Morton urges cooperation to preserve new Texas discovery law

Michael Morton—subject of magazine profiles, focus of an acclaimed documentary, author of an upcoming memoir—is by many measures a celebrity.

It’s a label he doesn’t relish, especially in light of the reason so many people know his name, Morton recently told an audience of San Antonio defense lawyers.

Morton, an Austin grocery store manager, was wrongfully convicted of his wife’s 1986 murder and served nearly 25 years in prison before DNA tests exonerated him. His former prosecutor served five days in jail and surrendered his law license after pleading guilty in November to criminal contempt for withholding exculpatory evidence during Morton’s trial.

“I don’t have any need to be known; I hope I’m not that insecure,” Morton told members of the Texas Criminal Defense Lawyers Association on June 15 at the 27th Annual Rusty Duncan Advanced Criminal Law Course. “But I did all those [media appearances] and I participated in what a lot of people wanted me to do because I didn’t want what happened to me to happen to you.”

The title of Morton’s presentation, “The Work Is Not Done,” made it clear he intends to continue using the platform his circumstances provided. He sucessfully pushed the Texas Legislature to pass the 2013 Michael Morton Act, which included new discovery rules to help ensure criminal defendants have access to evidence that could establish their innocence. Morton is now working to preserve the law after some prosecutors complained its requirements are driving up costs for things like copying and delivering documents. Rob Kepple, executive director of the Texas District and County Attorneys Association, told the Texas Tribune last month that he’d heard from several counties that “documentation has been a strain.” 

Morton urged defense attorneys to work with prosecutors and avoid succumbing to an “us versus them” mentality on the issue.

“I ask everybody here not to fall into that trap, because we can get people we profoundly disagree with on a lot of other stuff to agree on this,” he said. “Your individual rights are vital.”

Other highlights:

  • Houston-based criminal appellate and post-conviction attorney Brian Wice presented an ethics seminar titled “Keeping the House Honest—Preserving Error.” Wice, best-known for his work in high-profile cases such as Susan Wright, Jim Bakker, and Tom DeLay, talked about leveling the playing field inside the courtroom and identified three building blocks to success: 1) specificity—isolate what is wrong and make it clear; 2) timeliness—know when to object at the first opportunity; and 3) obtaining the ruling—press the judge. He stressed the importance of knowing exactly what to do and when. In the courtroom “things happen in real time in the blink of an eye.”
  • In another ethics presentation, Dallas solo practitioner Audrey Moorehead said lawyers should remember that the law is about relationships, and that means being polite. “Habitual courtesy will deliver untold rewards,” she said. Attorneys should also pick clients carefully and shouldn’t be afraid to end an attorney-client relationship if a legitimate need or conflict of interest arises, according to Moorehead. In the end, it’s about not letting emotions override wisdom, she said.

Patricia Busa McConnico contributed to this post. Photo of Michael Morton by Nitu Gill courtesy of the Texas Criminal Defense Lawyers Association.

SXSW CLE Wrap-up Part 3: Ethical pitfalls in entertainment law

Ethical dilemmas can arise in all areas of law, but the entertainment field can be fraught with them.

If they’re not careful, attorneys can run afoul of rules governing the attorney-client relationship, conflicts of interest, attorney compensation, and simultaneous representation, among others, speakers said Friday during a South by Southwest continuing legal education session.

That’s especially true if an attorney is wearing a second hat—agent, manager, even band member, said Austin entertainment and media lawyer Lawrence Waks, a partner with Jackson Walker LLP.

“I know a lot of folks in Austin, generally solos, that are both lawyers and agents, or lawyers and managers, or lawyers and musicians,” Waks said. “What hat are they wearing at any particular time? … It’s very difficult to discern that kind of thing.”

Speakers sounded notes of caution throughout the hourlong session, which focused on ethical issues in entertainment law. Along with Waks, the panel featured former Texas Supreme Court Chief Justice Wallace Jefferson and Austin trial lawyer Steve McConnico.

