Ethics in 2021

Federal Criminal Law Update

August 20, 2021

Presented by:

CYNTHIA EVA HUJAR ORR GOLDSTEIN & ORR 310 S. ST. MARY’S STREET 29TH FLOOR TOWER LIFE BUILDING SAN ANTONIO, TEXAS 78205 (210) 226–1463 [email protected]

Advisory: Readers should exercise discretion when reading the portion of this paper concerning our clients’ perception of justice since it cites artistic rap lyrics containing explicit language. It also contains offensive and inappropriate language used by defense counsel in a misguided attempt to defend his client in the Capitol events on January 6, 2021.

2 Table of Contents I. Public Discourse ...... 4 A. “If It Bleeds, It Leads” ...... 4 B. Duty to Maintain Technological Competency ...... 5 C. Public Comment to Correct Publicity Prejudicing an Adjudicative Proceeding ...... 5 D. The Supreme Court Recognizes Our Duty to Speak ...... 9 E. Vouching for Clients is a Dangerous Game ...... 12 F. Not Being Blinded by the Glare of Your Rolex ...... 12 G. Commenting on Cases That Aren’t Yours ...... 13 H. Are Lawyer’s Always Lawyers? ...... 14 I. Press Releases by the Government ...... 15 J. Judicial Gag Orders—When Should They Be Issued? ...... 18 II. Implicit and Other Biases ...... 20 III. Conflicts of Interest ...... 21 IV. Attorney-Client Privilege ...... 24 V. Federal Prosecutors’ Duty to Disclose Relevant Favorable Evidence Under the Texas Rules ...... 25 VI. The Eight New Texas Rules of Ethics VII. Conclusion ...... 27

3 and even instant messaging apps, I. Public Discourse such as WhatsApp and Kik. The pervasive dissemination of A. “If It Bleeds, It Leads” information provides even the least technologically advanced The media is not what it citizens real time pushed updates once was. Gone are the days regarding the political, social, when neighbors and families and cultural climate. These gathered around a tv screen at advances in technology and home, the local diner, or bar to online media over the years have hear breaking news or catch up made it easier for the public to be on recent developments. The informed and voice their opinions American public receives this regarding crucial issues that information on multiple affect our daily lives. Social platforms instantaneously and media has been recognized by the daily, whether or not they intend United States Supreme Court as to. From the Capitol the new public square.1 It has protests/insurrection on January also allowed almost any 6, 2021 to lawyers’ pleadings and influencer to try a case in the public comments about alleged court of public opinion. This, the election fraud in the 2020 current reference to bigoted Presidential election such content women as Karens.2 With the is broadcast over Twitter, advent of Zoom, some civil Facebook, Snapchat, TikTok, district courts in Bexar County Instagram, YouTube, WeChat were invaded with porn by

1 Packingham v. North Carolina, 582 2 A woman in a public park falsely accused U.S. ___ (2017).“With one broad a black man (who was merely bird watching stroke, North Carolina bars access to and who had asked her to leash her dog) of what for many are the principal attacking her. Fortunately, as she made her sources for knowing current events, false report to the police via a 911 call, the checking ads for employment, gentleman was video taping her on his speaking and listening in the modern phone; disproving her false claims. Her public square, and otherwise exploring name was Karen. the vast realms of human thought and https://chicagocrusader.com/black-man- knowledge. Foreclosing access to social who-exposed-karen-in-central-park-dog- video-cites-ahmaud-arbery-for-recording- media altogether thus prevents users amy-cooper/ from engaging in the legitimate exercise of First Amendment rights.

4 hijackers. And a criminal competence in public discourse speeding ticket jury trial took and the extent that client’s cases place in JP Court, but not without are publicized on social media. significant problems. See Criminal Court Reopening and C. Public Comment to Public Health in the COVID 19 Correct Publicity Era. Prejudicing an Adjudicative Proceeding B. Duty to Maintain Counsel must be aware of Technological Competency the extent to which a client’s case is covered on social media sites The Rules of Ethics require that disperse immediate and counsel to maintain technological sometimes harmful information. competency. Whether it concerns There is no longer a big or small state and federal electronic filing, case. Every case has the efficient word processing and potential to “break the internet;” document editing tools, the or receive such widespread security of cloud data, virtual coverage that your client may be meeting platforms, or the niceties convicted before even faced with of cellular communication; formal charges. Entire shows are counsel must have adequate dedicated to hour long technological knowledge to documentaries on pending competently represent clients. cases—20/20, Dateline, and Rule 1.01 of the Texas Discovery ID are only a few Disciplinary Rules of Professional examples. Innumerable podcasts Conduct requires counsel to be cover every detail of pending competent. Commentary cases as well. This type of media expressly mentions this includes can “go viral”, publicizing your competence in relevant client’s case world-wide; 24/7. In technology. While the most this environment, counsel must obvious application of this rule in consider whether the silent and the criminal context will involve stoic response, that once assured competence in computer and cell that a story would not have phone technology with regard to search warrants, subpoenas, wire tap recordings and minimization techniques and motions to suppress; it also includes

