Ethics and Appointed
Criminal Cases
Presented by:
William R. “Bill” Cox
First Assistant
El Paso County Public Defender’s Office
Controlling Law In Texas
• Disciplinary Rules of Professional Conduct
• Code of Criminal Procedure
• Family Code
• Caselaw
Top Practice Areas for Grievances
• Criminal Law
• Non-client Relationship
• Family
• Civil
• PI
• Immigration
Top Complaints In Grievances
• Communication
• Neglect
• Integrity
• Declining or Terminating Representation
• Safeguarding Property
Client Communication
• 1.03 Communication
• (a) A lawyer shall keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
Good afternoon Ms./Mr. Lawyer, my son is at the
Jail Annex, and hasn’t heard from his lawyer. What
is going on with his case?
• How do you respond?
Duty on Receiving Appointment in a Criminal
Case
• Contacting the client
• Appointed counsel shall:
• make every reasonable effort to contact client by the end of
the first working day after receiving appointment
• Interview the client as soon as practicable after receiving the
appointment
Tx. Code Crim. Proc. § 26.04(j)(1)
Client Confidentiality
• Privileged Information
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Information learned directly from the client
• Confidential Information
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Information learned during the scope representing a client, but not learned directly
from the client.
Client Confidentiality
• Rule 1.05 Confidentiality of Information
• With the exception of the permissible or
mandatory disclosures of the rules… “a lawyer
shall not knowingly reveal confidential
information of a client or a former client to:
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(i) a person that the client has instructed is not to
receive the information; or
(ii) anyone else, other than the client, the client’s
representatives, or the members, associates, or
employees of the lawyer’s law firm.
Client Confidentiality – May Disclose
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A lawyer may reveal confidential 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 lawyers 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.
Client Confidentiality – May Disclose
• (d) A lawyer also may reveal unprivileged client information.
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(1) When impliedly authorized to do so in order to carry out the representation.
(2) When the lawyer has reason to believe it is necessary to do so in order to:
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(i) carry out the representation effectively;
(ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful
conduct;
(iii) respond to allegations in any proceeding concerning the lawyers representation of the
client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action
against another person or organization responsible for the payment of the fee for services
rendered to the client.
Client Confidentiality – Must Disclose
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(e) When a lawyer has confidential information clearly establishing that a client is
likely to commit a criminal or fraudulent act that is likely to result in death or
substantial bodily harm to a person, the lawyer shall reveal confidential
information to the extent revelation reasonably appears necessary to prevent the
client from committing the criminal or fraudulent act.
(f) A lawyer shall reveal confidential information when required to do so by Rule
3.03(a)(2),
3.03(b), or by Rule 4.01(b).
Initial Meeting
• Discussion of Attorney Client Privilege
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Limits on AC Privilege
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Duty to disclose
• Intent to commit perjury to perpetrate fraud on Court
• Intent to Commit in the future
• Criminal behavior involving children
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Tex. Family Code § 261.101
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Note this specifically trumps attorney client privilege
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Tex. Family Code § 261.101(c)
Failure to report Class A Misdemeanor, unless
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Victim of abuse was child with ID at State Center, then state jail
State proves intent to conceal abuse or neglect
Tex. Family Code § 261.109
Initial Meeting
• Do you want me to talk to anyone?
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If so what kind of information do you want me to give them?
Does the client expressly request you not give any information to some people
Client: “I didn’t do this. I was with my friend Juan,
but I don’t want him involved, and I forbid you to
talk to him. I also had a really bad childhood, my
father beat me, and my older brother molested me,
but you can’t talk to my family or anyone else about
that. Everything I tell you is confidential… right?”
• So……..?
Investigation
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Duty to Investigate
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Counsel Ineffective for:
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Relying on DA’s version of the facts
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Relying on client’s version of the facts
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Ex parte Raborn, 658 S.W.2d 602 (Tex.Crim.App. 1983); Ex Parte Butler, 716 S.W.2d 48 (Tex.Crim.App. 1986); Ex parte Welborn, 785
S.W.2d 391 (Tex.Crim.App. 1990); Diaz v. State, 905 S.W.2d 302 (Tex. App.-Corpus Christi, 1995 ); Melton v. State, 987 S.W.2d 72 (Tex.
