The Quiet Man: Counsel Who Didn't Participate in Trial Says He Was Protecting Client

By Mary Alice Robbins
Texas Lawyer
Monday, October 29, 2007


Knowing that he could face disciplinary action, criminal-defense attorney Christopher Hoover says he did not participate in his client's 2004 trial for misdemeanor driving while intoxicated in the hope that an appellate court would rule the client received ineffective assistance of counsel and order a new trial. And the strategy worked.

In a 5-4 decision on Oct. 17, the Texas Court of Criminal Appeals held in Cannon v. State that Hoover's failure to participate in the trial denied Darrell Cannon's constitutional right to effective assistance of counsel.

"Defense counsel, although physically present in the courtroom at all the requisite times, effectively boycotted the trial proceedings and entirely failed to subject the prosecution's case to meaningful adversarial testing," CCA Judge Charles Holcomb wrote for the majority.

Hoover, principal in Plano's Christopher N. Hoover P.C., contends that Collin County Court-at-Law No. 3 Judge John O. Barry forced him to go to trial when he was not prepared to render effective counsel.

"The judge handcuffed me, and I really had no other choice," Hoover says of his decision not to participate in Cannon's trial.

Cannon knew Hoover intended not to take an active part in the trial proceedings. "I told Mr. Cannon that it was in his best interests not to participate in the trial, because we couldn't present a defense," Hoover says. "Mr. Cannon told me to do what I felt was in his best interests."

Hoover says he announced he was not ready for trial on the date the trial was scheduled. One of his chief concerns, Hoover says, was that an expert witness who was important to Cannon's defense was unavailable to testify at that time. According to the CCA's opinion, Hoover orally moved for a continuance, but the trial judge denied the motion.

Hoover says he had not alerted the trial court that a defense witness was unavailable, because seven cases were scheduled ahead of his case on that trial date and he had not expected to go to trial on the scheduled date. The eighth case typically is not reached, he says.

"I was not prepared to give Mr. Cannon the representation he hired me to do," Hoover says. A jury found Cannon guilty on Sept. 21, 2004.

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However, Hoover says he was fully aware that by refusing to provide Cannon a defense at trial the State Bar of Texas could discipline him.

"If I have to be thrown under the bus � the bus of the Court of Criminal Appeals or the Texas State Bar disciplinary committee � I have a duty to do that to protect my client," Hoover says.

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But John Roach, Collin County's criminal district attorney, says he's concerned that the CCA's finding of ineffective assistance of counsel in Cannon could encourage other defense attorneys to engage in the same kind of behavior.

"I think that could happen unless and until somebody is really slammed down hard for that kind of tactic," Roach says.

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"By his refusal to participate, defense counsel abandoned his role for the defense and caused the trial to lose its character as a confrontation between adversaries. Prejudice to the defense is legally presumed," Holcomb wrote in the opinion.

CCA Presiding Judge Sharon Keller and Judges Lawrence Meyers, Mike Keasler and Barbara Hervey dissented without writing an opinion.

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The Rules

The CCA also directed its clerk to send a copy of the opinion in Cannon to the Office of the Chief Disciplinary Counsel of the State Bar of Texas for investigation.

Under Texas Disciplinary Rule of Professional Conduct 1.15(c), a lawyer shall continue representing a client, when ordered to do so, notwithstanding a good cause to terminate the representation, says University of Texas School of Law professor John Dzienkowski, who is not involved in Cannon. He adds that Rule 1.15(d) further requires that, upon termination of representation, a lawyer take steps to the extent reasonably possible to protect the client.

"It's hard to imagine exactly why he didn't present a case, didn't challenge anything," Dzienkowski says of Hoover.

Tatum, Cannon's appellate attorney, says Hoover's decision to sit on the sidelines during the trial was based on a concern that the trial court was not treating Cannon fairly.

Claude Ducloux, who represents clients in the State Bar's grievance process but who also is not involved in Cannon, says there is a difference between not participating in a trial for a legitimate reason and simply being unprepared, which is a violation of Rule 1.01 of the disciplinary rules.

But Ducloux, a principal in Austin's Hill, Ducloux, Carnes & Hopper, says the CCA majority found in Cannon that Hoover wasn't prepared for trial, and the court refused to speculate as to whether this was a tactic on Hoover's part.