5 “legs,”3 is any longer effective. attorney take when attempting to Allowing such pervasive media correct false information coverage to go unanswered may, disseminated about their client? in fact, be ineffective. A lawyer Do public pre-trial statements by may not make a public statement the prosecution violate the Fair that will have a substantial Trial vs. Free Discourse likelihood of materially dichotomy? Is it appropriate for prejudicing an adjudicative attorneys to publicly vouch for proceeding. The goal of this rule their clients? Do we, as attorneys, is to prevent a lawyer from have a duty to wage a public influencing a trial’s outcome or defense in addition to the one we prejudicing the jury venire.4 A present in the courtroom? Are lawyer cannot make an attorneys allowed to provide extrajudicial statement that a opinions regarding cases in which reasonable person would expect they are not counsel? Should they to be dispersed by means of public be allowed? When should judges communication. But this is issue gag orders in this counter balanced by the fact the environment? When does a client rule recognizes that a lawyer can effectuate a waiver of attorney- make a statement for public client privilege in a statement to dissemination of it is made to the media? These are just some counter the “unfair prejudicial of the ethical issues counsel faces effect of another public in the electronic media rich statement.”5 environment. We will also cover the broader Texas attorney-client The phenomenon of privilege, the ethical rules that pervasive electronic govern conduct of lawyers in dissemination of case information Texas federal courts, conflicts of raises important questions interest both in multiple regarding attorneys’ ethical representation and regarding duties while advocating for their professional self-interests, and clients in the public realm. For the disclosure required of federal instance, what actions may an prosecutors in Texas under the

3 A reference to the length of time a Gentile v. State Bar of Nevada, 501 story remains in the media. U.S. 1030 (1991). 4 Rule 3.07 of the Texas Disciplinary 5 Rule 3.07 of the Texas Disciplinary Rules of Professional Conduct. Rules of Professional Conduct, comment 3.

6 ethical rules. In addition, we will investigation or litigation of consider whether how we treat a matter shall not make an counsel who are women, extrajudicial statement minorities, or who are differently that the lawyer knows or abled or oriented is governed by reasonably should know the Texas Rules. This will be disseminated by presentation constitutes one means of public attorney’s view on these crucial communication and will issues, and how we as criminal have a substantial defense attorneys, can best likelihood of materially advocate for our clients’ interests prejudicing an adjudicative while protecting our own proceeding in the matter.”7 professional integrity. The rule identifies types of public American Bar Association communication that do not Model Rule (Model Rule) 1.3 constitute a violation of this rule: serves as a starting point in the analysis: “A lawyer shall act with “Notwithstanding reasonable diligence and paragraph (a), a lawyer may promptness in representing a state: (1) the claim, offense client.”6 Sounds easy enough to or defense involved and, follow—provide zealous except when prohibited by representation, and don’t slack law, the identity of the off. But just how far this persons involved; (2) underlying rule allows attorneys information contained in to go in their representation has public record; (3) that an been highly contested. With investigation of a matter is respect to public comments by in progress; (4) the attorneys involved in criminal scheduling or result of any proceedings, ABA Rule 3.6 is even step in litigation; (5) a more instructive: request for assistance in obtaining evidence…; [and] “A lawyer who is (6) a warning of danger participating or has participated in the

6 MODEL RULE OF PROF’L CONDUCT R. 7 MODEL RULE OF PROF’L CONDUCT R. 1.3 (2018). 3.6(a)(2018)[emphasis added].

7 concerning the behavior of a person involved….”8 This exception opens the door to any response necessary to Additional permitted disclosures neutralize the prejudice. In in criminal cases are: almost every federal case, the U.S. Attorney’s Office or “(i) the identity, residence, Department of Justice will issue occupation and family a press release. These press status of the accused; (ii) if releases seldom are limited in the accused has not been scope to the exceptions for public apprehended, information comments. Coming from such an necessary to aid in authoritative source, they appear apprehension of that to be a violation of the rule person; (iii) the fact, time prohibiting a statement in the and place of arrest; and (iv) media that has a substantial the identity of investigating likelihood of prejudicing an and arresting officers or adjudicatory proceeding. They agencies and the length of are guaranteed to lead the news. the investigation.”9 Recognizing that public opinion is Finally, 3.6 allows a lawyer to often shaped by media heads and make statements that will outlets that persistently analyze protect the client from prejudice the actions of public officials, caused by publicity: attorneys, and the like, it is imperative to ensure prosecuting “a reasonable lawyer would attorneys don’t “cross the line” believe is required to when issuing public commentary. protect a client from Counsel should correct any substantial undue misimpression these press prejudicial effect of recent releases foster and attempt to publicity not initiated by cure the prejudice they cause.11 the lawyer or the lawyer’s Thus, in the current client.”10 environment, counsel may need

8 MODEL RULE OF PROF’L CONDUCT R. 10 MODEL RULE OF PROF’L CONDUCT R. 3.6(b)(2018). 3.6(c)(2018). 9 MODEL RULE OF PROF’L CONDUCT R. 11 Ira H. Raphaelson, 3.6(b)(7) (2018). “Press….Press…Pull”: When “No Comment” No Longer Serves the

8 to issue a statement to level the D. The Supreme Court playing field after a prosecution Recognizes Our Duty to press release. It is notable that in Speak Special Counsel Robert Mueller’s tenure as Independent Counsel In Gentile v. State Bar of he issued factual press releases in Nevada, the Supreme Court held his indictment, conviction, or that attorneys are allowed to guilty pleas of thirty-four people comment on a case in order to and three.12 correct false.13 Dominic Gentile, a Nevada attorney, held a press However, in another case in conference after his client was which the prosecution and law indicted. He alleged that a enforcement pandered to the member of the Las Vegas media by making the accused Metropolitan Police Department available for two perp walks, the was responsible for the offenses, federal court sustained the law not his client. suit against the authorities. "This court is convinced “When this case goes to beyond doubt that the perp trial, and as it develops, walk procedure is not you’re going to see that the designed nor intended for evidence will prove not only the purpose of information that [Defendant] is an dissemination, but rather innocent person and had for the purposes of incident nothing to do with any of dramatization and arrestee the charges that are being humiliation." leveled against him, but Lauro v. City of New York, 39 F. that the person that was in Supp. 2d 351 (S.D.N.Y. the most direct position to 1999)[sustaining law suit]. have stolen the drugs and money, the American Express Travelers’ checks, is Detective Steve Scholl…. There is far more evidence

