Posted on April 11, 2012 in Uncategorized

Mike asks,

Mark, do you have any authority to cite to support your interpretation that an IAC claim is not a "controversy between the lawyer and the client"? Just wondering because it certainly seems like one to me.

I know of no authority directly answering the question, "does an ineffective-assistance-of-counsel claim in a motion or writ for post conviction relief create a controversy between the lawyer and the client?"

But here are some of my thoughts.

According to the style of the case ("Ex Parte [Defendant]" or "State v. [Defendant]") the legal controversy is not between the lawyer and the client, but between the client and the state.

You might say, "but the rule doesn't specify a legal controversy; when my client says I was ineffective and I wasn't, there is a controversy between my client and me." This is too broad a reading of the word "controversy"; under that reasoning any time the lawyer and the client disagree the lawyer may publicly reveal client confidences.

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 Posted on April 10, 2012 in Uncategorized

One of my colleagues responded to this post,

All attorney's know, that once an ineffective assistance claim is made, the defendant essentially waives attorney-client privilege and the attorney has right to defend their actions and decisions.

This is an incorrect statement of the law.

Everything a lawyer learns in the course of representing a defendant is privileged. Texas Disciplinary Rule of Professional Conduct 1.05(c) describes when a lawyer may reveal privileged information:

(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.

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 Posted on April 10, 2012 in Uncategorized

I am hosting Blawg Review next Monday. The theme is Martin Luther King, Jr.'s Letter from a Birmingham Jail, which he penned forty-nine years ago Monday.

Please read the letter. If you haven't read it lately, reread it. It's a brilliant work, deserving of regular rereading along with the Declaration of Independence.

I'm a little intimidated by my chosen theme. So if you have any suggested links for Blawg Review, please pass them on.

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 Posted on April 07, 2012 in Uncategorized

Update 2: A week after the facts chronicled, I've been able to get my ego out of the way(a little bit) and look at the situation (a little bit) objectively.

I lead the Harris County Criminal Lawyers Association Lawyers Assistance Strike Force. When a lawyer gets himself into trouble with a court, we swoop in and get him out. We have an excellent track record-if a criminal-defense lawyer in the Houston area has been sanctioned or held in contempt in recent years, it's only because he hasn't bothered to call us.

The point? I am, to my core, a defender, not a prosecutor. This wouldn't have been a strike-force case, but if I hadn't been intimately involved with it, I'd've been unhesitatingly and aggressively on the young lawyer's side, arguing forcefully for forbearance and counseling rather than public criticism.

The original post was very therapeutic, and it led me to write down some of my thoughts about an important topic (here and here), but it didn't need to be published, and it doesn't need to endure.

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 Posted on April 06, 2012 in Uncategorized

Do you think, based on this video, that the judge's impartiality in a DWI case might reasonably be questioned?

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 Posted on April 03, 2012 in Uncategorized

Hit & Run, Did George Zimmerman Ignore the Police Dispatcher, and Why Did He Have a Gun?

Newman, Leapin' Lloyd Oliver on Reasonable Doubt

Cernovich, White Knights, Dark Prisons

Rushie, The Evolution of Crystal Cox: Anatomy of a Scammer

Popehat, Yes, The New York City Department of Education "Banned Words" List Is As Bad As Reported

Kennedy, DA drops case against blogger

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 Posted on April 02, 2012 in Uncategorized

...at Declarations and Exclusions.

Future Blawg Reviews here. If you have a blawg, sign up to do one. I've done two-#199 and #282-and will do more.

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 Posted on April 02, 2012 in Uncategorized

A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge's court in a manner which suggests to a reasonable person the judge's probable decision on any particular case. This prohibition applies to any candidate for judicial office, with respect to judicial proceedings pending or impending in the court on which the candidate would serve if elected....

Texas Code of Judicial Conduct Canon 3.

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 Posted on April 01, 2012 in Uncategorized

Anyone who reads this blog knows how I feel about anonymous commenters. People who spew their garbage on the internet from behind masks don't have any motivation to be truthful, much less logical, even less civil. Raising the barriers to entry for online communication would improve online discussions all around; I can do it here, but that's the extent of my influence.

I learned today (h/t Brian Cuban, who's against it) that Senator Joe Lieberman is sponsoring a bill (PDF, via Mcintyre v Ohio) that would amend Section 230 of the Communications Decency Act to strip web hosts of statutory immunity for the conduct of their commenters. Lieberman is not my favorite legislator, but I think he might have blundered on to something this time. Fashioning a more serviceable internet is a worthy goal; this bill would accomplish that, though that's probably incidental to his goals.

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 Posted on March 31, 2012 in Uncategorized

Back in December (ahem: three days before Carr's article) I was unimpressed with the stir over the $2.5 million dollar libel judgment against Crystal Cox:

A non-journalist like Cox is not allowed to defame a person. But-and this is crucial to an understanding of this case-a journalist is also not allowed to defame a person.....If Cox had been a journalist, Padrick would have had to demand that she retract her false statements before he could sue her. Cox still-even with a huge judgment against her-has not retracted her statements, so it's unlikely that she would have when such a judgment was only speculative.Yes, the court held that, under Oregon's journalist-shield law, Cox was not a journalist. My opinion of that? Meh. Don't defame people.

Add to that opinion, "don't extort people." It turns out that after Cox posted defamatory information against her victim, she hit him up for money to undo the damage she'd done. From the court's opinion denying new trial:

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