 (1982)of interest is likely to arise, the court shall take such (hereinafter cited as M&C, supra). Themeasures as may be appropriate to protect each Government's attempts have occurred during granddefendant's right to counsel. jury investigations. See e.g., In re Gopman, 531

The Fifth as well as the Fourth and Eleventh F.2d 262 (5th Cir. 1976); In re Grand Jury, 536 F.2dCircuits have held that even where a trial court fails 1009 (3rd Cir. 1976); and cases cited at M&C, suprato comply fully with the mandate of Rule 44(c), a at 234 n. 37 and accompanying text. Thedefendant must still demonstrate an actual conflict of Government's attempts have also occurred afterinterest before an alleged Sixth Amendment violation indictment but prior to trial. See e.g., United Stateswill result in a reversal. See United States v. Arias, v. Garcia, 517 F.2d 272 (5th Cir. 1975); United678 F.2d 1202, 1205 (4th Cir. 1982), cert. denied, States v. Mahar, 550 F.2d 1005 (5th Cir. 1977);459 U.S. 910, 103 S.Ct. 218 (1983); United States v. United States v. Agosto, 675 F.2d 965 (8th Cir.Benavidez, 664 F.2d 1255, 125859 (5th, Cir), cert. 1982). denied, 457 U.S. 1121 (1982), United States v. While Rule 44(c), discussed above, certainlyAlvarez, 696 F.2d 1307, 130910 (11th Cir.), cert. applies to a postindictment, pretrial situation, therebydenied, 461 U.S. 907, 103 S. Ct. 1878 (1983). mandating that trial courts make appropriateThese opinions recognize that the inquiry and advice inquiries into the existence of conflicts of interest, itprovided for by Rule 44(c) are not ends in is not clear that Rule 44(c) applies to grand jurythemselves, but a procedure designed to prevent proceedings. Yet, the absence of specific statutoryconflicts of interest. This interpretation of Rule 44(c) authority under Rule 44(c) has not deterredis consistent with Holloway, supra and Cuyler, prosecutors or the courts from disqualifying defensesupra. However, see Cole v. White, 376 S.E.2d 599, counsel who attempt to represent witnesses or44 Crim. L. Rep. (BNA) 2350 (1989) where West targets summoned before grand juries. In reVirginia Appellate Court in interpreting their state's Gopman, supra, illustrates the problem. There, theRule 44(c) equivalent held that the trial court's failure Fifth Circuit held that, based on alleged conflicts ofto give warnings about joint representation requires interest, the government had standing to move toa new trial if conflict "likely" existed. disqualify an attorney who represented certain labor

The most important issues embodied within Rule unions and official of those unions who were44(c) are: (1) what action the trial court can take to summoned before the grand jury. The Fifth Circuitprotect each defendant's right to counsel; and (2) also held that federal district judges have jurisdictionwhether the Government can initiate a Rule 44(C) to consider governmental motions to disqualify. Thehearing. The answers to these issues are discussed Fifth Circuit went on to uphold the district court'sbelow in connection with disqualification of defense order disqualifying the attorney and noted that thecounsel. attorney "had placed himself in a situation where

vii. Disqualification of judgment." Id. at 267. The Court noted theDefense Counsel importance of a client's sixth Amendment right to(1) Federal counsel of his choice, but added that it must yield to

Prosecutor's an overriding public interest. Id. at 268. The CourtMotions To concluded by stating:Disqualify "We hold only that the public interest in a properlyDefense Counsel. functioning judicial system must be allowed to

The Federal Government has embarked upon a prevail in the case presently before us. Appellant hadcourse of conduct designed to thwart a client's placed himself in a clear conflict situation fromconstitutional right to counsel and his right to waive which the district court had the duty to rescue bothhis right to conflictfree counsel. See Margolin & the lawyer and his clients."Culver, Pretrial Disqualification of Criminal Defense Id. at 268.

conflicting loyalties could affect his professional













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While there may be logic to the Gopman analysis, unresolved. Although the Supreme Court has heldit is difficult to reconcile that analysis with the Sixth that there is no right to appeal an order denying aAmendment right to counsel and the right to waive motion for disqualification in a civil case, pursuant toconflictfree counsel. 28 U.S.C. sec. 1291, Firestone Tire & Rubber Co. v.

In the context of postindictment, pretrial motions Risjord, 449 U.S. 368 (1981), the Court declined toto disqualify, a defendant's waiver of conflictfree express any view on the appealability of such ancounsel and his right to counsel of his choice should order in a criminal case. Firestone, supra at 372 n.prevail. In the context of grand jury investigations, 8. See also In re Dresser Industries, supra. however, a witness has no Fifth or Sixth Amendmentright to counsel. See e.g., Miranda v. Arizona, 384 viii. Tactical Considerations: U.S 436 (1966); Kirby v. Illinois, 406 U.S. 682 Evaluation of Facts.(1977). Thus, since it is impossible to waive a right a. Do the facts permit the attorney to fashion ayou do not possess, logically a witness should not consistent defense for both potential clients?rely upon a waiver of the right to conflict-free If not, no multiple representation should becounsel as a device to overcome a motion to attempted. United States v. Marshall, 488 F.2d 1169disqualify his counsel at the grand jury. See Rule (9th Cir. 1973) (Retained attorney represented D144(c), Federal Rules of Criminal Procedure. and D2 in a conspiracy to distribute amphetamine

b. Consistent with the Sixth Amendment, a prosecution. D1's only possible defense wasDistrict Court has great latitude in refusing waivers entrapment, and attorney pursued this line.of conflict of interest not only in cases where actual Entrapment unavailable to D2 since he never dealtconflict is demonstrated, but also where potential with law enforcement personnel. Held: D2 hadconflict may burgeon into actual conflict as the trial ineffective counsel).progresses. Wheat v. U.S. 108 S. CT. 1692 (1988). b. Do the facts suggest possible inconsistentHowever, state constitutions may be used to grant defenses? greater rights than the U.S. Constitution, and may (1) If not, multiple retainer is possible. Courtneylimit the trial court's power to disqualify counsel v. United States, 486 F.2d 1108 (9th Cir. 1973)because of conflict. Alcocer v. Superior Court, 206 (Retained attorney represented D1 and D2 inCal. App. 3d 951, 254 Cal. Rptr. 72 (Cal. App. 2 obstruction of justice prosecution. Both testified asDist. 1988), 44 Crim. L. Rep. (BNA) 2284. to same facts regarding discussions with complaining

c. A government's motion for disqualification of witness); United States v. Valenzuela, 521 F.2d 414defense counsel may not be grounded on appearance (8th Cir. 1975) (Retained attorney represented D1of impropriety. A showing of an actual conflict of and D2 in possession of stolen property prosecution.interest is required. U.S. v. Washington, 797 F.2d Both relied on alibi defenses).1461 (9th Cir. 1986); McFarlan v. District Court, (2) If facts suggest possible inconsistent and718 P.2d 247 (Colo. 1986). consistent defenses, relative strengths of each must be

d. Appealability of Motions To Disqualify evaluated.Defense Counsel.

As of February 21, 1984 an order disqualifying a ix. Tactical Considerations: Trialdefense attorney from representing a witness or target Tacticsbefore the grand jury or from representing a a. Will the attorney be able to adequately examinedefendant under indictment is not immediately all witnesses on behalf of both clients?appealable under 28 U.S.C. sec. 1291. Flanagan v. (1) U. S. ex rel. Horta v. DeYoung, 523 F.2d 807United States, 104 S.Ct. 1051 (1984). Flanagan (3rd Cir. 1975) (Retained attorney represented D1D3resolved the prior conflict among the circuits as to in an unlawful lottery prosecution. Governmentthis issue. witnesses testified males were present at lottery

The issue of whether the government may appeal operation. Held: Counsel ineffective as to D3, aa denial of a motion for disqualification is still female. Counsel failed to pursue distinction with






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witnesses and failed to ask for cautionary (b) A lawyer shall not prepare an instrument givinginstructions). the lawyer or a person related to the lawyer as a

(2) Foxworth v. Wainwright, 516 F.2d 1072 (5th parent, child, sibling, or spouse any substantial giftCir. 1975) (Appointed counsel represented D1 and from a client, including a testamentary gift, exceptD2 in murder prosecution. Government medical where the client is related to the donee.witness suggested victim died from beating. D2 was (c) Prior to the conclusion of all aspects of thenot involved in beating victim. Motives established matter giving rise to the lawyer's employment, afor D1 and another defendant only. Held: Counsel lawyer shall not make or negotiate an agreement withineffective as to D2. Counsel failed to pursue a client, prospective client, or former client giving thedistinction). lawyer literary or media rights to a portrayal orb. Will the attorney be able to effectively respond to account based in substantial part on informationevents during course of trial? relating to the representation.

(1) Larry Buffalo Chief v. State of South Dakota, (d) A lawyer shall not provide financial assistance425 F.2d 271 (8th Cir. 1970) (Retained attorney to a client in connection with pending orrepresented D1 and D2 in murder prosecution. contemplated litigation or administrative proceedings,Unanticipated testimony of only disinterested witness except that:failed to identify assailants as wearing light colored (1) a lawyer may advance or guarantee court costs,shirts. D2 wore dark long sleeved coat. Court expenses of litigation or administrative proceedings,effectively returned case to state court to clarify a and reasonably necessary medical and livingconfused record). expenses, the repayment of which may be contingent

(2) Craig v. United States, 217 F.2d 355 (6th Cir. on the outcome of the matter; and1957) (Retained counsel represented D1 and D2 in (2) a lawyer representing an indigent client maytax fraud prosecution. No apparent conflict when pay court costs and expenses of litigation on behalftrial began. Government witnesses testified about of the client.some transactions with D1 which occurred prior to (e) A lawyer shall not accept compensation forD2's involvement. Counsel failed to pursue the representing a client from one other than the clientdistinction. Held: Counsel ineffective as to D2). unless:

g. Conflicts of Interest: ProhibitedTransactions

There are many areas that a Texas lawyer must client-lawyer relationship; and avoid, and they are set out in State Bar Rule 1.08. (3) information relating to representation of a clientTexas is stricter than the ABA model rules 1.8(d) is protected as required by Rule 1.05.regarding literary rights, but more expansive on (f) A lawyer who represents two or more clientsadvanced litigation costs [1.8(e) ABA]. But, this shall not participate in making an aggregatenew version reflects the old DR 5-104 generally. settlement of the claims of or against the clients, or inNote prohibition of aggregate pleas in Section f. a criminal case an aggregate agreement to guilty or

(a) A lawyer shall not enter into a business nolo contendere pleas, unless each client hastransaction with a client unless: consented after consultation, including disclosure of

(1) the transaction and terms on which the lawyer the existence and nature of all the claims or pleasacquires the interest are fair and reasonable to the involved and of the nature and extent of theclient and are fully disclosed in a manner which can participation of each person in the settlement.be reasonably understood by the client; (g) A lawyer shall not make an agreement

(2) the client is given a reasonable opportunity to prospectively limiting the lawyer's liability to a clientseek the advice of independent counsel in the for malpractice unless permitted by law and the clienttransaction; and is independently represented in making the

(3) the client consents in writing thereto. agreement, or settle a claim for such liability with an

(1) the client consents;(2) there is no interference with the lawyer's

independence of professional judgment or with the





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unrepresented client or former client without first has made demand for payment exists in this statesadvising that person in writing that independent subject to above limitation. Tx. Ethics Op. No. 411representation is appropriate in connection therewith. Jan. 84 Tx. Bar J. p. 47. See also, Sales, Client Files

(h) A lawyer shall not acquire a proprietary and Attorney's Liens: The rule in Texas, Tx. Bar J.interest in the cause of action or subject matter of p. 510 May 1984.litigation the lawyer is conducting for a client, exceptthat the lawyer may: ii. Prior Representation as a

(1) acquire a lien granted by law to secure the Conflictlawyer's fee or expenses, and What to do when the government witness against

(2) contract in a civil case with a client for a your client is a former client? "Substantialcontingent fee that is permissible under Rule 1.04. relationship test:, i.e., is the matter on trial so

(i) If a lawyer would be prohibited by this Rule substantially related to the prior representation thatfrom engaging in particular conduct, no other lawyer there is a conflict because there is no chance thatwhile a member of or associated with that lawyer's information gained through one relationship wouldfirm may engage in that conduct. not be used in the new relationship.