Client’s Interests, 33RD ANNUAL Convictions from Robert Mueller’s NATIONAL INSTITUTE ON WHITE COLLAR Investigation, Time, March 24, 2019, CRIME (2019). by Ryan Teague Beckwith. 12 Muller Investigation: All of the 13 501 U.S. 1030 (1991). Indictments, Guilty Pleas, and

9 that will establish that defense attorney may Detective Scholl [was pursue lawful strategies to responsible] than any other obtain dismissal of an living human being.”14 indictment or reduction of charges, including an Justice Kennedy, writing attempt to demonstrate in for the majority, first the court of public opinion characterized Gentile’s speech as that the client does not classic political speech—speech deserve to be tried.” that lies at the very heart of the First Amendment.15 He next Justice Kennedy further explains noted that attorneys’ that if anybody should be responsibilities do not begin at authorized to make public court, and suggests that our statements about the nature of a duties extend far beyond that, criminal case, it should be both in time and location: attorneys who are trained, well- informed, credible, and qualified “[Attorneys] cannot ignore to speak about the intricacies of the practical implications of the case.16 This analysis is right a legal proceeding for the in line with the American Bar client. Just as an attorney Association’s Criminal Justice may recommend a plea Standards for Fair Trial and bargain or civil settlement Public Discourse which espouse to avoid the adverse the view that an open and consequences of a possible transparent criminal justice loss after trial, so too an system is crucial to democracy, attorney may take and that attorneys and other reasonable steps to defend a officials involved in the criminal client’s reputation and justice system must ensure reduce the adverse proceedings are conducted consequences of indictment, fairly.17 especially in the face of a prosecution deemed unjust At the very center of the or commenced with Gentile opinion is the notion that improper motives. A public comment is often times

14 Id. at 1059. 17 ABA CRIM. JUST. STAND. ON FAIR 15 Id. at 1034. TRIAL AND PUBLIC DISCOURSE 16 Id. at 1056. 8.1.1(a)(b)(i)-(ii)(2016).

10 necessary to safeguarding our question was not just an ordinary client’s rights and mitigating use citizen. of the courts for improper purposes.18 Dominic Gentile felt “[He] was the beneficiary of his commentary was imperative, extensive client due to concerns that repetitive communication, and his pre-trial publicity from the state statements were received and law enforcement would affect by the press as especially potential jurors. In other words, authoritative…. [the “he sought only to counter attorney here] was, for all publicity already deemed intents and purposes, in the prejudicial.”19 same position as the attorney referred to in the Gentile is one instance Gentile case—an insider where an attorney’s press privy to facts, and a public statements properly protected his status removing him from client’s interests. the leagues of common observers or uninvolved What if a former lawyer attorneys. He was not discusses his client’s case? In merely a lawyer with a United States v. Scarfo, the Third passing interest in the Circuit considered whether a case.”22 heightened reason for restricting attorney speech needed to be Applying the Gentile shown when the attorney framework in this case, the involved no longer represented court determined that the the criminal defendant who was former attorney’s statements the subject of the speech. 20 The to the press did not jeopardize Court determined that the fact the fairness of the trial or that the attorney no longer materially prejudice or impair represented Scarfo did not the court’s judicial power.23 prevent them from applying the Where the Court had issued a Supreme Court’s reasoning in gag order in the Scarfo case, Gentile.21 The attorney in the Court of Appeals found it was improper.

18 Id. at 1058. 21 Scarfo, 263 F.3d at 92-93 (2001). 19 Id. at 1042. 22 Scarfo, 263 F.3d at 93 (2001). 20 263 F.3d 80, 93 (3d Cir. 2001). 23 Scarfo, 263 F.3d at 95 (2001).

11 client can backfire, especially E. Vouching for Clients is a when information given to the Dangerous Game press subsequently turns out to be false or unfavorable. The lawyer who advanced a Attorneys who have to retract defense for the QAnon Shamin, their statements not only risk Albert Watkins, made a bid for losing credibility, but they may his client’s release from pretrial also make their clients look like detention by claiming he and all liars. This is so even if the client January 6, 2021 protesters had didn’t ask their attorney to make problems like people who ride the the public statement in the first “short bus” and explained, using place. Attorneys who do decide to profanity, that his client was led make public statements should to believe he was ordered to limit their comments only to attack the capitol by former remarks based on their own President Trump.24 It may have indisputable observations, rather garnered him attention, but his than information from a client or client was… DETAINED. He information that could change in also revealed client confidences. the future. Subsequently, a much more quiet mental health evaluation of his F. Not Being Blinded by the client ordered by the Court Glare of Your Rolex provided valuable defense evidence.25 Another issue attorneys who choose to speak publicly Vouching essentially must be cautious regarding is involves, to some degree, their motive or perceived motive revelation of client confidences. for public exposure. On one end As demonstrated by the QAnon of the spectrum is damage Shamin case, vouching for a control—shielding your client’s

25 Exclusive: ‘QAnon Shman’ in plea negotiations 24Vanity Fair Hive, Levin Report, after mental health diagnosis. Reuters, July 23, 2021 “THEY’RE ALL FUCKING SHORT-BUS by Sarah N. Lynch. https://www.reuters.com/world/us/exclusive-qanon- PEOPLE”: CAPITOL RIOT ATTORNEY shaman-plea-negotiations-after-mental-health- MANAGES TO INSULT AT LEAST diagnosis-lawyer-2021-07-23/ THREE DIFFERENT GROUPS WHILE DEFENDING 1/6 ACTIONS https://www.vanityfair.com/news/2021/05/al bert-watkins-jacob-chansley-capitol-attack

