Carl Robin Teague
2009-2010 President
San Antonio Bar Association

 

August 2009 - A Lawyer’s Responsibilities – Pro Bono and Public Service

The phone rings.  “Good morning, Mr. Teague.  This is Judy Dietrich.  I’m the courtroom deputy for United States District Judge Xavier Rodriguez.  The judge would like to appoint you in a civil rights case.”  I had never been involved in a civil rights case.  But how could I “just say no” to a federal judge?  Being eager to please, I just said “yes.” 

Then Ms. Dietrich thanked me and told me she needed to provide some additional information.  “Your client is in a federal prison, located in Beaumont.  He has brought a civil rights case against a San Antonio Police Officer, accusing him of using excessive force in making an arrest.  He has also brought a suit against the city, mayor, city manager, and chief of police.  Motions to dismiss and for summary judgment are pending.  The response by your client is overdue.  The judge will probably give you an extension of time within which to file a response.  You can find most of what you need on Pacer.”  Too late to turn back. 

That call set me on a course of events which has led to what will be my focus during my year as president of the San Antonio Bar Association.  My focus will be on a lawyer’s responsibilities for pro bono and public service.

The Community Justice Program

The call from the courtroom deputy was not my first experience at pro bono work.  I had however spent most of my previous 35 years of practice without giving much thought to pro bono work.  I had worked so hard for my paying clients, I did not have time for pro bono work, or so I thought.

I had forgotten some of my responsibilities.  The theme of my year as president of SABA is not an original idea.  See the Texas Disciplinary Rules of Professional Conduct, where you will find the “Preamble:  A Lawyer’s Responsibilities.”

As stated in the Preamble, "A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf.  A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest."

You will find more about our responsibilities if you read the complete Preamble.  Local rules of the Western District of Texas adopt these rules.  The American Bar Association’s Model Rules of Professional Conduct contain similar provisions.  One of those Model Rules, 6.1, provides, “Every lawyer has a professional responsibility to provide legal services to those unable to pay.....”  I would like to think I have now accepted the challenge and will continue to accept the challenge to our profession.  So what happened?  Things change.

My involvement in pro bono work and public service began, I think, with the Community Justice Program and the District Courts Committee.  As a long time member of the District Courts Committee, I learned about the Community Justice Program soon after it came into existence in 2002, when it was started by Justice Phylis Speedlin and Civil District Judge Karen Pozza.  Jeff Akins was then the chair of the DCC.  I suggested to him and the other members that we could participate in the CJP through the Committee, which would provide a service for solo practitioners or members of small firms, who did not have the advantage of participation through a large firm or other organization. 

The first year, just a handful of us answered the call to “just take one.”  As chair of the DCC from 2005 to 2008, I continued to be the cheerleader of the Committee for the CJP.  The commitment of the members has steadily increased.  The Committee has continued to participate during August, at the St. Mary’s University School of Law Center for Legal and Social Justice.  In August 2008, about 15 members participated either as a volunteer attorney for a client, or as mentor.  There are obvious reasons for participation.  Indigent persons need access to justice.  They did not get the head start most of us got.  For those who have participated, there are other reasons:  an opportunity to not just do good, but to feel good, to get new skills, improve old skills, and enjoy fellowship.  Both clients and lawyers have needs which are fulfilled by this program.  So there is a benefit for both the client and the lawyer. 

I wish I had started pro bono work and public service earlier, but at least I started.  All of a sudden, I have really gotten involved.  Thanks in large part to Justice Speedlin and Judge Pozza, I have gotten so caught up in pro bono work and public service that in the past year I have tried a suit for divorce with Kristal Cordova, who sat as first chair and was my mentor through the CJP, taken two other CJP appointments for suits for divorce, tried a federal civil rights case by appointment twice to a jury, represented three defendants by appointment (in a motion to revoke federal probation in an indecent exposure case, in a case involving a federal charge of prostitution, and in a case involving a federal charge of DUI), and been appointed as the representative of SABA to the American Bar Association, House of Delegates.  Moreover, I am now serving you as president of SABA. 

I believe the Community Justice Program provides an avenue for pro bono work and public service.  There are other avenues.  I think pro bono work is also performed by lawyers who accept without compensation appointments to represent plaintiffs in, for example, civil rights and Title VII discrimination cases brought in federal court, lawyers who accept appointments to represent, for reduced or no payment, defendants in criminal and habeas corpus cases brought in state and federal courts, lawyers who take appointments in appellate cases, lawyers who accept assignments from Texas Rio Grande Legal Aid/Legal Aid to represent parties involved in, for example, the FLDS suits in San Angelo, lawyers who I think on their own accept appointment as attorneys ad litem in cases pending in Children’s Court, lawyers who accept appointment as volunteers to serve as mediators at the Bexar County Dispute Resolution Center, and so on.  Pro bono work and public service also include in my mind the work performed by the many lawyers who volunteer as officers and directors of this and other bar associations, sections and committees, and editors of bar related publications, who give much of their time to you and me without monetary compensation.

I have been more of a worker than a leader in pro bono and public service efforts.  My plan is to continue to play a role as a pro bono worker, but to also take a leadership role while president.  I promise, however, I will not ask you to do what I will not do myself.  I want to set an example for others, and to make sure my efforts are consistent with and supportive of the efforts of others, especially those who are leading the CJP.  I want to make sure that in taking that leadership role, I recognize and celebrate the service by those who have served, and will serve, and encourage others to serve the programs which have already been established and will be established.  I want to know how I can help.

I realize that some lawyers will volunteer more, some less.  There might be some fear that if we ask for more, lawyers will resist.  I think there will be different levels of volunteering and mentoring, and we should accommodate those who have the time and desire to volunteer a lot, and also those who have the time or desire to volunteer only a little.  In other words, I do not think the solution should be “one size fits all;” we should try to fit the programs to the lawyers.

There are some lawyers who prefer not to volunteer for divorce cases.  I have heard at least two reasons.  At a District Courts Committee meeting a couple of years ago, when Amanda Buckert made her presentation in preparation for the DCC’s participation in CJP, Stephen Lazor asked why the CJP does not sponsor a program which would better use his skills as a personal injury trial lawyer.  He explained that in a divorce case he would have to re-invent the wheel.  I pointed out that CJP provides mentors to try to prevent such re-inventions, but his point is well taken.  Then there are those who, for other reasons have a distaste for suits for divorce, although I think we all realize there is a need especially when spousal or child abuse or abandonment, or failure or refusal to pay child support have occurred. 

Recently Judge Pozza circulated an email among a group of us who are interested in pro bono and public service in general, and the CJP in specific.  In her letter, she stated, in part:  “Phylis and I started off with a SABA Pro Bono/CJP committee that fashioned and advised CJP, but somewhere along the way that committee kind of went by the wayside.”  She told us “how great it would be to re-establish the committee, bringing together more attorneys who are interested in pro bono and have new ideas for the CJP.”  Finally, she informed us that she thinks her “partner in crime, Phylis, may be willing to take a leadership role on the committee, assisting Judge Noll and Judge Peden, if it is formed.”  Well, it has been formed.  And she is willing.  Under the leadership of Justice Speedlin, the SABA Pro Bono Committee met on April 13, 2009.  The second and follow up meeting occurred on May 11, 2009.  Justice Speedlin has naturally taken the lead as the acting chair of the Committee.  She, others and I will continue to report about and urge the progress of the Committee and the CJP.

The first trial of that civil rights case, which was last August, ended in a mistrial because of a hung jury.  We retried the case last November.  We lost.  In my one year of service, we overcame a motion for summary judgment and tried the case twice to a jury.  I did not get paid and of course did not expect to get paid.  But I would do it again, and again.  I hope that by my pro bono and public service I can proudly stand next to that pantheon of trial lawyers who have served a higher calling.

 

September 2009 - Community Justice Pro Bono Committee

This month’s President’s Message was written by President-Elect Justice Phylis Speedlin.

As an attorney, one of my favorite quotes comes from Bobby Kennedy who once stated, “As long as a man is handicapped before the bar of justice because of his poverty, our task as lawyers is not done.”  I particularly like that simple statement because it both reminds me and challenges me that I have a professional responsibility to improve our system of justice.  Therefore, it is not surprising that I could not refuse when the new president of the San Antonio Bar Association, Robin Teague, asked me to serve as acting chair of a “new” bar association committee devoted to pro bono and public service.  What exactly does that mean?  Frankly, I don’t know yet!  Hopefully, with the help of a lot of bright minds among committee members, the San Antonio Bar Association will continue to meet the ever growing need to provide free legal services to individuals who might otherwise be handicapped in our justice system.

In some initial exploration meetings, lawyers from numerous bar organizations, bar sections, and pro bono service organizations in San Antonio have suggested it should include (1) expanding and improving our current Community Justice Program and (2) developing new and varied opportunities for lawyers to provide pro bono legal services to indigent residents of our city and county.  To date, this new committee — I call it the Community Justice Pro Bono Committee — has met on four occasions.  Here is where we are today.

Community Justice Program

Hopefully you have heard about the San Antonio Bar Association’s Community Justice Program (CJP).  In twenty-five words or less, it is our legal community’s organized effort to meet our professional and ethical obligation to provide free legal services to low income residents of San Antonio.  Essentially, we take the Courthouse to the Community for evening clinics at three locations — the San Antonio offices of Texas RioGrande Legal Aid, St. Mary’s Center for Legal and Social Justice, and the Wesley Community Center.

The program has been in operation since 2002 and what an incredible experience it has been!  Lawyers throughout San Antonio in all areas of practice from litigation to appellate, from contracts to wills, from business to corporate have volunteered to “Just Take One” pro bono case each year. In addition, lawyers who regularly practice family law partner with our volunteers and provide critical training, mentoring and support.  A myriad of participating organizations including the Texas RioGrande Legal Aid, Alamo Area Paralegal Association, San Antonio Legal Secretaries Association, Bexar County Court Reporters, and the Bexar County District Clerks Office, to name but a few, further supplement each clinic.  Because of our legal community’s collaborative effort, over 3000 indigent individuals have now received free legal services.

Currently, Judge Larry Noll and Judge Michael Peden are the co-chairs of the CJP.  The CJP primarily accepts uncontested matters such as divorce, child custody modifications, and guardianship proceedings.  Because CJP provides two to three clinics a month, recruitment and training is an ongoing effort.  Volunteer attorneys and mentors are always welcomed.  A calendar of clinic dates is published on SABA’s web page and in the bar directory.  Attorneys can volunteer by contacting Amanda Buckert, CJP Coordinator, at 210.227.8822 x24 or by email at amandab@sabar.org.

Wills Clinic

Recently, the Community Justice Program, in partnership with Texas RioGrande Legal Aid and the San Antonio Bar Foundation, added the Wills Clinic to its regularly scheduled clinic calendar.  With assistance from volunteer lawyers, legal assistants, secretaries and St. Mary’s law students, the Wills Clinic provides its clients with counseling, and prepares wills, powers of attorney, and other essential estate-planning documents.  By providing its clients with these critically important documents, the clinic ensures that families avoid needless delay, expense, and conflict due to the death or incapacity of a loved one.  The wills and the powers of attorney ensure that property is managed and transferred as efficiently and painlessly as possible, greatly reducing the burden on our probate courts, district courts, and courthouse staff. Until more resources are available, the Wills Clinic will be held on a quarterly basis at St. Mary’s Center for Legal & Social Justice.  Attorneys can volunteer by contacting Amanda Buckert, CJP Coordinator, at 210.227.8822 x24 or by email at amandab@sabar.org.

Non-Profit Clinic

The South/Central Texas Chapter of the Association of Corporate Counsel (ACC), in conjunction with the Community Justice Program, hosted its second annual “Ask a Lawyer” clinic specifically designed for San Antonio nonprofit agencies. This pro bono clinic was held in collaboration with Texas C-BAR on May 14, 2009 at the St. Mary’s Center for Legal & Social Justice.  Texas C-BAR provides free legal assistance to Texas nonprofits working to improve the quality of life in low-income neighborhoods. Not surprisingly, our nation’s economic downturn has dramatically impacted San Antonio’s non-profits, requiring them to meet an increasing demand for services with dwindling resources.  At the May 14, 2009 clinic, 14 attorneys from the ACC volunteered to provide professional guidance and legal advice in this clinic format.  Legal issues focused primarily on transactional matters such as contract creation and negotiation, labor and employment, real estate transactions, copyright and trademark.  Attorneys can volunteer by contacting Ingrid Etienne at (210.918.2458) or Amber Clark at (830.336.2049) or by email at accasouthcentral@yahoo.com.

Special Education Clinic

Several local attorneys (Brendan McBride, Marc Gravely, and Shawn Hughes) in collaboration with two service providers (Texas RioGrande Legal Aid and Advocacy, Inc.,) along with the help of Jane Fritz will be hosting the first San Antonio Special Education Law Clinic on September 17, 2009.  Area attorneys are being asked to volunteer to educate and empower local families with special needs children regarding their child’s right to a free and appropriate public education.  Volunteer  attorneys are asked to attend a two hour “special education boot camp” on September 10, 2009 from 4-6 pm and then return on September 17 to help a local family with a real need to understand their rights.  Representatives from Advocacy, Inc., Texas RioGrande Legal Aide and the local special education bar will be available for mentoring purposes. Lawyers can volunteer by contacting Chance Heinshohn of Advocacy, Inc. (210.737.0499) or send an email to cheinsohn@advocacyinc.org.

San Antonio Disaster Assistance Team


Ever since Hurricane Katrina roared ashore and brutally hit the Gulf Coast in 2005, San Antonio has been nationally recognized as a center for the relocation of disaster victims.  During a typical disaster, many storm victims require legal assistance in drafting affidavits or declarative statements allowing them to obtain crucial FEMA benefits.  In order to be prepared for this year’s hurricane season, the Community Justice Pro Bono Committee sought volunteers who could be trained and ready in case of a declared disaster. To date, 38 attorneys and seven paralegals have volunteered for the training.   Each volunteer will attend a one hour training session provided by Texas Rio Grande Legal Aid. In the event of a natural disaster this hurricane season, each volunteer will be expected to work at least one 4-hour shift in a FEMA Disaster Recovery Center. Attorneys can volunteer by contacting Amanda Buckert, CJP Coordinator, at (210.227.8822 x24) or by email at amandab@sabar.org.

New Service Opportunities — What will they be?