 

Conflicts of interest often happen when an attorney is asked to represent multiple parties associated with a single band or artist. In those cases, the attorney should warn the parties of the potential conflicts, encourage them to hire their own attorneys, and have them sign a conflict waiver, McConnico said.

However, certain conflicts can’t be waived under the rules of professional conduct, like if a manager is already in a dispute with band members, he said.

“That’s just something to be aware of,” McConnico said. “If you’re in a conflict situation, you’re not going to get a motion for summary judgment against you probably, but you’re going to get a verdict at the end of the day against you if it’s an obvious conflict.”

In Texas, like most states, a lawyer is prohibited from jointly representing clients when their interests are or may become adverse, said Jefferson, a partner in Alexander Dubose Jefferson Townsend. Disciplinary codes may differ from state to state, which can make joint representation a tricky area to navigate, he said.

“It’s sort of perilous when you enter into one of these agreements and you’re not sure exactly what law is going to apply, and you’re in a state that doesn’t have a very developed system of precedent in that area,” Jefferson said.

Attorneys in that predicament should consult the American Bar Association’s Model Rules of Professional Conduct, which form the basis of most state rules, along with state supreme court decisions and ethics opinions from bar associations in New York and California, the hotbeds of entertainment law, panelists said.

“You’ll be in a lot better shape before a judge or jury if you say, ‘I followed the ethics opinion,’” said McConnico, a partner in Scott, Douglass & McConnico LLP. “If you give me a case where somebody’s done that, I can defend them till the earth is flat and I’ll get that ethics opinion into evidence. But if they didn’t do anything to try to determine what the ethics opinions of the jurisdiction say about conflict, your defense attorneys will have a real disadvantage.”

To read materials related to this session and other South by Southwest CLE panels, visit the Lommen Abdo website.

Pictured, from left, are McConnico, Waks, and Jefferson. 

 

ABA seeks comment on new drafts of ethics rules on conflicts, choice of law

The ABA Commission on Ethics 20/20 today released two new drafts of proposed changes to the Model Rules of Professional Conduct. The commission seeks comment on the drafts by Oct. 19, 2012.

The first draft proposal addresses consistencies among jurisdictions regarding conflict of interest rules. The second concerns the division of fees between lawyers in two firms where the firms are in jurisdictions with differing rules on nonlawyer ownership of law firms.

To read the drafts and to comment, see the ABA Commission on Ethics 20/20 website.

 

Comments sought on revised drafts relating to inbound foreign lawyers

The ABA Commission on Ethics 20/20 is pleased to release for comment, along with a Cover Memo from Co-Chairs Jamie S. Gorelick and Michael Traynor, revised drafts relating to inbound foreign lawyers.

The first two revised drafts describe possible amendments to ABA Model Rule 5.5 and to the ABA Model Rule for Registration of In-House Counsel. The third relates to the ABA Model Rule on Pro Hac Vice Admission.  

Your comments will assist the Commission in its consideration of these issues.

We look forward to hearing from you. Please e-mail your responses by October 12, 2012, to Senior Research Paralegal Natalia Vera at Natalia.Vera@americanbar.org. Comments and submissions may be posted to the Commission’s website. 

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ABA Commission on Ethics 20/20

At its October 2011 meeting in Denver, Colorado, the Commission decided to bifurcate its presentation of proposals to the ABA House of Delegates to help facilitate that entity's considered action on a significant number of complex and diverse subjects. The Commission will present its first group of proposals in August 2012, and the second set in February 2013. The Commission currently plans to present its proposals relating to mobility issues, outsourcing, and technology in August 2012. The Commission will circulate one more time for comment the drafts of those proposals before it files them with the House of Delegates for consideration in August 2012.  It will do so after discussing at its February 2 - 3, 2012 meeting the recent comments and suggestions received, and after making any necessary revisions to the proposals based upon those comments. The Commission will hold a public hearing in at its February meeting. Details are forthcoming.

