Federal judge Kenneth Hoyt issued a contempt order against the former DA of Harris County and an assistant DA. The order discusses the ethical obligations of a lawyer subject to subpoena and anyone overseeing the person subject to subpoena.

To read the opinion, click here.

I have to wonder what ethical standard this sets for defense attorneys who know their client is subject to a subpoena for documents. Seems from the opinion that crimes of omission are punishable by contempt.

The judge seems outraged by the ADA saying that he thought all the e-mails had been produced--because he didn't ask the right questions and make the right warnings to his client.

That would have interesting implications in the criminal world. How many times does a defense attorney tell the judge that his client has no criminal history (just traffic tickets--when he actually has DWIs, for example), or has a good job, and then when the prosecutor calls him out on it, he says "well, that's what my client told me."

We had a DWI where we subpoenaed bank records to see where/how much money our defendant had spent on the day of his arrest, and the defense attorney told the bank not to comply because we were not entitled to the records. He then told the judge that he would be happy to provide whatever we wanted--but from him, not the bank--and we still have never gotten a thing, from either one!

I wonder why, though, the federal judge just sort of ignores the idea that the thousands of e-mails are not burdensome or irrelevant? Sounds like a very broad subpoena to me--all e-mails for at least a three month period? I wouldn't know how to get all that off my computer even if someone asked for it?

As excellently stated by well-regarded Harris County defense attorney Pat McCann (and outgoing President of the Harris County Criminal Lawyers Association) in last friday's Chronicle...

"McCann said he was saddened by Durfee's punishment.

"I think it is, at best, difficult to deal with a client who believes that he is smarter than a federal judge," McCann said, referring to Rosenthal. "When that client is not only a client, but your actual boss who hires and fires you, I think that puts a very different take on your relationship."

I found it interesting that ethical standards were applied to a contempt hearing. Last I checked, it was the State Bar's job to enforce ethical standards. Judges enforce their orders. So, for Durfee, it seems to me that the question should simply have been: was Durfee under legal obligation to comply with the order, and did the order impose any duty that was violated by Durfee?

The contempt finding seems to drift off into an ethical violation by omission. I don't think the court order (subpoena) carried such details. And I question whether they can be imported through disciplinary rules for the purpose of a contempt hearing.

Good point JB. I hope Scott appeals it.

Yes, it does seem it would have put the ADA in a tough position to tell the person who hired you to be sure and not destroy records that fall under a subpoena. Why would he even anticipate that it would be an issue if the client never mentions it to you?

I'm wondering why discussions between the DA's office and the law enforcement agency would not be considered attorney/client privilege when dealing with a civil lawsuit?

That was another issue that went through my mind. The attorney/client privilege does put some brakes on a representing attorney's ability to act upon learning of alleged discovery violations. Does the representing attorney get put in the position of becoming a witness to a contempt action/criminal prosecution/ethical grievance merely from holding that knowledge?

At the risk of stating the obvious, this is a shining example of the need to have an email retention policy, which preferably (to me) involves the automatic, permanent and frequent destruction of every received, sent and deleted item.

Otherwise, something that is supposed to be a helpful tool becomes a burden and a stumbling block.

It amazes me what people would put into an e-mail that they never would put into a regular memo or letter. It's as if they don't really consider e-mail permanent--it's like a telephone conversation--here now, gone tomorrow. Unfortunately, that is not the case as many a person has found out to his or her sorrow.

Janette A

I do not believe that you can destroy emails.

I think that it is true that enmails are "public" documents no different than regular letters and documents; therefore, the document retention guidelines from the State Law Library and / or State Archives apply.

Is that not correct? I think that there is a section in the Govt. Code that outlines this stuff.

If Durfee's sanction is not set aside on appeal, I think Chuck Rosentahl should step up to the plate and pay Durfee's fine. If he refuses, I intend to make a sizeable contribution to help Scott pay it.

quote:

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Originally posted by Ken Sparks:
If Durfee's sanction is not set aside on appeal, I think Chuck Rosentahl should step up to the plate and pay Durfee's fine. If he refuses, I intend to make a sizeable contribution to help Scott pay it.

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I'll stand in that line with Mr. Sparks. And I urge anyone else who knows Scott or who has the same immense respect for Scott that I have to do the same.

Good post, Ken!

Doesn't the requirement to keep records only apply to things that relate to some type of government representation--either civil or criminal?

If some of those 2500 deleted e-mails were not related to any governmental operation,then why would the respondent be required to keep them?

That's what I am wondering about....if the subpoena is just a fishing expedition and as broad as "all e-mails" over a many month period, why would any government entity be required to provide that?

It makes sense that we can't avoid the requirement to keep records by making them in the form of e-mail, but many things that we do on daily basis, including some e-mail, would not fall under a public record. It seems as though before establishing that an agency is destroying public records, there ought to be some showing that the documents were public records to begin with?

It doesn't seem like there would be anything wrong with printing a hard copy of whatever e-mails apply to public functions and then deleting jokes or personal e-mails or whatever else we all get on our e-mails.

Depending on the backup tape rotation schedule, the IT department should be able to provide all the email in recent history.

quote:

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Originally posted by RTC:
I do not believe that you can destroy emails.

I think that it is true that enmails are "public" documents no different than regular letters and documents; therefore, the document retention guidelines from the State Law Library and / or State Archives apply.

Is that not correct? I think that there is a section in the Govt. Code that outlines this stuff.

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True, emails are no more or less public than a piece of paper containing the same info, and the state record retention guidelines apply (at least to a state agency like mine). However, the agency has some leeway within the records retention laws. As a result, at my agency inbox items, deleted items and sent items are automatically deleted after 30 days. There was an article in the Austin paper within the last year pointing out how state agency email retention policies vary by agency. Our system seems to work well.

The flexibility in a retention schedule for e-mails involves several factors: the type of agency, the content of the e-mail, the existence of a hard copy. It is wrong to suggest that there is no flexibility.