Volume 57, Number 4

SOUTH TEXAS LAW REVIEW

SOUTH TEXAS COLLEGE OF LAW HOUSTON, TEXAS

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SOUTH TEXAS LAW REVIEW SUMMER

2016

VoL. 57 No. 4

EDITORIAL BOARD

2015-2016 KELSIE HAALAND

Editor in Chief

DRAKE LAWSAGE

Managing Editor

REBECCA MARSHALL

DAVID MANN

Information Editor

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EVAN KORNGOLD

KYLE BouDousQUIE

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JESSICA JUNEK

MITCHELL POWELL

TYLER EPSTEIN

EMILY KIMMITT

KATLIN ROBINSON

AMANDA GARZA

COURTNEY LYNCH

JACKSON GAYLE

KIM ROBARDS LYLE RUDOLPH

Assistant Editors AssT. DEAN ELIZABETH A. DENNIS

PROF. VAL D. RICKS

Faculty Advisor

Faculty Advisor

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JACOB HUBBLE

Faculty Advisor

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Members BERNARDINO AGOSTO

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The opinions expressed in the South Texas Law Review are those of the contributors and are not necessarily representative of the views of the editors of the Review or of South Texas College of Law. IV

SOUTH TEXAS LAW REVIEW SUMMER

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VoL. 57 No. 4

EDITORIAL BOARD

2016-2017 EMILY PENDLETON

Editor in Chief

BRANDON GoscH

Managing Editor

AMANDA GARZA

URvASHI MoROLIA

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Senior Articles Editor

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PROF. VAL D. RICKS

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SOUTH TEXAS COLLEGE OF LAW DONALD J. GuTER, President, Dean, and Professor of Law Maxine D. Goodman, Vice President, Associate Dean, and Professor of

Law

BRUCE A. McGOVERN, Vice President, Associate Dean for Academic

Administration, and Professor of Law

CATHERINE GREENE BURNETT, Vice President, Associate Dean, Professor

of Law, and Director of the Pro Bono Honors Programs

JOHN J. WoRLEY, Vice President, Associate Dean for Academic Affairs,

and Professor of Law

FACULTY

JAMES J. ALFINI, B.A., Columbia University; J.D., Northwestern University School of Law; Dean Emeritus and Professor of Law. JOHN H. BAUMAN, B.A., Pomona College; J.D., Stanford Law School; Professor

of Law.

JosH BLACKMAN, B.S., The Pennsylvania State University; J.D., George Mason University School of Law; Associate Professor of Law. VANESSA BROWNE-BARBOUR, B.A., Carnegie-Mellon University; J.D., Duquesne University School of Law; Professor of Law. CATHERINE GREENE BURNETT, B.A., University of Texas; J.D., University of Texas School of Law; Vice President, Associate Dean, and Professor of Law. ELAINE A. CARLSON, B.S., Southern Illinois University; M.A., McMaster University; J.D., South Texas College of Law Houston; Stanley J. Krist

Distinguished Professor of Texas Law; 2008 Distinguished Alumna and Professor of Law.

RICHARD R. CARLSON, B.A., Wake Forest University; J.D., University of Georgia School of Law; Professor of Law. SANDRA J. CARNAHAN, B.A., University of Arkansas at Fayetteville; J.D., South Texas College of Law Houston; LL.M., University of Houston Law Center;

Professor of Law.

AMANDA HARMON COOLEY, B.A., University of North Carolina at Chapel Hill; J.D., University of North Carolina School of Law; Professor of Law. GEOFFREY S. CORN, B.A., Hartwick College; J.D., George Washington University Law School; LL.M., The Judge Advocate General's School, United States Army; Professor of Law. SusAN WAITE CRUMP, A.B., University of California at Davis; J.D., University of Houston Law Center; Professor of Law. ELIZABETH A. DENNIS, B.A., Hollins College; J.D., South Texas College of Law Houston; Assistant Dean, Director of Academic Internships, and Associate

Professor of Clinical Studies.

W. DAVID EAST, B.A., Baylor University; J.D., Baylor University School of Law; LL.M., George Washington University Law School; Director of

Transactional Practice Center and Professor of Law.