App. – Dallas 1998, no writ).
Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980), overruled by Hernandez v. State, 988 S.W.2d 770 (Tex. Crim.App. 1999) on
other grounds.
Duty to perform an independent investigation
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Ex parte Brandley, 781 S.W.2d 886 (Tex. Crim.App. 1989, Rehrg. Denied 1990), overruled as stated in Baldwin v. State,
2009 Tex. App. LEXIS 4270 (Tex. App. Austin June 12, 2009) on other grounds.
Investigate What???
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State’s Case
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Allegations/Theory
Witnesses
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Credibility
Criminal History
Prior false allegations
Experts
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Daubert/702 issues
Prior testimony
Enhancement(s)
Priors
Extraneous Offenses
Investigate What???
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Client Case
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Client’s story
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Medical testimony to support client’s story/defense
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Alibi witnesses
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Bryant v. Scott, 28 F.3d 1411, (5th Cir. 1994).
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Investigating Alibi Witnesses
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Ex parte Hill, 863 S.W.2d 488 (Tex. Crim. App. 1993).
Mental health
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Rylander v. State, 75 S.W.3d 119 (Tex. App.- San Antonio, 2002, pet granted), reversed Rylander v. State, 101 S.W.3d 107, (Tex.
Crim.App. 2003) because record incomplete to support finding of ineffective assitance.
Woods. v. State, 59 S.W. 3d 833 (Tex. App – Texarkana, 2001, pet granted), reversed by Woods v. State, 108 S.W.3d 314
(Tex. Crim. App. 2003) for lack of jurisdiction to consider ineffective claim/error preservation issue.
Competency
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Ex parte LaHood, 401 S.W.3d 45 (Tex. Crim.App. 2012). In this case counsel was not found to be ineffective because
second prong of Strickland was not met.
Investigate What???
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Mitigation
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Rompilla v. Beard, 545 U.S. 374 (2005), Wiggins v. Smith, 539 U.S. 510 (2003).
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Client’s education records
Mental Health
Developmental History
Abuse/Neglect
Substance use and abuse
Life Experiences
Family Dynamics
19 year old Client: “Don’t worry about that
[immigration stuff]. I’ve lived in El Paso all my life. I
just want to get this case over with.”
Plea Bargains
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Duty to convey plea offers
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Missouri v. Frye, (132 S.Ct. 1789, 2012).
Ex parte Lemke, 13 S.W. 3d 791 (Tex. Crim. App. 2000)
Duty to advise client about plea offers, advisability of accepting or rejecting, etc.
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Lafler v. Cooper, (132 S.Ct. 1376, 2012).
Melton v. State, 987 S.W.2d 72 (Tex. App. – Dallas 1998, no writ). Check case, mistakenly? Telling client
video tape of robbery in evidence causing plea
Remember duty to serve as an advisor to clients
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2.01 Tex. Disciplinary Rules Professional Conduct
Collateral Consequences
• Immigration
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Padilla v. Kentucky, (559 U.S. 356, 2009).
Issues in a border community.
Collateral Consequences
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(Immigration is just the beginning…)
Employment
College Admission
Educational Loans
Firearm Possession
Enhancement
Sex Offender Registration
Government Assistance
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Housing, Medicaid, TANF, etc.
National Inventory of Collateral Consequences of Conviction
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http://www.abacollateralconsequences.org/
Lawyer: “Mr. Client, I know you want to testify, but I
will not call you to testify at trial, when the jury
hears that you held up that woman at gun point last
year, they will convict you for sure.”
Client’s Decisions
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Plead Guilty/ Not Guilty
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(Accept a plea bargain)
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Judge or Jury at Trial
Judge or Jury at Punishment
Whether to Testify
Whether to Appeal
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ABA Standards for Criminal Justice 4-5.2
Not Client’s Decisions
AKA Ethical Quicksand
• Witnesses
• Mitigation
• Case theory
• Motions
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Article 39.14– copies of discovery
• What else?