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Recent Blog Posts
Law Geek: Retroactivity of Padilla v. Kentucky
When I read Padilla v. Kentucky, I didn't give much thought to the question, but after hearing considerable debate among smart lawyers of whether the rule in that case (that counsel is ineffective for not telling the defendant about clear immigration consequences before a guilty plea) is retroactive, I took a closer look at the retroactivity of Padilla.
There are two different retroactivity questions that the courts will face. First, does the rule apply to a conviction that was final (all direct appeals exhausted or expired) before Padilla was handed down (March 31, 2010); and second, can someone who has already filed one writ of habeas corpus use Padilla as grounds for filing a second, successive, or out-of-time writ of habeas corpus?Let's call the first type of retroactivity "first-writ" retroactivity, and the second type "successive-writ" retroactivity.
A Tiger for HCCLA
Pop quiz:
Several Houston police officers savagely beat a surrendering suspect. The attack is captured by a private citizen on video. The Harris County District Attorney's Office seeks to keep the video from being published. The private citizen provides a copy of the video to another private citizen, who releases it to the media, who publish it.
Does the Harris County Criminal Lawyers Association:
A) Publicly state its opposition to police brutality and commend those who have brought evidence of brutality to light, while pointing out that the officers apparently beating the suspect should get all the due process that the suspect should have received;
B) Publicly state its opposition to police brutality and point out that the officers apparently beating the suspect should get all the due process that the suspect should have received, and remain neutral on the release of the video; or
C) Publicly state it opposition to police brutality, point out that the officers apparently beating the suspect should get all the due process that the suspect should have relieved, and call the private citizens' Constitutionally-protected release-and the media's Constitutionally-protected publication-of the video "a direct assault on the Bill of Rights."
Vote Now (and Vote No)
You, being a Defending People reader, have probably already voted in the bar referendum, but there are apparently many Texas lawyers who haven't. If you haven't (or if any of your friends or associates haven't), here's the link:
State Bar of Texas 2011 Referendum
When asked to justify the changes, the State Bar's argument has been that a) the rules have not changed in twenty years; and b) the committee spent seven years working on the amendments; so c) Texas lawyers should approve the amendments.
I disagree.
The status quo has worked pretty well, both for lawyers and for our clients. They might be improved on, but "they haven't changed in 20 years" is not a reason to change them, and "we spent seven years working on this" is not evidence that the amendment is an improvement.
If and only if you are convinced that a particular amendment is needed, and will not cause more mischief than it will prevent, please vote "Yes."
Texas Legislator Against Theocracy
As a bulwark against Christian fundamentalist theocracy (which is, let's face it, the only kind of theocracy we could possibly slip into), it's a good start. It'll also keep those pesky Ten Commandments out of the courtroom. But, Rep. Berman, are you sure you cleared this with David Barton first?
Steve Fischer to Chief Justice Jefferson on the Bar Rules Amendment Referendum
From lawyer Steve Fischer of Rockport, Texas, in response to Chief Justice Wallace B. Jefferson, who has been tubthumping for the amendments to the Texas Disciplinary Rules of Professional Conduct:
Proposed bar rules- Open letter to Chief Justice Jefferson.
Dear Justice Jefferson:
Thanks for the email advising us on how to vote! This of course, was your second attempt at educating us. I noticed there was no return email as I suppose you are only interested in sharing your opinion and not hearing ours.
If you want another opinion, try mine in the January Texas Bar Journal (page 65). Perhaps after noting that over 60,000 attorneys don't vote in any bar presidential election, you'd understand that the State Bar is not democratic and does not represent the rank and file attorney. The elite group who on the bar nominating committee sit behind closed doors and anoint two of their own for the lowly masses can approve. Even the incoming president admits the 5% petition requirement to run, if one isn't a recent member of the board of directors, is pretty much impossible to obtain.
Why Straight-Ticket Referendum Voting Is Right
Finally, I think it irresponsible to vote against ALL of the changes based upon your opposition to one rule. The ballot has 6 questions. Why throw the baby out with the bath water? If you actually look at some of the other proposals, you might find you agree with them.
That's SMU lawprof Fred Moss's argument against straight-ticket "No" referendum voting.
Here's why it is responsible to vote against all of the changes.