(j) As used in this Rule, "business transactions" See Duncan v. Merrill, Lynch, Etc. 646 F.2d 1020does not include standard commercial transactions (5th Cir. 1981); Wheat v. United States, 108 S.Ct.between the lawyer and the client for products or 1692 (1988). Actual transfer of attorney/clientservices that the client generally markets to others. information that could be used to the detriment of the

A lawyer shall not acquire an interest in former client. United States v. Agosto, 675 F.2d 965publication rights prior to conclusion of the case. (8th Cir. 1982). What about if a partner or associateCase remanded to investigate allegation that lawyer is the one who participated in the prioracquired interest in right to publish books, plays, or representation? United States v. Varca, 896 F.2dmovies about the case in question. Such financial 900 (5th Cir. 1990). See also Davis v. Stansbury,interest may cause the attorney to deliberately 824 S.W.2d 278 (Tex. App.--Houston[1st Dist.]compromise the client's interest in order to further the 1992).financial success of the books, plays, or movies.Defendant contends that his attorney "forced" him toplead guilty so that the "full story" could be released The State Bar has adopted a new rule for areas offor the first time in a movie instead of in the group representation such as banks and corporations.courtroom. Ray v. Rose, 491 F.2d 285 (6th Cir. Remedial actions should first be taken within the1974); U.S. v. Hearst, 638 F.2d 1190 (9th Cir. organization (cf., Rule 1.12(b) & (c).1980).

i. Rule 1.08(h) Retaining organization represents the entity. While the lawyerLien for Unpaid Fee. in the ordinary course of working relationships may(1) Risky. report to, and accept direction from, an entity's duly

"[A]ny lawyer contemplating retaining possession authorized constituents, in the situations described inof a client's property, papers or money should be paragraph (b) the lawyer shall proceed as reasonablycognizant of the possibility that his action may be necessary in the best interest of the organizationdeemed unethical if enforcement of the lien without involving unreasonable risks of disruptingforeseeably prejudices the client's legal rights." Tx the organization and of revealing information relatingEthics Op. No. 411 Jan. 84 Tx. Bar J. p. 47. to the representation to persons outside the

(2) Otherwise (b) A lawyer representing an organization mustLawful. take reasonable remedial actions whenever the lawyer

Legal authority for retaining lien by attorney who learns or knows that:

h. Organization as Client

Rule 1.12 Organization as a Client.(a) A lawyer employed or retained by an

organization.






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(1) an officer, employee, or other person appears reasonably necessary to avoidassociated with the organization has committed or misunderstanding on their part.intends to commit a violation of a legal obligation tothe organization or a violation of law which i. The comments assist the Texasreasonably might be imputed to the organization; lawyer to interpret this new Rule

(2) the violation is likely to result in substantial 1.12.injury to the organization; and (1) The Entity as the Client:

(3) the violation is related to a matter within the Comment 1: A lawyer employed or retained toscope of the lawyer's representation of the represent an organization represents the organizationorganization. as distinguished from its directors, officers,

(c) Except where prior disclosure to persons employees, members, shareholders or otheroutside the organization is required by law or other constituents. Unlike individual clients who can speakRules, a lawyer shall first attempt to resolve a and decide finally and authoritatively for themselves,violation by taking measures within the organization. an organization can speak and decide only through itsIn determining the internal procedures, actions or agents or constituents such as its officers ormeasures that are reasonably necessary in order to employees. In effect, the lawyer-client relationshipcomply with paragraphs (a) and (b), a lawyer shall must be maintained through a constituent who acts asgive due consideration to the seriousness of the an intermediary between the organizational client andviolation and its consequences, the scope and nature the lawyer. The fact requires the lawyer underof the lawyer's representation, the responsibility in certain conditions to be concerned whether thethe organization and the apparent motivation of the intermediary legitimately represents theperson involved, the policies of the organization organizational client.concerning such matters, and any other relevant Comment 2: As used in this Rule, theconsiderations. Such procedures, actions and constituents of an organizational client, whethermeasures may include, but are not limited to, the incorporated or an unincorporated association,following: include its directors, officers, employees,

(1) asking reconsideration of the matter; shareholders, members, and others serving in(2) advising that a separate legal opinion on the capacities similar to those positions or capacities.

matter be sought for presentation to appropriate This Rule applies not only to lawyers representingauthority in the organization; and corporations but to those representing an

(3) referring the matter to higher authority in the organization, such as an unincorporated association,organization, including, if warranted by the union, or other entity.seriousness of the matter, referral to the highest Comment 3: When one of the constituents of anauthority that can act in behalf of the organization as organizational client communicates with thedetermined by applicable law. organization's lawyer in that person's organizational

(d) Upon a lawyer's resignation or termination of capacity, the communication is protected by Rulethe relationship in compliance with rule 1.15, a 1.05. Thus, by way of example, if an officer of anlawyer is excused from further proceeding as organizational client requests its lawyers torequired by paragraphs (a), (b) and (c), and any investigate allegations of wrongdoing, interviewsfurther obligations of the lawyer are determined by made in the course of that investigation between theRule 1.05. lawyer and the client's employees or other

(e) In dealing with an organization's directors, constituents are covered by Rule 1.05. The lawyerofficers, employees, members, shareholders or other may not disclose to such constituents informationconstituents, a lawyer shall explain the identity of the relating to the representation except for disclosuresclient when it is apparent that the organization's permitted by Rule 1.05.interests are adverse to those of the constituents withwhom the lawyer is dealing or when explanation (2) Clarifying the Lawyer's


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Role: knows that a client proposes a course of action thatComment 4: There are is likely to result in substantial adverse legal

times when the organization's interest may be or consequences to the client, duty to the client maybecome adverse to those of one or more of its require that the lawyer act if the client's course ofconstituents. In such circumstances the lawyers action is related to the representation. A lawyershould advise any constituent, whose interest the ordinarily has no duty to initiate investigation of alawyer finds adverse to that of the organization of the client's affairs or to give advice that the client hasconflict or potential conflict of interest, that the indicated is unwanted, but a lawyer may initiatelawyer cannot represent such constituent, and that advice to a client when doing so appears to be in thesuch person may wish to obtain independent client's interest.representation. Care should be taken to assure thatthe individual understands that, when there is suchadversity of interest, the lawyer for the organizationcannot provide legal representation for that For lawyers in firms, a prohibited transaction willconstituent individual, and that discussions between keep the rest of the lawyers in the firm from handlingthe lawyer for the organization and the individual the case. See, Rules 1.06(f), 1.07(e), 1.08(i),may not be privileged insofar as that individual is 1.09(b).concerned. Whether such a warning should be givenby the lawyer for the organization to any constituentindividual may turn on the facts of each case. The Texas State Bar has written in a new rule

Comment 5: A lawyer representing an specifically to deal with dilatory practices of the Bar.organization may, of course, also represent any of itsdirectors, officers, employees, members,shareholders, or other constituents, subject to theprovisions of Rule 1.06. If the organization's consent In the course of litigation, a lawyer shall not take ato the dual representation is required by Rule 1.06, position that unreasonably increases the costs orthe consent of the organization should be given by the other burdens of the case or that unreasonably delaysappropriate official or officials of the organization resolution of the matter.other than the individual who is to be represented, orby the shareholders.

See In re Office Products of America, Inc., 136B.R. 983 (W.D. Tex. 1992). Attorney owesallegiance to the entity, not to any person connectedwith the entity.

2. LAWYER AS COUNSELOR require a lawyer to eliminate all conflicts between theIn keeping with the ABA model rules, the Texas

State Bar has adopted the new Rule 2.01:a. Rule 2.01 Lawyer as Advisor professional misconduct either to seek (or as a matter

In advising or otherwise representing a client, alawyer shall exercise independent professionaljudgment and render candid advice.

Comment Five adds some more generalities tothis already basic rule regarding the offering ofadvice:

In general, a lawyer is not expected to give adviceuntil asked by the client. However, when a lawyer

b. Imputed Disqualification of FellowAttorneys:

3. LAWYER AS ADVOCATE

a. Rule 3.02 Minimizing the Burdens andDelays of Litigation

Comment Three deals with Unreasonable Delay:Dilatory practices indulged in merely for the

convenience of lawyers bring the administration ofjustice into disrepute and normally will be"unreasonable" within the meaning of this Rule. Seealso, Rule 1.01(b) and (c) and paragraphs 6 and 7 ofthe Comment thereto. This Rule, however, does not

demands placed on the lawyer's time by differentclients and proceedings. Consequently, it is not

of professional courtesy, to grant) reasonable delaysin some matters in order to permit the competentdischarge of a lawyer's multiple obligations.

b. Rule 3.03 Candor Towards theTribunal

Rule 3.03 covers the difficult area of Perjury.(a) A lawyer shall not knowingly:

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(1) make a false statement of material fact or law upon conviction, and the lawyer's resulting reluctanceto a tribunal; to impair any defenses the accused wishes to offer on

(2) fail to disclose a fact to a tribunal when his own behalf having any possible basis in fact. Thedisclosure is necessary to avoid assisting a criminal second is the right of a defendant to take the standor fraudulent act; should he so desire, even over the objections of the

(3) in an ex parte proceeding, fail to disclose to lawyer. Consequently, in any criminal case wherethe tribunal an unprivileged fact which the lawyer the accused either insists on testifying when thereasonably believes should be known by that entity lawyer knows that the testimony is perjurious or elsefor it to make an informed decision. surprises the lawyer with such testimony at trial, the

(4) fail to disclose to the tribunal authority in the lawyer's effort to rectify the situation can increase thecontrolling jurisdiction known to the lawyer to be likelihood of the client's being convicted as well asdirectly adverse to the position of the client and not opening the possibility of a prosecution for perjury.disclosed by opposing counsel; or On the other hand, if the lawyer does not exercise

(5) offer or use evidence that the lawyer knows to control over the proof, the lawyer participates,be false. although in a merely passive way, in deception of the

(b) If a lawyer has offered material evidence court.and comes to know of its falsity, the lawyer shall Comment 11: Three resolutions of this dilemmamake a good faith effort to persuade the client to have been proposed. One is to permit the accused toauthorize the lawyer to correct or withdraw the false testify by a narrative without guidance through theevidence. If such efforts are unsuccessful, the lawyer lawyer's questioning. This compromises bothshall take reasonable remedial measures, including contending principles; it exempts the lawyer from thedisclosure of the true facts. duty to disclose false evidence but subjects the client

(c) The duties stated in paragraphs (a) and (b) to an implicit disclosure of information imparted tocontinue until remedial legal measures are no longer counsel. Another suggested resolution is that thereasonably possible. advocate be entirely excused from the duty to reveal

i. The comments provide solution, however, makes the advocate a knowingfurther help in this touchy instrument of perjury.area.

