TCDLA Strike Force FTW

 Posted on April 26,2011 in Uncategorized

The idea behind a lawyers' assistance strike force is that when a criminal-defense lawyer is under attack for doing her job, the strike force can intercede for the lawyer and protect the defense function. NACDL has a strike force; I helped several lawyers out of contempt citations on behalf of HCCLA's strike force, and will lead that strike force next year.

When I had a civil lawyer trying to invade the lawyer-client privilege in civil court (a client's friend, who had paid my client's fee, had hired the lawyer to file a motion for a presuit deposition to learn details of the representation in hopes of getting money back from me), my first call was to my lawyer, Troy McKinney, to quadruple-check that I was in the right; my second call was to TCDLA president-elect Gary Trichter, to ask that the TCDLA Lawyers Assistance Strike Force stand up for me. I wanted the Strike Force to explain the Special Rule of Privilege in Texas criminal cases, a subject dear to the heart of every Texas criminal-defense lawyer who understands it, to the civil judge. (Sure, I could have tried to explain it to him, but I try to avoid having fools for clients.)

After the request made its way through proper hidebound bureaucratic channels (from Gary to Strike Force chairman Mike Heiskell to local Strike Force members) to get someone to speak for TCDLA, I had a couple of lawyers-Stan Schneider and Katherine Scardino-lined up to speak for me, for TCDLA, and for the privilege. We went into court; my lawyers visited with the civil lawyer, who "only" wanted to see my contract with my client; I once again (there had been demands, politely rejected, before the lawyer filed anything) declined to share our contract, which is covered by the Special Rule of Privilege.

Katherine and Stan approached the judge, introduced themselves as representing me, TCDLA, and HCCLA, and explained the situation and the law. The judge (who knew Katherine already, which I'm sure didn't hurt) suggested that he review the contract in camera to confirm that there was a contract and that it didn't give the civil lawyer's client any rights. From my seat in the audience I gave Stan the nod (when you're claiming that material is privileged you expect that at some point a judge will look at privileged material), and the judge looked at the contract and dismissed the proceeding.

I have been a member of the Texas Criminal Defense Lawyers Association for fourteen years, and a vocal critic of the organization for half that time. TCDLA has loads of potential. It's one of the largest criminal-defense lawyers' organizations in the country (second in size only to NACDL, I would guess, though California might provide some competition). But the organization is more hidebound than it should be, with an unresponsive organizational structure and a tradition of oligarchy; TCDLA's marquee legal-education event, the annual Rusty Duncan seminar in San Antonio, has grown too large to be enjoyable, and the organization's leadership has done its best to make the listserv more civil than valuable-the current president, obsessed with policing niceness, has dedicated two of his columns in the organization's magazine to trying to teach manners to criminal-defense lawyers, and has actually formed a committee on listserv rules.

For all its flaws, one of the things that TCDLA gets right is the Strike Force. As the Strike Force demonstrated, when TCDLA frees lawyers like Stan and Katherine to speak for the organization, people-including civil-court judges-listen.