12 freedom and reputation from public eye, but at what cost? harmful information media Were his entreaties to Nike attention that carries the settlement negotiations? A jury potential of infecting the jury found that they were not. Did pool.26 On the other end of the every press conference about spectrum, there is the desire to be President Trump advance Ms. in the limelight at all costs. Daniel’s case? Immediately talking to the Michael Avenatti, the cameras and social media each former attorney representing time the opportunity presents Stormy Daniels, was a frequent itself will detract from one’s figure in the national media in credibility as an attorney. Even high-profile cases. He was known assuming revelations are of some for making public claims that he public interest and might benefit has damaging information about a client in some way, one might public figures, which garnered question counsel’s motive to mass media attention.27 Avenatti routinely appear before the was eventually convicted of public. Is it to hold entities who extortion arising out of a meeting engage in misconduct with attorneys for Nike in which accountable, or is it really about he allegedly threatened to release one’s own public image and harmful information about the obtaining popular recognition? brand, unless he was paid millions of dollars.28 He has been G. Commenting on Cases sentenced to 2 ½ years and is now That Aren’t Yours on trial for embezzling client funds. These allegations among The ABA in its Standards others have put Avenatti in the on Fair Trial and Public

26 See Skilling v. United States, 561 $20 Million from Nike, BUS. INSIDER U.S. 358 (2010) [Defendant alleging (Mar. 25, 2019, 4:22 PM), pretrial publicity and prejudice https://www.businessinsider.com/mich prevented him from a fair trial had to ael-avenatti-bio-lawyer-representing- show a presumption of juror prejudice stormy-daniels-2018-3. or that actual bias so infected the jury]. 28 Criminal Complaint at 3, United 27 Brennan Weiss et al., Meet Michael States v. Avenatti, No. 19MAG2927 Avenatti, the Former Professional (S.D. N.Y. March 24, 2019). See also Sports Car Driver Who Represented https://ktla.com/news/local- Stormy Daniels and Was Just Charged news/michael-avenatti-faces- for Attempting to Extort More Than embezzlement-trial-in-california/

13 Discourse recognized that processes. When a person is a lawyers will comment on others’ lawyer, is the individual always cases as news commentators. bound by the rules of ethics? Or They advise that, in this can a lawyer wear another hat circumstance, counsel should be and perform the functions of a competent to provide information political adviser or a legislator about the law, legal procedure, without being bound by attorney and information that enhances rules of conduct. Was Giuliani’s the public understanding of call to combat acting as a criminal matters. However, the promotor of the Republican party rules caution that counsel should and its leader? Or was he not express opinions on the obstructing Congress Congress in performance of counsel or predict its duty to certify the election outcomes.29 results?

H. Are Lawyer’s Always Giuliani claims to have been Lawyers? acting as a political promotor.30 Do the rules of ethics and We saw Rudy Giuliani comment professional conduct apply to us on the news about the January 6, in every role in which we appear 2021 capitol events alleging as a representative? election fraud in the 2020 The preamble to the ABA Presidential elections and Model Rules suggests that the asserting that we should have rules of ethics and professional “Trial by combat.” He spoke in conduct still apply.31 And the manner that appears more current Bar complaint against intended to appeal to the him seems to support that view. President’s base from the standpoint of a future election campaign than aimed at factual representations and encouraging participation in the election

29 Standard 8-2.4, Criminal Justice “[T]here are rules that apply to Standards on Fair Trial, Public Discourse. lawyers who are not active in the 30 One who provides publicity like a press practice of law or to practicing lawyers agent or public relations professional. even when they are acting in a 31 Preamble to ABA Model Rules of nonprofessional capacity.” See eg Rule Professional Conduct provides that 8.4.

14 I. Press Releases by the sexual orientation; (4) personal Government opinion as to guilt or innocence, (5) existence or contents of any Prosecutors often make pre- confession or statement, or trial press statements regarding failure to make a statement; (6) investigations. An interesting results of or failure to submit to question is to what degree do any examination or test; (7) these statements violate Model nature of physical evidence; (8) Rule 3.6 and its state race, ethnicity, creed, religion, or counterpart, Rule 3.06 of the sexual orientation, expected Texas Disciplinary Rules of testimony, criminal record, and Professional Conduct, which reputation of a witness or victim; prohibit a lawyer from seeking to (9) the possibility of a plea; and influence jurors concerning the (10) information the prosecutor merits of a pending case by knows or has reason to know means prohibited by law or other would be inadmissible.34 rules of procedure.32 The Supreme Court in Ethics rules and standards Gentile recognized that in any given jurisdiction provide “extrajudicial statements [by special guidance regarding such attorneys] pose a threat to a statements. The American Bar pending proceeding’s fairness, Association’s Criminal Justice since they have special access to Section Standards on Fair Trial information through discovery and Public Discourse is one such and client communication, and source. 33 They identify topics since their statements are likely that pose a risk of prejudicing the to be received as especially criminal proceeding such that authoritative.”35 Limitations on they should generally be avoided such speech are necessary to by prosecutors. Those areas ensuring Defendants are not include: (1) the defendant’s prior condemned by negative publicity criminal record; (2) character, arising from prosecutorial credibility or reputation; (3) race, statements. As the ultimate goal ethnicity, creed, religion, or of a prosecutor is to serve justice,

32 Tex. Disciplinary R. of Prof. Conduct 34 ABA CRIM. JUST. STAND. ON FAIR 3.06(a)(2). TRIAL AND PUBLIC DISCOURSE 8-2.2 33 ABA CRIM. JUST. STAND. ON FAIR (a)(i)-(ix)(2016). TRIAL AND PUBLIC DISCOURSE (2016). 35 501 U.S. 1030 (1991).