Comment 9: Whether an advocate for acriminally accused has the same duty of disclosurehas been intensely debated. While it is agreed that insuch cases, as in others, the lawyer should seek topersuade the client to refrain from suborning oroffering perjurious testimony or other false evidence,there has been dispute concerning the lawyer's dutywhen that persuasion fails. If the confrontation withthe client occurs before trial, the lawyer ordinarilycan withdraw. Withdrawal before trial may not bepossible, however, either because trial is imminent, orbecause the confrontation with the client does nottake place until the trial itself, or because no othercounsel is available.

Comment 10: The properresolution of the lawyer's dilemma in criminal casesis complicated by two considerations. The first is thesubstantial penalties that a criminal accused will face

perjury if the perjury is that of the client. This

The answer seems to be in Comment Twelve:Comment 12: The other resolution of thedilemma, and the one this Rule adopts, is that thelawyer must take reasonable remedial measure whichmay include revealing the client's perjury. A criminalaccused has a right to the assistance of an advocate,a right to testify and a right of confidentialcommunication with counsel. However, an accusedshould not have a right to assistance of counsel incommitting perjury. Furthermore, an advocate hasan obligation, not only in professional ethics butunder the law as well, to avoid implication in thecommission of perjury other than falsification ofevidence. See Virzi v. Grand Trunk Warehouse andCold Storage Co., 517 F. Supp. 507 (E.D. Mich.1983).

ii. Perjury Problem.a. No Definitive Solution in this State. "It



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may be seen that there is no accepted solution to the violation of 6th amendment when defendant`s lawyerproblem of the perjurious client. The question is not reveals anticipation of perjury to the trial court; butwhether the appellant's attorneys followed the only cf., old DR 4-101 (C)(3) giving a lawyer the optionacceptable course, for no such course is established." to reveal his client's intention to commit a crime inMaddox v. State, 613 S.W.2d 275, 283 (Crim. App. the future. ABA Formal Opinion 87-353 (4/20/87)1981). states that failing to reveal the unrectified perjurious

b. What to Do if Counsel Anticipates Perjury. event amounts to assisting the client to commit(1) Head it off at initial interview, i.e., "anything perjury, therefore, lawyer must reveal. This ABA

you tell me is privileged. But, I can reveal opinion is based on Model Rule 3.3(b), not adoptedinformation about a crime you are planning in the in Texas, but cf., old DR 7-102 (A)(7) containingfuture, like perjury. So if you try to lie on the stand, similar language. See, Jackson v. United States, 928I can reveal that. Now, I don't think that you would F.2d 245 (8th Cir. 1991), 49 Crim. L. Rep. (BNA)lie, but I want you to know that I will investigate 1004.what you tell me, and in fairness, you should know d. Real World before Rule 3.03. Maddox v.how the attorneyclient privilege works." State, supra, provides real world guidelines for

(2) If client insists on testifying falsely does the testimonial perjury: (a) when counsel is not told6th amendment require the lawyer to call the client to directly of contemplated perjury, a Motion tothe stand? ABA Formal Opinion 87-353 (4/20/87) Withdraw is not justified by mere conjecture; (b)says "no"; and see Nix v. Whiteside, 106 S.Ct. 988, when counsel is told of contemplated perjury before998 (1986); "Whatever the scope of the right to trial, he may seek to withdraw, but the court shouldtestify, it is elementary that such a right does not not be advised of the attorney's reason for so doingextend to testifying falsely" (emphasis the court's). either directly or indirectly, but by using a Motion to

Notion of allowing client to testify in narrative Withdraw based upon "vague ethical considerations";form expressly rejected in ABA Formal Opinion (c) when counsel learns of contemplated perjury87-353 (4/20/87), but cf., Maddox v. State, 613 during trial, for his own protection, andS.W.2d 275, 284 (Crim. App. 1981): "We hold that simultaneously, to preserve the attorney/clientthe appellant was not deprived of effective assistance privilege, he should make a confidential notation,of counsel when he was permitted to testify in ideally signed by the client and witnessed by anothernarrative form rather than in answer to questions attorney of his efforts to dissuade the client fromfrom his attorney." committing perjury. Counsel should not inform trial

(3) Apparently, attorney can ethically reveal court of the situation because of attorney/clientclient's intent to commit perjury if client insists on privilege. Federal: see U.S. ex rel. Wilcox v.testifying falsely. ABA Ethics Opinion 353 so states Johnson, 555 F.2d 115 (3rd Cir. 1977).and see Helton v. State, 670 S.W.2d 644 (Tex. Crim. e. Quashing indictments. An attorney for theApp. 1984) holding that counsel acted properly by defense is not required to point out defects in anadvising court, out of jury's presence, that he could indictment prior to trial. Op. No. 131, Texas Ethicsnot question a witness whom defendant insisted be Committee, June, 1956. However, failure to pointcalled, because lawyer believed that witness would out the defect may waive any jeopardy claim.commit perjury. "(Mid-trial objection waives) protection of the double

c. What To Do When Perjury is Not Anticipated. jeopardy clause when . . . objections to the indictment(1) Make an effort to cause the witness to recant. are sustained." United States v. Kehoe, 516 F.2d 78(2) Do not develop the perjury further either (5th Cir. 1975).

through questions or through jury argument, doing so f. Note, however, Art. 1.14(b), Tex. Code of Crim.violates DR7-102 (A) (4) id. Proc. which states, "If the defendant does not object

(3) Some authority that lawyers should reveal to to a defect, error, or irregularity of form or substancecourt if client refuses to rectify, but not clear; see Nix in an indictment or information before the date onvs. Whiteside, 106 S.Ct. 988 (1986) holding no which the trial on the merits commences, he waives








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and forfeits the right to object to the defect, error, or loss of time in attending or testifying;irregularity and he may not raise the objection on (3) a reasonable fee for the professional services ofappeal or in any other post conviction proceeding. an expert witness;Nothing in this article prohibits a trial court from (c) except as stated in paragraph (d), inrequiring that an objection to an indictment or representing a client before a tribunal:information be made at an earlier time in compliance (1) habitually violate an established rule ofwith Article 28.01 of this code." procedure or of evidence;

g. Motion for instructed verdict. Still necessary (2) state or allude to any matter that the lawyerto preserve certain error in Federal (note: FRCP Rule does not reasonably believe is relevant to such29). In state, remember Art. 36.02, Tex. Code of proceeding or that will not be supported byCrim. Proc. which provides "The court shall allow admissible evidence, or assert personal knowledge oftestimony to be introduced at any time before the facts in issue except when testifying as a witness;argument of a cause is concluded, if it appears (3) state a personal opinion as to the justness of anecessary to a due administration of justice". cause, the credibility of a witness, the culpability of(emphasis added) Sufficiency of evidence is of a civil litigant or the guilt or innocence of an accused,constitutional dimension and can be raised for the except that a lawyer may urge on his analysis of thefirst time on appeal with no objection necessary to evidence and other permissible considerations for anypreserve error. Burks v. U.S. 437 U.S. l (1978); position or conclusion with respect to the mattersGreene v. Massey 437 U.S. 19 (1978). stated herein;

h. Fundamentally defective charge. See (4) ask any question intended to degrade a witnessRodriguez v. State, 758 S.W.2d 787 (Tx. Crim. App. or other person except where the lawyer reasonably1988). believes that the question will lead to relevant and

i. Useful discussion with numerous practical admissible evidence; orexamples of "bounds of the law." Zunker, Zealous (5) engage in conduct intended to disrupt theRepresentation Within the Bounds of the Law, 47 proceedings.Tex. B. J. 530 (May 1984). (d) knowingly disobey, or advise the client to

c. Handling Evidence, Physical orOtherwise.

Rule 3.04 Fairness in Adjudicatory ProceedingsA lawyer shall not: sanctions arising from such disobedience.(a) unlawfully obstruct another party's access to (e) request a person other than a client to refrain

evidence; in anticipation of a dispute unlawfully alter, from voluntarily giving relevant information todestroy or conceal a document or other material that another party unless:a competent lawyer would believe has potential or (1) the person is a relative or an employee or otheractual evidentiary value; or counsel or assist another agent of a client; andperson to do any such act. (2) the lawyer reasonably believes that the person's

(b) falsify evidence, counsel or assist a witness to interests will not be adversely affected by refrainingtestify falsely, or pay, offer to pay, or acquiesce in from giving such information.the offer or payment of compensation to a witness or These new rules are essentially the same as DRother entity contingent upon the content of the 7-106 and DR 7-109.testimony of the witness or the outcome of the case. i. Handling Incriminating PhysicalBut a lawyer may advance, guarantee, or acquiesce Evidencein the payment of: (1) Lawyer's rights and

(1) expenses reasonably incurred by a witness in obligations the same asattending or testifying; those of the client.

(2) reasonable compensation to a witness for his Problems in how to deal with physical evidence

disobey, an obligation under the standing rules of ora ruling by a tribunal except for an open refusalbased either on an assertion that no valid obligationexists or on the client's willingness to accept any




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may be analyzed by placing the attorney "in the shoes prosecution cannot introduce into evidence the factof the client" i.e., the attorney has roughly the same that they received the items from the attorney's office.privileges to deal with the evidence as the client has. Anderson v. State, 297 So.2d 871 (Fla. 1974).For example, a client has the privilege against (4) Although the attorney is obligated to turnselfincrimination, and cannot be made to say the physical evidence, itself, over to the State, anyanything incriminating. Consequently, the attorney, information obtained by the attorney or the attorney'shimself, has a privilege of confidentiality and cannot investigator during the course of the investigationbe forced to reveal what his client tells him, e.g., the that leads to the finding of the evidence (e.g. thelocation of physical evidence. However, the police location and physical position of the evidence at thecan enter the defendant's home or office and search time it is discovered) is privileged and need not befor physical evidence if they have probable cause. revealed. However, there is an exception to thisSince the purpose of a lawyer is to protect the rights rule,if in removing the evidence, the attorney or thewhich the law grants to the accused, and not to give attorney's investigator thus forever precluded thethe accused additional rights, physical evidence State from making the same discovery (as to a caseshould not be hidden from the State by being placed where incriminating evidence is removed from thein the lawyer's possession. Consequently, an attorney scene of the crime). In such event the testimony ofmay be obligated to turn incriminating physical the attorney or of the investigator as to the locationevidence in his possession over to the prosecution, or and physical placement of the evidence at the time itto withdraw from the case if the client refuses to was removed is not privileged and the attorney or theagree to this tactic. Consider the following examples: investigator may be called to testify about same.

