Posted on November 04, 2009 in Uncategorized

I charge bigger fees... so I can take fewer cases... so I can give each case more attention... so I can get better results... so I can charge bigger fees... so I can take fewer cases...

I charge smaller fees... so I have to take more cases... so I have to give each case less attention... so I get worse results... so I have to charge smaller fees...

Criminal defense lawyers: which gerbil wheel would you rather be on?

(Inspired by this PSA from our collective memory:)

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 Posted on November 04, 2009 in Uncategorized

Via Simple Justice, this video of Maricopa County Sheriff's Deputy Adam Stoddard raiding the file of a criminal-defense lawyer while her back is turned:

Notice the pathetic weak passive behavior of Judge Lisa Flores. Also note that the defense lawyer's first reaction is to want to know if she's being accused of wrongdoing.

Here's the followup by Nick R. Martin of Heat City, who broke the story, and who was the only media person in the followup hearing before Judge Gary Donahoe:

At first, Stoddard testified that the document he yanked from the file - a handwritten letter - contained "keywords" that led him to believe Lozano was some sort of security risk. Later, however, the detention officer admitted the document had been reviewed by court or sheriff's officials beforehand and was quite literally given a stamp of approval. "I guess, yeah, he would be legally entitled to have whatever he had on him," Stoddard said, adding that the letter had been "date stamped by a notoriety [sic notary] or the sheriff's office." Stoddard also said he thought the document might have been somehow illegally passed between Lozano and his defense attorney. But later in the hearing, he admitted that there was really nothing unusual or illegal about a handwritten letter being passed between attorney and client.

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 Posted on November 03, 2009 in Uncategorized

David DeCosta was set up, to begin with: set up by the Maricopa County Sheriff's Office and the Phoenix Police Department, and almost certainly factually innocent.

Phoenix criminal-defense lawyer Matt Brown didn't know that at first, but he found the story of DeCosta's arrest for allegedly trying to sneak drugs to Jesse Alejandro interesting enough to post about, especially in light of the fact that, about a year ago, one of Alejandro's previous lawyers had also been accused of smuggling heroin to inmates. That lawyer pleaded guilty in August. Blogworthy, no?

For writing the post, Matt took personal attacks from Phoenix criminal-defense lawyers Pamela Nicholson ("Maybe tomorrow the criminal defense bar will be abuzz about how you don't even understand the most basic Constitutional right-presumed innocence") and Russ Richelsoph ("As an attorney who holds yourself out as someone who practices criminal defense... ")

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 Posted on October 30, 2009 in Uncategorized

The Harris County District Attorney's office has asked criminal Court-at-Law Judge Reagan Helm to remove himself from two family violence cases because of "deep-seated bias and prejudice."In motions filed Thursday, prosecutors said Helm has a history of making inappropriate comments to assistant district attorneys, victims and defendants."These comments also signal to the victims and the community that Judge Helm believes that family violence cases are simply escalated domestic disputes, ‘stupidly' initiated and wasting his time," according to the motions.Prosecutors cited five specific cases and what they called a general pattern of admonishing men accused of family violence that the women who are accusing them have them "by the balls."

(Brian Rogers, Houston Chronicle.)

The view that the DA's Office ascribes to Judge Helm is not a politically-correct one, to be sure, but that doesn't make it wrong. Often family violence cases are simply escalated domestic disputes, stupidly initiated and wasting the court's time.

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 Posted on October 30, 2009 in Uncategorized

The criminal-defense lawyer who served as the presiding director of the Austin Criminal Defense Lawyers Association wrote yesterday to tell me that Adam Reposa's writ was denied and he has to start serving his 90-day contempt sentence.

Eighteen months ago I wrote, a bit critically, of the ACDLA's role in the Reposa Affair. In yesterday's email the then-director responded in part:

.... It is my understanding that he did not seek and did not get help from the TCDLA strike force, although many individual members of ACDLA helped him in his defense and appeal. I've never met someone who thought 90 days (day for day) was fair, but that issue was separate and apart from our decision. One thing you should know is that Adam never was a member of ACDLA....

I see that last bit as revealing an ethical difference between ACDLA and the Harris County Criminal Lawyers Association. When the HCCLA Board hears that a criminal-defense lawyer is in contempt trouble in Houston, the organization gets involved. We don't ask whether the lawyer is an HCCLA member already; we don't wonder whether our help will "preserve the image and integrity of our membership"; we don't even ask if the lawyer was in the wrong; we just do what our job and defend him.

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 Posted on October 30, 2009 in Uncategorized

Scott Greenfield makes the world a little safer for blawgers (via Houston criminal-defense lawyer Paul Kennedy).

RIP John O'Quinn. A great lawyer and, like many great lawyers, not without personal demons (Rick O'Casey, Houston Chronicle).