As you can see, with the assistance of the San Antonio Bar Association, several pro bono service opportunities currently exist for lawyers to serve low income Texans. Yet, we have only scratched the surface.  More families than ever are in need of critical legal services. Abundant opportunities exist for lawyers to make important contributions. The Community Justice Pro Bono Committee will be charged with exploring such new opportunities as pro bono advice-only bankruptcy clinics, a criminal community court clinic with an emphasis on serving clients in San Antonio’s Haven for Hope, and representation of indigents, by appointment, in state and federal courts.  It is time for every attorney in San Antonio to meet the challenge.   If you are interested in serving on the 2009-2010 Community Justice Pro Bono Committee, please contact Amanda Buckert, CJP Coordinator, at 210.227.8822 x24 or by email at amandab@sabar.org.

 

October 2009 - Leadership

Organizations do not run by themselves, without leadership.  The San Antonio Bar Association is no exception to this rule.  We have been blessed for years with helpful, reliable, creative and hard working staff:  Jimmy Allison, Gabe Gonzales, Liz Castillo, Kim Palmer, and, in the Lawyer Referral Services office, Sylvia Hernandez, and Melinda Martinez.  We have also been blessed by a long line of lawyers willing to serve as your leaders in the San Antonio Bar Association.  I am indebted to Victor Negron and Allan DuBois, who have guided me through the past year as I served you as president-elect.  I know they will continue to provide sound advice to president-elect Phylis Speedlin and me in the coming two years.  I expect to carry out the tradition of continued service.

Leaders are not necessarily born.  I got my start at leadership in the San Antonio Bar Association by serving as a subcommittee chair on some projects for the District Courts Committee.  I had no idea such service would lead me to be elected as the president of your Bar Association.  But now I believe leadership of this Association can begin at the subcommittee level.  If you are interested in becoming a leader in this Association, please join and become active in a committee.  (Please join even if you are not.)  Joining does not require additional expense, just additional time and effort if you are to make the experience meaningful.  And you can join a committee at just about any time.  Call or email the committee chairs and tell them about your interest.

Thank you to Jimmy Allison and Victor Negron for advice in selecting chairs of SABA committees.   I am pleased to announce that these members of SABA will be Chairs of these Committees during the year 2009-2010, and leaders of your bar association for years to come:

Community Justice Pro Bono - Justice Phylis Speedlin
Community Relations/Media Response - Jonathan Yedor
Continuing Legal Education - Judge Larry Noll
County Courts - Steven Treu
Criminal Law & Procedure - Robert Price IV and John Convery
District Courts - Dan Vana
Federal Courts - George Parker
Fee Dispute - Gilbert Vara, Jr.
JP/Small Claims and Municipal Courts - Andrew Ramon
Law Day U.S.A. - Judge Ed Prado and Judge Lori Massey
Law School - Al Hartman, III
Lawyer Referral - Letty Gavito
Law Library - Reed Greene
Medical Legal Liaison - Stephen Lazor
Mentoring - Jeff Akins and Jennifer Parks
Military Liaison - Col. Randall Parker
Program - Jane Macon and Dawn Bruner Finlayson
Publications - Judge Barbara Nellermoe
Technology - Mark I. Unger
Unauthorized Practice of Law - Steven G. Cennamo

Some committee chairs are veterans, some are new.  When I announced at a meeting of the Federal Courts Committee that my first appointment would be of George Parker, I was told somewhat jokingly by Judge Fred Biery that I would be fired if I did not appoint George.  I got the message.  For chairs who are new at this, let us know how we can help you.  I thank the chairs of the committees for agreeing to serve the members of this bar association for the next year.

Several years ago, then SABA president Mary Doggett appointed me as the chair of the District Courts Committee, and told me that she expected committee chairs to be more accountable to the members of the San Antonio Bar Association.  About that time, space for Committee Corner Reports was provided in the Subpoena, which as you know is a monthly publication.  I followed her directions, and developed a practice of continuing to report after she no longer was the president.  I think that committee chairs have a duty to maintain or develop some beneficial programs, and to keep the members of the committee and SABA informed about missions, plans, activities and achievements.

Mary was pretty direct about her expectations.  I’ll try to be as candid.  Several committees have obviously been active, because we read the Committee Corner Reports, participate in the committees, or see the results of the work of the committees.  I am thinking about the Continuing Legal Education Committee, which for several years has presented what is now known as the Motions and Bench Trial Program, and which has occasionally presented Brown Bag Luncheons, the County Courts Committee, which has reported regularly for years through Steven Treu, the Criminal Law and Procedure Committee, which, through Bob Price and John Convery, has for many years organized the SABA sponsored Criminal Law Institute, the District Courts Committee, which during the past year kept us informed through reports mainly by Dan Vana, the Federal Courts Committee, meetings of which I have attended at George Parker’s office on a regular basis as an ex-officio member, the Law Day Committee, which presents the annual Law Day Luncheon, the Monthly Luncheon Program Committee, which for years, primarily through Jane Macon, has arranged for and introduced at least nine speakers a year for the monthly luncheons of SABA, the Publications Committee, without whom we would know little about SABA, and the Technology Committee, again, without whom we would know little about SABA, since we have for several years been communicating through the website and by email.  I thank the chairs of the County Courts Committee and District Courts Committee for your regular Committee Corner Reports.  I encourage the chairs of the Criminal Law and Procedure Committee to publish a report about the Institute, so we will all know of your success.  (I know about the advertisements, but I would like to know more from the chairs.)  I encourage the Federal Courts Committee to report more frequently about  the many activities in which it is involved, so that we can give the Committee the credit to which it deserves.  I also encourage the Publications Committee to give us an occasional report so that we better appreciate all the hard work the committee members and editorial staff do, but which is largely taken for granted.

I believe the Fee Dispute Committee, Lawyer Referral Service Committee, and Medical Liaison Committee have been active, but I just have not heard about the activity-I should add that I have heard much about the activity of the Lawyer Referral Service Committee since I became the SABA president, and have been fortunate to not have had a need to use the Fee Dispute Committee.  Those committees are sometimes “quiet, too quiet.”  I understand the Fee Dispute Committee has nothing to do until and unless the client and lawyer agree to resolution by the Committee, and that such agreement does not happen often.  There is sometimes a benefit in a low profile, but I would like, and think members of SABA would like, to hear more from the chairs about what those committees do, or in the case of the Fee Dispute Committee, for example, can do, so I encourage the chairs of those committees to make at least occasional reports to the membership through the Subpoena.  I do not know whether the Community Relations/Media Response Committee, JP/Small Claims and Municipal Courts Committee, Mentoring Committee, or Military Liaison Committee have been active.  I have therefore appointed Jonathan Yedor, Andrew Ramon, Jeff Akins and Jenny Parks, and Randy Parker as chairs of those committees with the understanding that they will be active, and will make at least occasional reports to our members about their goals, ideas, plans and accomplishments, including meetings and events.  I do not know whether there are members in all of the committees.  The chairs might be the only members of some of the committees which have been inactive.  If that is the case, the chairs face the challenge of not only developing programs, but of developing a membership, or at least a following.  You should consider becoming a member of at least one of these committees, and assisting the chairs with development of ideas, plans, programs.

If you read my first column in the Subpoena, you know that Justice Phylis Speedlin is the “acting” chair of the Community Justice Pro Bono Committee.  She and Judge Karen Pozza founded the Community Justice Program and the Committee, so my “appointment” (really, recognition) of her as the chair is a mere formality. I say “Committee” because the Committee and the Program are in my mind separate but related.  Justice Speedlin is the Chair of the Committee, Judges Michael Peden and Larry Noll are the Co-Chairs of the Program, which is the offspring of the Committee.   The Program has been active, and successful, since 2002, but the Committee was inactive until this spring.  Justice Speedlin has re-activated it, much to our pleasure.  Since she is the president-elect, she wears several hats.  I expect that she will search for a member of SABA who will during her year as president of SABA at least assist in the operations of the Committee. You read about this Committee and the CJP in every issue of the Subpoena.  If you are a volunteer for the CJP, you have personal knowledge of just how active this Committee is.  And if you read Justice Speedlin’s column in the September issue of the Subpoena, you will learn even more about the pro bono work and public service in which she and this bar association are involved.

I look forward to hearing from you about how we can serve you.  I thank the committee chairs for their leadership, and contributions to our profession and to our Association, which is one of the leading local bar associations in the country.

 

November 2009 - My Mentors

At the breakfast for the Texas Delegates during this year’s mid-year meeting of the House of Delegates, American Bar Association, I was introduced to long-time Fulbright & Jaworski trial lawyer, Gibson Gayle, Jr., whom we honored for his 50 years of service to the House.  He has mentor and “war story” written all over him: 

RT:  Good morning.  I’m Robin Teague. 
GG:  I remember you!  You were involved in that case with my partner Bob Welch. 
RT:  Brown v. Brown?    
GG:  Yes.
RT:  That was 35 years ago!  How did you remember that? 

I never got an answer.  He was distracted by well-wishers.  I might never know whether he has a phenomenal memory, or whether he checked up on rookie Delegates like me.

The mid-year meeting was in Boston, in February.  Last spring, the SABA Board of Directors selected me as the Delegate to represent the Association for a two-year term, from 2009 to 2010.  Thus, I am wearing two hats for SABA; one as the President, and a second as a Delegate to the HOD. 

This was my first meeting.  Fortunately, former State Bar President and Brownsville trial lawyer Eduardo Rodriguez suggested that former chair of the ABA Section of Litigation and Dallas trial lawyer Kim Askew be my mentor.  I needed so much advice:  Where to sit, the method of voting, how not to make a fool of myself.
 
The House of Delegates controls and administers the ABA and is its policy making body.  Action taken by the House becomes official ABA policy.  The House meets twice a year, at the winter-time mid-year meeting, and at the summer-time annual meeting.  The ABA is the largest voluntary association in the world.  There are over 400,000 members of the ABA, but only 555 Delegates.  Of those 555, 80 represent local bar associations such as SABA.  Only five local bar associations in the Texas are represented.  The appointment is quite an honor to me and I thank the Board for the appointment. 

The most controversial issue at the mid-year meeting relates to “imputed” conflicts of interest.  Consider a hypothetical situation:  You and another lawyer are on opposite sides of a patent infringement suit.  The parties hate each other, but, as is often the case, the trial lawyers are friendly to and respectful of each other.  During meetings, you and your opponent talk about how powerful a team you would make if you were on the same side.  One thing leads to another, and the other lawyer, the side-switching lawyer, leaves his firm, and his client, and joins your firm, in the middle of the suit, without the consent of his client. 

What would be the effect on attorneys, firms, and clients under the Texas Rule?  Under the new ABA Model rule?  Under Texas Disciplinary Rules of Professional Conduct 1.09, titled, “Conflict of Interest: Former Client,” without prior consent, the side-switching lawyer may not represent your client in the suit against his former client.  That much is well understood.  The interest which the side-switching lawyer might have in representing your client would be in conflict with his interest in representing his former client.  Moreover, under Texas Rule 1.09(b), the conflict involving the side-switching lawyer would be “imputed” to you and your firm, and, therefore, none of the lawyers in your firm, including you, may represent your client in the matter adverse to the side-switching lawyer’s former client, unless the side-switching lawyer’s former client consented to the conflict.  In other words, Rule 1.09(b) extends [Rule 1.09(a)’s] limitations on an individual lawyer’s freedom to undertake a representation against that lawyer’s former client to all other lawyers  who are or become members of or associated with the firm in which that lawyer is practicing.

Rule 1.09 cmt. 5.  That’s the catch which usually prevents side-switching. 

The Texas Rules are based on the ABA Model rules, so when the mid-year meeting began, ABA Model Rule of Professional Conduct 1.10 was about the same as Texas Rule 1.09.  Things change, at least at the ABA.  For the third time this decade, the House considered a proposed change to ABA Model Rule 1.10.  Joined by many other organizations, the ABA Standing Committee on Ethics and Responsibility made the proposal.  The proposed change was for an amendment to Model Rule of Professional Conduct 1.10(a), so that firms and lawyers of the firms could avoid imputed conflicts of interest if they screened the side-switching lawyer from any participation in a matter adverse to the side-switching lawyer’s former client, even if the former client did not consent to the side-switching. 

The Section of Litigation submitted an alternative proposal, which would permit screening only when a side-switching lawyer had no substantial involvement in or material information about the representation of the side-switching lawyer’s former client.  The alternative thus would have applied to an associate who was not involved in representing a former client of the associate’s firm.
 
The debate was passionate.  Arguing against the proposed change, Lawrence Fox, a trial lawyer appearing on behalf of the ABA Section of Litigation, suggested the ABA “could lose this role [of writing ethics rules] if we put the interest of lawyers ahead of clients....”  In an email before the meeting, he added that the rules governing conflicts of interest are “a fundamental measure of our loyalty to our clients, which we must remember is a fiduciary duty.”  The ABA Standing Committee on Professionalism also opposed the proposal, suggesting that it is a radical response to the reasonable needs of the [legal] profession, which could permit a lawyer to switch sides in the midst of a case. 

About half the Texas Delegation opposed the change and supported the arguments by the Section of Litigation and the Standing Committee on Professionalism.  Those delegates included the then president and president elect of the State Bar, Harper Estes, and Roland Johnson, and Gibson Gayle, Jr., Blake Tartt, Travis County District Judge Lora Livingston, and former ABA Section of Litigation Chair Kim Askew.  I stood with them (literally, as we stood up to be counted for this vote, after the Chair was unable to make a determination from a voice vote).

We were in the minority, I am sorry to say.  In those states which have adopted a similarly permissive rule of ethics, or which adopt the new Model Rule, can you imagine the conversation which will occur when the side-switching lawyer calls the soon to be former client?

Lawyer: Good morning, client.  You won’t believe what just happened.
Client:  Try me.
Lawyer: Well, yesterday I noticed your opponent’s deposition, with a long request for documents and things.  And opposing counsel, who is a really shrewd lawyer, called and made me an offer I could not refuse.
Client: What kind of offer?
Lawyer: He offered me a partnership with his firm.
Client: Like hell he did.  You’re not going to accept?
Lawyer: I already have.
Client: That’s the darndest thing I’ve ever heard:  My lawyer switching sides in the middle of the suit.  I won’t give you my consent to switch sides.  You should know that.
Lawyer: I wouldn’t expect you to consent to my switching sides.  But under the new ABA Model Rule I don’t need your consent.
Client:  Well, I’ll be ....
Lawyer: Don’t worry, they’re going to screen me off from your case.
Client: That is comforting.  What about all the secrets I told you?
Lawyer: My lips are sealed.  Well, gotta go.  I really enjoyed representing you. 
Client: Before you go, there’s just one more thing.
Lawyer:  Oh, what’s that?
Client: A motion to disqualify you, and your new firm and the opposing counsel.
Lawyer:  You wouldn’t.
Client: I would.

