Posted on January 15, 2011 in Uncategorized

Furthering my discussion of the proposed amendments to the Texas Disciplinary Rules of Professional Conduct...

If you want to give me a very large gift, you may. The government will not, as a general rule, interfere. If you have giver's remorse, neither law nor equity will require that I return the gift except in narrow circumstances-where I have defrauded you or taken advantage of some particular vulnerability of yours, for example.

If you don't want me to represent you, you don't have to have me represent you. The government will not force you to, except in narrow circumstances.

If I want to work for you for free, I may. The government will not, as a general rule, interfere. If I change my mind and demand payment, neither law nor equity will require that you pay me for my time.

If I don't want to work for you at all, I don't have to. The government will not (again, as a general rule) force me to.

These general rules are the foundations of freedom to contract: we can do what we want with our property and our precious time. If you can give me a very large gift, you can pay me a very large sum to work for you, a very small one, or anything else we agree on. If I can work for you for free or refuse to work for you at all, I can demand any payment I like for my services. And if you don't have to have me represent you, you can decline to pay whatever I demand for my services.

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 Posted on January 15, 2011 in Uncategorized

From the State Bar of Texas, contact information for a young Houston criminal-defense lawyer:

Yes, the State Bar in fact says that this lawyer is employed by a Texas prison inmate (she is not), and gives that inmate's prison address as the lawyer's address (it is not). This is on the State Bar's lawyer-search site, where people can (theoretically) go to find reliable contact information for any Texas lawyer. I wonder how much of the lawyer's mail Mr. Tarvin has received.

Meanwhile, the same State Bar of Texas is struggling to persuade you that the amendments to the Disciplinary Rules are in the best interest of your clients and you. Unfortunately for the State Bar, ethos is important.

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 Posted on January 14, 2011 in Uncategorized

I want to talk about the proposed amendments to the Texas Disciplinary Rules of Professional Conduct and the State Bar of Texas's war on flat fees, but to care about that you need to know why flat fees are good for people charged with crimes.

So your loved one is charged with a serious crime.

There are two ways we can handle this fee. Either you pay me a flat fee, earned upon receipt. Or you pay me for each stage of the case.

If you pay me a flat fee, that fee is the minimum fee for my handling of your loved one's case. It is also the maximum. If we go to court the first time and, for whatever reason, the case is dismissed, I don't owe you any money back. On the other hand, if we spend a year litigating and then wind up in a two-week trial, you don't owe me any more money.

If you pay me for each stage of the case, on the other hand, and we resolve the case quickly, you will pay me less than the flat fee. So staged payment may seem-especially if you're not a good long-term planner-like the more frugal option. But if you pay me for each phase of the case and the case goes to trial, you will pay me more than the flat fee-possibly much more. That is, the minimum will be lower but the maximum will be higher.

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 Posted on January 12, 2011 in Uncategorized

It's enough for me that the State Bar wants to do away with flat fees. Most people who have the money to pay me a flat fee, in which I accept the risk that litigation will drag on and the client accepts the risk that it won't, could not possibly afford to deposit enough in trust to cover my hourly rate through every reasonably anticipable contingency of my representation. Forbidding criminal-defense lawyers charging flat fees would deprive many of effective representation. (By the way, Abraham Lincoln was wrong: my time is not my stock in trade.)

So I'm voting "no" to all of the State Bar's ill-thought-out and unnecessary amendments to the Texas Disciplinary Rules of Professional Conduct, with the possible exception of Rule 1.13, forbidding lawyers having sex with clients. And so, if you're a Texas lawyer, should you. (Note that you can only vote "no" by actually voting "no." The rules have changed so that a majority of members are not required to approve the amendment, but only a majority of voting members. Once upon a time an abstention was a "no" vote, but no longer.)

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 Posted on January 12, 2011 in Uncategorized

In the wake of a tragic shooting in Tucson, members of Congress and the media mourn and soberly reflect along with the rest of America.

No, I'm just kidding. In the wake of a tragic shooting in which six people who weren't members of Congress were killed, members of congress rush to exploit the tragedy for their own ends.

1. Peter King of New York wants to make it illegal to bring a gun within 1,000 feet of the president, vice president, members of Congress or judges of the Federal Judiciary.

2. James Clyburn of South Carolina thinks TSA should let Congresscritters slide through security.

3. Robert Brady of Pennsylvania wants to make a crime of "language or symbols that could be perceived as threatening or inciting violence against a federal official or member of Congress."

