Has anyone run across a situation where the defense attorney was a Deputy with the arresting agency at the time of the arrest and discussed the case at length with the Sheriff before quitting and representing the defendant?

I've heard of ADA's being reserve members of the SO or PD, but never a defense attorney, and never a person involved on either side being a full fledged member of the dept. I don't believe there is a conflict. He owes no duty to the Sheriff, and I am assuming he is not a witness in this case. His duty to his client is one of zealous advocacy. In fact, he may be in a better position than most to know the nuances of the case. Sounds interesting. If I were the defense attorney, I would take the case, but NOT without a written, signed waiver from the client about potential conflicts.

How is that any different than an assistant DA who works on a file, quits, then represents the defendant?

An assistant DA is prohibited from representing a defendant in any case in which he has been counsel to the State by TCCP 2.08

As counsel for the State, you have a duty to the State and that creates a conflict to the duty you would have to the potential client. You have no such duty as a Sheriff's deputy.

And since there is a law against an ADA doing it, because that makes sense, you don't think an ethical red flag should raise when an officer does the same thing?

Come on.

If I was a divorce lawyer, I wouldn't chat up the husband for an hour then go offer to represent the wife.

I filed a motion to disqualify under rules of prof. conduct 105, 106, 109, and 110. The hearing ran on for three hours. Judge waited 6 days then denied the motion without giving a reason as to why.

quote:

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Originally posted by AdamThomas:
Has anyone run across a situation where the defense attorney was a Deputy with the arresting agency at the time of the arrest and discussed the case at length with the Sheriff before quitting and representing the defendant?

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Sounds like your sheriff may want to rethink who he allows to be a reserve deputy. The situation also implicates a question about what information the deputy/defense attorney came into possession of by virtue of his law enforcement work. If, as a reserve deputy, the lawyer accessed information that had not been made public and used it to obtain a benefit (e.g., his fee), you may have facts that make out a colorable charge of misuse of official information under section 39.06(b) or (c), Penal Code, dependent upon how he obtained the information. While it would be a lesser charge, these facts may also point to conduct proscribed by section 552.352, Government Code, if the information was confidential and it is used (ergo, "distributed") in the defense of his client.

Any chance the former deputy ought to be called to testify as a witness in the case?

I was going to say the same thing. Would think there would be a chance that the arresting officer will come under some sort of attack as to his professionalism or character or training, or such. If so, can't you call co-workers to rehabilitate him. And if so, isn't there a chance that this former co-worker would fall into this.
I could see him being called as a def. withness, but seems like a huge conflict to rep. the accused. Sheriff and he talked it up. If sheriff is called to testify to something and can't remember or if it is different than what the atty recalls, how is the attorney going to bring that up w/o testifying himself. Those conversations weren't or shouldn't be privleged b/c was done is the scope of employment at the time. He sounds like he could be a witness?

Adam, although there have been some insightful responses to your dilemma, maybe it's time to ask yourself how bad it will hurt if this sleaze bag continues as the crook's attorney. Although I'm the world's worst about obsessing over matters which I can't control, sometimes life just isn't fair. If it won't seriously impair the outcome of your case, I'd just let it go. If your sheriff is like mine, the chances are that he didn't know a whole lot about the confidential details of the case anyway. But I'd give notice to the attorney that the sheriff and the attorney may be witnesses and that this whole situation is a big ole grievance just waiting to happen. At least that will worry the bum and will cover you and protect your conviction in case you do have to call the attorney as a witness. It sounds like the situation won't repeat itself (at least with respect to this lawyer) but I'd counsel with the sheriff about it. And last but certainly not least, I'm a firm believer in the old adage of "what goes around comes around." Chances are really good that this lawyer will sooner or later be on the other side of one of your "slam dunks."

Adam, I thought about this all night after reading the post regarding criminal charges. I think Mike gave you some really good advice that you should take. If you go after the guy with charges like that, it tends to follow you as well. I can't speak for everyone (and some would say I can't shut up), but other Attorneys would treat you different after that, and you may miss out on a lot of comraderie (sp?) and joking that naturally will occur during your cases (because other Attorneys would be leary of you). I would take Mike's advice to heart, I think that it is sage advice.

This is what I get for typing before finishing a thought. I agree with Mike and Ms. Gibson. The discussion of potential offenses was (at least in retrospect) meant not as a charging guideline, but as potential fodder for discussion with your sheriff, particularly about disclosing confidential information within the purview of the Public Information Act. It's a good lesson in the fact that public employees often wear more than one hat, and we need to remember those multiple roles before engaging in free discussion with those folks about our business. Chinese walls: they're not just for breakfast anymore.

Today's case from the CCA might help here:


IN THE COURT OF CRIMINAL APPEALS


OF TEXAS

NO. PD-1380-04


STEVEN HARRY POWERS, Appellant

v.

THE STATE OF TEXAS, Appellee

Holcomb, J., delivered the opinion of the Court, in which Keller, P.J., Price, Womack, Johnson, Keasler, Hervey, and Cochran, J.J., joined. Meyers, J., did not participate.

O P I N I O N



Appellant was charged by information with driving while intoxicated. Tex. Pen. Code Ann. � 49.04(a) (Vernon 2003). A jury convicted him and assessed punishment at a $750.00 fine and 150 days in jail, probated for two years. The court of appeals reversed the judgment of the trial court and remanded the cause for a new trial. We reverse the judgment of the court of appeals.


Factual and Procedural Background

Appellant was involved in a single-car accident in Tarrant County. Two officers responded to the scene, both of whom later testified as fact witnesses at appellant's trial. The officers' testimony described appellant's poor performance in field sobriety tests and the horizontal gaze nystagmus test, and generally tended to show that appellant was intoxicated at the time of the accident.