Needless to say, the amended model rule and any similar state rules might not stop the former client from filing a motion to disqualify not only the side-switching lawyer, but his new firm.  Disposition of a motion to disqualify is not necessarily controlled by the rules of professional conduct.  Remaining for decision at a later time is whether those in control of amending the Texas Rules will follow the lead of the ABA House of Delegates.

Brown v. Brown

Seagal Wheatley represented F. Lutcher Brown, a flamboyant character. Seagal asked that I assist him.  I was less than a year out of law school, a “baby lawyer.”  As my first mentor, he gave me my first opportunity to see a creative and fearless trial lawyer in action.  He knew how to be a mentor, having been trained to be a trial lawyer by United States District Judge John H. Wood, Jr., while both practiced at the firm of Beckmann, Stanard & Wood, and before Seagal became United States Attorney for the Western District of Texas. 

Olive McCollum Brown brought a suit in Harris County for divorce and child support against Lutcher. Fulbright & Jaworski family law specialist Bob Welch represented Olive. 

Lutcher was an heir to the Lutcher Estate, which had interests in timberlands, lumber, paper mills and mineral deposits in southeast Texas and southwest Louisiana and other parts of the world.  He grew up in San Antonio at Oak Court, on Ivy Lane, in Terrell Hills.  His parents Lutcher and Emily Wells Brown donated the 25 acre estate to the University of Texas.  At the time of the suit, Lutcher was a citizen of Uruguay. 

Olive’s father was Leonard F. McCollum, a Texas oil man who built the Continental Oil Company into Conoco.  As you can imagine, a lot was at stake. 

I learned about the case when I heard that Lutcher had pushed a Deputy United States Marshal out of an elevator, while the Marshal was trying to serve the citation upon him in Washington, D.C., and that Lutcher had instructed us, in writing, to not file an answer, or attend the trial.  The reasoning was unorthodox.  I eventually came to compare Lutcher in my mind to a loveable Howard Hughes. 

In Lutcher’s absence, the trial judge rendered a judgment against him in the amount of $25,000,000.  The judgment caught his attention.  He finally called us into action.  We faced several problems.  Seagal decided to file a motion for new trial, and to request a hearing, in part to develop an appellate record.  One problem was that there was not a statement of facts (now called a reporter’s record) upon which to base factual challenges.  The reason was that no one who attended the trial requested that the court reporter record the testimony.  What a shock!  (At that time, in uncontested suits for divorce, parties routinely waived a record.)  Seagal assigned the task of solving that problem to me. 

At that time Texas Rule of Civil Procedure 377 provided that a party may prepare and file with the clerk a condensed statement in narrative form of the testimony and deliver a copy of the statement to the opposing party.  Even though we did not attend the trial, or know any cooperative witness who did, our solution was to prepare a condensed statement in narrative form.  I prepared the statement of facts.  Obvious to all was that I used wild imagination about what must have happened:  The statement of facts was in our favor, even though we were on the losing side of the twenty-five million dollar judgment.  The other side might have been impressed with our audacity but not with our accuracy.  As expected, they disagreed with our version of the evidence.

Rule 377 provided that if the opposing party disagreed with the proposed statement of facts, the matter shall be submitted to and settled by the trial judge and the statement of facts be made by him to conform to the truth.  At the hearing on the motion for new trial, Seagal therefore called the judge, in effect as a hostile witness, and asked him detailed questions about the trial testimony, hoping he would not remember.  I was glad to be sitting behind and not in front of Seagal. 

This hearing was long before enactment of Texas Rule of Evidence 605, which prohibits the presiding judge from testifying at the trial as a witness.  In my 36 years of practice, I have not heard of another lawyer calling a judge to the witness stand.  Without surprise, we again struck out.  The judge remembered testimony which supported the judgment and overruled our motion for a new trial. 

One of our appellate points was that the trial court erred in not granting a new trial because there was no question and answer statement of facts prepared by the court reporter.  The appellate court rejected that point and affirmed the trial court judgment, 520 S.W. 2d 571 (Tex. Civ. App. — Houston [14th Dist.] 1975).  We were a little too early.  See Rogers v. Rogers, 561 S.W. 2d 172 (Tex. 1978), in which the court held that “Mr. Rogers’ right to proper appellate review, due to no fault on his part, can be preserved only by a new trial,” even though Mr. Rogers did not attend the trial or request the court reporter to record the testimony.  See also Attorney General v. Carter, 2009 WL 1956378 (Tex. App. — San Antonio 2009).

We then negotiated for a settlement of the judgment.  Settlement negotiations were difficult, partly because Lutcher was in ill health.  But there was a settlement. 

I was with Lutcher at the time he died from cancer at Sloan-Kettering, in New York City.  Seagal sent me to be with Lutcher, knowing the end was near. 

While there, I even wrote and had printed and filed the response in opposition to the petition for certiori on the attorney fee issue in Sierra Club v. Lynn, 502 F. 2d 43 (5th Cir. 1974).  Seagal defended that case, which was brought by trial lawyer Phil Hardberger.  As you can tell, Seagal as a mentor believed in giving his young associates a lot of responsibility. 

After the settlement of Brown v. Brown, Bob Welch, in the great tradition of trial lawyers, indicated he wanted to get together, have a few cocktails, and tell war stories.  He invited Seagal and me to join him and his team at Maxim’s, which was then located in downtown Houston.  Bob gave us directions to enter the multi-level garage next door to the restaurant, walk up the ramp, walk to the corner of the second floor, and open the door, where he told us he would be waiting.  As we walked toward what looked like a rusted metal door to a storage room in a dark parking garage, Seagal and I stopped, looked at each other, started laughing, and wondered out loud, “Are you thinking the same thing I’m thinking?”  Ask Seagal what happened next.  That was a good time to be with my mentor.  And a great way for a baby lawyer to get started.  I am fortunate indeed.

A New Mentoring Program and Committee

The recent State Bar Leaders’ Conference focused on two subjects: access to justice and pro bono work, and mentoring programs.   The State Bar is concerned that young lawyers are at greater risk to starting off on the wrong foot.  In my first column in the Subpoena, I wrote about access to justice and pro bono work.  Our president-elect Justice Speedlin wrote the second column, also about that topic.  I am going to conclude this column by briefly addressing a proposed mentoring program and committee. 

Several of the SABA committees have been active during the past several years.  For example, the continuing legal education, criminal law and procedure, county courts, district courts, federal courts, publications and program committees have been active.  The mentoring committee has not.  At the request of the State Bar, I want this committee to become active.  The State Bar has even provided a starter kit which will be of help.  I am, therefore, reforming the mentoring committee, and appointing Jeffrey Akins as the Senior Lawyer Co-Chair, and Jennifer Parks as the Young Lawyer Co-Chair.  Jeff is a natural choice since he mentored me when he was the chair of the district courts committee.  He has himself been mentored in a well-known program for trial lawyers, conducted by Gerry Spence. 

Part of the reason for activating the mentoring committee is a request by Jennifer.  She is an officer of the San Antonio Young Lawyer’s Association.  She also attended the Bar Leaders Conference.  At that conference, she approached me, knowing I was soon to be the President of SABA, and requested that I arrange for a mentoring program.  (At that time, neither of us knew or recalled that SABA has had a mentor committee for years.)  I readily accepted Jenny’s invitation.  By the  time that you read this column, I hope that Jeff and Jenny and I will have begun to lay the foundation for the new mentoring program and committee.  Stay tuned.  If you want to be a mentor to a young lawyer, as I do, call Jeff.  If you are a young lawyer who would like a mentor, call Jenny.  Jeff’s number is 210.599.4905.  Jenny’s is 210.226.1331.  We are waiting for your calls.

 

December 2009 - Who Gets Things Done Around Here?

Imagine that ten days after your client retains you or you are appointed to represent him, the court notifies you that the case is set on the docket for a hearing.  You assume the hearing is just for some pre-trial matters, such as discovery.  When you and your client appear for the first time about thirty days after you were retained or appointed, to your surprise, the court announces, “The court is now going to call the trial docket.”  You lean over and, nervously, whisper to the lawyer sitting next to you, “Is the judge going to assign cases for jury trial right now?”  The whispered answer is, “Yes, all dockets are trial dockets.  Good luck to you.”

The judge calls your case.  So far, no one has picked the “black bean.”  So you think you might start a jury trial right now.  You stand.  The assistant district attorney (ADA) announces, “The State is ready, Your Honor,” looks over to you, and smiles, confidently.  You gulp.  Before you can make a fool of yourself, the court informs you, “Counsel, we’re going to reset this case on the trial docket two months from now.”  You feel relieved.  Now you will have more time to get ready for trial.

You stick around until the end of the call of the docket.  You approach the ADA.  “Good morning.  I represent the defendant.  When can we talk about discovery?”  The reply: “Call me later.  I’m too busy now.  Either file your discovery motion or get a copy of the form for the discovery agreement from the front desk.”

You go to the front desk and pick up the form for the “discovery agreement” prepared by the District Attorney.  You note that, by signing that form, you agree that documents provided by the DA are not to be disclosed to the defendant, that the DA has no duty to and will not supplement the discovery granted by this agreement, and that you have an obligation to review the DA’s file to insure that the documents you receive when you sign the form are complete and that no other document or other material have been added to the DA’s file.  You learn later that you may inspect the DA’s file without signing that form, but if you refuse to sign the form, you must either memorize the content of the file, or just make notes about the contents.

The next docket call approaches.  You still have not seen the DA’s file or talked about a proposed plea agreement, so that your client has a choice between going for broke and settling for less than the maximum punishment.  You begin to wonder, “Will I be ready when the judge assigns this case for trial?  Will I provide effective assistance of counsel, as required by the United States Constitution, Sixth Amendment?”

Five resets and trial docket calls and ten months later, you still have not reviewed all of the discoverable evidence and information.  The court has not heard any motions.  You have spent six hours sitting through docket calls without accomplishing any goals.  Your witnesses are getting tired of being called and asked to be on standby.  During this time, you read in the local newspaper that Commissioners Court is complaining about the jail population and the amount of fees paid to appointed attorneys.  A Commissioner explains that he thinks the growing jail population and amount of fees is the result of courts being bogged down with criminal cases.  The DA acknowledges that 12,000 new felony cases are filed each year!

Years ago, on the civil side of the docket, some of us faced a somewhat similar but less serious problem.  A case set on the docket for a particular month might be carried on the jury trial docket from day to day, week to week, month to month, until trial or otherwise disposed of.  Trial lawyers might be called at mid morning on a Tuesday or Wednesday, and instructed to go to a court for trial at 1:30 that afternoon, and to “bring your witnesses.”  Long term plans by attorneys, parties, and witnesses were made to be broken.  Lawyers caught by surprise might be forced to settle what they thought was a winner. Eventually, the civil district court judges changed the system for jury trials so that jury cases are set for a specific week.  Cases not reached during the week of the setting are automatically reset for trial during carry-over week — the last week of the month — without further notice. Local Rules 4.A (I must admit that the system now in place runs smoothly in part because of the so-called “vanishing jury trial” phenomenon, and that the previous system, which was burdened by an enormous demand for jury trials, enabled the civil district courts to dispose of lots of cases. I must also acknowledge that the change was controversial at the time, if, for no other reason, because of the clash between some of the judges and the jury assignment clerk. Nevertheless, I, for one, have become much happier. My practice is much more predictable.  I have therefore been able to make plans and not get caught by surprise.)

Some of us know how to solve problems.  Do you know Melissa Barlow Fischer?  I met her a few months ago.  She and others have known about the problem in the criminal courts for some time.  Everyone has a different view of the problem and its cause and results.  Her view in part resulted from complaints by Commissioners Court about the overcrowded jail and payments to attorneys appointed to represent indigent criminal defendants.  Her view is also shaped by her experience.  At an earlier time, she thought the problem was caused by the growth in population of Bexar County, and the resulting increase in crime, the prosecution of which was in the same number of courts which at earlier times had effectively managed the criminal case docket.  Unfortunately, her day-to-day management duties, putting out fires, distracted from strategic thinking about more effective solutions.  I am reminded of the wood chopper, who is too busy cutting down trees to sharpen the axe.  If you read her job description, you would know what I mean.  She has carried a lot on her shoulders for years. 

Her search for a solution began one day in early 2008 as she watched, from her office in the Justice Center, a televised meeting of Commissioners Court.  Tina Smith Dean was making a presentation.  Her presentation was on how the county should fill needs with limited resources.  A single PowerPoint slide on “differentiated” felony case flow management caught Melissa’s attention.  She wanted to know more.  That slide led her to the website of the National Center for State Courts (NCSC).  Later in 2008, Melissa arranged for Judges Phil Kazen, Laura Lee Parker, and Juanita Vasquez–Gardner, and General  Administrative Counsel for the Juvenile District Courts Laura Angelini, and herself to go to Portland, Oregon for a CLE conference organized by the NCSC.   The conference was about felony case management.  Melissa was “just floored.”  She had never been to anything like this conference.  It opened her eyes to how mistaken we all have been about how we run things.  The program made crystal clear that criminal cases were not being managed the right way. 

Upon her return to San Antonio, she asked her dad, “Who set up the system?”  He replied, “The system was set up 30 years ago.  It was never meant to work on a docket this large.”

Unfortunately, baby judges’ school does not involve instruction about case flow management.  So Melissa “took on the responsibility” of developing a case management system.  She arranged for Judges Catherine Torres-Stahl, Maria Teresa Herr, and Ron Rangel, and Ana Amici, who is the Chief Staff Attorney, to attend another meeting on case management.

She persuaded Commissioners Court to authorize her to retain Mary Sammon.  Mary Sammon is a Senior Court Management Consultant for the Institute for Court Management, of the NCSC.  Sammon consults with courts across the country.  She suggested the case management system in Tarrant County as a model.  (The population of Tarrant County is about the same as the population of Bexar County.)  Melissa spent a day in Fort Worth with Criminal District Judge Sharen Wilson.  While with her, she studied the case management system established by the Criminal District Courts of Tarrant County.  She formed a plan to use that system as a model for the Criminal District Courts of Bexar County. 