(1) Attorney removed money and shotgun used in People v. Meredith, 631 P.2d 46, 175 Cal. Rptr. 612robbery from client's safe deposit box and placed in (S.Ct. Cal. 1981).his own safe deposit box. Attorney suspended. In re (5) Attorney's instructions to client by phone,Ryder, 263 F.Supp. 360 (E.D. Va. 1967). "Get rid of the weapon and sit tight, and don't talk to

(2) "The attorney should not be a depository anyone and I will fly down in the morning."was notfor criminal evidence (such as a knife, other weapons, a privileged statement.". . .No shield such as thestolen property, etc.) . . . It follows that the attorney, protection afforded to communications betweenafter a reasonable period, should, as an officer of the attorney and client shall be interposed to protect acourt, on his own motion turn the same over to the person who takes counsel on how he can safelyprosecution . . . The State, when attempting to commit crime." Clark v. State, 261 S.W.2d 339introduce such evidence at the trial, should take (Tex. Crim. App. 1953).extreme precautions to make certain that the source (6) Defense attorney received incriminatingof the evidence is not disclosed in the presence of the physical evidence from a friend of the defendant.jury and prejudicial error is not committed. By thus Held: Attorney obligated to turn the evidence overallowing the prosecution to recover such evidence, to the prosecution. Morrell v. State, 575 P.2d 1200the public interest is served, and by refusing the (S.Ct. Alaska 1978); Hitch v. Pima County Superiorprosecution an opportunity to disclose the source of Court, 708 P.2d 72 (Ariz. S.Ct. 1985).the evidence, the client's privilege is preserved and a (7) Accountant's working papers, delivered tobalance is reached between these conflicting interests. attorney by client in a tax fraud case, can be reachedState ex rel. Sowers v. Olwell, 394 P.2d 681 (Wash. by government subpoena. Fisher v. United States,1964). 425 U.S. 391 (1976).

(3) Where the client delivered stolen items tothe attorney's receptionist, neither the attorney nor his (2) Federal Rule.receptionist could be required to divulge the source of (1) Rule 16(b) of the FEDERAL RULES OFthe stolen items which the attorney forwarded to the CRIMINAL PROCEDURE requires the defendant toprosecution, and in order for the attorneyclient permit inspecting and copying of documents, tangibleprivilege to be meaningfully preserved, the objects, examinations and tests which he has in his

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possession or control and intends to introduce as determine the matter or when it is reasonablyevidence in chief at trial, if the defendant requests foreseeable that entity will be so selected.disclosure of the same items. Rule held constitutional Old DR 7110(B) (2) and (3) provided: "In anin United States v. Bump, 605 F.2d 548 (10th Cir. adversary proceeding, a lawyer shall not1979). communicate, or cause another to communicate, as to

(2) Rule 12.1 of the FEDERAL RULES OF the merits of the cause with a judge or an officialCRIMINAL PROCEDURE requires a written notice before whom the proceeding is pending except: inof his intention to offer a defense of alibi if writing if he promptly delivers a copy of the writingprosecutor makes written demand which states time, to opposing counsel or to the adverse party if he isdate and place at which the alleged offense was not represented by a lawyer. [or] Orally uponcommitted. The notice must state the specific place adequate notice to opposing counsel or to the adverseor places and names and addresses of witnesses. party if he is not represented by a lawyer." Note that

(a) Trial court did not abuse discretion by the Disciplinary Rules of the Code of Professionalbarring alibi witnesses because of defendant's Responsibility are quasi statutory materials, Touchyuntimely response to the government's requests for v. Houston Legal Foundation, 417 S.W.2d 625 (Tex.notice. The opinion noted the defendant's refusal to Civ. App. Waco 1967), rev'd on other ground, 432cooperate with appointed counsel. United States v. S.W.2d 690, appeal after remand, 475 S.W.2d 604,Barron, 575 F.2d 752 (9th Cir. 1978). writ ref'd.

(b) Failure to know address does not alleviate In a recent Texas case, the appellate court vacatedduty to disclose. United States v. White, 583 F.2d the sentence and remanded the cause for further899 (6th Cir. 1978). sentencing and ordered the appointment of a new

d. Rule 3.05 MaintainingImpartiality of Tribunal

A lawyer shall not: and the motorcycle gang to which the defendant(a) seek to influence a tribunal concerning a belonged. All of this was without the knowledge of

pending matter by means prohibited by law or the defense counsel and when defense counsel learnedapplicable rules of practice or procedure; of the booklet the judge refused counsel the right to

(b) except as otherwise permitted by law and not review the document. The appellate court pointedprohibited by applicable rules of practice or out that the court's reception of the evidence ex parteprocedure, communicate or cause another to violates the State Bar of Texas's Rules ofcommunicate ex parte with a tribunal for the purpose Professional Responsibility DR 7110(B) (1) and (2)of influencing that entity or person concerning a and violates the State Bar of Texas' Rules and Codepending matter other than: of Judicial Conduct, Canon No. 3A(4) (1983).

(1) in the course of official proceedings in the Tamminen v. State, 644 S.W.2d 209, 217cause; (Tex.App.--San Antonio 1983). Although, later the

(2) in writing if he promptly delivers a copy of the State's highest court overturned this remedy ofwriting to opposing counsel or the adverse party if he remand and order of further proceedings as toois not represented by a lawyer; severe; while affirming the basic conviction. See,

(3) orally upon adequate notice to opposing 653 S.W.2d 799, 802-3 (Tex.Crim.App. 1983)counsel or to the adverse party if he is not (echoing, however, the Fourth Ct. App. findings withrepresented by a lawyer. respect to the reprehensible conduct of the prosecutor

(c) For purposes of this rule: and intolerable behavior of the trial court judge). See(1) "Matter" has the meanings ascribed by it in Rule also Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992),1.10(f) of these Rules; Regarding "Mary Carter" agreements.

(2) A matter is "pending" before a particular See also, State v. Barker, 420 N.W.2d 695, 227tribunal either when that entity has been selected to Neb. 842 (Neb. Sup. Ct. 1988). The Nebraska

judge to hear the sentencing where the prosecutor hadtendered to the judge and the judge had accepted adocument containing information about the defendant







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Supreme Court vacated and remanded the defendant'ssentence holding that the sentencing judge shouldhave recused himself as requested by the defendant (a) In the course of representing a client, a lawyerfollowing the judge's ex parte contact with members shall not make an extrajudicial statement that aof the victim's family. reasonable person would expect to be disseminated

e. Rule 3.06 Maintaining Integrityof Jury System

(a) A lawyer shall not: adjudicatory proceeding. A lawyer shall not counsel(1) conduct or cause another, by financial support or assist another person to make such a statement.

or otherwise, to conduct a vexatious or harassing (b) A lawyer ordinarily will violate paragraph (a),investigation of a venireman or juror; or and the liklihood of a violation increases if the

(2) seek to influence a venireman or juror adjudication is ongoing or imminent, by making anconcerning the merits of a pending matter by means extrajudicial statement of the type referred to in thatprohibited by law or applicable rules of practice or paragraph when the statement refers to:procedure. (1) the character, credibility, reputation or criminal

(b) Prior to discharge of the jury from further record of a party, suspect in a criminal investigationconsideration of a matter, a lawyer connected or witness; or the expected testimony of party ortherewith shall not communicate with or cause witness;another to communicate with anyone he knows to be (2) in a criminal case or proceeding that coulda member of the venire from which the jury will be result in incarceration, the possibility of a plea ofselected or any juror or alternate juror, except in the guilty to the offense; the existence or contents of anycourse of official proceedings. confession, admission, or statement given by a

(c) During the trial of a case, a lawyer not defendant or suspect; or that person's refusal orconnected therewith shall not communicate with or failure to make a statement;cause another to communicate with a juror or (3) the performance, refusal to perform, or resultsalternate juror concerning the matter. of any examination or test; the refusal or failure of a

(d) After discharge of the jury from further person to allow or submit to an examination or test;consideration of a matter with which the lawyer was or the identity or nature of physical evidenceconnected, the lawyer shall not ask questions of or expected to be presented;make comments to a member of that jury that are (4) any opinion as to the guilt or innocence of acalculated merely to harass or embarrass the juror or defendant or suspect in a criminal case or proceedingto influence his actions in future jury service. that could result in incarceration; or

(e) All restrictions imposed by this Rule upon a (5) information the lawyer knows or reasonablylawyer also apply to communications with or should know is likely to be inadmissible as evidenceinvestigations of members of a family of a venireman in a trial and would if disclosed create a substantialor a juror. risk of prejudicing an impartial trial.

(f) A lawyer shall reveal promptly to the court (c) A lawyer ordinarily will not violate paragraphimproper conduct by a venireman or a juror, or by (a) by making an extrajudicial statement of the typeanother toward a venireman or a juror or a member referred to in that paragraph when the lawyer merelyof his family, of which the lawyer has knowledge. states:

(g) As used in this Rule, the terms "matter" and (1) the general nature of the claim or defense;"pending" have the meanings specified in Rule (2) the information contained in a public record;3.05(c). (3) that an investigation of the matter is in

Note: New State Bar Rule 3.06 expands old ruleswhich used to cover this area in the ethical investigation, the offense, claim or defense involved;considerations (E.C.'s). (4) except when prohibited by law, the identity of

f. Rule 3.07 Trial Publicity

by means of public communication if the lawyerknows or reasonably should know that it will have asubstantial likelihood of materially prejudicing an

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the persons involved in the matter; that the state's case was rigged. Counsel was barred(5) the scheduling or result of any step in from practice in the state for one year.

litigation; (3) Gentile v. State Bar of Nevada, 111 S.Ct.(6) a request for assistance in obtaining evidence, 2720 (1991). Rule which prohibits an attorney from

and information necessary thereto; making extra judicial statements that a reasonable(7) a warning of danger concerning the behavior person would expect to be disseminated by public

of a person involved, when there is a reason to communication if the attorney knew or should havebelieve that there exists the likelihood of substantial known that the statements would have a substantialharm to an individual or to the public interest; and liklihood of materially prejudicing the trial does not

(8) if a criminal case: violate the First Amendment.(i) the identity, residence, occupation and family (4) Sanctions: see Susman Godfrey L.L.P. v.

status of the accused; Marshall, 832 S.W.2d 105 (Tex. App.--Dallas(ii) if the accused has not been apprehended, 1992).

information necessary to aid in apprehension of that (5) When lawyer=s comments violate localperson; rules governing statements to media. U.S. v. Cutler.

(iii) the fact, time and place of arrest; and 57 CrL 1317.(iv) the identity of investigating and arresting

officers or agencies and the length of the ii. When Not Acting as Counsel, ainvestigation. Lawyer Retains His First

i. Lawyer's First a. A lawyer issued a press statementAmendment Rights are criticizing the judge and the district attorney forAbridged When Acting as dishonest and unethical conduct in a criminal caseCounsel. where the lawyer was charged with a crime. The

a. First Amendment rights may be abridged when Federal District Court in the Northern District ofthe expression threatens a significant state interest. Texas permanently enjoined the grievance committeeAn attorney may be disciplined for speech if it from issuing a reprimand. The court stated: "Itinterferes with the State's significant interest in the cannot be seriously asserted that a private citizenprocess of administration of justice. NAACP v. surrenders his right to freedom of expression when heButton, 371 U.S. 415 (1963). becomes a licensed attorney in this state."Polk v.

b. Examples. b. The prosecutor's action in criticizing a trial(1) In order to encourage a finding of insanity, judge at a posttrial press conference ("The actions of

defense counsel released information to newspapers the judge were unethical, illegal and grounds forregarding the horror and brutality of the murders reversible error") did not violate any disciplinarycommitted by his client. In discussing this lawyer's rule, but is questionable conduct under EC 86. Stateunethical strategy, the court stated: "A defendant is Bar of Texas Opinion 369 (Nov. 1974).entitled to be tried on the evidence and arguments c. Note: New rules hold prosecutorbefore a jury in open court under the guidance of a responsible to prevent persons employed or controlledjudge." U.S. ex rel. Bloeth v. Denno, 313 F.2d 364 by the prosecutor (i.e. police witnesses) from making(2nd Cir. 1963) an extrajudicial statement that the prosecutor would

(2) In re Bailey, 273 A.2d 563 (Mass. 1971), the be prohibited from making. Rule 3.09(e).court found an unethical attempt to try the defendantin the news media where defense counsel (F. LeeBailey) wrote a letter to the governor (and to 150 (a) A lawyer shall not accept or continuemembers of the legislature) which letter counsel knew employment as an advocate before a tribunal in awould be picked up by the press. The letter charged contemplated or pending adjudicatory proceeding if

Amendment Rights.

