The Loss Of Privilege Redux

From reliable sources I learned that feathers ruffled from my recent post on the loss of privilege when a "professional" becomes aware of "child abuse" during their professional interaction with clients, patients, and the like. What really got someone upset was my vehement position on the defense lawyer's duty of loyalty toward their client, even concerning communications about possible child abuse. Here's my quote:

"Rest assured, I believe my duty of loyalty to a client trumps even the duty to report. Over my dead body will the government compel me to reveal communications made by clients in confidence."

First of all, persons need to know when they call me to discuss legal problems what they tell me will remain confidential. That's lawyering 101. If a client wasn't assured communications were secret, the chilling effect upon attorney/client relationships would be devastating. No one would trust anyone, including their lawyer. Beyond this, the last thing a paying client wants to hear is what they just revealed to their lawyer will now be revealed to the police.

Rest assured if someone called me explaining they were in the midst of criminal activity, of any kind, my first instruction would be to terminate the criminal activity immediately. I'm a loving father and certainly encourage the protection of children from any abuse. In fact, the ethical rules to which I am professionally bound require me to reveal a confidential communication "[w]hen the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act." But this ethical rule pertains to future criminal acts. What about past acts, particularly involving child abuse?

The feather ruffling issue was whether lawyers have a duty to report "past" acts of child abuse after a client consults with the lawyer for their professional services. In particular, what was my personal duty if someone called me on the telephone, told me they had sexually molested a minor child, and needed my professional legal services to protect them? My position last week was "hell no." However, after consultations with my reliable sources and another look at the Texas Disciplinary Rules of Professional Conduct I might need to qualify my "hell no."

The ethical rules also say: "A lawyer may [not must] reveal confidential information: 'when the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.'" So, is Section 261.101 of the Texas Family Code "other law" compelling me to reveal private information otherwise protected? My professional instinct says no. But I'm willing to leave the question open for a time and allow my reliable sources to help me figure this out.

It's a difficult question. It also directly effects my practice of criminal defense law and the practice of law for thousands of professional colleagues all over the state facing similar ethical dilemmas. We'll revisit this again soon.

A Pitcher's Life

A pitcher spends much time waiting. Waiting on the warm-up call. Waiting on the call to the mound. Waiting on the catcher's sign. When the call comes he heads to the mound all eyes upon him. Each pitch a work-of-art. No works-in-progress. Each batter an adversary to vanquish. Each swing . . . each crack of the bat . . . an unknown. Either the hero or the bum. That's the life of a pitcher. I know one. I understand his life. It IS the thrill of victory. It IS the agony of defeat.

I love the pitcher's life. Not because I am one, but because my life's work is like one. Waiting on the call. Waiting to respond. All eyes upon me. Adversaries to vanquish. Works-of-art. Often the hero, sometimes the bum. Unknowns. The risk. Willing to fail but always working to win.

Yea. I understand the pitcher. He's an artist. He's a warrior. Tough minded. Yea. I know the pitcher's life. I respect him. He lays it out there for all to see. In victory and defeat I love the pitcher's life. The pitcher is me.

The Loss of Privilege

A potential new client (PNC) contacted my office recently. He was concerned about his recent communication with a member of the clergy from whom he'd sought spiritual advice. Seeking absolution with the assistance of his spiritual adviser, the PNC confessed, in confidence, an inappropriate sexual contact with a minor child.

If you read Article V of the Texas Rules of Evidence (concerning privileges) you'll find several rules about the admissibility of statements made to certain persons. For instance, communications made in confidence to your lawyer generally cannot be disclosed. Statements made in confidence to your spouse generally cannot be disclosed. And statements made to a member of the clergy generally cannot be disclosed.

Unfortunately for my PNC, and others similarly situated, there are other rules and statutes trumping the evidentiary rules of privileges. For example, if a person obtains the services of a lawyer to enable or aid anyone to commit a crime, the government can compel the divulging of those communications. Furthermore, the spousal privilege does not apply in situations where the communications concern a crime against the other spouse or any minor child. Finally, a major exception to the rules of privilege relate to the "duty to report" provisions of Texas Family Code.

