Disappointment (Updated Again 12 April 2012)


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

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

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

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

The takeaway from the original post, for those who might happen by here in the future: if you’re ever called to account for your performance at trial, do all you can within the bounds of the truth to help your client get relief. Communicate with the new lawyer, review what he wants you to review, stonewall the prosecutor, and at the hearing don’t testify like a task force officer. You’ll be my hero. Do otherwise, and I’ll become very cross with you.

(Yes, Juanita and Melissa. I was wrong and you were right. I hope it doesn’t go to your heads and render you as insufferable as you find me. You too, Eric. But not about 776.032.)


26 responses to “Disappointment (Updated Again 12 April 2012)”

  1. But at least the government won’t have to go through on the private threats they made to her when they met with her before the hearing. At least she didn’t have to compound her poor performance in defending her client by having to put up any further defense in the case against the government in their Bar complaint or argument to the judge that she was just “falling on the sword.” Making the government mad is reserved for those that call themselves criminal defense lawyers, and have a reason to call themselves that.

  2. More than a disappointment, she’s a traitor. Plain and simple. Some of the post-conviction counsel I’ve worked with before tell me this sort of thing happens rather frequently…and that terrifies me. With so-called defense attorneys like her, it’s no wonder clients are untrusting of their public defenders or appointed counsel. Injustice comes in many forms, it would seem.

  3. Disgraceful. People forget the Oath they took when sworn in as lawyers.

    All lawyers make mistakes. That is because they are human. I know I have made my share. Every lawyer has. But when you make a mistake, if you have a shred of integrity, you own up to it.

    The State makes me sick. They prey weak-willed lawyers and convince them to provide affidavits that help the State harm the client. A criminal defense lawyer should do whatever they can to help appellate counsel or writ lawyer. If the screwed up they should say so. Admitting one’s mistakes at least is a step toward trying to make up for the mistakes. Siding with the State, breaching faith with the client, denying the truth to cover one’s own hide are all the damn wrong thing to do.

    Whoever you are- shame on you. Go put your application in at the DAO. You chose your side, and it’s the other side.

    Robb Fickman

    • …. Meaning, I am sorry that you had to blog about it and that it got to the point that you could not talk to the lawyer…. Like you advocated with the Zimmerman situation, there are two sides to every story…. And as lawyers, we should remain objective.

      • The lawyer avoided talking with me even before the motion was filed. I guess she was in defensive mode.

        The more righteous thing for me to do would have been to keep trying to discuss this with her even after she gutted the client at the hearing, but I confess: when she admitted under oath talking with the state to prepare for the hearing, and seemed to think there was no problem with that, that was the last straw for me.

        This is a lawyer I had mentored, but apparently not very well.

      • Incidentally, what possible side to this story could justify a lawyer helping the state prepare for a motion for new trial hearing against her client?

        What might I be missing?

        • You would have needed to talk to her to get that side of the story…. This post may have closed that door. But maybe it hasn’t. Do not let your feelings of hurt cause you to do something you regret. Bridges are hard to build, but so easy to burn.

          • I realized that bridge was burning mid-hearing. So I guess I burned the bridge by calling her ineffective? And I suppose I should have tried to put the fire out? I would have tried to patch her wounded feelings if I hadn’t realized that she’d been schooling the state about her defense.

            Never mind the substance, and the changed story, and the reluctance to talk to me even before I had written the MNT; I am having trouble imagining a good reason for a lawyer to help the state prepare for an MNT hearing against her client.

            Gun to her child’s head?

  4. This reminds me of one of the first CLEs I went to when I started practicing. It was TCDLA’s Capital, Mental Health and Habeas. In a break-out session the attorney leading the discussion on writ issues had this to say about cooperating with the state – “If the State asks you to fill out an affidavit, tell them to kiss your ass! And if you can’t fall on your sword, then you’re in the wrong fucking business!”

  5. Mr. B., this not only goes in the WTF? pile & reminds me of the consequences of when the student strikes a pose in the direction of the instructor’s back, it leads to inquire about the one’s that didn’t go to TLC & the unqualified dabblers.

    From a real CDLs perspective are you offended by the fact that the law allows the unqualified imposters (ex: Divorce Estate/Will specialist) to dabble in criminal defense hon solo vs. referring. By dabble I mean, allow themselves to be referred to re: criminal cases, hold themselves out in consultations as a CDL, quote & take down payments, participate in voir dire, file ‘cut & paste’ or not file proper or timely pre-trial motions, resulting in Play Bargain Games at lunch recess or a guilty verdict presented by a jury. Thanks.