State Bar of Texas, 374 F.Supp. 784 (1974).

g. Rule 3.08 Lawyer as Witness



http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=ma_caselaw&volume=273&edition=A.2d&page=563&id=11410_01



34

the lawyer knows or believes that the lawyer is or prosecution witness. Shannon v. State, 284 S.W.may be a witness necessary to establish an essential 586 (Tex. Crim. App. 1926). See also, Harrison v.fact on behalf of the lawyer's client, unless: State 788 S.W.2d 18 (No. 1048-89, (Tx. Crim. App.,

(1) the testimony relates to an uncontested issue; 1990); Stanley v. State, supra.(2) the testimony will relate solely to a matter of The first time the Texas Supreme Court has

formality and there is no reason to believe that recognized a new State Bar Rule in a case: Rulesubstantial evidence will be offered in opposition to 3.08 -- Ayres v. Canales, 790 S.W.2d 554 (Tex.the testimony; 1990).

(3) the testimony relates to the nature and value oflegal services rendered in the case;

(4) the lawyer is a party to the action and isappearing pro se; or

(5) the lawyer has promptly notified opposingcounsel that the lawyer expects to testify in thematter and disqualification of the lawyer would worksubstantial hardship on the client.

(b) A lawyer shall not continue as an advocatein a pending adjudicatory proceeding if the lawyerbelieves that the lawyer will be compelled to furnishtestimony that will be substantially adverse to thelawyer's client, unless the client consents after fulldisclosure.

(c) Without the client's informed consent, a lawyermay not act as advocate in an adjudicatoryproceeding in which another lawyer in the lawyer'sfirm is prohibited by paragraphs (a) or (b) fromserving as advocate. If the lawyer to be called as awitness could not also serve as an advocate under thisRule, that lawyer shall not take an active role beforethe tribunal in the presentation of the matter.

Comments:Comment 1: A lawyer

who is considering accepting or continuingemployment in a contemplated or pendingadjudicatory proceeding in which that lawyer knowsor believes that he or she may be a necessary witnessis obligated by this Rule to consider the possibleconsequences of those dual roles for both the lawyer'sown client and for opposing parties.

Note that the old DR would prohibit a lawyerfrom taking the stand to impeach a witness.Accordingly, counsel is wise to avoid talking withwitnesses in the absence of a bystander. However, a1926 Texas case (prior to enactment of the Code)holds that defense counsel is a proper witness in acriminal case to impeach with a prior inconsistentstatement that testimony has been offered by the




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h. Rule 3.09 SpecialResponsibilities of a Prosecutor

The prosecutor in a criminal case shall: "The responsibility of a publicprosecutor differs(a) refrain from prosecuting or threatening to from that of the usual advocate; his duty is to seek

prosecute a charge that the prosecutor knows is not justice, not merely to convict. This special dutysupported by probable cause; exists because: (1) the prosecutor represents the

(b) refrain from conducting or assisting in a sovereign and therefore should use restraint in thecustodial interrogation of an accused unless the discretionary exercise of governmental powers, suchprosecutor has made reasonable efforts to be assured as in the selection of cases to prosecute; (2) duringthat the accused has been advised of any right to, and trial the prosecutor is not only an advocate but hethe procedure for, obtaining counsel and has been also may make decisions normally made by angiven reasonable opportunity to obtain counsel; individual client, and those affecting the public

(c) not initiate or encourage efforts to obtain from interest should be fair to all; and (3) in our system ofan unrepresented accused a waiver of important criminal justice the accused is to be given the benefitpre-trial, trial or post-trial rights; of all reasonable doubt."

(d) make timely disclosure to the defense of all c. American Bar Association Project on Standardsevidence or information known to the prosecutor that for Criminal Justice: Standards Relating to thetends to negate the guilt of the accused or mitigates Prosecution Function and the Defense Functionthe offense, and, in connection with sentencing, (approved draft, 1971). This volume contains adisclose to the defense and to the tribunal all complete dialogue relating to the responsibilities andunprivileged mitigating information known to the ethical duties of both prosecution and defense.prosecutor, except when the prosecutor is relieved of d. National Prosecution Standards (Nationalthis responsibility by a protective order of the District Attorneys Association), (Chicago 1977).tribunal; and Standard 25.1 of the National Prosecution Standards,

(e) exercise reasonable care to prevent persons enacted by the prosecutors themselves, applies theemployed or controlled by the prosecutor in a Code of Professional Responsibility to prosecutors:criminal case from making an extrajudicial statement "A. To insure the highest ethical conduct andthat the prosecutor would be prohibited from making maintain the integrity of prosecution and the legalunder Rule 3.07. system, the prosecutor shall be thoroughly acquainted

i. Codification of Professional Responsibility as promulgated by theProsecutorial Ethical American Bar Association and as adopted by theStandards various state bar associations.

Standards of ethical conduct for prosecutors are B. Of the greatest importance to the functioning ofcodified in several different sources: the prosecutor is the ability to exercise the

a. Article 2.01, TEX. CODE CRIM. PROC. >independent professional judgment= of Canon 5. TheANN.: "It shall be the primary duty of all prosecutor shall be afforded the discretion necessaryprosecuting attorneys, including any special to exercise 'independent professional judgment' andprosecutors, not to convict, but to see that justice is this judgment shall be tempered by strict adherence todone. They shall not suppress facts or secret the Code of Professional Responsibility."witnesses capable of establishing the innocence of In a civil case where a police officer brought a suitthe accused." Note that it is the primary duty "to see against the San Francisco District Attorney=s Officethat justice is done" that distinguishes the for refusing to proceed on cases he investigated. Theprosecutor's role from that of the defense attorney in prosecutors concluding that the officer had giventhe adversary system. false testimony in a prior case, refused to proceed on

b. Old Code of Professional Responsibility. Only his cases without independent corroboration of theportions of the Code of Professional Responsibility facts that were the basis of his cases. The prosecutors

specifically applied to prosecutors. The Old EthicalConsideration 713 provided:

with and shall adhere to at all times to the Code of


36

were granted summary judgment in the officer=s suit (B) the payment for a medical examinationfor damages and injunctive relief against them. On for a victim of a sexual assault under Article 56.06 ofappeal the 9 Circuit held that a prosecutor is entitled this code; andth

to absolute immunity for the decision not to (C) referral to available social serviceprosecute. Roe v. City and County of San Francisco, agencies that may offer additional assistance;109 F.3d 578 (9 Cir. 1997) (5) the name, address, and phone number ofth

e. No affirmative duty on prosecutor to furnish the local victim assistance coordinator;information on prospective jurors where information (6) the case number and assigned court foris available to defense on voir dire. Linebarger v. the case;State, 469 S.W.2d 165 (Tex. Crim. App. 1971); (7) the right to file a victim impact statementEnriguez v. State, 429 S.W.2d 141 (Tex. Crim. App. with the office of the attorney representing the state1968); Martin v. State, 577 S.W.2d 480 (Tex. Crim. and the pardons and paroles division of the TexasApp. 1979); Redd v. State, 578 S.W.2d 129 (Tex. Department of Criminal Justice; andCrim. App. 1979). In Armstrong v. State, 897 (8) notification of the right of a victim,S.W.2d 361 (Tex. Crim. App. 1995), the court held guardian of a victim, or close relative of a deceasedthat prospective juror whose husband was best man victim, as defined by Section 508.117, Governmentin prosecutor's wedding and prosecutor was best man Code, to appear in person before a member of theat her wedding, and was treasurer of campaign fund Board of Pardons and Paroles as provided by Sectionfor prosecutor, but failed to disclose information in 508.153, Government Code.light of non-specific questions, was not reversible (b) If requested by the victim, the attorneyerror. representing the state, as far as reasonably practical,

f. The State of Texas has recently codified the shall give to the victim notice of any scheduled courtspecial responsibilities of the prosecutor. Under Art. proceedings, changes in that schedule, the filing of a56.08. of the Texas Code of Criminal Procedure the request for continuance of a trial setting, and anyprosecutor has certain duties to the complaining plea agreements to be presented to the court.witnesses and crime victims including the following: (c) A victim who receives a notice under

(a) Not later than the 10th day after the date that Subsection (a) of this article and who chooses toan indictment or information is returned against a receive other notice under law about the same casedefendant for an offense, the attorney representing the must keep the following persons informed of thestate shall give to each victim of the offense a written victim's current address and phone number:notice containing: (1) the attorney representing the state; and(1) a brief general statement of each procedural stage (2) the pardons and paroles division of thein the processing of a criminal case, including bail, Texas Department of Criminal Justice if afterplea bargaining, parole restitution, and appeal; sentencing the defendant is confined in the(2) notification of the rights and procedures under institutional division.this chapter; (d) An attorney representing the state who(3) suggested steps the victim may take if the victim receives information concerning a victim's currentis subjected to threats or intimidation; address and phone number shall immediately provide(4) notification of the right to receive information that information to the community supervision andregarding compensation to victims of crime as corrections department supervising the defendant, ifprovided by Subchapter B of this chapter, including the defendant is placed on community supervision.information about:

(A) the costs thatmay be compensated under Subchapter B of thischapter, eligibility for compensation, and proceduresfor application for compensation under Subchapter B i. Dealing with Unrepresentedof this chapter; Criminal Defendants.

i. Frequently Encountered Instance ofConflict Between Prosecutor Conductand Ethical Standards







37

Does an assistant authorized by law." Art. 36.04(a), TEX. CODEdistrict attorney have a duty to advise an ANN. Query: Is a private parley with the courtunrepresented criminal defendant with whom he deals "authorized by law"?to secure legal representation?

a. Old DR iii. Failure to Disclose Mitigating7104(A) (2) stated: "During the course of his Evidence.representation of a client a lawyer shall not give a. Old DR 7103(B) required disclosure ofadvice to a person who is not represented by a evidence known to the prosecutor "that tends tolawyer, other than the advice to secure counsel, if the negate the guilt of the accused, mitigate the degree ofinterests of such person are or have a reasonable the offense, or reduce the punishment." But cf.,possibility of being in conflict with the interest of his United States v. Bagley, 473 U.S. 667, 682, 105client." New Rules: Rule 4.03; Rule 3.09(c). Sup. Ct. 3375, 3383 (1987) wherein the court held

b. For a complete that there was no reversible error unless the evidencediscussion of this problem, see Henvey, "The Ethics withheld by the prosecutor was such that it producedof Prosecutors Dealing with Unrepresented Criminal a "reasonable probability that, had the evidence beenDefendants," VOICE FOR THE DEFENSE (Spring disclosed to the defense, the result of the proceeding1976). would have been different." Thus, the DR, patterned

The defendant=s after Brady is no longer in tune with the legal test forcase was remanded for an evidentiary hearing in U.S. reversibility.v. Amlani, 111 F.3d 705 (9 Cir. 1997) when the b. Old EC 713 provided that "with respectth

prosecutor repeatedly made disparaging remarks to evidence and witnesses, the prosecutor hasabout the defendant=s counsel in front of him. The responsibilities different from those of the lawyer inprosecutor allegedly made statements to the private practice: the prosecutor should make timelydefendant and his wife that his defense counsel did disclosure to the defense of available evidence,not care about him, was incompetent, and could not known to him that tends to negate the guilt of theprevent the defendant=s conviction. The Court accused, mitigate the degree of the offense, or reduceobserved that the crucial issue was not whether the the punishment. Further, a prosecutor should notdefendant=s counsel was present, although his intentionally avoid pursuit of evidence merelyabsence further aggravates the behavior of the because he believes it will damage the prosecutor'sprosecutor. The Court ultimately held that if the case or aid the accused."prosecutor truly made these statements to the c. Section 3.11 of the ABA Standardsdefendant and the defendant acting on those Relating to the Prosecution Function provides:comments retained different counsel for trial then this "(a) It is unprofessional conduct for aconduct constituted a violation of the defendant=s prosecutor to fail to make timely disclosure to theSixth Amendment right and the defendant=s defense of the existence of evidence, known to him,conviction should be vacated. supporting the innocence of the defendant. He should

ii. Holding Private Parleys of the accused or mitigate the degree of the offense orwith the Court about reduce the punishment at the earliest feasiblePending Cases. opportunity.