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 Posted on January 04, 2011 in Uncategorized

From today's Houston Chronicle-the front page:

U.S. agents are armed with the secrets of a convicted Houston gunrunner, information that could lead them to top Mexican drug-cartel bosses and the Texas firearms dealers suppling high-powered weapons.[Defendant] was sentenced to three years in federal prison as a result of a plea agreement that offered leniency in exchange for telling U.S. officials about his criminal contacts, according to court papers."[Defendant] has also provided assistance and information related to the sale of the firearms in question to highly sought fugitives who are believed to lead one of the most violent Mexican drug cartels, the Zetas," states a paper submitted to a federal judge by his lawyer...

So a defendant in federal court got his sentence reduced (from a 24/II 57-to-71-month sentence) by cooperating with the government. To the federal criminal-defense lawyer, this is not news. The same thing happens every day, and is not generally worthy of mention. There is nothing in the facts of this story that makes it worthy of mention-we're not talking about Osiel Cardenas Guillen here, but rather a schnook who was buying guns in the U.S. to be shipped overseas.

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 Posted on January 01, 2011 in Uncategorized

Prosecutors Lester Blizzard and Kayla Allen, however, asked Ellisor for life sentences to send a message to anyone who would drive while intoxicated.

(KHOU.)

Howard is an unsympathetic character. Because he is an unsympathetic character, it's easy to send him to prison for life. Blizzard and Allen were arguing for general deterrence: "send a message." But for the same reason that it would be easy to send him to prison for life-because he is an unsympathetic character whose experience is so far divorced from most of ours-sending him to prison for life is a particularly poor general deterrent. The message here is not, "if you drive while intoxicated the consequences will be severe," but rather, "if you commit aggravated sexual assault of a child, get convicted, fail to register as a sex offender, get convicted, and then drive while intoxicated and kill two people the consequences will be severe."

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 Posted on December 28, 2010 in Uncategorized

Word is that Alex Bunin, Harris County's first Public Defender, has chosen Bob Wicoff to head his appellate division, and that they have offered positions as assistant PDs to Melissa Martin, Jani Maselli, and Sarah "Bennett's Brain" Wood.

Bunin's choice of Wicoff is commendable and, while I deeply resent their cooptation of my trial partner, I have to applaud Bunin and Wicoff's selections: true believers, smart people, and excellent writers every one.

Give 'em hell, ladies.

[Update: I learned today that Angela Cameron will also be joining the team. Everything I said about Melissa, Jani, and Sarah applies equally to Angela.]

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 Posted on December 28, 2010 in Uncategorized

Shortly after Nutt was arrested, State District Judge Kevin Fine reduced his bail from $200,000 to $20,000 without notifying prosecutors, a move that some legal experts said could result in possible discipline for violating judicial ethics.

(Chron.com.)

Okay. What experts? Here's the lede from the Chronicle's article form the 18th on the lowering of Deputy Nutt's bail:

A Houston judge faces possible discipline for violating judicial ethics by reducing the bail of a recently arrested sheriff's deputy without notifying prosecutors, legal experts said.

Okay. What experts?

James Alfini, a South Texas College of Law professor who writes on judicial ethics, said prosecutors represent the community, as well as victims, during criminal cases."The people have an interest in being present when the judge considers a reduction in a bond, particularly a significant reduction like that," Alfini said. "The judge needs to notify all the parties and give them an opportunity to respond."Alfini was not familiar with Nutt's case and spoke about the rules generally.

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 Posted on December 27, 2010 in Uncategorized

A backlog of thousands of Texas court cases. Drunken drivers convicted on lesser charges. Repeat DWI offenders who don't have a record of a related conviction or treatment.Those are some examples of what's bringing together a new coalition that includes Mothers Against Drunk Driving, prosecutors and defense attorneys who support a widespread change in how the state punishes first-time drunken drivers.

(Houston Chronicle.)

The change in question? Authorizing deferred-adjudication probation for first-time DWI offenders.

Right now, a person charged with a first DWI in Texas has two, maybe three broad options:

1. Plead guilty to DWI; either a) take a final conviction (with license suspension), maybe do a little jail time (or maybe just time served), maybe pay a little fine; or b) take probation (with no license suspension as part of the probation, though there might have been an administrative suspension);2a. (In Travis County, and some others, but not in Harris County) Plead guilty to some non-DWI offense (reckless driving, obstructing a roadway), and take deferred-adjudication probation or a conviction;2b. (In Harris County only) Sign up for the DIVERT program, a sort of deferred-adjudication probation with-maybe, depending on how the issue shakes out in the courts-the possibility of expunction after two or three years; or3. Plead not guilty to DWI; either be acquitted (resulting in no punishment), get the case dismissed (ditto), or lose at trial and get punishment very similar to that if he had pleaded guilty.

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