

Monday, January 31, 2011

Of Porn And Charity

A South Florida businessman has racked up some impressive donations to the community.

According to the Miami Herald, he's donated tens of thousands of dollars to charities for at-risk and underprivileged children. He has helped keep parks open, bought uniforms for a high school football team and supported bands across South Florida. His recent golf tournament raised $82,000 -- 90 percent of which will be donated to causes such as sending disabled kids to Dolphins games, money for Toys for Tots, police charities, Haiti relief, the American Cancer Society and the American Red Cross, he said.

But his business? He runs a couple strip clubs.

Lap dance anyone?

Now an elementary school in Palm Beach County is considering returning a $20,000 gift because the district learned that the donor, Rodriguez, is not just a wealthy businessman who gives to charity.

No, he also runs a legal business.

Rodriguez has always donated anonymously. Now the word is out, and he doesn't understand:

I've been doing this for years and I always do it quietly, Rodriguez said. Now, for some reason they want to make a big deal out of it.

Yeah. So much for trying to be a nice guy.

So Rodriguez used $20,000 made off of businessmen and college kids looking at naked women and gave it to a elementary school in a low income neighborhood.

Thankfully the media found out and not "citing policy," it looks like the school principal will have to give it all back.

Rodriguez still doesn't understand:

I think it's very small-minded, he said. If you ask someone who has cancer if the money to help them is coming from a strip club, I don't think they would care.

Depends on who has cancer I guess.

Cue the Christian Family Coalition, an organization I believe is not affiliated with the public school system:

The school district should consider what the decision will teach its students, said Anthony Verdugo, executive director of the Christian Family Coalition.

Praise the Lord.

Fearing the school would make a big announcement at the elementary school, naked women and all, Verdugo lays out the tenuous argument:

It came from someone associated with the exploitation of women -- and that demeans half the population, Verdugo said. If you do that, where do you draw the line? That's not the message to send to kids -- that it's OK to exploit women.

And of course if we take these donations, the terrorists win.

Let's not mention that Rodriguez has his own idea of morality - he's a former Marine that has been married 30 years and has six children.

Not everyone objects to Rodriguez' money. He also gave $50,000 to keep a park open for at-risk teenagers. The mayor of that city said while he didn't "condone" Rodriguez' career choice - the donation kept 300 to 400 kids off the streets.

He also makes this shocking statement:

One has to look at the broader picture, Jones said. This is a business that is legal, even though, in a lot of circles, it isn't fully received by society. But we're not living in a world where anyone is on a perfect pedestal. You have to ask Does the good outweigh the bad?

Oh boy, where's the leadership? "Look at the broader (no pun intended) picture?" The business is "legal?" Does the good outweigh the bad?

There are so many messages here, many lessons.

I remember when the newly incorporated city I live in started it's own police department. They were going to have a picnic to welcome the police officers. I spoke to a city official and then followed up with a letter offering to sponsor the event. No response. Yes, I live in the community, raise children in the community, support business in the community, but then again, I do defend criminals for a living.

We see these separations of our citizenry daily. We white people lock the doors in black neighborhoods, we stay away from people who do things of which we don't approve, legalty aside. We cannot comprehend that someone who pays taxes, raises a family, but runs a risque business, can do wonderful things for the community. It says more about us then it does about guys like Rodriguez.

At least we have clean corporations like insurance companies to make donations to schools and parks - when they're not denying life saving procedures to their customers.


Friday, January 21, 2011

We, Not They, Lost Two Great Cops

I hesitated to write about this, not wanting to engage the "yeah, shut up, you hate cops," ignorant crowd, but here goes.

Yesterday two Miami-Dade Police Officers were murdered in broad daylight. They went to arrest Johnny Simms on a homicide warrant. To the relief of every defense lawyer in Miami, he's now dead too. Simms was where they thought he may be, and came out of a room, shooting.