"A person commits (c) It is unprofessional conduct for aan offense if he privately addresses a representation, prosecutor intentionally to avoid pursuit of evidenceentreaty, argument or other communication to any because he believes it will damage the prosecution'spublic servant who exercises or will exercise official case or aid the defense."discretion in an adjudicatory proceeding with an d. Standard 13.2(c) of the Nationalintent to influence the outcome of the proceeding on Prosecution Standards requires the prosecutor tothe basis of considerations other than those disclose "any material or information within his

disclose evidence that would tend to negate the guilt




38

actual knowledge and within his possession andcontrol which tends to negate or reduce the guilt ofthe accused pertaining to the offense charged. "For i. Need for Action:a further discussion of Brady violations by Over 50 years ago, Roscoe Pound recognizedprosecutors, see Rosen, Richard A., "Disciplinary the problem:Sanctions Against Prosecutors for Brady Violations: "The number of new trials for graveA Paper Tiger,: 65 N.C. L. Rev. 693 (1987). misconduct of the public prosecutor which may be

e. Ex parte Lewis, found in the reports throughout the land in the past587 S.W.2d 697 (Tex. Crim. App. (1979), holds that two decades is significant. We must go back to theprosecutor's failure to disclose favorable evidence seventeenth century . . . to find parallels for the abusebefore entry of plea negated knowing and intelligent and disregard of forensic propriety which threatens toplea. become staple in American prosecutors."

f. Although not For a thorough discussion of disciplinarysoliciting false evidence, if the State allows false action taken against prosecutors for professionalevidence to go uncorrected, there is a failure of due misconduct while performing various aspects of theprocess. Napue v. Illinois, 360 U.S. 264 (1959). prosecution function, see Annotation: Disciplinary

g. When an Action Against Attorney for Misconduct Related toinvestigating police officer willfully and intentionally Performance of Official Duties as Prosecutingconceals material information, regardless of his Attorney, 10 ALR 4th 605. Steele, Unethicalmotivation and otherwise proper conduct of the state Prosecutors and Inadequate Discipline, 38 SW L.J.attorney, the policeman's conduct must be imputed 965 (1984).to the State as a part of the prosecution team.Freeman v. Georgia, 599 F.2d 65, 69 (5th Cir. ii. TattleTale DR.1979). Old DR 1103(A); New rule 8.03 requires a

h. Court alludes to lawyer possessing unprivileged knowledge of arepeated warnings to government attorneys who fail violation of any disciplinary rule should report suchto comply with Brady. United States vs. Starusko, knowledge to the proper tribunal.729 F.2d 256 (3rd Cir. 1984). "The integrity of the profession can be

i. United States v. maintained only if conduct of lawyer in violation ofBagley, 105 S. Ct. 3382 (1985). Changes standard disciplinary rules is brought to the attention of theon appeal for remedy for prosecutor suppression of proper official. A lawyer should reveal voluntarily toBrady material. No reversal "unless failure to those officials all unprivileged knowledge of conductdisclose provides reasonable probability that result of lawyer which he believes clearly would be inwould have been different". violation of the disciplinary rules." Old EC 14, State

iv. Improper Communicationwith Discharged Jurors:

Old DR 7108(D);New Rules: Rule 3.06(d).

After discharge ofthe jury from further consideration of a matter withwhich the lawyer was connected, the lawyer shall notask questions of or make comments to a member ofthat jury that are calculated merely to harass orembarrass the juror or to influence his actions infuture jury service.

j. Remedies for Prosecutor's UnethicalConduct

Bar of Texas Code.

4. NON-CLIENT RELATIONSHIPSa. Rule 4.01 Truthfulness in Statement

to OthersIn the course of representing a client, a

lawyer shall not knowingly:(a)make a false statement of material fact or

law to a third person; or(b) fail to disclose a material fact to a third

person when disclosure is necessary to avoid makingthe lawyer a party to a criminal act or knowinglyassisting a fraudulent act perpetrated by a client.







39

This new rule a criminal or fraudulent act in the course of which theadopting of ABA Model Rule 4.1 provides that as to lawyer's services have been used, or that the client isany third-person, a lawyer cannot make false committing or intends to commit any criminal orstatements or fail to disclose a material fact, as the fraudulent act, other of these rules require the lawyercomments explain: to urge the client to take appropriate action. See

False Statementsof Fact

Comment 1: "necessary" only if the lawyer's attempts to counselParagraph (a) of this Rule refers to statements of his client not to commit the crime or fraud arematerial fact. Whether a particular statement should unsuccessful, a lawyer is not authorized to makebe regarded as one of material fact can depend on the them without having first undertaken those othercircumstances. For example, certain types of remedial actions. See also, Rule 1.05.statements ordinarily are not taken as statements ofmaterial fact because they are viewed as matters ofopinion or conjecture. Estimates of price or valueplaced on the subject of a transaction are in this Note: The language of (c) explains ancategory. Similarly, under generally accepted important distinction:conventions in negotiation, a party's supposed (a) In representing a client, a lawyer shall notintentions as to an acceptable settlement of a claim communicate or cause or encourage another toare viewed merely as negotiating positions rather than communicate about the subject of the representationas accurate representation of material fact. Likewise, with a person, organization or entity of governmentaccording to commercial conventions, the fact that a the lawyer knows to be represented by another lawyerparticular transaction is being undertaken on behalf regarding that subject, unless the lawyer has theof an undisclosed principal need not be disclosed consent of the other lawyer or is authorized by law toexcept where non-disclosure of the principal would do so.constitute fraud. (b) In representing a client a lawyer shall not

Failure to DiscloseA Material Fact

Comment 3: organization a lawyer knows to be employed orParagraph (b) of this Rule also relates only to retained for the purpose of conferring with orfailures to disclose material facts. Generally, in the advising another lawyer about the subject of thecourse of representing a client a lawyer has no duty representation, unless the lawyer has the consent ofto inform a third person of relevant or material facts, the other lawyer or is authorized by law to do so.except as required by law or by applicable rules of (c) For the purpose of this rule, "organizationpractice or procedure, such as formal discovery. or entity of government" includes: (1) those personsHowever, a lawyer must not allow fidelity to a client presently having a managerial responsibility with anto become a vehicle for a criminal act or a fraud organization or entity of government that relates tobeing perpetrated by that client. Consequently a the subject of the representation, or (2) those personslawyer must disclose a material fact to a third party presently employed by such organization or entityif the lawyer knows that the client is perpetrating a and whose act or omission in connection with thecrime or a fraud and the lawyer knows that disclosure subject of representation may make the organizationis necessary to prevent the lawyer from becoming a or entity of government vicariously liable for such actparty to that crime or fraud. Failure to disclose or omission.under such circumstances is misconduct only if the (d) When a person, organization, or entity oflawyer intends thereby to mislead. government that is represented by a lawyer in a

Comment 4: matter seeks advice regarding that matter fromWhen a lawyer discovers that a client has committed another lawyer, the second lawyer is not prohibited

Rules 1.02(d), (e), (f); 3.03(b). Since the disclosurescalled for by paragraph (b) of this Rule will be

b. Rule 4.02 Communication with OneRepresented by Counsel

communicate or cause another to communicate aboutthe subject of representation with a person or


40

by paragraph (a) from giving such advice without post-indictment investigations.notifying or seeking consent of the first lawyer. Id. at 793.

1. District The Court of Criminal Appeals goes on toAttorney interviewed defendant without attempting toobtain consent of defendant's court appointedattorney. The issue raised: Does a violation of aDisciplinary Rule constitute a violation of State law?The court ruled that when it comes to interpretingthis issue in light of Art. 38.23 (the exclusionary ruleof the C.Cr.P.) the Code of ProfessionalResponsibility is not considered state law, andviolation thereof will not bar introduction of thatevidence at trial. Pannell v. State, 666 S.W.2d 96(Tex. Crim. App. 1984)(en banc).

2. A defendant cannegotiate with an Assistant District Attorney justminutes before giving a videotaped confession, inapparent violation of Old DR 7-104 (see New Ruleabove--4.02) and the confession remains admissible.Gentry v. State, 770 S.W.2d 780, 790-92 (Tex.Crim. App. 1988) (en banc) (Court ruled thatAppellant waived his right to counsel prior to theconfession, and that a Sixth Amendment issue wasnot raised on appeal).

3. In light of theaforementioned cases, however, an interesting issuehas been raised which may just circumvent and atleast partially eliminate these unpunished problems ofprosecutorial misconduct. In Holloway v. State, 780S.W.2d 787, 791 (Tex. Crim. App. 1989)(en banc)the question raised: Was appellant, who had beenindicted for capital murder of a Longview policeofficer, and who had been appointed counsel,capable of waiving his Sixth Amendment right tocounsel before he submitted to questioning?

Unlike the FifthAmendment, the Sixth Amendment guarantees morethan an entitlement to counsel upon invocation. Ouradversary system is central to the administration ofcriminal justice. Parity between participants iscritical to prevent unfair and unjust outcomes thatwould be tainted by one side's superiority...Extending Sixth Amendment right to counsel tocertain pretrial "critical stages" was based uponconcerns that equalization at trial could prove to bean empty gesture if the government could takeadvantage of an accused in the earlier phases of

say: "Governmental attempts to secureincriminating statements from an accused are amongthe pretrial phases to which the Supreme Court hasextended Sixth Amendment protection." Id. Later inthe case after an excellent discussion of thedifferences between the Fifth and Sixth Amendmentrights to counsel, and how the Appellant's SixthAmendment rights had indeed attached, the court usesthe wording "police-initiated interrogation of anindicted person who has retained or has beenappointed defense counsel." Id. at 795. Does it notfollow that if the context of this decision is thebeginning, "police-initiated" phase of theinvestigation, the Sixth Amendment explicitlyprotects the criminal defendant from contact by theProsecutor?

In fact the court ruled in the Holloway casethat at the time of indictment and establishment of theattorney-client relationship, the Sixth Amendmentright to counsel had attached and as such,"[A]ppellant's unilateral waiver of his SixthAmendment right was invalid despite appellanthaving received the required Miranda warnings." Id.at 796. (emphasis added).