One of the two officers, Samuel Williams of the Arlington Police Department, later became employed by the Tarrant County District Attorney; and by the time of trial, he worked as a prosecutor in the misdemeanor section. Although Williams worked in the same county as the court of conviction and had other matters pending before the court of conviction, he did not serve as a lawyer in appellant's case.

Appellant objected when Williams was called to the stand, complaining that the rules of professional responsibility prevented his testimony. Because appellant did not have notice that the prosecutor was going to call Williams, the trial court took a recess to allow appellant to develop his argument. Ultimately, the trial court received the testimony over appellant's objection and denied his request for a mistrial.

The court of appeals did not address whether Williams served "dual roles," i.e., whether Williams's mere status as (1) a lawyer with the district attorney's office and (2) a fact witness in the case, constituted "dual roles" as proscribed by Texas Rule of Professional Responsibility 3.08. Powers v. State, 140 S.W.3d 851, 854-55 (Tex. App.--Fort Worth 2004). The court of appeals, however, concluded that "dual-role problems" deprived appellant of a fair trial or otherwise affected his substantial rights. Id. at 856-57. Because we hold that Williams did not serve "dual roles" as contemplated by Rule 3.08, we do not reach the question of whether appellant was harmed. (1)

Discussion

Under a heading entitled "Standard of Review," the court of appeals set forth, in pertinent part, Rule 3.08:

(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;

(3) the testimony relates to the nature and value of legal services rendered in the case;

(4) the lawyer is a party to the action and is appearing pro se; or

(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.

. . . .

(c) Without the client's informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer's firm is prohibited by paragraphs (a) or (b) from serving as advocate.


Tex. Disciplinary R. Prof'l Conduct 3.08 (a), (c), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, � 9) (emphasis added). However, we note that an intermediate appellate court's standard of review on the admission of evidence is whether the trial court abused its discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). Although an ethics rule may be relied upon to show that an alleged violation infringed the complaining party's right to a fair trial or otherwise affected substantial rights, a complaining party's right is not grounded in the disciplinary rule itself. See, e.g., House v. State, 947 S.W.2d 251, 252-53 (Tex. Crim. App 1997). Therefore, the proper standard of review here is whether the trial court abused its discretion in its implicit finding that Williams was not acting in a dual role. See Gonzalez v. State, 117 S.W.3d 831, 837-39 (Tex. Crim. App. 2003).

The court of appeals erred in applying Rule 3.08 because Williams did not serve as an "advocate" in the proceeding. See id. Williams testified about his personal observations as a police officer, and his participation in the case extended no further. By taking no part in the case as a lawyer for the Office of the District Attorney, Williams's only role in the proceeding was as a fact witness. Thus, because Williams did not serve "dual roles" as advocate and witness, the trial court did not abuse its discretion in admitting his testimony.

This is the primary distinction between this case and our holding in Gonzalez v. State, which the court of appeals found controlling. Powers, 140 S.W.3d at 854-55. In Gonzalez, we concluded that a lawyer could not testify as a fact witness and then resume his role as an advocate without running afoul of the disciplinary rule. 117 S.W.3d at 837-38. Specifically, we upheld disqualification of defense counsel, who unlike Williams here, was personally trying the case, and was the only fact witness with personal knowledge upon a disputed essential fact. Simply put, we concluded that the trial court did not err in disqualifying defense counsel because his continued representation would likely create harmful circumstances specifically targeted by the rule, such as confusion of the jury. Gonzalez, 117 S.W.3d at 843; Tex. Disciplinary R. Prof'l Conduct 3.08, cmt. 4.

The court of appeals seems to acknowledge that Williams did not serve dual roles. Powers, 140 S.W.3d at 856. Specifically, the opinion notes that

[a]lthough Gonzalez involved a situation where defense counsel assumed dual roles, the court of criminal appeals' actual prejudice analysis in that case demonstrates the type of dual-role problems the court views as unfairly impacting a trial. The dual-role problems present in Gonzalez are the same dual-role problems present in this case.

See id.

The court of appeals's analysis, however, is faulty. When it is clear that an advocate is serving dual roles, it is proper to determine whether the opposing party would suffer actual prejudice by an alleged violation of the rule. House v. State, 947 S.W.2d at 252-53. On the other hand, when it is clear, as here, that a lawyer is not serving dual roles, the reviewing court should not proceed to determine whether the complaining party was harmed. Furthermore, the trial court did not abuse its discretion because Williams' former role as the lead investigating/arresting officer in this case would not prevent him from "accept[ing] or continu[ing] employment" in the Office of the District Attorney. See Tex. Disciplinary R. Prof'l Conduct 3.08(a). We are loathe to read into the law a requirement that would discourage lawyers from serving as public servants, and more importantly, that would discourage government entities from hiring otherwise desirable candidates for fear that the government would be prevented from going forward on a charge because one of its lawyers happened to have personal knowledge upon which testimony should be taken to resolve an essential fact. See, e.g., Tex. Disciplinary R. Prof'l Conduct 1.10, cmt. 3 ("the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to avoid imposing too severe a deterrent against entering public service.").

Conclusion

Because the court of appeals erred in applying Rule 3.08 to a situation in which the lawyer did not serve dual roles, we reverse the judgment of the court of appeals and remand the cause to that court to consider appellant's remaining issue for review.


DELIVERED JUNE 15, 2005.

PUBLISH

1. Likewise, because we sustain the State's first ground for review, namely, that the court of appeals misapplied Rule 3.08, we dismiss the State's remaining grounds for review that complain of the court of appeals' harm analysis.