What things would you like a defense attorney, learning to work on clearing up a client's history, to know?

For instance,

I hate it when they...

I wish they'd learn to...

Thoughts?

[This message was edited by P.D. Ray on 12-30-10 at .]

#1 thing I'd say is to just make sure you know what actually happened with the case -- the charge and the disposition. I get petitions all the time who have the charge wrong, or they thought it was dismissed when it was deferred, or what have you. Don't just take the client's word for it, look it up. (Many counties have an online system for doing so, so you don't have to actually go to the clerks anymore.) Obviously you need to know whether to file for an expunction or nondisclosure, but there's also slightly different wording and procedures for if your defendant was acquitted or had the case dismissed.

I hear that there's a great book on the subject...

Yeah, I was looking for your book, but I didn't see it under the fancy 'buy a book' tab on the left of this web page.

It's out of print right now. We were too popular.

So...you've been lurking in the hall outside my office, listening to me mutter to myself!

Since you asked, these are a few of my not-so-favorite things attorneys do on expunctions and nondisclosures:

--Andrea's gripe is very high on the list for me too (It actually seems to surprise some that their criminal, non-attorney clients were a bit inaccurate about the dispositions of their 5 or 10 year old cases!)

--not clearly listing in both the petition AND the order 1) who their client is, and 2) the relevant detail of the criminal offense. Yes, I have had multiple attorneys submit proposed agreed orders where the body basically just says, "The Court hereby GRANTS the requested expunction. Signed, The Judge" Concise, I'll grant them that, but it seems to throw them when I point out that won't do their client any good.

--Wanting to list every conceivable agency under the sun as being agencies that they think have expungeable records. It tends to upset people sometimes to get an expunction order when their agency wasn't ever involved and never had any records. And then they want to call me, because I signed off on it...

--My top complaint is that we have quite a few attorneys who completely disregard the whole statute of limitations aspect of things,relying merely on the fact that, "Well, it's been dismissed, hasn't it? He'll be entitled to it sooner or later, can't we just go ahead and get this done now so he doesn't have to pay a new filing fee?" One of them actually asked the court to abate the case for 3 1/2 years. Some of them really don't seem to realize it's a statutory requirement, while others have GOT to realize that, because I've had the same conversation with them four or five times now. Moral of the story: before you file anything, READ THE STATUTE!!!

Okay, I've vented. I feel slightly better now. Thank you! Out of curiosity, are you trying to put together a go-by list or something? I've been thinking about doing that myself, since I often have attorneys stopping me in the halls to ask random expunction/nondisclosure questions. If so, let us know if it helps--good luck!

Elizabeth Foley
Ass't Crim. D.A.
Galveston County

Actually,

With my wife pregnant with our first child, I left the Williamson County DA's office to move to Dallas to be near family. There wasn't a good option available in prosecution, so I've now opened a private practice joining some attorneys here practicing criminal and juvenile law.

I'm asking the questions before I need the answers so I'm not 'that kind of attorney'. If this thread gets long enough, I may put together something for the newsletter in the DFW area and will happily send you something you can pass around.

In fact, now that you mention it, that's a pretty good idea.

If you have a complaint or things you'd like defense attorneys to know, post up and I'll put something together.

quote:

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Originally posted by E. Foley:
Some of them really don't seem to realize it's a statutory requirement, while others have GOT to realize that, because I've had the same conversation with them four or five times now. Moral of the story: before you file anything, READ THE STATUTE!!!

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Wait, you mean there's a statute that covers these things? Huh. What a weird idea.

Man, you really are like the expungement fairy.

Is it "expunction" or "expungement"?

Personally, I prefer the former, but I've never ... well, I've never cared enough to really research it.

To the Cloud! (No, wait, that's the wrong product.)

To the User Forum!

I think "expungement" is like "preferred adjudification."

Yeah the Statute clearly states 'Expunction'.

Shame on me for using a word that google suggests which leads to lots of opinions.

We usually say "expungificate" around here, but I wouldn't use that on your motion.

I had a defense attorney not only read the statute, but argued that it didn't really mean Dirtball, Client, had to wait the required number of years.

I'll add one more piece of advice, my biggest pet peeve. Never EVER let the words "But ____ County doesn't do it like that!" pass your lips.

"Wait, you mean there's a statute that covers these things? Huh. What a weird idea."

Um, yeah. I've had several attorneys ask me to please tell them just exactly where this "expunction statute" I keep talking about and claiming they haven't complied with is located. And sadly, I have one going on right now where the petitioner is actually entitled to expunction of one of the three cases they asked for (got deferred on #2 and straight probation on #3), but they can't seem to grasp quite what the problem is on #2 and #3, can't seem to get me an order for #1 (aside from some kind of weird non-disclosurey thing), and the attorney won't call me back. The CLIENT, on the other hand, having given up on his attorney, has been calling ME a couple of times a week, and can't understand why even though his attorney won't do her job, I still can't talk to him about his case (which is now on the drop docket). Anyone have any ideas on how to handle that?

Elizabeth Foley
Ass't Crim. D.A.
Galveston County

I'd send an email and suggest the following link:

http://www.txdps.state.tx.us/administration/crime_records/pages/juvenilecriminalhistoryrecords.htm

And suggest that the attorney amend the petition.

"I'd send an email and suggest the following link:

http://www.txdps.state.tx.us/administration/crime_records/pages/juvenilecriminalhistoryrecords.htm

And suggest that the attorney amend the petition."

Well, thanks, but that's not the problem--I really don't care if they amend the petition (it does include the expungeable case and all the needed agencies). The problem is ethical in nature--I can't "do business" directly with the petitioner, because he's represented, and needs to go through his attorney, as I keep trying to tell him. But his attorney won't do anything--won't show up for court, won't talk to me, won't send me a usable order. That's not the petitioner's fault. Since there's no question he's entitled to have the one case expunged, and he's paid the required fees, filed the petition, etc., I think in all fairness, he ought to get it. But procedurally and ethically, I'm not sure how to achieve that given the situation with his attorney.

Elizabeth Foley
Ass't Crim. D.A.
Galveston County

You might request a setting on the matter and ask the court administrator (or clerk - however they do it in your county) to make sure the Petitioner is sent a copy of the setting notice (not just his attorney). Then if the petitioner appears without counsel, the judge can ask him if her wishes to proceed. You can then announce your "agreement" as to the one case and explain to the court your objections to cases 2 & 3. At least that would move it off the docket and accomplish a reasonable result.

Thanks, Larry--that was in fact the only plan of attack I could come up with and was next on the list, but apparently the petitioner contacted the court on his own Thursday, was told by her about the potential DWOP, and amazingly enough, the attorney emailed me an order that afternoon. A little late for a Christmas miracle, but I have no problem with New Year's miracles! Particularly since there's also a pro se nondisclosure petition filed on both of the unexpungeable cases with the hearing set for tomorrow. I felt very limited in what I could talk to him about on that since it's on the same cases I was opposing on the expunction. While the guy sounds pretty reasonable, much like his attorney, I don't think he gets that regular probation's a conviction that won't ever go away, so we need to chat about that. We have a brand new judge in that court, and I'd really rather not subject everyone to a hearing if we can sort it out beforehand.

Elizabeth Foley
Ass't Crim. D.A.
Galveston County