15 even when that means dismissing Smollett was and speculated how a case, we hope that prosecutors much jail time he could be abide by these standards, and expected to serve. When his case value the presumption of was resolved in a manner innocence. consistent with other false report cases (by a diversion), the news As discussed above, when and outrage spread via public the government is in the initial comments by the police phases of pre-trial investigations department handling the case, of a high-profile case, and the the Mayor of Chicago, and even grand jury has returned an the President of the United indictment, a press conference States. will often follow. We see no commentary however, when the After the Cook County defense prevails and obtains an State’s Attorney’s office acquittal after trial. dismissed charges against actor Smollett, prosecutor Joseph When prosecutors do decide Magats explained that the to make a press statement after decision to drop charges was just an unfavorable disposition, it is that—not an exoneration. Magat usually to stand behind their further made clear: “[a]n initial investigation and decisions alternative disposition does not made before and during the trial, mean that there were any if any. Seldom do these problems or infirmities with the subsequent statements contain case or the evidence. We stand apologies or an acknowledgement behind the Chicago Police that justice has been done. Department’s investigation and our decision to approve charges in Jussie Smollett was this case. We did not exonerate recently charged with filing a Mr. Smollett. The charges were false police report claiming he dropped in return for Mr. was a victim of a hate crime. Law Smollett’s agreement to do enforcement involved in the investigation gave lengthy press conferences, detailing their investigation prior to him being charged. The press responded with wonderment at how guilty

16 community service and forfeit his the role an individual holds $10,000….”36 in the community.”38

After a jury acquitted East This statement was issued Pittsburgh Police Officer Michael among demonstrators who Rosfeld of the shooting of 17-year- called for the DA’s ouster: “Hey old Antwon Rose, 37 Alleghany hey, ho ho, [DA] Steve Zappala County District Attorney has got to go!” Stephen A. Zappala Jr. issued a statement to the cameras, in light In both instances the of the immediate demonstrations statements of the Chicago that erupted locally following the police before charge and after verdict: resolution tainted the jury pool for the Smollett and other “While I respectfully cases. In contrast, the disagree with their verdict, statements of DA Zappala it is the people of this fostered respect for the law commonwealth who decide and the criminal justice guilty or not guilty, and process. However, he should they have spoken to this have refrained from matter…. In the interest of disagreeing with the jury’s justice, we must continue to verdict and placing those do our job of bringing jurors in the public eye and charges in those situations exposing them to harassment. where charges are Such statements threaten to appropriate, regardless of intimidate future jurors and discourages them from voting

36 Prosecutors on Dropping Smollett 5/17537150/antwon-rose-police- Charges: ‘We Did Not Exonerate’ Him, shooting-pittsburgh-michael-rosfeld- NBC CHI., civil-rights-lawsuit. https://www.nbcchicago.com/news/loca 38 Megan Guza & Renatta Signorini, l/jussie-smollett-charges-dropped- Not Guilty Verdict in Rosfeld Trial reaction-507673291.html (last updated Sparks Demonstrations in Downtown, Mar. 26, 2019, 4:53 PM). East Liberty, TRIB LIVE (Mar. 22, 37 P.R. Lockhart, Officer Who Shot 2019, 4:000 AM), Antwon Rose is Accused of Past Civil https://triblive.com/local/pittsburgh- Rights Violations, VOX (July 5, 2018), allegheny/what-to-expect-on-day-4-of- https://www.vox.com/identities/2018/7/ the-michael-rosfeld-trial/.

17 their honestly held beliefs in reviewing gag orders, depending deliberations. on the subject of the order.40 In the Fifth Circuit, “gag” orders George Floyd, Breonna Taylor, targeting attorneys are only Sandra Bland, and Eric Garner permitted where there is a and many other incidents have substantial likelihood that caused us to reexamine our extrajudicial commentary will charging, sentencing, and trial undermine a fair trial.41 The decisions. We must do better Northern District of Texas has and we must do more. further analyzed that standard. “Gag” orders will issue when: J. Judicial Gag Orders— When Should They Be “(1) there is a clear or Issued? serious threat to the fairness of the trial; (2) less Trial judges presiding over restrictive alternatives are criminal cases have an not adequate to mitigate the affirmative duty to safeguard harm; and (3) the order against potentially prejudicial would effectively prevent pretrial publicity.39 This the threatened danger.”42 safeguard can be manifested in the form of “gag” orders which Gag orders might provide restrict attorneys, parties, and protection and assurance that our witnesses from making extra- clients receive a fair trial. But, judicial statements about a case. when existing prejudice The United States Supreme threatens a fair trial, gag orders Court and Courts of Appeal follow acrt as a barrier to protecting different standards when clients’ interests and reputations.

39 Pedini v. Bowles, 940 F.Supp. 1020, concerning the processing of the 1023 (N.D. Tex. 1996) [citing The case.”]. News–Journal Corporation v. Foxman, 40 United States v. Scarfo, 263 F.3d 80, 939 F.2d 1499, 1512 (11th Cir. 1991)]; 92 (3d. Cir. 2001). ABA CRIM. JUST. STAND. ON FAIR TRIAL 41 United States v. Brown, 218 F.3d AND PUBLIC DISCOURSE 8- 415 (5th Cir. 2000). 4.1(a)(2016)[“[J]udges…should not 42 Pedini v. Bowles, 940 F.Supp. 1020, make, cause to be made, or condone or 1024 (N.D. Tex. 1996) [citing authorize the making of any public Nebreska Press Ass’n v. Stuart, 427 extrajudicial statement about a U.S. 539, 563 (1976)]. criminal matter other than one

18 Gag orders have become more merits of this case, with prevalent and may be excessive exceptions for matters of when applied to the media. When public record and matters applied to individual citizens such as assertions of involved in the proceedings, they innocence.”45 may also be excessive based on the scope of the order.43 “Because On review, the Fifth Circuit held a gag order on the parties does that “gag” orders may be issued not affect the media’s rights, and when there is a substantial is narrower than a blanket gag likelihood that extrajudicial order on all the media, it’s commentary will threaten a fair considered a less restrictive trial and that the “gag” order in means of protecting fair trial question did not violate the First rights.”44 Amendment.46