It seems now that a government/defendantdialogue like that which took place in Pannell,irrespective of whether there was waiver, as inGentry, is not admissible in light of the SixthAmendment protections discussed in Holloway.

Subsequent to Holloway, the Supreme Courtheld that an indicted defendant's, voluntary, knowingand intelligent waiver of his Sixth Amendment rightto counsel may allow the prosecution to usestatements made in police initiated interrogations toimpeach the defendant at trial. Michigan v. Harvey494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed. 2d 293, 58USLW 4288 (1990)

4. District Attorney directed informant toattend and to secretly record proceedings betweendefendants and their attorney. This violatedappellant's Sixth and Fourteenth Amendment rights.Brewer v. State, 649 S.W.2d 628 (Ct. Crim. App.1983) (en banc).

5. Cases abound wherein prosecuting









41

attorneys or their agents have had conversations with substantial purpose other than to embarrass, delay, orrepresented defendants, and in most of such cases the burden a third person, or use methods of obtainingcourts have explicitly stated that such conduct evidence that violate the legal rights of such a person.violates the DRs, e.g., People v. Green, 274 N.W.2d (b) A lawyer shall not present, participate in448 (Mich. 1979); United States v. Weiss, 599 F.2d presenting, or threaten to present:730, 739041 (5th Cir. 1979); United States v. Cross, (1) criminal or disciplinary charges solely to638 F.2d 1375, 1379 (5th Cir. 1981); Killian v. gain an advantage in a civil matter; orUnited States, 639 F.2d 206, 210 (5th Cir. 1981). A (2) civil, criminal or disciplinary chargesprosecuting attorney may not have a defendant in a against a complainant, a witness, or a potentialcriminal case examined by doctors during the course witness in a bar disciplinary proceeding solely toof the trial without the knowledge or consent of prevent participation by the complainant, witness ordefendant's attorney." Tex. Op. No. 87 (Nov. 1953). potential witness therein.

6. Federalprosecutors meeting with an indicted defendantwithout obtaining consent from the defendant'sattorney caused sufficient prejudice to the defendantto justify a downward departure from the federalsentencing guidelines. (the Court departed downwardthree levels, not "for governmental misconduct" but,based on the prejudice suffered as a result of thegovernment's conduct.) U.S. v. Lopez 60 Crim. L.Rep. (BNA) 1455 (1997).

c. Rule 4.03 Dealing WithUnrepresented Person

In dealing onbehalf of a client with a person who is notrepresented by counsel, a lawyer shall not state orimply that the lawyer is disinterested. When thelawyer knows or reasonably should know that theunrepresented person misunderstands the lawyer'srole in the matter, the lawyer shall make reasonableefforts to correct the misunderstanding.

This provisionpertains especially to prosecutors and their contactwith victims and witnesses. This practice oftencalled, "soaping," is now covered by this new rule,and adoption of ABA Rule 4.3.

d. Rule 4.04 Respect for Rights ofThird Persons

A Texas lawyercould never act in the way described in section (b).But now the additional requirements of section (a)have been put in Rule 4.04.

(a) In representinga client, a lawyer shall not use means that have no




42

5. LAW FIRMS AND ASSOCIATIONSRule 5.01 Responsibilities of a Partner orSupervisory Lawyers

This new rule the services of any lawyer or law firm. A statementshould be noted for its broad language of part (b): is false or misleading if it:

A lawyer shall be (1) Contains a material misrepresentation ofsubject to discipline because of another lawyer's fact or law, or omits a fact necessary to make theviolation of these rules of professional conduct if: statement considered as a whole not materially

(a) The lawyer is misleading. Any statement about fees must includea partner or supervising lawyer and orders, the amount of the fee, whether contingent orencourages, or knowingly permits the conduct otherwise, and must state whether the client may beinvolved; or obligated for all or for some portion of the costs

(b) The lawyer is involved;a partner in the law firm in which the other lawyer (2) Is likely to create an unjustifiedpractices, is the general counsel of a government expectation about results the lawyer can achieve, oragency's legal department in which the other lawyer states or implies that the lawyer can achieve resultsis employed, or has direct supervisory authority over by means that violate these rules or other law;the other lawyer, and with knowledge of the other (3) Compares the lawyer's services withlawyer's violation of these rules knowingly fails to other lawyers' services, unless the comparison can betake reasonable remedial action to avoid or mitigate factually substantiated; orthe consequences of the other lawyer's violation. (4) States or implies that the lawyer is able

6. PUBLIC SERVICERule 6.01

Accepting Appointments by a TribunalA new rule

regarding the court appointed attorney:A lawyer shall not

seek to avoid appointment by a tribunal to representa person except for good cause, such as:

(1) representing theclient is likely to result in violation of law or rules ofprofessional conduct;

(2) representing theclient is likely to result in an unreasonable financialburden on the lawyer; or

(3) the client or thecause is so repugnant to the lawyer as to be likely toimpair the client-lawyer relationship or the lawyer'sability to represent the client.

7. INFORMATION ABOUT LEGALSERVICESa. Rule 7.01 Communications

Concerning a Lawyer's ServicesRule 7.01 is the

same detailed explanation of the law that has always

been on the books in Texas.(a) A lawyer shall not make a false or

misleading communication about the qualifications or

to influence improperly or upon irrelevant groundsany tribunal, legislative body, or public official.

(b) A lawyer shall not advertise publicly thatthe lawyer is a specialist, except as permitted underRule 7.01 (c) or as follows:

(1) A lawyer admitted to practice before theUnited States Patent office may use the designation"Patents," "Patent Attorney," or "Patent Lawyer," orany combination of those terms. A lawyer engagedin the trademark practice may use the designation"Trademark," "Trademark Attorney," or "TrademarkLawyer," or any combination of those terms. Alawyer engaged in patent and trademark practice mayhold himself out as specializing in "IntellectualProperty Law," "Patents, or Trademarks and RelatedMatters," or "Patent, Trademark, Copyright Law andUnfair competition" or any of those terms.

(2) A lawyer may permit his name to belisted in lawyer referral service offices according tothe areas of law in which he will accept referrals.

(3) A lawyer available to practice in aparticular area of law or legal service may distributeto other lawyers and publish in legal directories adignified announcement of such availability, but theannouncement shall not contain a presentation ofspecial competence or experience.


43

(c) A lawyer who (2) The person has made known to theadvertises through public media with regard to any lawyer a desire not to receive communications fromarea of the law in which the lawyer practices shall: the lawyer;

(1) With respect to (3) The communication involves coercion,each area of law so advertised, publish or broadcast duress or harassment;the name of the lawyer, licensed to practice in Texas, (4) The communication contains informationwho shall be responsible for the performance of the prohibited by paragraphs (a) or (b); orlegal services in the area of law so advertised. (5) The communication fails to comply with

(2) If the lawyer the requirements of paragraphs (c) and (d).has been awarded a Certificate of Special (g) All advertisements for a lawyer or lawCompetence by the Texas Board of Legal firm and all written communications to a prospectiveSpecialization in the area so advertised, state with client for the purpose of obtaining professionalrespect to each area, "Board Certified, (area of employment must be reviewed and approved inspecialization) - Texas Board of Legal writing by the lawyer or a lawyer in the law firm.Specialization." (h) A copy or recording of each

(3) If the lawyer advertisement, written communication, and relevanthas not been awarded a Certificate of Special approval referred to in paragraph (g), and a record ofCompetence by the Texas Board of Legal when and where the advertisement or communicationSpecialization in the area so advertised, state with was used, shall be kept by the lawyer or law firm forrespect to each area. "Not Certified by the Texas four years after its last dissemination.Board of Legal Specialization," but if the area of law (i) A lawyer shall not give or promise to giveso advertised has not been designated as an area in anything of value to a lay person for referring clientswhich a lawyer may be awarded a certificate of or potential clients to any lawyer or law firm;special competence by the Texas Board of Legal however, a lawyer may pay reasonable fees forSpecialization, the lawyer may also state, "No advertising and public relations service rendered indesignation has been made by the Texas Board of accordance with this Rule and may pay the usualLegal Specialization for a Certificate of Special charges and otherwise cooperate with organizationsCompetence in this area." that refer clients if the organization does not profit

(d) The statements from the rendition of legal services by lawyers.referred to in paragraph (c) shall be displayedconspicuously so as to be easily seen or understoodby any consumer.

(e) Subject to the As a result of Shapero v. Kentucky Barrequirements of paragraphs (a), (b), (c), and (d), a Ass'n., 486 U.S. 466, 108 S.Ct. 1916 (1988), Texaslawyer may, either directly or through a public formulated the following rule:relations or advertising representative, advertise A lawyer shall not seek professionalservices through public media, such as a telephone employment from a prospective client who has notdirectory, legal directory, newspaper or other sought his advice regarding employment or withperiodical, outdoor display, radio or television. whom the lawyer has no family or prior

(f) A lawyer shall attorney-client relationship by in-person or telephonenot send a written communication to a prospective contact; when a significant motive for the lawyer'sclient for the purposes of obtaining professional doing so is the lawyer's pecuniary gain.employment if:

(1) The lawyerknows or reasonably should know the person couldnot exercise reasonable judgment in employing alawyer;

b. Rule 7.02 In-Person or TelephoneContact with Prospective Clients

8. MAINTAINING THE INTEGRITYOF THE PROFESSION

a. Rule 8.02 Judicial and Legal OfficialsParticular notice should be paid to (a) in the




44

context of post-trial comments by an attorney to the would otherwise have to disclose to the authoritiespress. referred to in paragraphs (a) and (b).

(a) A lawyer shall (d) This rule does not require disclosure ofnot make a statement that the lawyer knows to be knowledge or information otherwise protected asfalse or with reckless disregard as to its truth or confidential information:falsity concerning the qualifications or integrity of a (1) by Rule 1.05 orjudge, adjudicatory official or public legal officer, or (2) by any statutory or regulatory provisionsof a candidate for election or appointment to judicial applicable to the counseling activities of the approvedor legal office. peer assistance program.

(b) A lawyer whois a candidate for judicial office shall comply with theapplicable provisions of the Texas Code of Judicial This list has been greatly expanded in theConduct. new set of rules.