This is how the San Antonio Express-News described the new system in an article published February 22, 2009:

Saddled with thousands of felony cases that have lingered on dockets for more than a year, District Court Judges are days away from forcing each one through the system in a matter of weeks.  It’s the first phase of an unprecedented overhaul of how cases here are managed, Criminal District Court Administrator Melissa Barlow Fischer said.

XXX

Beginning March 2, and for the following three weeks, nearly 3,000 felony cases ranging from allegations of welfare fraud to capital murder will be called into their courts of origin, and defendants will be given a final chance to plead or otherwise reach a resolution.

XXX

The effort ... would clear the way for an entirely new management     strategy in the courthouse — something Fischer calls “differentiated felony case management.”

Essentially the first phase of the system was a form of “rocket docket.”  In an article published by the Express-News in mysanantonio.com on April 21, 2009, Melissa was quoted as describing the experience during the rocket docket as being “quite insane,” but “a good insane....”  I had heard about the “rocket docket” through the list serve of the San Antonio Criminal Defense Lawyer’s Association (SACDLA), of which I am a member.  SACDLA published lists received by email from Melissa, which were used to give notice about trial settings on a daily basis.  I think Melissa and SACDLA showed how taking  advantage of the Internet would make the judicial system more effective and productive. 

As a member of SACDLA, later on I received information about a vaguely worded “CASE Workgroup.” I later learned that “CASE” stood for Criminal Adjudication System Enhancement.  When I heard about an upcoming meeting of the Workgroup, I asked criminal defense lawyer and President of SACDLA Bud Ritenour if I could tag along to a meeting.  He saw no harm, so we walked over together to the meeting, held in the Grand Jury room, which is located in the Justice Center.  I started out feeling like a stranger, because I am not a regular in the Justice Center, where most of the Criminal District, and County Courts at Law are located.  There were prosecutors, criminal district judges, bail bondsmen, court coordinators and others involved in the prosecution, defense and management of criminal cases.  Of those who were there, I recognized some of the criminal defense lawyers. 

Melissa Barlow Fischer stood out in the crowd.  She is the leader of the Workgroup.  She does, however, give the credit to the Criminal District Court Judges of Bexar County.  As she modestly told me, “They drove the train, I just steered it.”  I agree with her.  Judges in significant numbers attended all meetings.  They contributed substantially to the plan, kept us on track, and made sure the Workgroup crossed the goal line. 

At the time I began attending the meetings, I did not know Melissa is the daughter of the legendary former DA, retired State Criminal District Court Judge, historian and writer, the Honorable Jim Barlow.  (She used to come to the courthouse as a teenager to watch trials, including those involving then ADAs, and now Criminal District Judges, Sharon Macrae and Raymond Angelini, who were assigned to the court over which her father presided.)  I did not know she is a lawyer, a graduate of the University of Texas School of Law, the General Administrative Counsel for the Criminal District Courts, the Indigent Defense Coordinator, a former Assistant District Attorney, a breast cancer survivor, soon to be the recipient of a national award by Women Who Get It Right for the 2009 Grass Roots Advocate, and a long time member of the San Antonio Bar Association.  (Her dad encouraged her to join.  Thank you, Judge Barlow.)  I also did not know she is such a problem solver.  I soon did.

She invited the players to a meeting and started the CASE Workgroup.  The Workgroup includes Criminal District Judges, Criminal District Court Coordinators, Criminal District Court Administrators, the office of the Criminal District Attorney, San Antonio Criminal Defense Lawyers Association, the Bexar County Sheriff’s office, the District Clerk’s office, the Bexar County Information Services, Bexar County Planning and Resource Management Department, bail bondsmen, and Commissioners Court.  When I began to attend the meetings, the San Antonio Bar Association also became part of the Workgroup.  I am honored to have served several times as the moderator, at the request of Melissa.  The CASE Workgroup met 13 times before coming to agreement on a “Felony Case Plan.”  On October 8, 2009, the Criminal District Court Judges of Bexar County rendered special order number 62516, adopting the “Felony Case Plan,” effective January 1, 2010.  A copy is available on the SABA website on the Bexar County Resources page.  Eventually, the judges will also probably adopt a form for scheduling order to be used in managing cases, and setting specific deadlines for each case.  The stakeholders intend that this new case management plan “will result in a more efficient use of time while ensuring justice and due process.”

The central concept of this plan is that felony cases should be set on different tracks according to the complexity of the case, and that every setting in each track should be meaningful.  There will be three tracks for felony cases:  the     expedited track, the standard track, and the complex track...

XXX

An attorney hired by a defendant will immediately file a Notice of Appearance with the clerk of the court and notify the appropriate court coordinator by forwarding to them a copy of said Notice.  The Felony Case Plan system will automatically send email notice to the bail bondsman and defense attorney for each court setting based on the date of arrest or indictment and case track.

Felony Case Plan, general provisions (Fall 2009).  No longer will all settings be “trial settings.”  Depending upon the track, the settings will include these settings:

Attorney Status
Pre-Indictment Setting
Evidence Exchange
Status Conference
Motion Setting
Final Consultation
Trial Setting
   
Moreover, the plan contains deadlines, and a detailed description of the purpose of and expectations, for each setting.
 
Even though Bud Ritenour, the President of SACDLA, signed the Felony Case Plan, indicating his agreement to it, some of my colleagues in the criminal defense bar are not or will not be satisfied.  I think the main complaint relates to discovery by criminal defense lawyers of documentary and tangible evidence controlled by the DA.  As one of my colleagues contends, “If the Tarrant County Plan is the starting point, I think we need to emphasize that Tarrant County has electronic discovery.”  What he means is that in Tarrant County, criminal defense lawyers have online access to discoverable documents and information under the control of the DA.  Representatives of the DA here informed the Workgroup that the DA does not have the technology which would enable online discovery.  I do not know why Tarrant County has that capability, but Bexar County does not.  My feeling is, however, that we cannot solve all the problems in the practice of criminal law the same day.  All solutions are compromises; there is no perfect solution.  Sometimes solutions must be by a step at a time, even baby steps.  What is important to me is that progress has been made.  More progress will be made through continuous efforts.

Bridging the Gap

I have heard for over a year about a gap between the San Antonio Bar Association and the criminal law bar, consisting of criminal court judges, prosecutors and criminal defense lawyers.  Right from the outset of my term as President-Elect, I therefore thought about trying to bridge that gap.  I am not a judge of a criminal court or a prosecutor.  I do, however, accept appointments in Federal Court for misdemeanor cases — that is a small step.  As a result of that experience, I feel a little like a part-time criminal defense lawyer.  Thus I joined SACDLA, thinking my membership would be another small step in bridging the gap.  I have indicated that more progress will be made through continued efforts.  We already have a Criminal Law and Procedure  Committee.  That Committee is really more like a program.  The co-chairs are Robert Price and John Convery.  The Committee operates the Criminal Law Institute, which is scheduled for each March. 

But now, we have the “CASE Workgroup.”  I suggest that the “CASE Workgroup” either merge with the Criminal Law and Procedure Committee, or serve as a model for a new committee which will draw together the stakeholders who were involved in the creation and development of the Felony Case Plan.  I look forward to working with those stakeholders for the purpose of developing this committee, hopefully, under the leadership of Melissa Barlow Fischer, the criminal district courts, prosecutors and criminal defense lawyers.  Would you like to join us?

 

January 2010 - “Don’t Take Your Guns to Town Son”: Hazards of Our Profession

Happy New Year.  One year ago, I selected a jury in Probate Court.  The case involved a “family feud.”  We finished jury selection about 7:30.  I left the courthouse, said goodnight to my client and his wife, and headed home for dinner and a good night’s rest.  I did not get a good night’s rest.  Too much stress.

The next morning, as usual, I arrived early in the courtroom.  There I waited for judge, jury, opposing counsel and my client.  We were to give opening statements at 9 a.m.  About 8:30, my client’s wife rushed into the courtroom, and came up to me:   “Something terrible has happened! [My husband] has just been arrested by courthouse security guards.  They found a loaded gun in his briefcase!” I replied, “That is a terrible problem.  I’ll call Phil right now.”

I immediately called my friend and colleague Phil Bozzo.  After I described the situation, he told me he would be in the courtroom in 15 minutes.  He was on time.  Phil is a criminal defense lawyer.  (If I learned any lesson from this experience, it is that having a colleague who will help in emergencies is good practice.  Having a colleague who is a criminal defense lawyer and a friend is even better practice.) 

The events which followed were pretty stressful.  By now, everyone in the courtroom had heard about the situation.  The judge learned before arriving in the courtroom and called for an additional bailiff, as a precautionary measure.  The participants in the case were in a state of shock.  Phil informed the judge about his plan, which, first, was to just locate our client, and, second, to seek his release so that he could return to the courtroom for the trial.  To make a day-long story a bit shorter, the judge twice postponed opening statements (first until 11, then until 2).  During the “noon break” we located our client at the City of San Antonio Municipal Court Department Detention Center, to which he was transferred from the holding cell in the courthouse or the Justice Center.  We were, however, unable to secure his release before the deadline for opening statements. Just before opening statements were scheduled to begin at 2 p.m., he settled the case through a telephone conversation with his wife, who was in the courtroom. 

Phil Bozzo stayed with this situation all day, until our client was released from jail late in the day.  I thank Phil for this extraordinary service and want to recognize him for setting an example of the best professional characteristics of lawyers in general, and criminal defense lawyers in particular. 

Before this startling event, I had long thought court security was a minor nuisance we had to put up with.  (I have been around long enough to have personally experienced wide-open courthouses, where, for example, then Assistant District Attorney Paul Canales was stabbed while in the hallway of the Bexar County Courthouse, and to have experienced the absence of security, when, for example, U.S. District Judge John H. Wood was murdered, just steps from my apartment.)

How effective is our court security?  With that question in mind, my attention was drawn to a program during the annual meeting of the American Bar Association, in August 2009.  The Judicial Division arranged for that program, titled, “Judicial Security: Keeping You and Your Family Safe.”  I also asked Gary Hutton to arrange a meeting with Charles Benson, Jr., who, on behalf of the Bexar County Sheriff’s Department, is the Deputy Chief, in charge of court security for Bexar County.  On October 6 and December 1, Gary, Jimmy Allison and I met with Deputy Chief Benson, and one of his assistants in court security, Deputy Sheriff Robert Guerrero.  I thank them all for enlightening discussions about court security, and pledge that the San Antonio Bar Association will try to assist those in law enforcement who take reasonable precautionary and corrective measures for the purpose of court security.

Do you think my pledge is an overreaction?  That I am making a mountain out of a mole hill?  Then consider this statement, made as a result of data reviewed by the Federal Protective Service:
 
Those in the legal and public service sectors are at high risk of victimization as a result of their direct contact with members of the public....Each year, the Federal Protective Service (FPS) investigates hundreds of threats....

Message from the Director, Gary W. Schenkel, Federal Protective Service, published in U.S. Immigration and Customs Enforcement, Federal Protective Service, Personal Security Guide (June 2008).

I do not want to sound like an alarmist, but I do want to provide some information indicating some of the hazards of our profession, and some information which can lead you to take precautionary and corrective measures for the purpose of reducing risks associated with those hazards.  These are some of the sobering headlines just from the last few months: 

December 15, 2008:  Ga. courthouse shooter sentenced to life (PoliceOne.com)
March 5, 2009:  Murder suspect fatally shot by officer after attacking judge in courtroom (A.P.; PoliceOne.com)
March 6, 2009:  Calif. man jumped judge with 6 inch spike (A.P.; PoliceOne.com)
March 10, 2009:  Tenn. man pleads guilty in courthouse shooting, guards’ death (A.P.; PoliceOne.com)
April, 2009:  Party to a case makes threat against civil district judge of Bexar County (Report by Victor Negrón, Immediate Past President of SABA)
May 25, 2009:    Threats to judges, prosecutors soaring (which continues the concern fueled by slaying of the husband and mother of U.S. District Judge Joan Lefkow, in 2005, and the rampage 11 days later in an Atlanta courtroom, where an accused rapist killed a judge, court reporter, and bailiff) (The Washington Post)
May 26, 2009:  Federal judges scared as threats against them soar (San Antonio Express News, adding, to the article published by The Washington Post, stories about the murder of U.S. District Judge John H. Wood on May 29, 1979)
May 29, 2009:  Judge appoints lawsuit guardian due to client’s ‘irrational hostility’ to lawyer (ABA Journal – Law News Now)
June 3, 2009:  Lawyer reprimanded for alleged ‘cut you up’ remark to adversary’s client (N.J. Law Journal; Law.com)
June 23, 2009:  Ga. courthouse security still a worry after ’05 spree (A.P.; PoliceOne.com)
June 25, 2009:  Blogger charged with threatening three federal judges (National Law Journal; ABA Journal, Law News Now)
July 13, 2009:  U.S. Marshals discuss new courthouse security efforts at National Conference on Court and Judicial Security in Fort Lauderdale, as part of the National Sheriffs’ Association Conference.  At this conference, Michael Prout, Assistant Director of Judicial Security for the U.S. Marshals Service, stated that threats against federal judges and prosecutors nationally increased from 500 in 2003 to nearly 1,300 in 2008.) (Daily Business Review; Law.com)
August 5, 2009:  Accused of threatening witnesses, attorney takes the stand to explain ‘kill’ phrasing (N.Y. Law Journal)
September 4, 2009:  Cops shoot fire chief in courtroom scuffle after his speed trap complaints (ABA Journal – Law News Now)
September 8, 2009:  Insulted in restroom, Texas judge jails attendee, 69, for contempt (ABA Journal - Law News Now)
September 10, 2009:  Merck judge tells jurors to take “cooling off” day after threat (which one juror reportedly received during deliberations) (Bloomberg.com)
September 25, 2009:  In unrelated cases, feds arrest men who plotted to blow up courthouse, skyscraper (Los Angeles Times)
September 30, 2009:  Murder def. head butts counsel in apparent bid for new trial (ABA Journal – Law News Now)

As you might expect, the violence or threatened violence is not confined to the United States.  On October 31, 2009, The Guardian newspaper published an article, “Tension High as Arab World Focuses on Courtroom Killing,” by a German citizen, in Dresden, accused of stabbing an Egyptian woman he called a terrorist and whore.  To be fair, the violence or threatened violence is not always against judges; sometimes it is by them:

June 25, 2009:  Senate appoints panel to investigate impeached judge (Samuel Kent) (National Law Journal)
August 11, 2009:  Expletive-Rich tirade ends in suspension for judge (of county court in Nebraska) (National Law Journal)

What precautionary and corrective measures can and should be taken?  This is not the place to give advice on details, but I will provide some of the information I have received.  At the federal level, for example, Federal Protective Service is one such source.  Federal Protective Service is a division of the U.S. Immigration and Customs Enforcement, which is part of the U.S. Department of Homeland Security.  In June 2008, Federal Protective Service published the “Personal Security Guide.”  “The purpose of this guide is to offer some common sense and proactive measures that you and your family can take in an effort to reduce the likelihood of victimization.”  Gary W. Schenkel, Director, Federal Protective Service (published in the message from the Director, which is part of the Personal Security Guide.) 