First, if the State Bar had wanted lawyers to vote for the proposals with which they agreed and against the proposals with which they disagreed, it would have made it possible to vote for or against each amendment. It didn't do that; instead the State Bar has manipulated the ballot for its own purposes: it has grouped disparate rules together under individual questions in hope that support for the worthier rules will overwhelm opposition to the stinkers. That, as Iain Simpson says, is no way to run a referendum.
Because We Said So
As I have said before, the proposed rules have been vetted by the State Bar Disciplinary Rules Committee, the Supreme Court Task Force, the Board of Directors and the Supreme Court itself. To suggest that the final result is a product as flawed as the critics would have you believe is just a bit disingenuous. I hope you will study the proposed rules and make your own decision.
That's Lubbock Lawyer Ralph Brock's in favor of the proposed amendments to the Texas Disciplinary Rules of Professional Conduct.
Do you trust the State Bar Disciplinary Rules Committee to have your clients' best interests at heart?
Do you trust the Supreme Court Task Force to have your clients' best interests at heart?
Do you trust the Board of Directors to have your clients' best interests at heart?
Do you trust the Supreme Court of Texas to have your clients' best interests at heart? (Have the rules really been "vetted by the Supreme Court itself"? or is "The Court's approval of this referendum... not a predetermination of any legal issues regarding the proposed rules"?)
Other Blawgospheric Voices on the Referendum
Thanks to the following bloggers, and especially to our out-of-state colleagues, for weighing in on the State Bar of Texas's attempts to amend the Disciplinary Rules and efforts to do away with flat fees:
Max Kennerly, Sound And Fury Over Flat Fees, Signifying NothingGideon, Blawg Review #294: MLK, Jr. Day editionBrian Tannebaum, Shame On The Texas Bar, And UsScott Greenfield, Flat Fees and the Last Texas Criminal Defense LawyerColin Samuels, A Round Tuit (53)Jeff Gamso, If I Only Had a Vote
An Unlawful Referendum
The State Bar of Texas is conducting an unlawful referendum on amendments to the Texas Disciplinary Rules of Professional Conduct. Any rules that pass the referendum will be subject to years of litigation; even if they are ultimately upheld by the courts, they will still be illegitimate.
Here, from the Texas Government Code, is the statute governing the referendum:
§ 81.024. RULES. (a) The supreme court shall promulgate the rules governing the state bar. The rules may be amended as provided by this section. (b) The supreme court may, either as it considers necessary, pursuant to a resolution of the board of directors of the state bar, or pursuant to a petition signed by at least 10 percent of the registered members of the state bar, prepare, propose, and adopt rules or amendments to rules for the operation, maintenance, and conduct of the state bar and the discipline of its members. (c) When the supreme court has prepared and proposed rules or amendments to rules under this section, the court shall distribute a copy of each proposed rule or amendment in ballot form to each registered member of the state bar for a vote. (d) At the end of the 30-day period following the date the ballots are distributed, the court shall count the returned ballots. (e) The supreme court shall promulgate each rule and amendment that receives a majority of the votes cast in an election. The rule or amendment takes effect immediately on promulgation by the court. (f) The vote shall be open to inspection by any member of the bar or the public. (g) A rule may not be promulgated unless it has been approved by the members of the state bar in the manner provided by this section.
SBOT General Practice, Solos, and Small Firm Section: Vote “No.”
From Brian Burris of the Council of the General Practice, Solos, and Small Firm Section of the State Bar of Texas, a voluntary section that "devotes its energies primarily to the interests of lawyres who practice as solos and in small firms:The Council of the General Practice, Solos, and Small Firm Section has voted overwhelmingly to recommend a "No" Vote on 4 of the 6 items on the disciplinary rules referendum. (According to the State Bar, 60% of Texas private practitioners are either solo practitioners or are in small firms (2-5 lawyers).)
Specifically, the Council recommended a "No" Vote by 86% margins on Propositions A, B, D, and E. By a narrow 54% margin, the Council recommended a "Yes" vote on item C, and by a 73% margin, a "Yes" vote on item F. Here are the specific votes:
PROPOSITION A: Terminology, Competent and Diligent Representation, Scope of Representation and Allocation of Authority, Communication, Fees, Confidentiality, Safekeeping Property, and Declining or Terminating Representation
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