In United States v. Brown, Conversely, in United the district court imposed a gag States v. Scarfo, the Third Circuit order on the parties and held that a gag order prohibiting witnesses mandating that they former defense counsel from refrain from speaking to the press was unconstitutional. 47 Scarfo’s “any public initial defense attorney was communications media disqualified from representation about the case which could and subsequently revealed to the interfere with a fair trial, press that he expected the filing including statements of a motion to suppress arising intended to influence public from the government’s opinion regarding the questionable surveillance

43 Ruth Ann Strickland, Gag Orders, https://law.yale.edu/mfia/case- FIRST AMENDMENT, disclosed/when-silence-isnt-golden- https://www.mtsu.edu/first- how-gag-orders-can-evade-first- amendment/article/961/gag-orders amendment-protections. (last visited Apr. 7, 2019). 45 United States v. Brown, 218 F.3d 44 Isabel Farhi, When Silence Isn’t 415, 418 (5th Cir. 2000)[internal Golden: How Gag Orders Can Evade quotations omitted]. First Amendment Protections, YALE L. 46 United States v. Brown, 218 F.3d SCHOOL, MEDIA FREEDOM & INFO. 415 (5th Cir. 2000). ACCESS CLINIC (Oct. 24, 2017), 47 United States v. Scarfo, 263 F.3d 80, 83 (3d. Cir. 2001).

19 methods.48 The district court Judge Jackson stated that she rendered the order preventing had “‘serious doubts whether “anybody from talking to the [Stone] learned any lesson at all,’ press about the motion that [the and warned she would order him court hadn’t] seen and…[knew] to jail for future violations.”52 nothing about.”49 As an issue of Clearly, Stone cannot be first impression, Scarfo was prevented from publishing a book unique, because it examined the he had written before he was ability of the court to “gag” a charged with any offense. He has criminal defendant’s former a First Amendment right to attorney, rather than the current engage in free speech. It may attorney or the defendant.50 In have been wise to advise the support of its holding, the court Court of the impending reasoned that the former defense publication at the time the gag counsel’s comments posed no order issued. However, a gag threat to the fairness of the trial order should not extend so far. nor to the jury pool.51

Roger Stone, “[r]epublican II. Implicit and Other Biases operative and longtime Trump The Texas Lawyers Creed is friend,” was faced with trouble one all counsel swear to uphold after a judge learned that the when they become lawyers. book he was planning to publish Under the Creed, lawyers carried the potential of violating promise that their “word is [their] a “gag” order to which Stone was bond.” That they will support the subject. Although Stone is not an constitution, demean themselves attorney, and the court merely in the practice of law, discharge issued a warning, U.S. District duties to clients to the best of

48 United States v. Scarfo, 263 F.3d 80, That May Violate Gag Order, WASH. 83 (3d. Cir. 2001). POST (Mar. 3, 2019), 49 United States v. Scarfo, 263 F.3d 80, https://www.washingtonpost.com/local/ 83 (3d. Cir. 2001). legal-issues/judge-orders-roger-stone- 50 United States v. Scarfo, 263 F.3d 80, to-explain-imminent-release-of-book- 91 (3d. Cir. 2001). that-may-violate-gag- 51 United States v. Scarfo, 263 F.3d 80, order/2019/03/01/c5302c0e-3c80-11e9- 95 (3d. Cir. 2001). aaae- 52 Spencer S. Hsu & Manuel Roig- 69364b2ed137_story.html?utm_term=. Franzia, Judge Orders Roger Stone to 46778db7d62c. Explain Imminent Release of Book

20 their abilities, and conduct biases. Once we become aware of themselves with integrity and them, we self-correct. Becoming civility when dealing or aware of implicit biases is simple communicating with all courts with readily available through and parties. Under the Creed, internet testing (IAT tests)53 and counsel should treat all recognition of current differently abled and persons stereotypes. different from themselves with the same respect and courtesy counsel desire for themselves. III. Conflicts of Interest Recent studies show that women lawyers are dismissed, We are all familiar with the harassed, and treated in a conflict of interest created by paternalistic manner in courts. multiple representation. Where Long standing statistics show one lawyer (or one firm)54 that more African Americans are endeavors to represent two sentenced to prison than expected persons in one case. Each client in light their percentage of the has different interests and population and commission of criminal exposure. It is the rare similar crimes by white case in which the lawyer would be defendants. And disabled able to represent more than one persons are overlooked or person in a case because of incorrect assumptions are made counsel’s duty of loyalty to the about their abilities. An example client and the competing is my observation during the time interests of each client. For that I was wheel chair bound that example, in Wheat v. U.S., 486 persons would stand in front of U.S. 153 (1988) case, Eugene me, blocking my view or egress, Iredale sought to represent and would speak to me loudly as Wheat after previously if I were hearing disabled as well. representing a co-defendant. The The Texas Lawyers Creed United States Supreme Court requires that we treat all court upheld the disqualification of participants well. We should be Iredale because his position mindful of our own implicit representing both co-defendants

53 Implicit Association Test available online through share the same conflict of interest. In Harvard. such situation, when the lawyer is 54 If one lawyer in a firm has a conflict disqualified, the entire firm is of interest, all lawyers in that firm disqualified.