The remaining proposals, including those relating to Model Rule 1.7, inbound foreign lawyers, and, if the Commission decides to do so, any proposals relating to alternative law practice structures, will be presented in February 2013. 

On Dec. 2, consistent with the Commission's promise to provide opportunities for input, it published for comment a Cover Memo and Discussion Draft relating to alternative law practice structures. The Commission already has ruled out certain forms of nonlawyer ownership that currently exist in other countries. In particular, the Commission rejected: (a) publicly traded law firms, (b) outside nonlawyer investment or ownership in law firms, and (c) multidisciplinary practices (law firms that offer both legal and non-legal services separately in a single entity). This Discussion Draft relates to a very limited form of nonlawyer ownership in a law firm akin to, but more restrictive than, that which has been permitted for 21 years in the District of Columbia. Before deciding how to proceed, the Commission wants to receive your comments and review any supporting materials you may wish to offer.

The Commission also posted for comment a Cover Memo and Initial Draft Proposal relating to choice of law and alternative law practice structures. Choice of law issues will exist whether or not the Commission ultimately decides to propose any modification to the current prohibition in Model Rule 5.4 on any form of alternative law practice structure. The Commission has heard that lawyers and law firms would benefit from additional guidance in this regard, particularly given the proliferation of domestic and international cross-border practice and the fact that more countries where U.S. lawyers and law firms do business now permit alternative law practice structures (as does the District of Columbia).

The Commission encourages responses to the Discussion Draft and the Initial Draft Proposal by late January 2012, so that they can be discussed at the Commission's February 2-3, 2012 meeting, and further asks that those requiring additional time submit their comments by February 29, 2012.

The documents can be downloaded here [website].

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Texas Forum XXVIII offers ethics focus

On Feb. 25, 2011, the State Bar of Texas Standing Committee on Paralegals will host Texas Forum XXVIII, its annual conclave of attorneys, paralegals, and legal administrators. This year’s Forum, to be held in Dallas, focuses on ethical vulnerabilities created by business scandals and social media. Panel discussions will look at the ethical implications involved in using social media in a legal setting and the ethical responsibilities lawyers and paralegals owe to each other and to clients. Keynote speaker Kari Wangensteen, the senior director, legal at Best Buy, will speak on “Embracing Transparency: The Business and Legal Impact of Social Media.” The half-day seminar (9:00 a.m. to 1 p.m.) is MCLE accredited for 3 hours (2.25 ethics). For more information or to register, visit www.texasbar.com/texasforum.

A Milestone for Legal Ethics in Texas

Happy Birthday to the Texas Lawyer's Creed! The Creed contains principles for civility and courtesy between lawyers and honesty in statements to judges and lawyers and was promulgated in 1989 by both the Supreme Court of Texas and Texas Court of Criminal Appeals.

On Thursday, Nov. 5, two former justices of the Texas Supreme Court were on hand to help celebrate the 20th anniversaries of the Texas Lawyer’s Creed and the Texas Center for Legal Ethics and Professionalism at a ceremony at the Texas Law Center in Austin. Former Chief Justice Jack Pope and former Justice Eugene Cook were instrumental in the creation of the Center and the Creed. Also on hand were Fifth Circuit Court of Appeals Judge Jennifer Elrod, who served as master of ceremonies, as well as current Supreme Court Justices Nathan Hecht, Phil Johnson, Paul Green, and Don Willett.

After several speeches commemorating the anniversaries, those in attendance sang "Happy Birthday" and celebrated with cupcakes and a reception.

“Today we are honoring hundreds of people, those who had vision, raised money [for the creation of the Center], and worked day-to-day to keep that vision alive," said Chief Justice Pope. “The organization is here because of them.”

The November issue of the Texas Bar Journal (www.texasbar.com/tbj) includes a special section about how and why the Creed came into existence. A free 30-minute online ethics CLE on the Creed is available at www.texasbarcle.com. For details on the Center, visit www.txethics.org.