  6. Mark,

    I am very familiar with the facts of this situation and I am disappointed in you and your decision to blog about this attorney. You failed to tell both sides of the story. You have chosen to emphasize one issue ( the attorney speaking to the DA when they called her) to disparage a colleague. All attorney’s know, that once an ineffective assistance claim is made, the defendant essentially waives attorney-client privilege and the attorney has right to defend their actions and decisions. I am sure you informed your client of this. He took the risk of his actions coming to light.

    If you are going to tell it, tell the whole story.

    [Rehashing of privileged matters, including the state’s allegations adopted by the lawyer, omitted.]

    So again Mark. If you are going to tell it…. tell it all. It sounds to me like you are just a sore loser and you are taking it out on the wrong person.

    We are supposed to be supporting, helping and teaching younger attorney’s, not tearing them down, especially not on a blog.

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

      Juanita, all attorneys don’t know this, because this isn’t true. It may be conventional wisdom, but it’s incorrect. I suggest that you read the rules, especially 1.05. An MNT hearing is not “a controversy between the lawyer and the client.”

      You have chosen to emphasize one issue ( the attorney speaking to the DA when they called her) to disparage a colleague.

      No doubt: that is the issue. I wouldn’t be sore if the lawyer had come down somewhere between falling on her sword and covering her ass, and the long-shot MNT had been denied. It’s the ethical violation that—and I rarely use this word—offends me. An ethical lawyer, when she gets that call from the DA, says, “I’m not talking about it unless my client tells me to or the judge orders me to.”

      An ethical lawyer, when trying to defend a friend’s ethical lapse, doesn’t try to reveal the client’s secrets that either are covered by the privilege or that shouldn’t have been revealed to her. None of it justifies helping the state…but that attitude about the client might help explain the lawyer’s performance at trial.

    • Incidentally, “We are supposed to be supporting, helping and teaching younger attorneys” would be a much more persuasive argument to me if you weren’t taking the position that “once an ineffective assistance claim is made, the defendant essentially waives attorney-client privilege.” We are supposed to be teaching younger lawyers, but we’re not supposed to be teaching them wrong.

        • In that case the answer is, “more than it would have cost to do the job right in the first place.” The new lawyer has to go back over everything that was done before, as well as everything that should have been done but wasn’t, and do it all right.

          • Thank you.

            FWIW & IMHO, as a victim of the system tied directly to one of the grossest ineffective assistance of counsel claims in Harris County history, I’m qualified to say that you don’t owe anyone any apologies for teaching a valuable lesson. For the client’s sake, please don’t let it stop you from being a mentor.

            *Those practicing or wishing to dabble in criminal defense are directed to re-read this. – ” if you’re ever called to account for your performance at trial, do all you can within the bounds of the truth to help your client get relief. Communicate with the new lawyer, review what he wants you to review, stonewall the prosecutor, and at the hearing don’t testify like a task force officer.”

  7. As someone recently said… “investigate first then decide” Sound familiar… I hope in the future you follow your own advice…

    • If you gave the shitty advice that got the lawyer into this situation, you should be careful what you say.

  8. Whether you are an “asshole” or not, I cannot say, as I do not know you personally. What I can say is that your apology reflects well on you as a human being, as an attorney and as a man. My father taught me that, at the end of the day, all we have is our reputation. Your well-worded apology demonstrates that your reputation is in-tact and well-deserved.

    More attorneys should strive to follow your example.

  9. Excellent posts all the way around, Mark. You are a great defender hence your feelings all the way through this line of posts. I appreciate that your heart is in what you do in representing folks, and in writing. Your posts teach all of us many things, all good. Thanks for all the work you put into your writings.

  10. Obviously there are things here that are beyond the scope of my knowledge. Mark, If you feel it’s appropriate to apologize that’s your prerogative.

    I think all lawyers make mistakes. My own belief is that if I screw up, I owe it to the client to assist the appellate or writ lawyer. The rush by many lawyers to aid the prosecution in fighting a writ makes me sick. It doesn’t matter who the lawyer is. The lawyer should do their utmost, if they screwed up, to own up to their mistake, and assist the defense. The last side a defense lawyer should assist is the state.

    That said, I adhere to a simple rule. I will not lie for either the State or the Defense. I have had a client on a federal writ years back ask me to lie on myself, to claim I gave lousy advise, I never gave. As much as I wanted to help the client, I would not lie for them. The honorable thing is to do your utmost to aid the defense. That does not include lying on yourself.

    Bottom line: aid the defense, tell the truth and don’t become a pawn of the DAO simply because you goofed. Siding with the DAO, lying to protect your own rep, does the opposite.

    Robb