21 would become “untenable” made, the lawyer under these particularly because he could not circumstances is looking out for cross-examine his former client, their own reputational or one of the co-defendants, in any economic best interests with the meaningful way55 judge and, thus, are acting An additional conflict of adversely to the client. interest arises because of the This is because the voucher placement of Criminal Justice cutting process is preventing the Act (CJA) vouchers under the lawyer from zealously authority of federal district representing his client. Rule 9.3 judges and the Fifth Circuit of the ABA Model Rules of Court of appeals to regulate.56 Professional Responsibility states The Cardone Report noted that that “A lawyer shall represent a unwarranted voucher cutting client zealously within the takes place in Texas and that bounds of the law.” “The duty of placement of CJA regulation zealousness is a duty not just to under the judiciary creates a the client, but to the system of conflict of interest. If counsel are justice as well in putting the neglecting to ask for expert government to its proof in witnesses, immigration counsel, assuring that no one is unjustly or investigative assistance in convicted of a crime” … “in cases where it is needed because criminal cases, a defense lawyer a judge disfavors such requests; may…put the government to its then counsel is functioning with proof in every case and require an actual conflict of interest. the prosecutor to prove every Because a judge disfavors such element of the offence to assure requests or will voucher cut fees that no one is unjustly convicted.” in cases where such requests are This means that Lawyers can ask

55 This is because he could not use any fact that other competent counsel is information that he learned by virtue available to try the case. Depriving of representing his former client to one of their counsel of choice is assist his current client and could not structural error. U.S. v. Gonzales- act adversely to his former client in Lopez, 548 U.S. 140, 151 favor of his current client. Please note (2006)[concerning co-counsel]. that the Wheat v. U.S., 486 U.S. 153 56 See generally 2017 Report of the Ad 1988) has been overruled in part by Hoc Committee to Review the U.S. v. Gonzales-Lopez, 548 U.S. 140 Criminal Justice Act (the Cardone (2006), which held that one’s right to Report) pages xviii-xix; The Crisis in counsel of choice is not satisfied by the Federal Criminal Law

22 for the government to prove its or given an enhanced penalty. In case and lawyers have a duty to addition, Ice Cube raps “Public zealously act to make sure their Defender, Public Pretender” client is not wrongfully convicted. indicating his lack of confidence Judges that restrict the necessary in an attorney who is not paid. resources of appointed counsel And TayK47 raps that he needs undercut this principle and “a hunnit bands” [lots of money], undermine justice when they do to “tryna beat a case” but that “I so to save money. Attorneys, by ain’t beat a case, bitch, I did the folding to the authority of such race,” indicating that he had to judges, violate their duty of flee because he did not have the loyalty. Because the accused in a funds to defend himself. criminal case is entitled to Lil Baby raps that it is not counsel to represent his or her all Black and White, not all black interest “single-mindedly” people are dumb and not all white without loyalty divided between people are racists. It is the the client and another that might content of a person’s character restrain or interfere with the and not the hue of their faces that lawyer’s judgement or actions on we should judge. But he also behalf of the client.” Counsel expresses the view that the should always request the justice system does not afford necessary resources regardless of respect to minorities. They are the popularity of such requests. not seen or protected. And Joey Our clients have little faith Bada$$ concludes that minorities in the justice system and justice are just organ donors. He says perceived is as important and that the justice system engages in justice received. Recent rap lyrics trickery, views minorities as show the public popular historically inferior, and that impression that justice is only even divine intervention cannot available to those with result in an acquittal for them. substantial assets. Jay Z raps He concludes that living under that when he is stopped by the supervision is no way to live. He police he has “99 problems but is referring to the fact that about the bitch ain’t one, hit me.” “Plus I got a few dollars, I could fight the case.” Reflecting that because he has money, Jay Z does not feel he will be convicted of an offense

23 1/3 of young black men are under the Texas attorney-client correctional supervision.57 privilege. The specific instances To begin to engender that Mr. Cohen mentioned to confidence in our criminal justice support his claim that President system, we must address these Trump is a racist, he learned popular realities. while spending time with the President as his attorney. Any other legal advice or IV. Attorney-Client Privilege work that Mr. Cohen testified regarding, that did not fall under The attorney-client the crime/fraud exception, was privilege in Texas is much also a betrayal of client broader than the privilege in confidences and the privilege. other states. Texas Rule of There is a video in the Evidence 503 states, “In a presentation where President criminal case, a client has a Trump denies knowledge of a privilege to prevent a lawyer or payment made to Stormy Daniels lawyer’s representative from and directs the press to speak to disclosing any other fact that his lawyer, Michael, about it. came to the knowledge of the This relayed to the press and the lawyer or the lawyer’s public that Trump had not representative by reason of the engaged Cohen as counsel to attorney-client relationship.” arrange a non-disclosure Tex. R. E. 503(b)(2). This rule agreement in exchange for broadens the attorney-client consideration. Thus, Trump was privilege, which protects advising the public and Special information relating to the Counsel Robert Mueller that any representation, to include client information Michael Cohen had confidences. Client confidences about the Stormy Daniels are any information learned by payment was his own information virtue of the representation. For and not subject to the attorney example, when Michael Cohen, client privilege. Was that waiver President Trump’s attorney, of the attorney-client privilege, testified before Congress that the does this example fall under the President was a bigot, he violated crime /fraud exception58, or does

57 58 The crime/fraud exception applies when a client or https://bjs.ojp.gov/library/publications/correctional- lawyer seeks to use a lawyer’s services or advice to populations-united-states-2017-2018 commit a crime or fraud.