(c) A lawyer who (a) A lawyer shall not:is a candidate for an elective public office shall (1) violate these rules, knowingly assist orcomply with the applicable provisions of the Texas induce another to do so, or do so through the acts ofElection Code. another, whether or not such violation occurred in the

b. Rule 8.03 ReportingProfessional Misconduct

Similar standard lawyer's honesty, trustworthiness or fitness as afrom the Old DRs: lawyer on other respects;

(a) Except as (3) engage in conduct involving dishonesty,permitted in paragraphs (c) or (d), a lawyer having fraud, deceit or misrepresentation;knowledge that another lawyer has committed a (4) engage in conduct constitutingviolation of applicable rules of professional conduct obstruction of justice;that raises a substantial question as to that lawyer's (5) state or imply an ability to influencehonesty, trustworthiness or fitness as a lawyer in improperly a government agency or official;other respects, shall inform the appropriate (6) knowingly assist a judge or judicialdisciplinary authority. officer in conduct that is a violation of applicable

(b) Except as rules of judicial conduct or other law;permitted in paragraphs (c) or (d), a lawyer having (7) violate any disciplinary or disability orderknowledge that a judge has committed a violation of or judgment;applicable rules of judicial conduct that raises a (8) fail to timely furnish to the Chiefsubstantial question as to the judge's fitness for office Disciplinary Counsel's office or a district grievanceshall inform the appropriate authority. committee a response or other information as

(c) A lawyer required by the Texas Rules of Disciplinaryhaving knowledge or suspecting that another lawyer Procedure, unless he or she in good faith timelyor judge whose conduct the lawyer is required to asserts a privilege or other legal ground for failure toreport pursuant to paragraphs (a) or (b) of this Rule do so;is impaired by chemical dependency on alcohol or (9) engage in conduct that constitutesdrugs or by mental illness may report that person to barratry as defined by the law of this state;an approved peer assistance program rather than to (10) fail to comply with section 13.01 of thean appropriate disciplinary authority. If a lawyer Texas Rules of Disciplinary Procedure relating toelects that option, the lawyer's report to the approved notification of an attorney's cessation of practice;peer assistance program shall disclose any (11) engage in the practice of law when thedisciplinary violations that the reporting lawyer lawyer is on inactive status or when the lawyer's right

c. Rule 8.04 Misconduct

course of a client-lawyer relationship.(2) commit a serious crime or commit any

other criminal act that reflects adversely on the


45

to practice has been suspended or terminated the Bar of a particular tribunal without giving toincluding but not limited to situations where a opposing counsel timely notice of his intent not tolawyer's right to practice has been administatively comply.suspended for failure to timely pay required fees or (6) Engage in undignified or discourteousassessments or for failure to comply with Article XII conduct which is degrading to a tribunal.of the State Bar Rules relating to Mandatory (7) Intentionally or habitually violate anyContinuing Legal Education; or established rule of procedure or of evidence.

(12) violate any 2. ABA Defense Function Standard 4-7.1other laws of this state relating to the professional (C) states that it is unprofessional conduct for aconduct of lawyers and to the practice of law. lawyer to engage in behavior or tactics purposely

(b) As used in calculated to irritate or annoy the court or thesubsection (a)(2) of this Rule, "serious crime" means prosecutor.barratry; any felony involving moral turpitude, any 3. New Rules: The current state of Texasmisdemeanor involving theft, embezzlement, or law is found in Rule 3.04.fraudulent or reckless misappropriation of money orother property; or any attempt, conspiracy, orsolicitation of another to commit any of the foregoing "Criminal contempt results from doing thatcrimes. which the court has prohibited; civil contempt

In the context of generally results from failing to follow an order of themisconduct subject to disbarment, but not conduct court.... [A] proceeding which has as it purpose togenerally within the ambit of the "practice of law," punish a contemnor through fine or imprisonment issuch as what State Bar Rule 8.04 (a) (1)-(3) classified as criminal; the contempt is considered civilelucidates, see Minnick v. State Bar of Texas, 790 if the purpose of the sentence is coercive orS.W.2d 87, 91-2 (Tex.App.--Austin 1990, n.w.h.). remedial." Ex parte Krupps 712 S.W.2d 144, 149

9. CONTEMPT BY ATTORNEYSa. Old Disciplinary Rule on

Contempt1. Old DR7-106

(C) states: In appearing in his

professional capacity before a tribunal, a lawyer shallnot:(1) State or allude to any matter that he has noreasonable basis to believe is relevant to the case orthat will not be supported by admissible evidence.

(2) Ask anyquestion that he has no reasonable basis to believe isrelevant to the case and that is intended to degrade awitness or other person.

(3) Assert hispersonal knowledge of the facts in issue, except whentestifying as a witness.

(4) Assert hispersonal opinion as the justness of a cause.

(5) Fail to complywith known local customs of courtesy or practice of

b. Civil Contempt/Criminal Contempt

(Tex. Crim. App. 1986) (emphasis supplied). If thecontempt is designed to enforce a court order andterminates upon compliance, then the contempt is"civil"; but if the contempt is designed to vindicatethe court for disrespect and does not terminate untilpenalty paid, then the contempt is criminal. Smith v.Sullivan 611 F.2d 1050 (5th Cir. 1980). There mustbe a willful or reckless state of mind for criminalcontempt. In re Joyce 506 F.2d 373 (5th Cir. 1975).

DUE PROCESS CONSIDERATIONS:Hicks v. Feiock, 485 U.S. 624, 108 S.CT. 1423,(1988). Proceeding and remedy are for civilcontempt if punishment is remedial and for thecomplainants benefit; criminal contempt if sentenceis punitive to vindicate court's authority. If relief isfine, remedial when paid to complainant, punitivewhen paid to court. If imprisonment, remedial ifcommitted till performs act, punitive if limited tounconditional imprisonment for a definite period. Ifcriminal, due process requires Constitutionalprotections, including proof beyond a reasonabledoubt. Query: does this outlaw summary contempt?






46

c. Texas Procedurei. Criminal Contempt The procedure to invoke the jurisdiction of

Punishment: the disinterested district court mentioned inGovernment Code Government Code 21.003(d) and to invoke the

21.002 Contempt of Court: (b) $500 or not more jurisdiction over the person of the offending attorneythan 6 months in the county jail or both. Private is to issue and personally serve on the offendingparties criminal contempt action is not double attorney a show cause order specifying the offendingjeopardy for criminal acts underlying the contempt. conduct and appointing a time and place for hearing.Ex parte Williams, 799 S.W.2d 304 (Tex.Crim.App. Ex parte Johnson, 655 S.W.2d 415 (Tex. Sup. Ct.1990). 1987).

ii. Must Have Hearing:S u m m a r y vi. Appeal from finding of

punishment for contempt of an officer of the court is contempt.precluded by what is now Government Code 21.002 There is no right to appeal from an order of(c): "Because of the procedure prescribed by Article contempt - the remedy is to file an original1911a V.A.C.S., an officer of the court may no application for habeas corpus with the Court oflonger be similarly punished even though his conduct Criminal Appeals. Ex parte Moorehouse, 614deemed contumacious is before the court. The S.W.2d 450 (Tex. Crim. App. 1981).statute requires that an officer of the court be granted vii. "Restraint" is Jurisdictional toa hearing before another judge. Ex parte Martin, 656 Writ Application.S.W.2d 443 (Tex. Crim. App. 1982), see also Ex A mere order of contempt will not justifyparte Krupps, 712 S.W.2d 144 (Tex. Crim. App. habeas corpus - there must be restraint.1986) (drawing a distinction between procedures Consequently, there can be no habeas corpus for awhen a civilian contemnor is involved and when an court's order to pay a fine for contempt.officer of the court is involved). The result that a Cine-Matics, Inc. v. State, 578 S.W.2d 530 (Tex."civilian" is subject to summary punishment for Civ. App. 1979) no writ. One assumes that refusaldirect contempt seems unfair, see Ex parte Daniels, to pay the fine will result in arrest from which the722 S.W.2d 707 (Tex. Crim. App. 1987). habeas corpus will then lie.

iii. Personal Recognizance viii. Bail Pending Hearing Court ofPending Hearing: Criminal Appeals on Habeas

Government Code Corpus.21.003(d): "A officer of a court...shall on proper To be eligible for habeas corpus attorneymotion filed in the offended court, be released on his must be in "custody." Ex parte Eureste, 725 S.W.2down personal recognizance pending a determination 214 (Tex. Crim App. 1986). Note that the personalof his guilt or innocence by a judge of a district court recognizance bond mentioned in the Governmentthat is not the offended court." Code expires once the order of contempt is entered

iv. Right to Habeas Corpus If is not the remedy. The Court of Criminal Appeals isNo Personal the only court that can set bond, which it willRecognizance. consider upon issuing the writ of habeas corpus.

If the offended Eureste and Article 11.32 TCCP (writ bond).court refuses to allow the lawyer to be released or to Therefore, the wise attorney, prior to the hearing onhave the case heard by a different judge the lawyer is the show cause order specified in Govt. Codeentitled to habeas corpus on those grounds. Ex parte 21.003(d) will make arrangements with an AustinGriffitts, 711 S.W.2d 225 (Tex. Sup. Ct. 1986). lawyer to stand by the telephone on the date of the

v. Show Cause Order.

and there can be no valid appeal bond because appeal

show cause hearing. If the offending lawyer is found








47

in contempt and ordered to jail (See G id.) jailed Because of its lack of due process, Rulelawyer calls Austin with instructions to "throw a 42(a) must be used sparely and only in instanceswrit" on Texas Court of Criminal Appeals. Must where the attorney's conduct tends to bring thedeliver original and eleven copies of Application for administration of justice into disrepute and there is aWrit of Habeas Corpus to Court of Criminal need for immediate vindication of the dignity of theAppeals. Also file written request with Court of court. See generally, Attorney's Conduct asCriminal Appeals to be released on personal bond Justifying Summary Contempt Order Under Rulepending hearing on the writ per Art. 11.32 T.C.C.P. 42(a). 58 ALR Fed. 22.Hopefully the Court of Criminal Appeals willroutinely grant the request for personal bond and v. Appeal.instruct the Executive Administrator of the Court to a. Contrary to the common law rule, thecommunicate that order to the person holding the federal rule is that judgments of contempt arecondemnor in restraint. appealable like other judgments - see cases discussed

d. The Federal Procedure.i. 18 USC 401. b. Since 18 USC 401 sets no limit on the

"A court of the trial court's power, Circuit Court has power to reviewUnited States shall have power to punish by fine or and to modify an excessive sentence. United Statesby imprisonment, at its discretion, such contempt of vs. Powers, 629 F.2d 619 (9th Cir. 1980).its authority, and none other, as -

a. Misbehavior ofany person in its presence....

b. Disobedience or 1. Defendant's brother substituted at counselresistance to its lawful writ, process, table in an attempt to produce mis-identification byorder...command. the prosecution witness resulted in contempt. Ex

ii. Rule 42. Two types of 1961).Contempt. 2. Failure to file appellate brief, as ordered

a. Summary by appellate court is contempt. In re Taylor, 674punishment if judge certifies that act was committed S.W.2d 922 (Ct. App. 1984); In re Ganne, 643in the actual presence of the court and that court saw S.W.2d 195 (Ct. App. 1982).or heard the conduct. 3. Conduct with court. Ex parte Pink, 746

b. Others S.W.2d 758 (Tex.Crim.App. 1988) failure to acceptprosecuted on notice stating facts and setting time court appointment. State v. Jones (In re Banks), 726and place for hearing. If contempt involves S.W.2d 515 (Tenn. 1987).disrespect of judge, that judge disqualified from 4. See also, Attorney's Failure to Attendsetting. Contemnor entitled to bail. Court or Tardiness as Contempt, 13 ALR 4th 122;

iii. Warning Favored. to Court During Course of Trial as Contempt, 68Although not ALR 3rd 273; Kilgarlin and Ozmun, Contempt of

necessary, a warning is favored by the appellate Court in Texas - What you Shouldn't Say to thecourts before direct contempt power is exercised. Judge, 38 Baylor L. Rev. 291 (1986).U.S. vs. Brannon, 546 F.2d 1242, 1249 (5th Cir.1977).

iv. Summary ContemptDisfavored.

in Appealability of Contempt Adjudication orConviction, 33 ALR 3d 448, 467-78.

e. Examples of Contemptuous Conductby Attorneys

parte Clayton, 350 S.W.2d 926 (Tex. Crim. App.

Attorney's Addressing Allegedly Insulting Remarks




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