Memo from Pat Lykos to Harris County prosecutors: if you violate Batson you're "incompetent;" if you violate Brady it's the defense's fault (Brian Rogers, Houston Chronicle) (also see Houston criminal-defense lawyer Murray Newman).

In a move to reduce jail overcrowding (and concomitantly to bring a little more rationality to the Harris County criminal justice system) the Harris County DA's Office has reduced its rec on state-jail-felony crack pipe cases to 30 days in jail. I heard a rumor that the Office was going to stop accepting charges on trace cases, which made even more sense to me (knowing possession of a trace amount of cocaine is contradictory-if the crack smoker knew that there was any cocaine left, he'd've found a way to smoke it), but that policy hasn't materialized yet.

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 Posted on October 28, 2009 in Uncategorized

I got this in the mail:

Rule 7.05(b) of the Texas Disciplinary Rules of Professional Conduct provides that a written solicitation communication to prospective clients for the purpose of obtaining professional employment:

(1) shall, in the case of a non-electronically transmitted written communication, be plainly marked "ADVERTISEMENT" on its first page, and on the face of the envelope or other packaging used to transmit the communication. If the written communication is in the form of a self-mailing brochure or pamphlet, the word "ADVERTISEMENT" shall be: (i) in a color that contrasts sharply with the background color; and (ii) in a size of at least 3/8″ vertically or three times the vertical height of the letters used in the body of such communication, whichever is larger; (2) shall, in the case of an electronic mail message, be plainly marked "ADVERTISEMENT" in the subject portion of the electronic mail and at the beginning of the message's text; (3) shall not be made to resemble legal pleadings or other legal documents; (4) shall not reveal on the envelope or other packaging or electronic mail subject line used to transmit the communication, or pamphlet, the nature of the legal problem of the prospective client or non-client; and (5) shall disclose how the lawyer obtained the information prompting the communication to solicit professional employment if such contact was prompted by a specific occurrence involving the recipient of the communication or a family member of such person(s).

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 Posted on October 26, 2009 in Uncategorized

Rule 1.13. Prohibited Sexual Relations [new, renumbered](a) A lawyer shall not condition the representation of a client or prospective client, or the quality of such representation, on having any person engage in sexual relations with the lawyer.(b) A lawyer shall not solicit or accept sexual relations as payment of fees.(c) A lawyer shall not have sexual relations with a client that the lawyer is personally representing unless the lawyer and client are married to each other, or are engaged in an ongoing consensual sexual relationship that began before the representation.

That's right: "new." This is not currently the rule in Texas; the Supreme Court is proposing that it be adopted. I have mixed feelings about this. On the one hand, this would be a new law, and I'm in favor of fewer laws rather than more.

On the other hand, why is this even an issue?

A lawyer can't enter into a business transaction with a client without full disclosure and written informed consent (Tex. Discip. R. Prof. Cond. 1.08); who could possibly think it anything other than a monumentally bad idea for a lawyer to charge or accept a "couch fee"? To begin a sexual relationship with a client?

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 Posted on October 23, 2009 in Uncategorized

Given how I feel about lawyers representing defendants with conflicts, I was a bit disturbed to read this piece (Lisa Falkenberg) about Richard "Racehorse" Haynes being accused of conflicted representation in a federal drug case. Richard's client, Dong Huynh, sentenced to 22 years in prison, alleges that Richard had a conflict of interest because Dong had hired Walter A. Boyd, III to represent his cousin Duc. Duc began cooperating with the Government, implicating Dong, and pleaded guilty, then Richard and Walter formed a partnership. (See Dong's initial pleading raising the issue of the conflict, with attachments (ZIP).) Duc testified against Dong at trial.

Dong claims never to have been advised of a dual representation conflict of interest, and alleges that Richard never told the court about a potential conflict, and further never used the Haynes & Boyd firm name in pleadings in Dong's case. (Dong's lawyers were able to find examples of other lawyers in Richard's office using the partnership name during the same time period, but not, it seems, of Richard doing so.)

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 Posted on October 23, 2009 in Uncategorized

On Facebook, one of my friends commented on this post:

I'm really okay with the DA prosecuting fault for serious car crashes (these are not "accidents"), assuming they charged it appropriately. Houston leads not only Texas but the nation in terms of car crashes, and Houston-area auto owners pay among the highest liability insurance rates in the nation as a result. Most crashes are caused by operator negligence, including speeding, red light running, cell phone use, etc. The overwhelming majority of the time, there's no consequence for unsafe driving behavior. So when crashes occur, I'm in favor of there being consequences.

All crashes are either intentional or they are accidents. Calling them "crashes" doesn't make them "not accidents." Reckless crashes are accidents, negligent crashes are accidents, and crashes caused by acts of God are accidents. Almost all crashes are caused by operator negligence-usually by the negligence of more than one of the parties involved-and are avoidable.

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