24 it merely indicate that Cohen’s previously disadvantaged Stormy Daniels records were not defendants by placing a burden privileged in the first place? on defense counsel to show good Either way, Cohen’s cause why extremely limited testimony violated the attorney- information might be ordered client privilege. The crime/fraud disclosed by a court.60 Prior exception did not extend to all discovery in Texas was similar to matters in which Cohen discovery under the federal rules. represented the President. Thus, See Rule 16 of the Federal Rules his testimony about those other of Criminal Procedure. But the matters (the auction of a portrait) Michael Morton Act, codified in and confidences (that Trump is a Rule 39.14 of the Texas Rules of racist) revealed client confidences Criminal Procedure now requires and privileged communications. relevance-based discovery of favorable matters relevant to the V. Federal Prosecutors’ Duty to matter. It is very broad, far Disclose Relevant Favorable reaching, and requires only a Evidence Under the Texas Rules request by defense counsel. Following the Texas discovery The Michael Morton Act is a rule, Rule 3.09(d) of the Texas unique law designed to prevent Rules of Professional Conduct and combat prosecutorial requires prosecutors in criminal misconduct in the discovery cases to timely disclose “all process.59 The Texas legislature evidence or information known to enacted the Michael Morton Act the prosecutor that tends to to radically change the criminal negate the guilt of the accused or discovery process in Texas, which mitigates the offense[.]”

59 Codified in amended article 39.14, [Francis v. State, 428 S.W.3d 850, 856 the Michael Morton Act shifts the n.12 (Tex. Crim. App. 2014) (noting prosecution’s duty to disclose evidence the prior version of article 39.14 was in Texas from a discretionary decision in effect at the time of trial)]; See also based on good cause to a relevance- Cynthia E. Hujar Orr & Robert G. based decision based on counsel’s Rodery, The Michael Morton Act: request [TEX. CODE CRIM. PROC. Minimizing Prosecutorial Misconduct, ANN. §39.14 (West 2014)]. The victory 46 ST. MARY'S L.J. 407, 419 (2015). in the Michael Morton case places the 60 See Cynthia E. Hujar Orr & Robert prosecution under a statutory duty to G. Rodery, The Michael Morton Act: continually disclose exculpatory Minimizing Prosecutorial Misconduct, evidence regardless of materiality 46 ST. MARY'S L.J. 407, 409 (2015).

25 Materiality is not a component of All prosecutors practicing in this test. Texas courts, both state and Rule 3.09(d) encompasses a federal, are subject to Rule prosecutor’s duty to disclose 3.09(d). The Texas Disciplinary exculpatory evidence imposed Rules of Professional Conduct under Brady v. Maryland, 373 provide this in its jurisdictional U.S. 83 (1963) but it goes much rule. Rule 8.05(a): Jurisdiction further than that. In Shultz v. states “[a] lawyer is subject to the Comm’n. for Law. Discipline, OP. disciplinary authority of this 55649 (Tex. Bd. Disp. App. 55649, state, if admitted to practice in Dec. 17, 2015) the Texas Board of this state or if specifically Disciplinary Appeals held that admitted by a court of this state rule 3.09(d) is broader than for a particular proceeding.” And Brady based on the plain the United States District Court language of the rule and the for the Western District of Texas, different purpose of the duty to as well as other districts in Texas, disclosure favorable evidence requires “[m]embers of the Bar of under the disciplinary rule. The this court and any attorney purpose for disclosure under the permitted to practice before this ethical rule is to impose on the court [to] comply with the prosecutor the professional standards professional conduct obligation to “see that the set out in the Texas Disciplinary defendant is accorded procedural Rules of Professional Conduct” in justice, that the defendant’s guilt Rule 7 Discipline of Attorneys. is decided upon the basis of What this means is that sufficient evidence, and that any regardless of where a lawyer is sentence imposed is based on all licensed, they are bound by the unprivileged information known broad disclosure requirements to prosecutor.” Tex. Disciplinary contained in Rule 3.09 that Rules Prof’l Conduct R. 3.09(d) reflects the disclosure scheme set cmt. 1. Unlike Brady, this out in the Michael Morton Act. I obligation is regardless of the have included a motion and order anticipated impact. While the acknowledging this in your purpose of disclosure under the materials for your use from one of Brady constitutional duty is to my cases in the Southern District merely assure a fair trial under of Texas. the due process clause and requires materiality.

26 VI. The New Texas Rules of Ethics

There are eight new Texas Rules of Ethics, effective July 1, 2021. They provide that a lawyer may take a broader range of protective action than is currently permitted when the lawyer reasonably believes that a client has diminished capacity and is at risk of substantial physical, financial, or other harm. Rule 1.16. They allow a lawyer to disclose confidential information to secure legal advice about the lawyer’s compliance with the Texas Disciplinary Rules of Professional Conduct. Rule 1.05 (C)(9). And they allow a lawyer to disclose confidential information when that is reasonably necessary to prevent a client from dying by suicide. Rule 1.05(C)(10). They now recognize that a lawyer working in a pro bono capacity or clinic environment will not have a conflict of interest unless there exists an actual conflict and that

27 no conflict of interest will be Professional Responsibility or the imputed to the layer’s firm under State Bar of Texas if they are the above circumstances. Rule licensed here. 6.05. New Rules 7.01 and 7.05 In addition, counsel should have been added to make clear be mindful that their areas of that information disseminated to required competence and the public or the poor that is not effective practice have changed intended for pecuniary gain is not with advance technology and a solicitation or advertisement. pervasive public discourse. And These rules make clear that the they should consider that use of trade names that are not avoiding conflicts of interest misleading are permitted. And include not only avoiding they set out that providing legal multiple representation, but also information to experienced law obtaining necessary resources consumers is not solicitation despite the fact that judges may either. disfavor such request. Most importantly, it is the duty of The assignment of judges to every criminal justice participant hear disciplinary matters has to reform and restore confidence changed under Rule 6.05. And in the greatest criminal justice lawyers are now allowed to system in the world; that of the assign their cases to designated United States of America. counsel in order to wrap up their practices under Rule 13.04.

VI. Conclusion

While ethical rules provide no affirmative duties on prosecutors to act in a given case and Department of Justice Policies create no rights for defendants, they do provide incentive for prosecutors to provide broad discovery. Each prosecutor seeks to avoid an encounter with the Office of

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