MATTHEW J. FESTA, B.A. University of Notre Dame; M.P.A., Murray State University; M.A., Vanderbilt University; J.D., Vanderbilt University Law School; Professor of Law. TED L. FIELD, B.A., University of Illinois at Chicago; M.A., Northwestern University; J.D., The John Marshall Law School; Professor of Law. Vl

r DEREK FINCHAM, B.A., University of Kansas; J.D., Wake Forest University School of Law; Ph.D., University of Aberdeen School of Law; Professor of

Law.

SHARON FINEGAN, B.A., University of Virginia; J.D., American University Washington College of Law; LL.M., Columbia Law School; Professor of

Law.

PAMELA E. GEORGE, B.S., University of Texas; M.L.S., University of Texas; J.D., University of Texas School of Law; Professor of Law. MAXINE D. GooDMAN, B.A., Brandeis University; J.D., University of Texas School of Law; Vice President, Associate Dean, and Professor of Law. DONALD J. GuTER, B.A., University of Colorado; J.D., Duquesne University School of Law; President, Dean, and Professor of Law. HELEN BISHOP JENKINS, B.M.E., Peabody Conservatory of Johns Hopkins Institute; M.M.E., Howard University; J.D., University of Houston Law Center; Executive Vice President Emeritus and Professor of Law. R. RANDALL KELSO, B.A., University of Chicago; J.D., University of Wisconsin Law School; Spurgeon E. Bell Distinguished Professor of Law. CHRISTOPHER S. KULANDER, B.S., Wright State University; J.D., University of Oklahoma College of Law; Ph.D., Texas A&M University; Professor of Law. JosEPH K. LEAHY, B.A., Swarthmore College; J.D. New York University School of Law; Professor of Law. KATERINA LEWINBUK, B.A., Minnesota State University; J.D., John Marshall Law School; Professor of Law. BETTY J. LUKE, B.S., Lamar University; B.S., University of Texas Medical Branch; J.D., South Texas College of Law Houston; LL.M., University of Houston Law Center; Associate Professor of Clinical Studies.

BRUCE A. McGOVERN, B.A., Columbia University; J.D., Fordham University School of Law; LL.M., University of Florida College of Law; Vice President,

Associate Dean, and Professor of Law.

SHELBY AD. MoORE, B.A., Towson State University; J.D., University of Baltimore School of Law; LL.M., Harvard Law School; Professor of Law. RAY E. MosEs, B.A., University of Texas; J.D., University of Texas School of Law; LL.M., Northwestern University Law School; S.J.D., Southern Methodist University School of Law; Professor of Law. OLGA L. MOYA, B.A., University of Texas; J.D., University of Texas School of Law; Professor of Law. JAMES L. MussELMAN, A.A., Illinois Central College; B.S., Illinois State University; J.D., Brigham Young University; J. Reuben Clark Law School;

Professor of Law.

FRANCESCA ORTIZ, B.A., University of Texas; J.D., Harvard Law School;

Professor of Law.

PHILLIP E. PAGE, B.S., University of Tennessee; J.D., Memphis State University College of Law; LL.M., New York University School of Law; Professor of

Law.

JAMES W. PAULSEN, B.F.A., Texas Christian University; J.D., Baylor University School of Law; LL.M., Harvard Law School; Professor of Law. AMANDA J. PETERS, B.A., Texas Tech University; J.D., Texas Tech University School of Law; Helen and Harry Hutchens Research Professor and Professor

of Law.

JEAN FLEMING POWERS, B.A., University of Texas; J.D., University of Houston Law Center; Professor of Law. ScoTT REMPELL, B.A., University of Michigan; J.D., American University, Washington College of Law; Professor of Law.