As I sat in an airport waiting to come home, I saw the national breaking news on my phone. I told the prosecutor I was traveling with, and we both reacted the same. Yes, a prosecutor and I traveled to a meeting yesterday to discuss changes in the criminal rules - changes which we were on opposite sides. We sat together on the way up, argued intently against each other at the meeting, and then had lunch and did the "same" seats thing on the way back. There's a point to that, some of you got it, for others I'll explain later.

The two officers killed for knocking on a door leave 4 kids. Officer Roger Castillo is a father of 3, and Amanda Haworth a single mother of a 13 year old. Both officers have been on the force for over 20 years, Ms. Haworth's father never wanted her to become a police officer due to his fear she would be killed.

Johnny Simms was a career criminal. He was typical of the "I'm not going to jail today," type that no law or bulletproof vest can prevent. In the days to come, Simms' record will be scrutinized, his 11 arrests, the reasons he was placed on probation, and some legislator will craft a new type of statute that will pretend to prevent this from happening.

The statute will be convoluted, be named after the officers, and will say that someone like Johnny Simms must be sentenced to something, reports must be filed, things must happen.

And a few years from now it will happen again.

There is no law, no sentencing scheme that can prevent a Johnny Simms from murdering police officers again. I trust in Simms' cases there were witness problems and therefore proof problems. No surprise that there were probably certain witnesses not wanting to walk in to a courtroom and testify against this killer.

But first is the tension. Our courthouse will be filled as usual with police officers. They will all have black strips on their badges, all mourning the death of a colleague. The tension will be around for a little while. It will be around in the courthouse, and in traffic stops. Hell, these two were just serving a warrant. They knew Simms was dangerous. Traffic stops, the other site of police murders, are more of a roulette game today then they've ever been. The violence is mind numbing.

Events like this rock not only the police community, but the criminal justice system as a whole, and that includes defense lawyers. Back to my day with the prosecutor.




I remember in 1997 when a beloved highway patrolman was killed by a drunk driver. The funeral looked like congress (before they agreed last week to "sit together.") Defense lawyers on one side, prosecutors on the other. I also remember the looks from prosecutors - as if to say "what are you doing here, this was our officer."

It was sad yesterday to see a defense lawyer comment on a local blog about the murders that "I know we criticize the cops, but....." It was as if to say "I know some of you can't understand that everyone does their jobs....."

It's like saying "I'm a Republican, but I'm still upset over the attempted murder of Democrat Gabrielle Giffords."

It's at the heart of the problem with society today - we are unable to understand, accept, and behave in a manner that teaches our children that while people may argue, and disagree, and fight, and battle in an arena, whether that is a courtroom or political chamber - there is another side of life. There are relationships that transcend our profession(s).

I think in small towns this notion of prosecutors, defense lawyers, and cops having personal relationships outside "the office" is more prevalent and accepted. In the big city, there's more of an "us against them 24/7" mentality. I know cops that hate "all" defense lawyers, defense lawyers that hate "all" prosecutors, and so on. I think it's ingrained in us at a young age here. I remember being a young public defender and being told not to be seen in the coffee shop socializing with prosecutors.

I mourn the loss of Officers Castillo and Haworth, regardless of the prosecutors and cops that may say I have no right to do so because I represent criminals and therefore somehow I'm part of the problem. I do not support crime, I don't support violence, and I don't feel better knowing two officers are dead. There are people out there though that can't understand that a criminal defense lawyer would feel this way. It's too bad no one can help them.

RIP Officers Castillo and Haworth.


Sunday, January 16, 2011

Shame On The Texas Bar, And Us

A 47 year old Texas man, husband and father of two young children, steps on an airplane and goes from 37,000 feet to the bottom of the Atlantic Ocean. Recently promoted to CFO of his multi-national corporation, he leaves us at the height of his career, with his current salary of $1,500.000.00.

His family hires a personal injury lawyer and signs a retainer agreement. The Texas lawyer will receive 33% of any recovery prior to filing a complaint, and 40% thereafter. The personal injury lawyer has a stellar reputation and several 7 and 8 figure verdicts under his belt.