Section 261.101 of the Family Code compels the reporting of "child abuse" by just about everyone on the face of the planet. In particular, "professionals" are required to personally report the occurrence of child abuse. Following is a quote from the Code concerning this duty:

(b)In this subsection, "professional" means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

(c) The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

Note section "c" destroys the privileged communications occurring with your pastor, social worker, mental health professional, and yes, even your lawyer. Dangerous stuff. In fact, my PNC is not the first person contacting my office to discuss privileges and the duty to report. I've had this discussion with pastors at my church, accountants, and others facing similar dilemmas.

Rest assured, I believe my duty of loyalty to a client trumps even the duty to report. Over my dead body will the government compel me to reveal communications made by clients in confidence. But others must be cautious to whom they reveal private information, especially when it involves alleged child abuse of any kind. If you have any questions, call and ask. I promise I will never tell!

Conservative Bias Alive and Well

Conservative bias is alive and well. Being one myself (a conservative, that is) I support tax breaks for business, strict constructionism, outlawing abortion, prayer in schools, limited government, and yes, even the U.S.-Mexico border fence. I voted for George W., Sarah Palin, and I don't believe water-boarding is necessarily torture. However, my life as a defense lawyer has brought me into contact with the underside of our affluent, gluttonous society. Many on the underside are from other countries, other cultures, other ethnicities.

Cultural sensitivity was the theme of several posts of late. Not really a conservative tag-line, but a required mindset for those taking oaths to zealously defend the criminally accused. Following my post about the Mexican national whom we recently defended, I received the following anonymus comment:

What utter nonsense! How far do you think we should take this cultural sensitivity? Should we allow rural Nigerians to stone witches to death like they do in their home country? How about honor killings, that Muslims do when their women "dishonor" the family? Is that ok? How about polygamy? Any problems there? Should we allow Afghans to lock their women in the house and not allow them medical care or education? How about equal treatment under the law? That means that American 19 year olds don't get to boink 12 year old girls in this country, and neither does anyone else. I don't recall being a foreigner being a defense in the penal code. If the person is in the country legally, he took an oath to obey the laws, and if he isn't, then he needs his ass deported. Bottom line, if they come here, they need to obey our laws. No exceptions.

Following the short essay in which I used Billy Hayes as a preamble before discussing fair treatment of foreigners within the American criminal justice system, I got this comment after sharing facts about a Zimbabwean man I represented last year:

My attitude is short sighted? Why is that? So they were here on student visas, but she can't speak or understand English? Didn't that make it sort of hard for her to go to school? Or did they have Shona ESL for her? Hell, maybe abandoning their child wasn't really a crime, it was some sort of Zimbabwean cultural ritual? Maybe they were teaching the kid to find its way home by celestial navigation? Its always amazing to me how you libs that abhor the thought of America being a superpower or of being a world leader or of having the premier military in the world are always so anxious for us to be the super nanny state of the world and provide cradle to grave everything to everyone, regardless of whether they belong here or not or regardless of whether we can afford it or not. The only good thing about it is that American taxpayers are starting to get tired of their wallets being raped daily to pay for all this liberal crap. The easiest way to solve that problem would be to put the bunch on the nearest plane bound for Zimbabwe and get their visas revoked. End of our problem and it saves money too. And now you are going to whine about oh their rights might be violated. Wrong, having a student visa is not a right, its a privilege and it can be revoked at any time. Bottom line, if I break the law, I get arrested for it and my life is messed up bigtime. Foreigners that come over here legally and break it should be sent home as soon as possible. People here illegally need to do their 6 months federal time and then be criminally deported so they can get 20 years federal time if they get caught here again. I wonder if you have looked into those border areas where illegals caught are jailed for 6 months? Amazing how illegal border crossings in those areas have dramatically decreased. But I bet you would probably lose money representing these people if any of that happened, right? We have a duty to treat our own citizens fairly, and perhaps if we weren't shelling out to support the citizens of so many other countries, we might actually have the funds to take care of our own problems.

This is what we call law-and-order bias in our vernacular. Typically a conservative malady. However, I don't mean to suggest all conservatives suffer with this affliction. Quite a few lefties do, too. Nonetheless, a large part of my skill as Bryan|College Station defense lawyer is used to identify the bias and eliminate it with the all powerful peremptory strike or challenge for cause. I'm sad though, that so many closets are filled with these misconceptions. As a Bible thumping conservative, though, I'll take time to pray for their understanding.

Does Anyone Remember Billy Hayes?

Who remembers Billy Hayes? Oh yea. He was the guy who got caught allegedly smuggling hashish out of Turkey in 1970. For you movie buffs, Billy Hayes' story was chronicled in the 1978 film, "Midnight Express."

A harrowing tale, to say the least. Billy is caught at the Istanbul airport with 5 pounds of hash strapped to his belly. He is tried in a strange legal system, betrayed by corrupt lawyers, and toyed with by capricious judges. He was originally sentenced to about four years in prison, but later his prison term was enhanced to 30. After 5 years imprisonment, Billy Hayes escaped to Greece from his Turkish hell hole.

Besides being a great movie (with a great soundtrack, btw), what's Billy Hayes have to do with the price of tea in China? Well, imagine a friend or loved one arrested in a foreign country. Would we demand the justice system ensured our friend understood the proceedings in their native language, that they were represented by lawyers and investigators who understood American background and culture, and that they were able to consult with representatives of the United States government as part of the process? I bet we would and I doubt if Billy Hayes was afforded this basic due process.

Now imagine you are from Mexico, from China, or from Zimbabwe. You come to the United States and get charged with a crime. Will you get the procedural due process we expect for our friends and family accused in a foreign country? Maybe not bro. In fact, although the American system of justice is designed to provide this basic fairness, not all accused foreigners are getting it. They are put to trial without interpreters and are represented by lawyers who don't realize (or don't care) about the importance of cultural and ethnic issues in the zealous defense of their clients.

So what do we do then? Well, part of our job as patriotic Americans is to ensure our system provides this basic procedural fairness to people from other countries, cultures, and ethnic backgrounds. When you are called to jury duty and a foreign national in on trial . . . ask the questions. Does this guy need a interpreter? Does the defense lawyer understand the cultural issues involved in the case? And don't assume the judge gets it - they often are just as clueless.

Top 20 iPhone Applications For Attorneys

Some of these Top 20 iPhone Apps for Busy Attorneys have been supplanted by the latest iPhone software update (3.0). But they might be worth a look, nonetheless.

Criminal Harassment . . . Or Just Bad Manners?

Ok. They charged my guy with harassment. For those interested souls, the Texas harassment statute is found in section 42.07 of the Texas Penal Code. If you don't care about the code, then just sit in and listen.

Harassment can be charged in multiple ways. In this case, the bad guys say my client initiated a written communication with a person and during the communication made an "obscene" comment. Specifically, they say my client sent the person a "hand-drawn" depiction of the female genitalia with the caption, "Can I lick you, Katie?"

With the hope of not getting charged with harassment myself, let me say this is family oriented blog. The quote above is from the public record and open to public scrutiny. Any 12 year old can go up to the county court house and pull this file.

Now, the harassment statute defines "obscene" in a most peculiar way. Obscene means a writing "containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function." (funny, my spellcheck doesn't understand half of these words) Nonetheless, patently offensive is not defined and the law provides no guidance as to its meaning.

Certainly, my grandmother might be shocked by such an image and suggestion. But my dad, and probably my wife, would care less. So who's sensibilities is this statute designed to protect? That's the problem. There are no guidelines for law enforcement. Furthermore, people of ordinary intelligence cannot discern what type of conduct is actually prohibited by the statute. Patently offensive is open to unlimited interpretations . . . what might be offensive to one person might not be offensive to another. This is called vague and over-broad for those interested legal eagles.

And what about our constitutional right to write (and draw, I suppose) what we want? That's called free speech in this country and is protected by the U.S. Constitution. Specifically, a case entitled Miller v. California set the standard for what is obscene in America. The Miller case incorporated a community standard of decency and consideration of a writing's literary, artistic, political, or scientific value . . . all qualifications the Texas harassment statute does not include. At least under Miller, a jury would have some needed guidance in determining the limits of one's writing and drawing prowess.

So, does the prosecutor have a point, or does my client simply have bad manners? I'd love to hear what you think? (Becky, this means you, too)