In June 2009, the U.S. Marshals Service held its first National Conference on Court and Judicial Security, in Fort Lauderdale, as part of the National Sheriffs’ Association Conference. (Daily Business Review; Law.com)  At that National Conference, Michael James Prout, Assistant Director, Judicial Security Division, for the U.S. Marshals Service, stated, “We want to improve judicial security at the national level but also to share what we know with the local sheriffs.  The key to good security is extensive and open communication among law enforcement agencies.”
 
In 2008, the Marshals Service created the National Center for Judicial Security.

A unit of eight explosive-sniffing dogs travels around the country to work at potentially dangerous trials.  Recently, the unit was assigned in Miami to assist with security at the terrorism trials of Jose Padilla and the Liberty City Seven.  The dogs also follow U.S. Supreme Court Justices when they travel.  “We have put a lot of focus on protective intelligence...and investigating threats,” Prout said.  “We do both offense and defense.”

Daily Business Review, July 13, 2009 (Law.com).  The Judicial Conference of the United States is another resource at the federal level.  According to the previously mentioned article published by the San Antonio Express News, the Judicial Conference soon will distribute or has distributed a DVD with security tips. 

The National Center for State Courts (NCSC) provides information, advice and training at the state level.  Timothy F. Fautsko is a principle staff member at the NCSC.  According to his biography, “During the past few years he has directed over 125 courthouse security assessments for the Center, as well as numerous courtroom and safety workshops for state and local courts.” (Biography included in materials for ABA program)  Mr. Fautsko attended both the National Conference on Court and Judicial Security and the ABA Program.  At the ABA Program, he stated that the Center has directed 275 state court assessments of courtroom and personal safety issues and that almost all assessments prompted on-site changes.  Non-governmental resources are also available.  The Chicago Bar Association and The John Marshall Law School Center for Information Technology and Privacy Law have published a self-help guide for judges and their families, titled “Protecting Your Personal Privacy” (October 2006).

At our first meeting with Deputy Chief Benson, he informed us that he is “more concerned about the civil side” than he is about the criminal side of the docket.  He indicated that there have been more surprises on the civil side, and that prisoners are more predictable.  He urges attorneys to make complaints directly to him.  He emphasizes that Sheriff’s Department Courtroom Security Officers try to “balance rights to security against the constitutional right to a fair trial.”  He adds that Court Security Officers “will do the best we can” to “guard the courthouse.”  During our second meeting, we met also with Deputy Sheriff Robert Guerrero.  After informing us he has arrested even attorneys for bringing guns into the courthouses, he advised that, to avoid embarrasing situations and delays, attorneys should, in advance of hearings and trials, make arrangements for taking unusual things into the courthouses.  Arrangements should be made either at the jail or the Court Security Office on the first floor of the Justice Center.  He reminded us about the new system for providing appropriate clothing to prisoners, to be worn during hearings and trials. 

During the second meeting, Deputy Chief Benson added this advice for attorneys:  “Remember your ID badges.”  When I asked for a clarification, he indicated that some attorneys have inappropriately requested a favor from security guards.  “Someone will see the request for a favor, and think they should get the same favor.” 

Both the Deputy and the Deputy Chief described the training program for Court Security Officers.  After using a contractor for training, the Department now has its own training academy.  Training is not the only method for making the security system more effective.  The Department routinely tests security officers through persons who are not known to the officers.  Now you know why they are paying more attention to you as you enter the courthouse, because they don’t know who is testing them. 

Deputy Chief Benson and Deputy Guerrero gave Gary, Jimmy and me a guided tour of what they refer to as “1.5.” “1.5” refers to the floor which is actually between floors 1 and 2 in the Justice Center.  That is the floor where the holding cell is located.  Each day, the Sheriff’s Department processes at least 100 prisoners at the courthouses.  It has processed as many as 200 prisoners on a single day. 

The tour included several aspects of the security system, such as the operations center for the video surveillance system.  The video surveillance system received a major upgrade a year and a half ago.  From our observations, we understand that every part of the two courthouses is subject to video surveillance.

I asked Deputy Chief Benson, “Do you have a message for the Bar Association?”  He quickly replied, “We should communicate better.”  I agree with him.  If you learn any lesson from my experience, be more careful about advice to clients and witnesses regarding items which may not be brought into the courthouses, and regarding inappropriate behavior inside and outside of them.

 

February 2010 - Back Talk: Raises a Constitutional Question?

An associate knocks on the door:

Come in.  Have a seat.
Thanks.  I’m sorry to tell you this, but I’m going to move the Court to permit me to withdraw from this case.
(Startled) Why?
Because I think my workload is unreasonable.  I’m going to notify the Court that my workload is excessive.
What the hell is this about?  What makes you think an excessive workload is grounds for withdrawal?
Well, do you know that “a lawyer should be competent, prompt and diligent”?  That “a lawyer’s workload should be controlled so that each matter can be handled with diligence and competence”?  That the Sixth Amendment and the Fourteenth Amendment guarantee effective assistance of counsel to indigent defendants in federal and state criminal cases?  Have you read Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice?”
Oh, geez! I know all of that.  But no, I have not read the report.  Maybe I’ll get to it someday, when I have more time.

Is the associate just a trouble maker?  If you think so, consider part of an address last August by United States Attorney General Eric H. Holder, Jr., to the House of Delegates of the American Bar Association.  He indicated the caseloads of public defenders in some places present a problem relating to the “legal and ethical responsibilities” to indigent criminal defendants.  He also referred to a “crisis in the judicial system,” relating to indigent defense.  What was he talking about?  The same things the associate was talking about? 

Before the meeting of the House of Delegates, I learned about the problem when I read recommendation 119 for resolution by the House, “That the American Bar Association adopts the...Eight Guidelines of Public Defense Related to Excessive Workloads, dated August 2009.”  I thought the recommendation might be controversial when the proponents of the resolution indicated opposition by the National Legal Aid and Defender Association.  So, being uninformed on the matter, I did what I hope other uninformed Delegates did and do:  I asked for advice from some of those who are informed.  I sent a copy of the recommendation to Bud Ritenour, John Convery and Henry Bemporad. Bud is the president of the San Antonio Criminal Defense Lawyers Association (SACDLA).  John is Co-Chair of the Criminal Law and Procedure Committee.  Henry is the Federal Public Defender, for the Western District of Texas.  All three are targets of the Guidelines, as am I, since we all represent indigent defendants accused in criminal cases.  I asked them, “What do you think?  I will take your views into consideration” when I vote.

Henry was the first to reply:

I think the resolution is a good one, though it is somewhat inapplicable in this part of the country....

He sent a copy of his reply to John and Bud.  John’s reply, in part:

Vote for the resolution.  I respect Henry’s judgment and the abilities of his staff of attorneys, but...[t]he courts and the budget system favor appointment of the FPD, and exert some pressure on FPD offices to take as much of the indigent defense docket as possible.  I would hope Recommendation 119 will be used as a guide in the decisions about the number of cases to appoint to federal [public] defenders and [private] attorneys [who are appointed] in the federal [courts].

Bud’s reply was similar to John’s:

I say vote for the resolution.  The guidelines are primarily in terms of the PD offices and its management, but has language about “lawyers” that apply to private practitioners who accept appointments.  In any event, I believe management principles presented are sound and constructive....I think the guidelines are appropriately worded and have appropriate commentary.

Armed with these comments, I felt I would make a more informed vote.  During the debate before the House of Delegates, Travis County District Court Judge, and Texas Delegate Lora Livingston spoke in favor of the resolution.  She stated “caseloads are a problem,” a “serious problem” in California public defender offices.  There is an indication some public defender offices “permit junior public defenders to determine appropriate case loads.”  In her opinion, that policy “undermines the credibility of public defenders.”  Some public defender offices “do not provide guidelines.” Long time criminal defense lawyer Neal Sonnet advised that the importance of the guidelines is indicated by the comments by General Holder: the caseload problem involves “legal and ethical responsibilities to clients.” 

So what brought on this concern?

[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Gideon v. Wainright, 372 U.S. 335, 344 (1963).  That is what brought it on.  And this: The goal of quality representation for indigent defendants is not achievable

when the lawyers providing the defense representation have too many cases, which  frequently occurs throughout the United States. This was emphasized in the report of the ABA Standing Committee on Legal Aid and Indigent Defendants published in 2004, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice, available at www.indigentdefense.org.  Additionally, in 2009, two national studies concerned with indigent defense documented the enormous caseloads of many of the lawyers who provide representation of the indigent and the crucial importance of addressing the problem.

American Bar Association, Standing Committee on Legal Aid and Indigent Defendants (Chair, Deborah G. Hankinson, Texas), Eight Guidelines of Public Defense Related to Excessive Workloads, Introduction (Adopted August 3, 2009).

A public defender from California spoke in opposition to the resolution and guidelines.  He stated that “the influence of the ABA guidelines is too great.”  In the end, the National Legal Aid and Defender Association decided to not oppose the resolution.  It sent the resolution for comments from public defenders, and acknowledged that those comments had been incorporated into the guidelines. A motion by the opposition was made to indefinitely postpone consideration of the resolution.  The motion was defeated. I joined the majority, and voted for the resolution. 

As a result of the majority vote, the House of Delegates resolved that the American Bar Association adopts these eight guidelines, for the purpose of achieving “quality representation as the objective for those who furnish defense services for persons charged in criminal and juvenile delinquency cases who cannot afford a lawyer:”

  • The Public Defender Provider avoids excessive lawyer workloads and the adverse impact that such workloads have on providing quality legal representation to all clients.  In determining whether these objectives are being achieved, the Provider considers whether the performance obligations of lawyers who represent indigent clients are being fulfilled [listing nine performance obligations] Note: The comments clearly indicate the guidelines apply not just to public defender offices, but also to “programs that furnish assigned lawyers” and “those in private practice who accept appointments....”
  • The Public Defense Provider has a supervision program that continuously monitors the workloads of its lawyers to assure that all essential tasks on behalf of clients, such as those specified in Guideline 1, are performed.
  • The Public Defense Provider trains its lawyers in the professional and ethical responsibilities of representing clients, including the duty of lawyers to inform appropriate persons within the Public Defense Provider program when they believe their workload is unreasonable.
  • Persons in Public Defense Provider programs who have management responsibilities determine, either on their own initiative or in response to workload concerns expressed by their lawyers, whether excessive lawyer workloads are present.
  • Public Defense Providers consider taking prompt actions such as [those eight listed] to avoid workloads that either are or are about to become excessive....
  • Public Defense Providers or lawyers file motions asking a court to stop the assignment of new cases and to withdraw from current cases, as may be appropriate, when workloads are excessive and other adequate alternatives are unavailable.
  • When motions to stop the assignment of new cases and to withdraw from cases are filed, Public Defense Providers and lawyers resist judicial directions regarding the management of Public Defense Programs that improperly interfere with their professional and ethical duties in representing their clients.
  • Public Defense Providers or lawyers appeal a court’s refusal to stop the assignment of new cases or a court’s rejection of a motion to withdraw from cases of current clients.

How are we doing locally?  Bud has strong feelings about the subject:

From the perspective of a private attorney, I still have concerns.  Current economic conditions have put pressures on both private and public entities, threatening the objectives of the recently adopted guidelines — especially at the state level.  Public entities, looking for ways to cut costs and reduce jail population, sometimes view effective defense of “criminals” as an economic problem, not a constitutional issue.  While the federal system makes an effort to ensure a “reasonable” fee structure for CJA attorneys, the same is not true in state court. The fee structure for appointed misdemeanor cases in Bexar County, for example, hasn’t been modified in decades, and at $25 per hour is an embarrassment, if not a constitutional issue. While we can temporarily decline to accept appointments to manage our caseloads, that only means more cases for those remaining on the lists — and passing the pressure to cut corners on to someone else.  While a motion to withdraw because of excessive caseload in a public defender’s office may be realistically considered, I am a bit more skeptical about the prospects for such a motion from a solo criminal defense lawyer.  And should the PD’s caseload become unmanageable, the representation is still constitutionally required, so the cases go to? - private appointed counsel. Concerns about ensuring quality representation are real, but caseload management in PD offices is only the tip of the iceberg.  We need to build on those guidelines and ensure that each individual attorney, judge and public official at every level recognizes and supports the fundamental principles behind them.  The job is not done.

I’ll let Henry Bemporad have the last word:

As  is  true  for  most  assistant federal defenders on the southwest border,  attorneys  in  our  office have caseloads that substantially exceed  those  in  other parts of the country.  I do not believe that our  clients are being disserved as a result; however, I very closely monitor   attorney   caseloads  to  make  sure  they  do  not  become unworkable,  and  that  enough  time  is available to handle the more difficult or complex cases.

I thank Henry, Bud and John for their advice, and especially for their contributions to and leadership regarding the defense of indigent defendants.

 

March 2010 - A Report from the National Front

By Cynthia Eva Hujar Orr President NACDL

In his last column, your president  Robin Teague  relayed some of the fine work that he was doing as your representative in the American Bar Association House of Delegates.   He graciously invited me to write about evolving criminal justice issues in the national arena.  As President of the National Association of Criminal Defense Lawyers this year, I am pleased to be in the know about some very exciting coming attractions.

The relationship between the criminal defense bar and the Department of Justice has substantially changed over the last year. The NACDL has enjoyed many meetings with Department lawyers in every area of criminal law. We have discussed indigent defense, public defense, street crime, the death penalty, white collar law, forfeiture, racial discrimination, international human rights, women in prisons, mental health, addiction, immigration reform, job training, problem solving courts and juvenile justice to name a few.

As honest brokers, our views are held in high regard since many of the policies that we pursue as an organization do not benefit our members but instead the quality of our system of justice.  In addition, we do our homework and provide information based upon empirical studies, the collection of data and testimony, and the issuance of comprehensive reports.  I will be meeting with DOJ in Washington later this month regarding indigent defense reforms.  And then on February 24, 2010, will present information about NACDL’s litigation efforts at the indigent defense summit in Austin.

Robin just wrote about the problems in misdemeanor courts with inadequately funded and overburdened court appointed lawyers.  If the court appointed lawyers are overburdened, you can bet that the courts and prosecutors are as well.  For a solution to these problems, I commend to you the excellent NACDL report on Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Court1 which can be found in full on the NACDL home page at NACDL.org.  Congress2, elected district attorneys and state legislatures have expressed a keen interest in implementing its recommendations that non-serious criminal, civil and administrative wrongs be reclassified from misdemeanors and removed from the criminal courts. These trivial matters have clogged the courts for too long and prevent adequate investment in both prosecution of more serious matters and in the provision of adequately funded defense counsel.  The cost savings that will be realized by implementing the Misdemeanor Report will interest law makers, the county commissioners, and state legislators.  Pass it on.

The NACDL also has released its report on problem solving courts: America’s Problem Solving Courts: The Criminal Costs of Treatment and the Case for Reform. Congress and the Department of Justice is taking an interest in this report as well.  It is a fact that diversion from courts, rehabilitation, job training and integration of addicts and the mentally ill cost half what prosecution and imprisonment does.  It also stops the revolving jail house door.  I am so proud that Texas, and Bexar County are ahead of the curve here.  The exciting thing is that these tools will be coming to federal courts in the near future.  General Holder was serious about getting smart on crime.  Ultimately, status offenders, who are persons such as drug addicts and homeless persons, accused because of their status as drug users or vagrants, should be dealt with in the public health system and not burden the criminal justice system with housing the mentally ill and addicted. Haven for Hope is one local solution and Justice Speedlin is driving community justice initiatives to make it work.

NACDL has also worked with the DOJ on ending the crack/powder disparity.  It is also seeking racial and ethnic fairness in the practices of US Attorney’s Offices.

DOJ changed its position regarding authorization for national groups with expertise in capital representation to receiving funding for training under the Justice for All Act.  And the Department and FBI have been interested in National Security that does not compromise our values.  When lawyers came under fire for performing legitimate defense services in very difficult and unappreciated circumstances, we could communicate about that.

Criminal defense lawyers now have a seat at the table regarding implementation of the National Academy of Sciences’ recommendation for reforms in the accreditation of labs and certification of forensic examiners.  Among other things, we have been meeting with Congressional leaders to promote the creation of an independent audit agency outside of DOJ.

Criminal defense lawyers are on the Federal Rules Advisory Committee  where we most recently discussed the codification of Brady in Federal Discovery Rule 16.  Civil practitioners may not be aware, discovery is mostly at the discretion of the prosecution.  There are no interrogatories, depositions, or requests for admissions in criminal cases.  On this front, Deputy Attorney General Lanny Breuer reported a sea change in culture within the United States Attorney’s Offices with regard to the production of favorable evidence in federal cases.  The Department established a national coordinator for its criminal discovery initiatives, Andrew Goldsmith. General Holder asked for the review of DOJ’s criminal discovery and case management policies and procedures.  We wait to see how this training and policy initiative will affect the operation of the independent US Attorney’s Offices around the country and here in San Antonio.  We also await results from our meetings to  improve the protection of the attorney client privilege in dealings with DOJ and other agencies.   I will report additional progress as the key note speaker at the SABA 47th AA Semaan Seminar March 26, 2010.

 None of this would have happened if we had not been reaching out year after year, decade after decade to influence public policy and achieve reforms.  And we have done so as San Antonians do, with the spirit of collegiality and with the highest of ethical standards.  Our influence has occurred in the right way, as honest brokers.  None of this happened without considerable skill, planning and political deftness by many.

The Department of Justice is now reaching back across the divide.  I look forward to achieving our shared goals for criminal justice with trust and respect. Much as George Parker has achieved this over the years Chairing the Federal Courts Committee of the San Antonio Bar Association with lawyers from each area of practice.  Just as we do with each other each day in the courtroom as colleagues in one of the noblest professions.

1 “The explosive growth of misdemeanor cases is placing a staggering burden on America’s courts. Defenders across the country are forced to carry unethical caseloads that leave too little time for clients to be properly represented. As a result, constitutional obligations are left unmet and taxpayers’ money is wasted.”
2 NACDL testified before the House Crime Subcommittee in its hearing on the state of the indigent defense crisis and Chairman Bobby Scott referred to the Misdemeanor report in his opening remarks.

 

April 2010 - My Mentors in Immigration Law: Home Will Never Be the Same

I met Louie at the Central Texas Parole Violators Facility, commonly referred to as “GEO.”  A federal grand jury indicted him for illegal reentry after previous deportation.  The United States Homeland Security, Immigration and Customs Enforcement Department (I.C.E.) has detained him there for several months.  I’ve met with him there almost once a week during that time.  The meetings are in cubicles about the size of a closet.  I sit or stand on one side of a glass window, he on the other side.  Voices pass through holes in the glass.  We slip papers back and forth through a narrow opening in the bottom of the window. I wish this story would have a happy ending:

Louie, where did you grow up?

I grew up in Los Angeles.  I lived there for about 50 years, until I moved to Texas a few years ago, following some family members who had already moved here.  But there’s a problem.  Even though I’ve lived in the United States almost my entire life, I was born in Mexico.  My parents immigrated from Mexico to Los Angeles when I was 5 months old, in 1957.  I came with my older sister and brother.  Some of our family  had been living in Southern California since the 40s.  Some were farm  workers.  Some worked in factories.

Did you go to school?

Yes, I went to public schools, and graduated from high school in LA.  Just like all other kids during those times, every morning in school I recited the Pledge of Allegiance to the flag of the United States of America, and to the Republic for which it stands.

Did you travel to Mexico?

I did, several times.  Every time I visited family or went on vacation in Mexico, which was a few miles from where we lived, I declared I was a citizen of the United States when I crossed the border back into the States.  I didn’t know any better when I was young.  Back then we didn’t need a passport to travel back and forth between Mexico and the U.S.

What about work?

I started working when I was 14 to help my family.  Eventually, I became a dock worker, then a truck driver.  I was a member of the Teamsters Union for almost 20 years, and earned a pension.  I also paid income and social security taxes to the United States.

What parts of your family live in the U.S.?

My older brother, two sisters, two daughters, a son, a son-in-law, and a granddaughter, who is disabled.  My older brother, and older sister are naturalized citizens.  My mother and maternal grandmother also became naturalized citizens. My father never became a citizen, but was a legal permanent resident. The rest of my family was born in the U.S. and became U.S. citizens at birth. My ex-wife, the mother of my children, was born in the USA.

Did you become naturalized?

No.  My parents arranged for the INS to issue a “green card” to me when I immigrated as a child.  That card entitled me to permanent legal residence. I guess I was just too lazy to become naturalized.  I did not realize until too late the advantage of becoming a citizen: As a permanent legal resident, I was able to live with my family, go to school, go to church, work, play, and rear children here without becoming a citizen.

You got into some trouble with the law?  What happened?

One of my brothers, a friend of his and I were involved in selling some marijuana in 1978, when I was 22. Big mistake.  I pled guilty to sale of marijuana but fortunately was sentenced to probation.  Later I was convicted of some petty crimes and then convicted of stalking my ex-wife.  I was stupid.  We are on friendly terms now.  She is the mother of my three children, and close to my entire family.

So growing up in the states, did you plan to live here the rest of your life, or did you plan to return to Mexico?

My home is in the United States.  I don’t have a home in Mexico.  Until now, I’ve never thought about living in Mexico again.  I want to stay here, with my family.

So why don’t you stay here?  What’s the problem?

In 1978, after I was convicted in that drug case, the INS brought a deportation proceeding against me.  The immigration judge found that I was deportable, after living in the U.S. for 22 years!  I hired a lawyer, but she died before the proceedings were over.  I could not afford another lawyer and the judge ordered me to be deported after about a year of proceedings.  There is a provision called a “212(c) waiver.”  It applies to people just like me, who have lots of connections to the U.S.  Unfortunately, I did not know about it then.  The government deported me.  The waiver is no longer available after deportation.  I can never get a waiver, since I’ve been deported.

Did you stay in Mexico?

Of course not!  My family lives here.  My job was here.  I re-entered the U.S., by just walking across the border at the point of entry.

So you illegally reentered, after being deported?

Yes.  I was deported again, reentered, deported a third time, again reentered, and arrested a few months ago, again, for illegal reentry.

That’s why the judge appointed me to represent you.

Right.

Do you realize illegal reentry is a felony, punishable by imprisonment for up to ten years?

Yes.

So what are you going to do?

Plead guilty, I guess.

Then what will happen?

The judge will sentence me to prison, for how long I don’t know.  After that, I.C.E. will deport me, without even a hearing.  I will never again be legally allowed to return to the U.S., even to visit my family.  I’m so tired of this. I’m going to stay in Mexico, even though I don’t have a place to live there, or any prospects for employment.

 A long time has passed since I was last appointed to represent a defendant in a felony case.  Those of you who have been admitted to practice in federal court for more than 20 years or so will remember that all lawyers admitted in the old days were subject to appointments, even in complex felony cases.  For example, several years ago I tried a multi-defendant drug conspiracy case involving the use of firearms, and also tried a federal arson case, as to which I argued on appeal to the Fifth Circuit.  The appointment systems in state and federal courts have changed.  Under the federal Criminal Justice Act (CJA), just like under state law, lawyers must be qualified to be appointed in misdemeanor and felony cases, and then must be placed by a panel onto a list of lawyers eligible for appointments.   There are several levels of eligibility in federal courts:  complex felony, felony, misdemeanor, appellate, habeas corpus.  Selection to those panels has become an honor.  No longer do trial lawyers run away from appointments. 

Fortunately, the CJA panel provides a mentorship program for lawyers like me, who are not highly experienced in federal felony cases.  (Do we ever grow so old that we don’t need or appreciate a mentor?)  Federal Public Defender Henry Bemporad and John Convery are in charge of the mentoring program.  I asked them to appoint a mentor.  After considering  the lawyers here who have experience in illegal reentry cases, Henry assigned Assistant Federal Public Defender Molly Roth to be my mentor in this case.  John told me, “She’s the best.” He’s right.  One of her specialties is immigration-based crimes.  She knows off the top of her head what I have to look up.  She’s advised me about discovery, pre-trial motions, the “A file,” plea negotiations, and sentencing guidelines.  She’s met with Louie and me several times.  Every immigrant has an “A file,” also called an “Alien File.”  I had never heard about them before my involvement in this case.  She told me how to get it, and  what to look for in a review of it.  She also shared with me a list of immigration law specialists to whom the FPD refers matters.  I will of course share it with you upon request.

One day, Molly and I went to I.C.E. headquarters in N.W. SA, where we met the deportation officer in charge of the case.  There we listened to the audio tape recordings of the 1978-79 deportation proceedings.  While there, we ran into old friend and colleague Robert Shivers, who was there with his wife Nancy.  They are specialists in immigration and naturalization law.  I asked Robert, “Do any immigration lawyers volunteer to advise or represent indigent defendants in illegal reentry and deportation cases?”  His reply:  “I do.  I do that all the time.”  So then I asked, “Would you ‘volunteer’ to give some advice to my client, Louie?”  Without hesitation he told me, “Sure. Call me when you want to meet.”  Sure enough, when I called him a week later, he was ready on a moment’s notice.  I picked him up and we went together to GEO.  He had been there before, since he has defended illegal reentry cases, and I.C.E. detains immigrants there.  After listening to the story of Louie’s life, he firmly told him some of the bad news:  “Even after you were convicted in the 1978 drug case, you were almost guaranteed a 212(c) waiver, which would have enabled you to continue living legally in the states.  But you don’t have a right to one any more, since you have been deported.  After this case is over, you will be deported, even without a hearing.”

The American Bar Association has been critical of immigration law and procedure.  At the midyear meeting in February, the House of Delegates considered resolutions 114A through 114F, all related to immigration law and procedure.  One focus is on consideration of humanitarian grounds in deportation proceedings.  Many would not be sympathetic in Louie’s situation, but many might be sympathetic to the thousands of other immigrants in this country.  Because of my involvement in Louie’s case, I paid more attention to the proposed resolutions and this part of the address by ABA president elect Stephen Zack, to the ABA House of Delegates, which I heard in person on February 8, 2010:

As you know, I am an immigrant and I come from a family of immigrants.  In 1961...we came from Cuba....  As a 14 year old all I could think of was I wanted to do something to help [the other immigrants].  And there was very little a 14 year old could do to help.  So I feel particularly privileged to speak today and to honor a commitment I made almost fifty years ago to do something, if I had the chance, about how immigrants are treated when they come to this country.
 
Several weeks ago I went to the San Diego Immigrant Detention Center because I wanted to see how our [the ABA’s] project was proceeding there....  And I sat in the back of a little room, and there were about 25 people there, all in almost prison-type uniforms....  In front was a lawyer, a lawyer paid for by the American Bar Association.   A lawyer who sat and told those people about their rights, the rights they enjoy just because they are in this country....   And that lawyer...said anybody who wants to talk to me, I’ll stay here and talk to you.  And I sat and listened to those conversations.  I was never more proud about being an American, never more proud about being a  part of this Association because I thought no place else in the world, no place else in the world, would this occur.  But this is just a demonstration project.  There are 300,000 human beings that go through this process every year.  Four hundred thousand people are detained at this very minute....  We have a system in crisis.  We have [immigration] judges who are asked to decide eight cases a day, every single day, 365 days a year.   All of us who are trial lawyers, all of us who are lawyers, know that is not possible.  We know that we are not providing fundamental due process.

Mr. Zack then urged the delegates to “continue to pursue justice” by adopting the resolutions.  We unanimously adopted them. 

Robert and Molly have been wise and terrific mentors.  I thank them very much. I thank Louie and his family for giving me the opportunity to do what I can which is not much in an all too frequently occurring situation — the Federal Public Defender recently reported that 47% of the cases in the Western District of Texas are based on immigration law.  Fortunately, Louie’s family also has been quite helpful and thankful.  His older sister has sought advice from every local charitable agency involved in immigration issues.  She even sought and received advice from a professor at St. Mary’s University School of Law, which itself operates such an agency. 