The lawyer writes a "demand letter," and seeks $5,000.000.00. Three days later he receives a call offering $3,000.000.00. Turns out there may have been some safety issue involving the engine, which was discovered by the lawyer doing a quick Google search. With the lawyer having done about 4 hours work, the family agrees to take the $3,000,000.00.

For that four hours of work, the lawyer will receive approximately one million dollars, or $250,000.00 per hour.

And there is nothing unethical or illegal about that.

A 47 year old Texas man, husband and father of two young children, receives a knock on his door from the FBI. Turns out the investment scheme he was promoting is just that, a scheme-to defraud. Recently promoted to CFO of his multi-national corporation, he imagines the inside of a jail cell at the height of his career.

He hires a criminal defense lawyer and signs a retainer agreement. The Texas lawyer will receive $50,000.00 prior to the filing of an Indictment, and $250,000.00 if an Indictment is returned by a grand jury or an Information is filed. The criminal defense lawyer has a stellar reputation and several "stunning" victories under his belt. He has the respect of prosecutors, judges and law enforcement throughout the community. The client happily writes a check for $50,000.00.

The lawyer calls the prosecutor and arranges a meeting. Three days after the meeting, the prosecutor offers to subpoena the client as a witness rather than file charges. With the lawyer having done about 4 hours work, pursuant to his "non-refundable" "earned upon receipt" retainer agreement, the client files a complaint with the Texas Bar, claiming he has just paid his criminal defense lawyer $12,500.00 per hour.

Pursuant to the proposed changes to the Texas Disciplinary Rules of Professional Conduct, he may get the refund to which he agreed he was not entitled.

Scott Greenfield muses about the "right to contract freely" in his post describing the practice of criminal defense."

But he knows we don't have that right. He is probably thinking of Thomas v. Anderson, 861 S.W.2d 58, 62 (Tex. App.-El Paso 1993, no writ). (As a general rule, the court has no authority to determine what fee a litigant should pay counsel, that being a matter of contract). Texas lawyers clearly don't have that right (When interpreting and enforcing attorney-client fee agreements, it is “not enough to simply say that a contract is a contract. There are ethical considerations overlaying the contractual relationship.” Lopez v. Munoz, Hockema & Reed, L.L. P., 22 S.W. 3d 857, 868 (Tex. 2000).

We have the right to do what our State Bar says we can do, because as I've said before, State Bars exist today for the sole purpose of protecting the public from lawyers. "Pay your dues, and keep the clients perfectly happy" is their mantra. While one Bar prosecutor once told me "there are two types of complaints, complaints against lawyers, and complaints against criminal defense lawyers," more and more the civil lawyers who Scott refers to as "Bar types," show their lack of love for us. The love only comes at 1:30 am when the partner who "can't stay in jail or he will die," must be released, and his case dismissed immediately, needs "the best" - for a reduced fee of course because while civil lawyers play like they're rich, they are cash poor and Lexus rich, or don't see the monetary value in criminal defense lawyers. (But get him out now and be thankful that a civil lawyer called you to represent a civil lawyer).

The issue in Texas, that Mark Bennett wants criminal lawyers, no, all lawyers to oppose is the proposed rule that addresses "unearned" fees.

The comment to the proposal states:


Dallas lawyer Michael Sawicki writes about the 41 year old seminal case on contingent fee agreements, Mandell & Wright v. Thomas, 441 S.W.2d 841, 847 (Tex. 1969) which contains an interesting dissent. In Mandell, the court held that a lawyer hired on a contingency fee basis, that is discharged without good cause before the representation is completed, may seek compensation in quantum meruit or in a suit to enforce the contract by collecting the fee from any damages the client subsequently recovers.

But as Sawicki notes, "any attempt to apply the 'strict contract' approach will be subject to substantial scrutiny." He also notes the power contained in the disciplinary rules," reflecting "the trend away from Mandell & Wright seen in other states."

The dissent (where most opinions in favor of anything criminal defense lie), "felt the focus on evaluating the contract should center on the facts at its inception, not when the contract terminated."

Here's where it gets interesting for criminal defense lawyers:

Fee arrangements normally are made at the outset of representation, at time when many uncertainties and contingencies exist, while claims of unconscionability are made in hindsight when the contingencies have been resolved . . . Except in very unusual situations, therefore, the circumstances at the time a fee arrangement is made should control in determining a question of unconscionability. Agreements are unconscionable when they are not or cannot be proper, not when it is merely possible for them to be improper.

Criminal defense lawyers understand this dissent without exception, the word "hindsight" sending chills through every advocate of the criminally accused.

As stated in the comments to the Texas rules: ...“unconscionable” adopts a
perspective to give the lawyer the benefit of the doubt of the uncertainties at the outset.

Texas lawyer Roger Hughes, author of Drafting Appellate Fee Agreements and Handling Fee Disputes: A Defense Perspective, writes about "unconscionable" legal fees.

Apparently, back in the 1940's, freedom of contract was paramount, kind-of:

Back then, except for fraud, breach of fiduciary duty, or if the parties to the contract were mentally incompetent or minors (did we prosecute minors back then?)if the contract was valid when made and the parties are mentally competent, it is enforced without court review of the reasonableness of the fees agreed upon. Polybutylene Plumbing, 23 S.W.3d at 436; Parker v. Boyles, 197 S.W.2d 842, 849 (Tex. Civ. App.–Galveston 1946, writ ref. n.r.e.).

When I said "kind-of," I was referring to this language regarding the exceptions:

There are two recognized exceptions to enforcement once the attorney has performed:

Performed? Cue the circus music.

Have I "performed" if I resolve your case, and return you to your life in 3 hours instead of 3 months? I, like anyone else, sometimes get the question at the end of the case: "So, I get any money back?" "No, you agreed the fee was earned upon receipt." Yes, but you didn't do much."

And then I'll ask this question: "If I told you at the time you hired me, that for that fee I would resolve the case in a matter of a day or two, would you have paid it?"

(Shrugged shoulders).

The terms "unconscionable," and "reasonable," when talking about attorney's fees are determined by a collection of theories, definitions and statutes.

"The ultimate litmus test for unconscionable under Rule 1.04 will be a comparison of the lawyer’s time and effort with the fee and the results." See Walton, 149 S.W.3d at 844. Results? Well since contingent fees in criminal cases are prohibited, of course Texas wouldn't use the standard of results for us criminal defense lawyers. So we're left with time, efforts, and fee.

But who determines our time and efforts in comparison to the fee? State Bars claim they don't participate in "fee disputes," which we all know is horseshit, because the dispute invariably revolves around "I paid too much and want some back." As the question is always whether the fee is "unconscionable" or "unreasonable," State Bars do involve themselves in fee disputes. It is only a fee dispute for which the Bar refuses participation when the fee is determined to be reasonable, therefore leaving the issue to a civil court if the client chooses that route.

The Texas Bar has painstakingly tried to convince criminal defense lawyers that "oh, we're fine, don't worry." And this comment to the rule seems to lead a reasonable lawyer to believe them:


Applicable law? Meaning Texas Law?


It is presumed that the usual and customary attorney's fees for a claim of the type described in Section 38.001 are reasonable. The presumption may be rebutted.

Ok, so we assume all fees are reasonable, but clients can rebut that presumption.


A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:

(1) rendered services;

(2) performed labor;

(3) furnished material;

(4) freight or express overcharges;

(5) lost or damaged freight or express;

(6) killed or injured stock;

(7) a sworn account; or

(8) an oral or written contract.

Or an oral or written contract? Is that the "applicable law" of which the Texas Bar speaks?

Wait a minute, if this is the "applicable law," that a lawyer can recover fees simply based on a contract, then are we saying lawyers are governed by this statute and not the Bar rule? Of course not, because this "applicable law" speaks of freedom of contract, which we lawyers do not have. The Bar will determine whether a fee is reasonable, whether the client agrees to it, and even if there is a clear contract.

The Bar committee proposing these rule changes notes that as to flat fee agreements, it should be clear (to the lawyer, as well as to the client) and agreed to by the client," and that criminal defense lawyers should find some other term to use or not use a term and simply be descriptive in a written fee agreement with the client).







Sunday, January 09, 2011

A Weekend Of The First (Not Second) Amendment










I knew Congresswomen Giffords died.













Tuesday, January 04, 2011

Ha Ha Ha, A Prosecutor Got Arrested

That's not the reaction of every defense lawyer.

But recently, a Texas prosecutor, tough on DUI cases, was arrested for DUI. Former Houston prosecutor Murray Newman got upset at the reaction, calling it a "double standard."

The entire situation sent the criminal defense blogosphere in to a frenzy, as noted by Scott Greenfield:

Taken from a particularized instance to a generic battle, this blew up into a seething animosity lurking just below the surface between prosecutors and defense lawyers. It spawned posts by Matt Brown and Jeff Gamso about the relative nature of our work, our relationship with legal concepts and human reality, and the philosophical foundation for irony. These are all big concepts.

It all started with Houston's own Mark Bennett responding to former Houston prosecutor turned defense lawyer Murray Newman's post:




Mark then makes the point regarding the reaction when someone on the "other" side of the criminal justice system winds up a defendant:


Murray says that when he was a prosecutor:


That's not the philosophy of every prosecutor, and Murray makes the point:



Problem is that those on that power trip are in the same courthouse as Murray. The defense lawyers that went up against Murray, went up against those he calls the "small minority."

Murray is mad at the defense bar. He says that:


He goes on to say that:



And I would never take pleasure in the troubles.

Anyone in the criminal justice system for a few years has seen a colleague, prosecutor, cop, arrested. Hell, when I was an intern in a state attorney's office in law school, a public defender was arrested for his third DUI.

And there was a feeding frenzy. Happiness abound.

Let's not dance around this - anytime someone who enforces law, or defends alleged criminals is arrested, there is a certain "see how that is" reaction.

The reactions, however, depend on two things:

1. The maturity of the lawyer; and,
2. The character of the arrested.

I've known a bunch of prosecutors and defense lawyers arrested, many cops - even judges.

Bad things happen to bad people, and bad things happen to good people.

Upon hearing of the arrest of a prosecutor, my reaction may be, "damn, that's too bad, he was a good guy, always fair, always professional. Or my reaction may be "damn, that's too bad, and too bad the guy's an asshole."

It's real simple for me. It has nothing to do with it being a prosecutor, cop, or judge. It has everything to do with my knowledge of the hell that is the criminal justice system, along with my thoughts on the person arrested. Even the most mature lawyer, upon hearing that the "toughest, meanest" prosecutor was arrested for something, is going to have some sense of Kharma. Some may even wish for jail for a prosecutor that never considered giving anyone a break.

Any defense lawyer that relishes in the mere fact that "a" prosecutor is arrested, better hope they never step off a sidewalk when a cop is around, or have one too many ar the bar on Friday evening.


I've done it, several times.



Kind of all comes down to the Golden Rule, huh?


Sunday, January 02, 2011

Embracing Michael Vick

The other day I saw a criminal defense lawyer promoting a petition against President Obama's words of thanks to Philadelphia Eagles' owner Jeffrey Lurie for giving Michael Vick a second chance. This criminal defense lawyer spends a great deal of time advocating against animal abuse. I think that's wonderful.

But I disagree that criminal defense lawyers should be raging against Vick getting a second chance.

Now to discuss this, I need to go back a few steps. You can't discuss anything relating to animal abuse without making a few things clear. So to all you animal rights activists, stop typing, for a moment.

Certain crimes are more emotional than others - crimes against children, the elderly, the disabled, theft of money from charities, and yes, animal abuse.

Animal abuse is one of those crimes that is defenseless. Stealing food, for example, while a crime, can be understood if the person is starving to death.

Abusing defenseless animals is something for which there is no excuse.

Michael Vick abused defenseless animals. Call it "dogfighting," call it whatever you want - he put dogs in an environment where the goal was for them to kill each other. Disgusting, pathetic, criminal.

So before you type line 6 of the talking points "you support dog fighting, I don't.

I support Michael Vick getting a "second chance," and encourage all criminal defense lawyers to do the same.

Let me continue.

When the ink was still drying on my law degree, I was appointed to represent a Santeria priest charged with slaughtering animals. His defense - religion of course, but the way he slaughtered these animals was not in accord with religious methods.

A few weeks after my appointment, I was called in to court. The judge was receiving letter after letter, call after call. On the record, the judge handed over all the letters that were received - everyone saying the same thing, word for word. "If the defendant is convicted he should receive the maximum sentence." Some letters varied. Some were downright nasty, particularly the one written by my aunt.

The letters to the judge kept pouring in. A leader in the Florida ASPCA made sure he went to the press and trashed my client. I responded with a letter to his boss. He responded with a letter to my (new) boss. I was told to apologize and back off - "we don't need to get in to it with those people." My boss was on the cusp of an election. I complied.

The point is that animal rights activists are not the easiest people with which to engage in debate.

I told this criminal defense lawyer that I didn't think criminal defense lawyers should be advocating that someone who pled guilty, served their prison sentence, and successfully completed probation, shouldn't be able to return to their profession.

Now I've learned over the years that the criminal defense bar is not homogeneous. There are conservative republicans, liberal democrats, devout Christians, and devout atheists (is that an oxymoron?) There are criminal defense lawyers who passionately believe in the death penalty, and those that believe every client is innocent. It's important as criminal defense lawyers that we understand this distinction. We may be on the same side of the system, but we are far from all being on the same team when it comes to many of life's issues.

When I pursued the issue of Vick getting a second chance, and how we as criminal defense lawyers should use this experience as a way to show people that being a convicted felon should not be the end of life, I was told to have a sex offender babysit my kids. I wasn't surprised, this is how this crowd rolls.

I explained that football has nothing to do with dogs. Of course I wouldn't let a sex offender babysit my kids, nor would I let a chronic car thief borrow my car - but Michael Vick should be able to play football.

Now when Vick was arrested, I said he would never again play in the NFL. It wasn't because I didn't think he should play, but because I thought that the animal rights advocates would make the world of the NFL a living hell - that they would attend every game, protest sponsors, yell things to fans entering stadiums.

There were some protests, but they died out. The objection now is clear: Vick is doing well, he's throwing good passes, running fast, making fans happy. This, is the objection.

I asked this criminal defense colleague to tell me what would happen if Vick was a plumber? What if Michael Vick was a plumber, got arrested for dog fighting, pled guilty, went to prison (by the way, how many people have gone to federal prison for dog fighting?), was released, and went back to plumbing? The answer is obvious - no one would care.

The caring comes from the fact that Vick went back to a career where the world can see him on Sundays, and his salary is not $30,000, but more money that most people make in a lifetime. Animal rights activists don't find this fair. That's ok, I understand. They wanted life, or death.

We live in a society where just getting arrested these days can end a career. Convicted felons have little chance of getting a job, much less returning to their former careers - even when their job has nothing to do with their crime.

The argument from criminal defense lawyers who despise Vick is that "none of my clients would be able to finish their sentence and return to making millions." It's the rich vs. poor argument that gets us nowhere. It's the "why did he get that sentence and my client got this sentence" cry that results in nothing.

The discussion of "celebrity justice" when it comes to Vick though, is non-sensical. Vick didn't get celebrity justice. He got indicted, he went to prison, he served his time. He killed dogs. No one thinks that's ok. But his job is to run and jump and throw, not to be a zoo keeper or a Veterinarian.

Sometimes the criminal defense bar needs to take the opportunity to use an anomaly in the system to their advantage - talk about how someone like Vick can return from the depths of conviction and be a productive person.

Or use your agenda to wail against what it is you really want - an opportunity for your client to be like Michael Vick.

Brian Tannebaum practices both Criminal and Bar discipline defense, and is the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter