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