We are near the end of the road.  Louie and his family are ready to face this crisis in their lives, which results from the separation of a family.   Your lack of sympathy for Louie is at least in part justified.  But can you imagine being sentenced to prison because you want to live in the U.S., after living and working here for more than half a century?

 

May 2010 - The Future Use Of Our Existing Presiding Courtroom — Will it be used as it was historically?  Or will it be given a new use?

By Dan Vana, Chair of the District Courts Committee & Litigation Section

Unless you have not been to the courthouse lately, or read the newspaper, you know that the County is building a new administration building and has been restoring the “old” Bexar County Courthouse and civil courtrooms as part of its historic preservation master plan.  The restored courtrooms are magnificent and, if you have not been in them, you should stop by and see them.  One project now in the planning phase is the restoration of what is now the courtroom for Presiding Civil District Court (“Presiding Courtroom”), on the second floor.  There are some competing ideas.  Let me start off with a few questions:
 
1. After restoration is completed on the Presiding Courtroom, should the District Court judges continue to use that courtroom or should it be given a new use, such as for Commissioners Court hearings two days a month?
2. What are the pros and cons of moving the Presiding Courtroom to the first floor?
3. After the District Clerk moves to the new building, should the District Clerk have a satellite office in the old courthouse so that attorneys do not have to go to the new building to file and then go to the courthouse to appear before a judge?

Attorneys are not elected officials and do not get to vote on these matters.  But your input is important to SABA and the District Courts Committee (“DCC”).  Your input is also important to the restoration planning process, because, as stated in the Texas Preservation Handbook for County Historical Commissions (2010), “early and continuing public participation is essential to the broad acceptance of preservation planning decisions.”

Background Summary

Construction of the courthouse began in 1892 and was completed in 1896.  The courtroom to be restored (in which Presiding Court currently sits) was originally a two-story-high courtroom that occupied the second and third floor.

After the Presiding Courtroom is restored, the Civil District Court judges want to continue using it exclusively for Presiding Court.  The Commissioners Court also wants to use this courtroom to hold its meetings, two days a month.  The Commissioners Court has not decided whether the restored courtroom will be used for Presiding Court, Commissioners Court, or a combination of both uses.  In the meantime, County Judge Nelson Wolff has been and will be meeting with the District Court judges and representatives of the Bar to discuss these issues.  Bexar County Infrastructure Services Department (“Infrastructure Services”) has conferred and will continue to confer with a group of attorneys to get attorney input on various issues.  Now you know why SABA is interested in receiving your answers to these questions.

During the restoration, which is expected to last 2-½ years, Presiding Court must move to another location.  The County has budgeted $3.5 million (non-grant money) to build a new/temporary or new/permanent Presiding Courtroom on the first floor, in the area of either Commissioners Court or the District Clerk’s offices.  For historical and security reasons explained below, the District Court judges do not want Presiding Court to be on the first floor.

On March 12, 2010, the San Antonio Express-News article described the courtroom’s historical grandeur, which in its earlier days included a two-story-high courtroom, a third-floor gallery for spectators, an outdoor balcony, and baroque rose windows carved from red stone on some of the exterior walls.  The article also reported that a representative of Infrastructure Services said that after restoration, “Commissioners Court likely will meet in the space and make it available for some trials”.  That report took the bench and bar by surprise.

A few days after the Express-News article, I got a phone call from Infrastructure Services requesting a meeting with a group of attorneys to get input on a new Presiding Courtroom.  The proposed topics were: “Collecting Information regarding Presiding Court’s needs: What works in the present courtroom space?  What doesn’t work in the present courtroom space?”  With the help of Robin Teague, we quickly assembled a group of six attorneys, along with Jimmy Allison and General Administrative Counsel for the Civil District Courts Gary Hutton, to meet on March 25th with Infrastructure Services and its consulting architects.  At that meeting, and then at the April 1st meeting of the DCC, the representative from Infrastructure Services assured us that no decision had been made on whether Commissioners Court or Presiding Court will occupy the restored courtroom and also confirmed the article was a misquote.  The attorney group questioned why Presiding Court may not return to the courtroom.  Infrastructure Services reported, among other reasons, there was “no historical precedence for Presiding Court” until the 1960s, and the size of the courtroom’s exit doors and the courthouse hallway may not be adequate to safely accommodate the number of people attending Presiding Court.  At the April 1st DCC meeting, Infrastructure Services also reported “most double-height courtrooms were designated as the County Court or Commissioners Court”.

Infrastructure Services and its consultants continue their forensic studies to determine the scope of work involved with restoring the courtroom to its historical condition and use.  Afterwards, a plan and then a design will be developed for all three options and shared with the District Court judges and bar before a decision is made.  The courtroom restoration will be funded by $3 million from the County, along with additional funding from the Hidalgo Foundation and a State grant.

This summer, the offices of the Commissioners Court and District Clerk will move to the new building when construction is completed.  In connection with the move to the new building, the District Clerk requested that a satellite office be kept in the courthouse for attorney filings, so that attorneys do not have to go to one building to file and a second building to have a hearing.  The District Clerk requested space for 15 employees in the satellite office, but the County proposed space for seven employees.  District Clerk Margaret Montemayor also raised the point that attorneys need to be able to do first filings at the satellite office.  But the current method of hand-stamping a log sheet for each new cause number/court assigned would make it difficult for the two separate offices to know what was the last cause number assigned.  In response, the County’s Information Services is looking at creating a computer program which will automatically keep track of each cause number/court as it is assigned by either of the two offices.  As additional information is obtained, we will give another update on the District Clerk’s move and the satellite office.

Issues to Consider

The following three issues seem most noteworthy for this article: (1) Can the number of people in the courtroom and adjacent hallway be controlled so that we are in compliance with safety/fire codes?  (2) Would moving Presiding Court to the first floor raise security issues for the judges, parties, witnesses and attorneys?  (3) How does the position there is “no historical precedence for Presiding Court” until the 1960s or “most double-height courtrooms were designated as the County Court or Commissioners Court” affect plans for the future use of this restored courtroom?

1)    Can the number of people in the courtroom and adjacent hallway be controlled so that we are in compliance with safety/fire codes? 

I am unaware of a study that has been conducted to determine the average number of people attending each docket call on any given day or over the week.  Various estimates have been given based on the number of settings or an estimate of four people per setting.  But some settings are dropped, some are reset, there are no-shows by attorneys and parties, and not every attorney brings a client to a hearing, so it is unclear whether such estimates are in the ballpark.  We need information  from the Fire Marshal about the maximum occupancy of the courtroom and adjacent hallway in their restored size and configuration.  We have not received that information, since the designs have yet to be prepared.  Furthermore, if modifications need to be made to the Presiding Docket system, I am confident the judges will work out a solution.  For example, modifications may include changing the docket call times to prevent overlapping of the 8:30 and 9 a.m. dockets, limiting the number of cases set on each docket, or adding additional docket call times.  The Presiding Court and dockets have evolved over the years and will continue to evolve to address such issues.

2) Would moving Presiding Court to the first floor raise a security issue for the judges, parties, witnesses and attorneys?

Questions have been raised that call for further analysis.  For example, would moving Presiding Court to the first floor create a bottleneck due to people entering on the first floor, and either staying there or slowly moving to other floors?  Would the crowds that tend to gather in the hallways back up to the security entry points, slowing down entry, or even decreasing the clear view and effectiveness of the security guards?  Might a perpetrator or upset party view this as an opportunity for a quick “hit” or assault on a judge, attorney or opposing party because the perpetrator only has to stand in the entrance, or run out a nearby exit door?  If you are on the second floor, at least there are additional layers of security available as well as additional time to take protective action once a security breach is reported.  In today’s environment, security is of great importance to everyone — Robin Teague recently wrote a Subpoena article addressing courthouse security incidents.

3) How does the position there is “no historical precedence for Presiding Court” until the 1960s or “most double-height courtrooms were designated as the County Court or Commissioners Court” affect plans for the future use of this restored courtroom?
 
If Texas Preservation Trust Funds are used to restore a historical courthouse project, the process is governed by the Government Code (Section 442.0082) and Texas Administrative Code (Title 13, Part 2, Rule 17.2).  Since State grant money will be used for this project, these laws control the design, application, review and approval processes.

Rule 17.2 of the Texas Administration Code, in part, states:
•    A property shall be used as it was historically, or be given a new use that requires minimal change to its distinctive materials, features, spaces, and spatial relationships. 
•    Each property shall be recognized as a physical record of its time, place, and use.

In my opinion, the Code states a first preference for continuing the same or similar use of the property.  The Code then states a second preference for giving it a new use but only if minimal changes are made. 

a. How was the courtroom historically used?
 
Infrastructure Services has reported to the DCC that the 37th Judicial District Court historically used this courtroom, but has not reported to the DCC that Bexar County Commissioners Court historically used this courtroom.

The Bexar County Historical Commission website contains an article by Sylvia Ann Santos, who investigated and wrote a manuscript on the Courthouses of Bexar County, 1731 to 1978.  The article includes J. Riely Gordon’s minute description of the newly constructed courthouse.  He is the renowned architect who designed our courthouse.  In summary, the offices on the first floor include the “commissioners”.  On the second floor: “The district court rooms are 50 X 70 feet each and are two stories in height, provided with galleries for spectators. There are no columns in these courtrooms except the minor ones to support the galleries.”  No history is cited on the Historical Commissions website indicating any of the second floor courtrooms of the Bexar County Courthouse were used or “designated as Commissioners Court” — but instead does state they were “district court rooms."

The San Antonio Express-News published a detailed article on March 12, 2010 about a 1913 trial held in what is now the Presiding Courtroom.  More than 1,500 people packed the floor and gallery of this two story courtroom to witness this trial.

Per the Hidalgo Foundation website:

“The Bexar County Commissioner’s Court has directed that the primary use of the Courthouse be as a space for civil courtrooms.  As such, the courtrooms, judge’s chambers, jury deliberation rooms and courtroom support office spaces are defined as a ‘court suite’.  Fortunately, many of the 1927 era courtroom spaces are still used for that purpose today…It is the intent of the Hidalgo Foundation to pay homage to the design integrity of Mr. Gordon with these historical restorations,  returning the Courthouse to his intended plan."

Based on my research, beginning in 1896 with the 37th Judicial District Court and thereafter, the room has always been used as a courtroom for district or probate courts for judicial matters.  Cases were presided over by a judge from the bench, the attorneys and parties used the counsel tables, the parties or witnesses gave testimony from the witness stand, juries sat in the jury box, the audience sat behind the bar, and the court reporter recorded the testimony.  Should we preserve this historical use by continuing to use this courtroom exclusively as a courtroom for judicial proceedings such as the Presiding Civil District Courts? 

b. Is a new use being requested?

Commissioners Court is suggesting a new use for the restored courtroom: usage two days a month for Commissioners Court meetings.  Aside from the fact that the Presiding Court is a full-time judicial court (from 8 a.m. to 5 p.m. and sometimes 6 p.m., five days a week), assuming Presiding Court shared the courtroom with Commissioners Court, what changes would have to be made to the features, spaces and spatial relationships and would such changes be minimal so as not to detract from the historical use?  Would the judge’s bench need to be enlarged from one chair to accommodate five chairs?  Would the witness stand, court reporter and clerk’s area, counsel tables, and jury box be modified or enlarged to fit the requirements of Commissioners Court or will they retain their historical features?  After restoration is completed, will the physical record (its appearance) reflect a judicial courtroom, Commissioners Court, or a modified courtroom for both.

We do not know these answers yet, because the planning process is continuing and the design plans have not been created. 

Conclusion
 
The courthouse and its courtrooms are symbols of our great judicial history that should be preserved.  Our County representatives, the Bexar County Historical Commission, the Hidalgo Foundation and its donors should be commended for all of their time, work and fundraising activities.  Without their efforts these restorations would not become reality.

This restored courtroom undoubtedly will be the grandest of all judicial courtrooms in the State of Texas.  Bexar County, and the City of San Antonio, have such a rich history because our predecessors and current leaders put preservation first, so that all members of our society (local and from out of town) can see our history, feel it and be a part of our past.  In my opinion, the room should be restored in accordance with J. Riely Gordon’s intended plan and use — with the District Court judges of Presiding Court, attorneys, parties and public continuing to use this courtroom exclusively for judicial cases as they did in 1896 and 1913.  This use will preserve the history of this courtroom.

That is my opinion.  What do you think?

 

June 2010 - Sink or Swim

Seagal and I were walking down the hallway in opposite directions when he asked me to step into his office:

S:  Robin, the case of Stiles v. Town and Country Mobile Homes goes to trial in a couple of weeks.  I want you to try it. 

R:  Okay.  What’s the case about?

S:  Some buyers of a mobile home have brought a DTPA case against the manufacturer and retail dealer.  We represent both defendants.  Here’s the file.

R: [Gulp].

I would then sink or swim in my first jury trial, and eventually become a trial lawyer.  Believe it or not, I tried eleven cases to juries before I finally got to sit second chair, behind a mentor, in Huddleston v. Karam, a suit to set aside a trustee’s deed after foreclosure.  I again must say how thankful I am for the confidence placed in me at such an early point in my career. 

In some ways, my instincts as a baby trial lawyer were good.  I had been involved in some family law cases in support of Seagal.  John Hemmi and Biff Pennypacker, in support of James Stewart, were on the other side of at least one of them.  In the great traditions of trial lawyers, we became friends and foes at the same time.  I called them and asked if they would represent the mobile home dealer, because I could tell my interest in representing the manufacturer was in conflict with my  interest in representing the dealer.  I was truly blessed.  Less than two weeks away from a jury trial, John and Biff agreed to represent the dealer.  In a way, they became some of my first mentors, and I thank them for being my mentors, and for becoming life-long friends. 

I needed mentors, because in some other ways my instincts were not that good: 

Judge James A. McKay (deceased):  Mr. Teague, you may proceed (with voir dire).

R:  Ladies and gentlemen, I am Robin Teague, and I represent the manufacturer.  Let me tell you about the procedure we are going to follow.  We are now in voir dire.  Next, will be the opening statements.  Then....

Judge:  Mr. Teague, excuse me. You don’t have to tell the jury that.  I’ll tell them about the procedure in a few minutes. 

R:  That’s okay, Judge, but I would like to do it.

Judge:  Go ahead, if that is what you want to do (thinking to himself:  “Oh my.   What a lost opportunity.”). 

Lost opportunity?  All trial lawyers would say yes.  I would like to say that I have learned from my mistakes and experiences.  I have learned the value of having and being a mentor.  I have learned to listen to judges, some of whom give thinly veiled advice.  (“Counsel, aren’t you about finished with this witness?”)

Last summer the State Bar invited me, as President-Elect of the San Antonio Bar Association, to attend the State Bar Leaders Conference in Houston.  State Bar President Roland Johnson focused on two subjects:  One is access to justice.  Justice Phylis Speedlin is the chair of the Community Justice Pro Bono Committee. Under that Committee, the Community Justice Program, chaired by Justice Sandee Bryan Marion and Judge Larry Noll, is our successful approach to solving the problem of access to justice.
 
The State Bar is also concerned about transition to practice:  starting new lawyers off on the right foot.  So are we.  At the conference, I discussed a mentoring program with local bar leaders Monica Ramirez Trollinger and Christine Reinhard.  Monica is the immediate Past-President, and Christine the President of the Bexar County Women’s Bar Association (BCWBA).  They share our concern.  At that time, I knew nothing about the SABA mentoring program.  Their concern made me think we needed to pay attention to mentoring.  Fortunately, to help me find my way, I received a package of materials from the State Bar:  “Transition to practice, a mentoring initiative for local bar associations.”

We are even more fortunate, because Jeff Akins accepted the “offer he could not refuse,” to be the new chair of the Mentoring Committee.  I have learned SABA has had a Lawyer-to-Lawyer program for some time.  But essentially Jeff started this mentoring program for new lawyers from scratch.  Nothing has come easy in his work.  His focus is on new, mostly young lawyers, and on those who are not members of a firm, where new lawyers would be expected to receive mentoring, and not need mentoring from an outside source such as a bar association.  He began by collecting information about new lawyers in the San Antonio area.  Eventually, he sent invitations to 176 new lawyers and received applications from twenty.  They became part of our inaugural class. 

Jeff and I met with most of the new lawyers in February.  Soon after the meeting, they set up the SABA Mentoring Facebook Group.  Jeff and I then matched mentors with those seeking a mentor.  These are the matches: 

Mentees
Catherine Casiano
Mayra Castro
Cynthia M. Chapa
William Clanton
Anthony Colton
Gabriel DeVega
Marla Castro Echevarria
Matthew Gossen
Joseph Hoelscher
Andy Laird
David Levine
Michael Moore   
Ryan R. Murphy
Beth O’Connor
Rafael Pizana
James Rodriguez
Stacy Scroggins
William Shaw
Amanda Spencer
Bert Villena

Mentors
Stephanie Brown
Allan DuBois
Ramona Frazier
Richard McNitzky
Richard Butler
Marc Notzon
Edward Pina
Charlie Butts
Wade Shelton
Gary Mayton
Brett Schouest
Donna Barton
Jeff Akins
Rudy Vasquez
Elena Villasenor
Syl Mauro
Tom Veitch
Stephanie Strolle
Barry Beer
Robin Teague

I thank them all, especially Jeff.
   
Sylvia Cardona is part of Jeff’s team.  They arranged for a meeting in early March of all involved in this program.  And so we’re off! 

Soon after that meeting, as a mentor I took new lawyer Bert Villena with me to a meeting of the District Courts Committee, where he heard a timely presentation by Judge Karen Pozza about “Dos and Don’ts” in her courtroom.  After the meeting I introduced him to General Administrative Counsel for Civil District Courts Gary Hutton, and to Jimmy Allison, Liz Castillo, Gabe Gonzales, Sylvia Hernandez (who is the manager of the SABA Lawyer Referral Service), and Amanda Reimherr Buckert, so we could arrange for him to get involved in the Community Justice Program.  Then I took him with me to the memorial service for Leo Alvarado, Jr., after which he got to meet several of the Justices of the 4th Court of Appeals.  Next, he attended a hearing with me on a plea in Federal Court.  There he got to meet the defendant’s family, who were there for his support.  We’re still planning visits to each other’s offices, and a tour of the State and Federal Courthouses. 

In late April, Jeff and I met again at his office with some of the new lawyers.  Jeff called after the meeting to tell me the meeting was fantastic and got his “juices going.”  I am so pleased.  Jeff has additional plans for the mentors and young lawyers.  He would himself report those plans to you, but asked that I make this report for him.  He’s too busy reporting to the State Bar, whose mentoring program is managed by Catherine Dilworth.  Stay tuned. 

In my first jury trial, I also learned about how unpredictable jurors can be.  Some are loose cannons.  After the jury reached a verdict for the plaintiffs and for John’s and Biff’s client (the mobile home dealer), and against my client, the manufacturer, we interviewed those jurors who were eager to talk.  One of the jurors told us that, during the deliberations, he had informed the rest of the jurors that all mobile homes produce a toxic level of formaldehyde which probably injured the plaintiffs.  I was a bit surprised by this revelation, since the subject never came up during the trial.  Unfortunately, the disclosure might have turned the jury against my client, but was not provable misconduct.

Other jurors congratulated me on the way I tried the case.   (“Hey, you tried a great case!”)  But then they added what I have never forgotten:  “The plaintiffs had the facts.  You didn’t.”  I do not think trial lawyers can perform miracles.  We can lose cases we should win, but with few exceptions, we cannot win a case without having the best facts.  This case involved a minor miracle.  The court of appeals reversed in favor of my client and remanded for a new trial.  Read all about it in Stiles v. Town and Country Mobile Homes, 543 S.W. 2d 664 (Tex. Civ. App. – El Paso 1976, no writ).  None of the parties wanted to retry the case, so they settled for a small sum.  

P.S.  Since this column is intended to include a report about the SABA Mentoring Program, I should give some advice to new lawyers:  Learn what you can about judges before the trial begins.  The Stiles case was not my only experience with the Honorable James A. McKay. As I mentioned before, In my earlier years I was involved in suits for divorce.   One day I had to prove up an uncontested suit for divorce, and was assigned to Judge McKay.  Piece of cake.  Somewhere along the way before that time, some lawyer more experienced than me had told me that Judge McKay is Catholic and therefore does not like suits for divorce.  Maybe I should have studied a little more before the hearing.  I greeted Judge McKay and introduced my client.  I then went through the routine procedure for an uncontested suit for divorce.  When finished, I handed the form for decree of divorce to the judge and confidently stated, “Judge, you sign right here.”  His reply?  “I’m not going to sign that.”  Oops!  The judge ordered my client and the respondent to marriage counseling; just what they didn’t want.  Imagine what I had to tell my client after I had just “lost” one of the few cases that cannot be lost.

 

July 2010 - Keep a Stiff Upper Lip

Have you ever sustained a crushing defeat?  I have, several times. Trial lawyers can’t always live up to the standard set by General George S. Patton, who once roared, “Americans love a winner and will not tolerate a loser!”   In 1985, as I tried to establish my solo practice, I bounced back from a slow start when I received a call from an inside counsel at Emerson Electric, asking if I was interested in representing the company in product liability cases in Texas.  What a pleasant surprise. I had not expected such great fortune as a result of settling one table saw case for the company the previous year.   During my representation of the company, my worst defeat as a trial lawyer occurred in 1997 in a jury trial in Beaumont.  I defended against a suit brought by a man who lost four fingers while using a saw manufactured by the company.  I bounced back from that defeat by trying five more cases to juries for the company during the next two years, in San Antonio, Corpus Christi, Del Rio, Corpus Christi (again), and Austin, all victories.  As a result of representing that company, I went on to successfully represent other great companies in product liability suits.  But I have just sustained another crushing defeat.

There are differences between losing a case one should lose, and losing a case one should win.  In my first column, in August 2009 (“A lawyer’s responsibilities-pro bono and public service “), I wrote about trying a civil rights case recently twice to a jury, the second time because the first jury was unable to reach a verdict.   By appointment, I represented the plaintiff, who brought a section 1983 case against a San Antonio police officer, accusing him of violating his civil rights, guaranteed under the Fourth Amendment.  The plaintiff claimed the officer violated his rights by using unreasonable, excessive force in making an arrest. The plaintiff was not a choir boy.  He had been convicted twice of drug offenses.  He was in possession of an assault rifle at the time of the arrest, in a high crime area.  According to the officer, the plaintiff refused an order to stop, and then turned and aimed the rifle at the officer.  The officer shot the plaintiff. The plaintiff was convicted of unlawful possession of the firearm, and as a result was a prison inmate at the time of both trials.  On our application for writ of habeas corpus ad testificandum, the federal judge ordered the Marshals Service to bring the plaintiff from prison to the courtroom, for both trials.  I disclosed the plaintiff’s status and criminal history during jury selection to steal the thunder from the city attorney’s office which defended the officer. The defense attorney was going to make the disclosure if I didn’t, since the trial judge overruled motions in limine.   The plaintiff’s story on cross examination changed from sentence to sentence.  The attorney for the officer had a field day.  I should have lost that case after the first trial. I did lose after the second trial: the jury reached a unanimous defense verdict in favor of the officer.  That was not the crushing defeat.

I think I should have won one of the cases I just lost.  In the first of these two cases, two local surgeons performed surgery on an elderly patient at a local hospital.  Over ten years later, she discovered a sponge in her body.  On her behalf, I brought a medical negligence suit against the surgeons and hospital.  Of course the defendants raised the ten year statute of repose in an affirmative defense.  They filed a motion for summary judgment.  In our response, we raised the question about whether application of the statute would violate her right under the open courts provision of the Texas constitution.  Judge Andy Mireles heard the motion.   After hearing from both sides, he asked the defense:  “Now, if I overrule your motions, you’re going to settle, aren’t you?”  The response, “Yes, your honor.  We probably will.”  Then he turned to me: “But if I grant the motions, are you going to appeal?”  I responded, “Absolutely.”  He then informed us, “I want to know the answer to the question.  The only way I can get it is to grant the motions.  The motions for summary judgment are granted.”  We appealed to the court of appeals to reverse and remand for a trial.  I just knew we were going to win, even though my oral argument left something to be desired.  Under supreme court precedent at that time, an injured person had a right under the open courts provision to a reasonable opportunity to discover a wrong and bring suit, and the question of whether the plaintiff had such a reasonable opportunity was a question of fact.  And so we did win, in the court of appeals.  In a unanimous opinion, Justice Rebecca Simmons, writing for herself and Justices Karen Angelini and Steve Hilbig, decided that application of the statute of repose would violate the right of the patient, under the open courts provision of the Texas Constitution, if the patient proved, as a matter of fact, that she did not have a reasonable opportunity to discover the wrong and bring suit.  After also deciding the plaintiff raised a fact issue, the court of appeals reversed the summary judgment against plaintiff, and remanded for a trial.  Hallelujah!  The victory and glory were short lived.  Unfortunately for the plaintiff, in a recent unanimous opinion, the supreme court decided that there is no fact issue to be decided by a jury under the ten year statute, that as a matter of law the constitutional right of the patient was not violated, even though as a matter of fact she could not have discovered the wrong and brought suit before the ten year period ran.  The court reversed the judgment by the court of appeals, and rendered a summary take nothing judgment against the plaintiff.  Our motion for rehearing has been overruled. That is a crushing defeat, for me, and for the patient:  she experienced severe abdominal pain in the eleventh year after surgery, was subjected to exploratory surgery for removal of the sponge, and will be subjected to follow-up surgery for the removal of scar tissue, all without compensation to her, and all without even reimbursement of expenses. Bouncing back will be difficult. Since the opinion by the court of appeals, I have received five calls about other sponge cases involving similar facts, one even coming after the decision by the supreme court.  I have had to give the bad news to those patients.  But what is bad news for some is good news for others. As a result of the decision by the supreme court, that is five cases the medical malpractice defense bar will not have to defend. I have helped lighten their load.  Sometimes, though, we win even when we lose.  The patient faced this crushing defeat with a smile, and thanked and blessed me over and over for representing her these past four years.  I thank her for giving me the opportunity to represent her. I am blessed.  (And yes, like other trial lawyers, I’d accept a challenge like this again, given the chance, even though the first time was without compensation, and at significant expense.  I would, however, again be unsuccessful in this type of case unless the legislature enacts, as other legislatures have enacted, a foreign objects exception to the statute of repose.)

I should have lost another recent case, and in a way I did. (Trial lawyers sometimes have a funny way of defining victory and defeat.)  I wrote about this criminal case in the April 2010 column, titled, My mentors in immigration law: Home will never be the same.  By appointment, I represented the defendant, who was accused of illegal reentry into the United States.  Illegal  reentry is a felony offense.  I tried and tried to find a way to defeat the government’s case.  I failed.  The defendant entered a straight up plea of guilty and was convicted of illegal reentry, after previous deportations, for the third time.  My mentor Molly Roth and I conservatively calculated the sentencing guidelines range to be from 37 months to 46 months.  The U.S. Probation Officer delivered some good news. She calculated the guidelines range to be from 8 to 14 months.  Judge Fred Biery sentenced the defendant to 8 months in jail, at the bottom of the guidelines range.  After credit for time served, he will be released in a couple of months.  The defendant’s family, which attended the sentencing hearing, was joyous and thankful.  Again, sometimes we win even when we “lose.”   Unfortunately, the good news soon turned to tragedy.  The government denied the request by immigration law specialist Lance Curtright for “prosecutorial discretion,” which, if granted, would have enabled the defendant to remain lawfully in the U.S. with his family, including his severely disabled granddaughter.  In spite of the valiant effort by lawyer Curtright, defendant will instead be separated from his family by being deported to Mexico, a country where he spent the first five months of his life, before immigrating as a baby with his family to the United States to live for the past 54 years of his life. And so sometimes our “win” does not prevent great loss to our clients.

I’m reminded of that Frank Sinatra song, “That’s life,  I know what all the people say. You’re riding high in April, shot down in May. But I know I’m gonna change that tune....  Each time I find myself, flat on my face, I pick myself up and get back in the race.”  (Kay/Gordon/Kay/Gordon, lyrics and music) I’m going to pick myself up and get back in the race. So should you, if you ever face crushing defeat.

Thank you so much for giving me the opportunity to represent and work for you during the past year.  I look forward, as do you, to supporting Justice Phylis Speedlin in the upcoming year.  On August 1, 2010 she becomes the President of the San Antonio Bar Association, and I become immediate past president.  Please make plans to celebrate her installation on Saturday, August 28.

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