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JEFFREY L. RENSBERGER, B.A., Wabash College; J.D., Indiana University, Bloomington; Vice President for Strategic Planning and Institutional Research and Professor of Law. CHARLES W. "RocKY" RHODES, B.B.A., Baylor University; J.D., Baylor University School of Law; Vinson & Elkins Research Professor and Professor of Law. VAL D. RICKS, B.A., Brigham Young University; J.D., Brigham Young University, J. Reuben Clark Law School; Charles Weigel II Research Professor and Professor of Law. ARNOLD RocHv ARG, B.A., University of Pennsylvania; J.D., George Washington University; Visiting Professor of Law. GARY S. RosIN, B.S., Texas A&M University; J.D., University of Texas School of Law; Professor of Law. NrnRI MATHIS RUTLEDGE, B.A., Spelman College; J.D., Harvard Law School; Professor of Law. MARK R. SIEGEL, B.S., B.A., University of Florida; J.D., Florida State University College of Law; LL.M.,Emory University School of Law; Professor of Law. ANDREW T. SoLOMON, B.A., University of Michigan; J.D., Boston University School of Law; Professor of Law. ToBIN A. SPARLING, B.A., Dartmouth College; M.S., Columbia University School of Library Service; M.A., Columbia University Graduate School of Arts & Sciences; J.D., Columbia Law School; Professor of Law. MARKE. STEINER, B.A., University of Texas; J.D., University of Houston Law Center; Ph.D., University of Houston; Professor of Law. Dru Stevenson, B.A., Wheaton College; J.D., University of Connecticut School of Law; LL.M., Yale Law School; Professor of Law. CHERIE 0. TAYLOR, A.B., Harvard University-Radcliffe College; J.D., University of Georgia School of Law; LL.M., Georgetown University Law Center; Professor of Law. T. GERALD TREECE, B.A., University of Houston; J.D., University of Houston Law Center; Vice President, Associate Dean, Special Counsel to the President and Dean, and W. James Kronzer, Jr. Distinguished Professor of Law. MICHAEL E. WHEELER, B.A., Arkansas Tech University; J.D., University of Arkansas at Little Rock William H. Bowen School of Law; Professor of Law. KENNETH WILLIAMS, B.A., University of San Francisco; J.D., University of Virginia School of Law; Professor of Law. JoHN J. WORLEY, A.B., University of Georgia; J.D., University of Georgia School of Law; M.A., Rice University; Vice President, Associate Dean, Director of Transactional Law Practice Certificate Program and Professor of Law. KEVIN M. YAMAMOTO, B.S., University of California at Davis; J.D., University of San Diego School of Law; LL.M., University of Florida College of Law; Professor of Law.

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SOUTH TEXAS COLLEGE OF LAW BOARD OF DIRECTORS EXECUTIVE COMMITTEE

'86

J. KENNETH JOHNSON

Chairman

GENORA KENDRICK BOYKINS

'85

MICHAELS. HAYS '7 4

'90

MICHAEL K. HURST MICHAEL

w. MILICH '97

IMOGENS. PAPADOPOULOS GORDON QUAN JEFFREY RUSK

'77 '83

RANDALL 0. SORRELS

'84

'87 '86

JAMES D. THOMPSON III

MEMBERS

'82 '74 DARRYL M. BURMAN '83 HoN. ROBERT A. ECKELS '93 STEWART w. GAGNON '74 HoN. EvA GuzMAN '89 RANDY R. HOWRY '85 JOSEPH K. LOPEZ '78 J. GooDWILLE PIERRE '00 ANDREWSOMMERMAN '86 LIAS J. "JEFF" STEEN '87 AMY DUNN TAYLOR '82 RUTHIE NELSON WHITE '96 RICHARD ANDERSON

LARRY BAILLARGEON

CHAIRMAN EMERITUS MICHAELS. HAYS

IX

'74

SOUTH TEXAS COLLEGE OF LAW

ADVISORY COUNCIL MEMBERS N. TERRY ADAMS, IR. HON. JEFF BOHM

ASHLEY GARGOUR

JAMES STUART LAWSON JAMES D. SEEGERS

STACEY L. SEVEROVICH DRU STEVENSON

DULCIE G. WINK JOHN J. WORLEY

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SOUTH TEXAS LAW REVIEW SUMMER

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VoL. 57 No. 4

SYMPOSIUM: ETHICAL ISSUES IN FAMILY LAW, PRACTICE, AND POLICY FORE WORD ................................. . Pamela

E. George

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ARTICLES SHARIA AND ANTI-SHARIA: ETHICAL CHALLENGES FOR THE CROSS-CULTURAL LAWYER

REPRESENTING MusLIM WOMEN ............ . Andrew

THE BucK STOPS HERE . . . OR MAYBE NoT ........................

L. Milne 449

Honorable David D. Farr 469 Calvin McLean

IN RE LEE How THE PARENTAL RIGHT TO SELF-DETERMINATION CAME TO TRUMP

JUDICIAL AUTHORITY ................ Honorable DIRTY DEEDS DONE NoT

DIRT CHEAP ................... Honorable

Leta S. Parks 483

Diane M. Guariglia 503

WHEN EvrnENTIARY MATTERS CRoss

ETHICAL BOUNDARIES ........................ Heather

L. King 527 Jessica H. