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Recent Blog Posts
Client Confidentiality in Texas
The Texas client confidentiality rules are much much more protective of our clients' secrets than many criminal-defense lawyers treat them.
The basic rule is TDRPC 1.05, which describes two types of confidential information:
(a) "Confidential information" includes both "privileged information " and "unprivileged client information.""Privileged information" refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 [sic] of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates."Unprivileged client information" means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
The Mind of the Criminal Defense Trial Lawyer
New York criminal-defense lawyer Scott Greenfield wrote yesterday (at 6:28 a.m. on a Sunday morning, for crying out loud!) about Conflict Aversion and Personality Traits (or is it "Conflict Aversion and Personality Flaws?" See the URL).
In Scott's excellent post, he focuses on criminal-defense lawyers' lack of aversion to conflict:
We avoid conflict when we can. We search for mutual ground, things we can agree upon. We know that there is far more to be accomplished through the mutuality of interests than through disagreements. But, there is also some bone in our heads that won't let us shy away from a fight. When pushed, we push back if we believe it matters.
This brought to mind two things that I've been wanting to write about. The first was the undesirability of aggression as a personality trait in a criminal-defense lawyer. I'll write about that later.
The Case of the Stolen Client
The day before yesterday, Ft. Worth criminal-defense lawyer Young Shawn Matlock wrote about The Lawyer Known as Weinstein, who "Would do anything to get a client. Back in the day, he even went to the client's home. He makes whatever promise he needs to get the client. After all, it's no problem for him. The problem is the client's when the client realizes he has hired a hack to defend him. I've even known him to steal clients before."
I am with Shawn most of the way. I'm hugely frustrated by the hacks who, to get hired, make promises they can't keep. They are doing a huge disservice to the clients, to the bar, and to the profession. But I don't believe that one lawyer can steal another's clients.
I've been on the receiving end of a motion to substitute plenty of times. I've been fired enough times that I've thought about writing a paper on the ethics of getting fired. It generally sucks when a client decides, for whatever reason, to hire someone else. The client usually doesn't bother to explain to the former lawyer where things went wrong. It's often an ego blow.
Advice to New Practical Blawgers
With new practical blawgers coming online every week, I think some advice from those who have been around a little (or a lot) longer might be beneficial.
For example, New York criminal-defense lawyer Scott Greenfield (of Simple Justice) says
Since you have no track record, it would be helpful to provide a short bio so we know who you are, what type of work you do and how much experience you bring to the table. On the internet, everybody looks alike, from the fertile octogenerian to the wettest newbie. The expectations change accordingly.
Here are a few things I would add:
If you want people to link to your blog, link to theirs in your posts. Take inspiration from the things other blawgers have written, and give them credit. Or disagree with them (heh) and include a link to the post in which they are wrong-wrong-wrong.When you cite another blog, describe the blogger. For example, "New York criminal-defense lawyer Scott Greenfield" or "Connecticut public defender Gideon" or "Connecticut criminal-defense lawyer Norm Pattis" (hi, Norm! - Norm googles himself regularly).Like Norm, Google yourself regularly, or go to Technorati to see who is linking to your blog posts. If they say something even moderately interesting, blog back. Quid pro quo is not the rule, but there is a spirit of reciprocity in the practical blawgosphere.Comment on other people's blog posts. That is, leave comments on their blogs. Also permit comments to your own posts. Don't be afraid - comments are a good thing.Stay away from the story of the day unless you have something new to add that is related to your subject matter. Nobody really cares whether you think Paris Hilton should go to jail.Likewise, and while the law is an intrinsically political activity, stay away from partisan politics. The world does not need another bloviating Democratic blog, much less another bloviating Republican blog.A good thing about blogging is that it is a good way to show the world who you are as a lawyer. Whether you intend it or not, clients will read your blog. So will your adversaries, witnesses, judges, and jurors. It would be much more difficult to present a false face in a blog than it is in an advertisement or a static website. A bad thing about blogging is that it is a good way to show the world who you are as a lawyer.
Another Practical Blawger
Maggie joins the practical blawgosphere with Of Counsel. Welcome, Maggie.
Some day soon I'll update the blawgroll and include a selection of worthwhile prosecutor blawgs.
Everybody Knows You're Supposed to Let the Client Stun You.
Via Anne Reed, this Above the Law post about...
... a California misdemeanor case in which the defense is claiming that police brutalized their client with a stun gun during his arrest at a shopping mall last year.That's because the defense team is now being criminally investigated for allegedly violating human experimentation laws by repeatedly using a stun gun on their client themselves during an evidence-gathering effort in a law office.
Here's the original ABA Journal article.
For the record, Defending People opposes the use of nonlethal force against clients. Unless it's absolutely necessary.
Mea Maxima Culpa
My friend Scott Greenfield is miffed about my characterization of his perspective on the question of when we should answer questions that the judge asks us about what we have told our clients.
Scott thinks that I'm accusing him of being unethical - untrue - and that I'm incorrect about his view - apparently.
What we're talking about is the fact that we've conveyed a plea offer to the client.
I contend that that fact, like all communications between lawyer and client, is privileged.
Scott contends that that particular communication is not privileged.
In Texas, according to Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct lawyers can only reveal confidential information (information protected by the lawyer-client privilege):
(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.(2) When the client consents after consultation.(3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client.(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client.(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.
Privilege Breakdown
After Gideon's two posts (here and here), Scott Greenfield's two posts (here and here), and my two posts (here and here), here's how I see attitudes about the revelation of communications from the lawyer to the client shaking out:
Some (edit: but not Gideon) believe that it is okay for a lawyer to reveal such communications to pretermit a possible future claim of ineffectiveness - to "make a record" against the client.
Some believe that it is not okay to make a record against the client, but that it is okay for a lawyer to reveal such privileged communications if revelation would not hurt the client - for example, if the communication was one that the lawyer was ethically required to make. New York criminal-defense lawyer Scott Greenfield holds this opinion. He will preserve confidentiality, but not at the cost of antagonizing the judge unnecessarily. (edit: Scott Greeenfield, whom I believe to adhere to the highest ethical standards, makes it clear that he does not consider his communication of a plea offer to a client to be a privileged communication.) (The argument that lawyer communications are not privileged because they are ethically required has no legs.)
More on Covering Your Ass
Every man needs a code to live by. When it comes to protection of the attorney-client privilege, it appears that my code puts me on the radical fringe. Under my code, everything I tell my client is privileged. I will only disclose it if disclosure helps my client, or if the client waives the privilege.Miranda thinks it's okay to make a record, in anticipation of a possible future claim to the contrary, that the client's rejection of the plea offer was against the advice of counsel. (See her comments to Gideon's post of yesterday).
Gideon, Scott, and Young Shawn Matlock (commenting on Scott's post) all think it's okay to tell a court, when a client is rejecting a plea offer, that you have discussed the plea with the client. Scott points out that we have an ethical duty to convey a plea offer to the client (true) so that the fact that we have done so reveals nothing (non sequitur).
Vanity
This month's Rolling Stone has an article about FSU ("Friends Standing United" or "Fuck Shit Up", depending on whom you ask), which is a violent gang of punk rock fans, originating in Boston. Members of the group make no bones about being violent. What was particularly interesting to me about FSU, though, is that their violence is directed toward people who they believe hold certain views that are condemned by the broader society as well - specifically, racist views: the article described the beating death of a young man in New Jersey who got into a brawl with some FSU members because he was at a concert with a friend wearing a flag with a confederate flag on it.
Some of the FSU members are "straight-edge," which means that they don't use drugs (including alcohol). Straight-edge gang members identify themselves with the letter X; the article described straight-edgers drawing Xs on their foreheads and then going to clubs and beating up people who were not straight-edge.
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