Dzienkowski and Ducloux say the CCA had a duty to report such conduct to the chief disciplinary counsel. Canon 3D(2) of the Texas Code of Judicial Conduct requires a judge to report to the State Bar's disciplinary authority if the judge knows that a lawyer's violation of the disciplinary rules raises a substantial question about the lawyer's honesty, trustworthiness or fitness as a lawyer.

"The court is discharging its obligation to report this lawyer to the Bar for boycotting the trial procedure," Ducloux says.

But Lakatos says, "I find it very difficult to believe that the grievance committee, once they know the facts, will find Mr. Hoover violated the rules."

Couldn't the defense attorney have achieved the same affect by simply refusing to close on his case or to proceed with his case while requesting a reasonable continuance (in writing) so that the unavailable expert could testify?

I'd be curious to know how long the case had been pending on the docket, how much notice the defense attorney had for trial, and at what point pre-trial did the defense attorney contact the expert to ascertain his availability.

If the case had been pending a month or more, and the defense attorney waited until a few days or the day of trial to contact the expert for availability, then I see that as an issue affecting his claim.

Sounds like he was not expecting to go to trial, when most of us know that a trial docket can whittle away to the bottom of the docket quickly on trial day.

Ducloux reportedly said being unprepared violates Rule 1.01. It appears to me unpreparedness does not directly violate that rule. Rather it would have to be taken as a sign of neglect of the case. Failing to prepare for the #8 case may not be clear neglect. That might also mean the lawyer would have no duty to withdraw under Rule 1.15(a)(1). What should the trial judge do in this situation? Assuming the attorney is retained, can the court require the substitution of counsel for the neglectful attorney? Should the court just hold the attorney in contempt? Should the attorney have sought to withdraw as opposed to becoming the quiet man? This guy at least had guts. Not everyone would risk a disciplinary action for a misdemeanor fee.

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What should the trial judge do in this situation?

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IMHO Judge should be glad they got through 7 cases, granted the continuance on the 8th, and then take the rest of the day off.

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Originally posted by AlexLayman:

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What should the trial judge do in this situation?

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IMHO Judge should be glad they got through 7 cases, granted the continuance on the 8th, and then take the rest of the day off.

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There are some judges who will do that, but also more than a few who are not going to waste a trial day or a jury.

My guess is that there is a history here between the judge and lawyer. Appears the judge allowed the lawyer to get the better of him in controlling the courtroom.

Judge could have ordered lawyer to try the case and held in contempt for failing to work zealously for his client. My guess also is that the lawyer never intended to get an expert until he needed an excuse for a continuance.

It's a DWI. This is not rocket science. The lawyer claims to specialize in DWI cases. He didn't have a written motion for continuance; he came into the courtroom with a severe attitude.

Nonetheless, I agree the judge should not have proceeded to trial. The prosecutor, likewise, should not have stood by and tried a case that was doomed for reversal.

"The court is discharging its obligation to report this lawyer to the Bar for boycotting the trial procedure," Ducloux says.

But Lakatos says, "I find it very difficult to believe that the grievance committee, once they know the facts, will find Mr. Hoover violated the rules."

-- Doesn't seem so difficult to me.

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Originally posted by JB:
"Knowing that he could face disciplinary action, criminal-defense attorney Christopher Hoover says he did not participate in his client's 2004 trial for misdemeanor driving while intoxicated in the hope that an appellate court would rule the client received ineffective assistance of counsel and order a new trial."

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Assuming that this was in fact his strategy, the lawyer is being disingenuous. He had already, presumably, preserved his error on the fact that the court had denied him the opportunity to obtain his crucial witness. Assuming that was the real reason for the request, then he should have been prepared for the trial otherwise and gone forwards with his defense. Then he either obtains an acquittal, or has a valid appeal on the trial court's denial of the MTC, and he can even develop at a Motion for New Trial all the testimony he would have presented through his lawyer.

By doing as he did, of course, he made it certain that his client would be convicted (at least in the short term) and deprived the appellate court of the opportunity to determine whether the trial court's ruling was harmless or not.

If he is not severely condemned by the Bar, with a real sanction, then there is no reason in the future for a lawyer not to do this. Can you imagine the impact that this might have on a child abuse case or a sexual assault? Unless he was afraid of losing his license, what defense attorney could ignore the advantage of forcing the witnesses to testify twice? When has a delay such as this one ever worked to the advantage of the prosecution? What does the next judge do when the lawyer simply says, "If you force the case to trial, I will not participate?"

This lawyer had other means to protect his client and preserve his complaint that did not make a complete mockery of the process and ensure that the whole first trial was a waste of time and resources. He chose to do it this way because he saw that it provided the best outcome for his client, regardless of the flagrant ethical problem. If the professional cost does not outweigh the professional benefit, then this is not the last time we'll see this happen.

Is the only focus on Rule 1.01 and 1.15? What am I missing? What of the obigation under Rule 3.02, that a lawyer shall not take a position that unreasonably delays resolution of the matter? And what about Rule 3.04(c)(5), which prohibits a lawyer in representing a client before a tribunal from engaging in conduct intended to disrupt the proceedings? Isn't a trial court's denial of a continuance (at least to the Defendant) a matter that may be addressed on appeal if the denial results in harm? The idea that a lawyer could simply pack it in and intentionally create an ineffective assistance issue seems to my uneducated view to create a dangerous precedent for the court system as a whole.

It may not have been the soundest docket management decision to go forward under these facts, but comment 5 to Rule 3.04 seems to sum it up well: "By the same token, the advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or disruptive conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a tribunal but should avoid reciprocation."

Wouldn't the best sanction for the Bar or the trial court on contempt be that he has to place on his letterhead, business card and any advertisment "Has been found to be ineffective at trial by the Texas Court of Criminal Appeals"

Real truth in advertising.

Q: Counselor, what is your defense? A:I have none so I will do nothing. Q: But won't that be ineffective? A: That is my defense. Q: So you do have a defense? Q: No I don't.

Mr. Bradley, did the CCA really use this logic?

You summed it up quite nicely.

JAS

Actually, the CCA's logic (not that I necessarily agree with it) was that the defendant got no lawyer and, therefore, no defense. The problem with that approach is that it depends on all the other lawyers being afraid of being called ineffective. Unfortunately, the state of the profession is such that defense "true believers" regard such a designation as a badge of courage rather than of shame.

Whether the defendant should get a new trial because of the ineffectiveness of his lawyer, and whether the lawyer should be sanctioned are 2 seporate issues. Clearly the CCA did the right thing in granting a new trial. The man really had no representation.

As for the sanction the lawyer should get, I got a big laugh from Clay A's answer. But it wouldn't be fair to clients who are can't read, or aren't swift enough to understand what it means, or don't take the time to read his advertising or letterheads. Clearly, the only reasonable action for the Bar to take is disbarment. To hold yourself out as a trial atty., and when you get to trial to just sit on your behind and act like an idiot--what more evidence of utter incompetence does the Bar need to kick you out?

Had the defense attorney made statements indicating that this was his strategy before this case ended up in an appellate court (like he did in the article)? I also found it very disheartening that at least one commentator thinks that in these circumstances nothing is likely to come out of the greivance process. You don't want to be cynical, but then you read statements that make it hard not to be.

Does anyone have a reaction to the statement by the CCA that the judge could have gotten the defendant to waive any ineffective assistance of counsel claim? Exactly how would that work, since the lawyer is promoting ineffective assistance as a solution to being forced to trial? And, hasn't the court previously said you can't waive ineffective assistance?

And what would the result have been? His new appellate lawyer simply would have argued that his waiver of counsel was not knowing and voluntary because he didn't understand what he was doing. And surely, had the court tried to do that, his lawyer would have stood up then and told him not to waive anything. The best to be hoped for is that the defendant would have taken it upon himself to ask for a new lawyer, granting which would have effectively given the continuance the judge was trying to deny.

Motion for rehearing goes in the mail today.

Perhaps the court shouldn't have decided the issue on direct appeal. At a writ hearing, at least we could spend some time exploring whether the defendant was an accomplice in this strategy to provide no assistance.

The original opinion in Cannon was withdrawn today and replaced. What changed?

Here's a link:

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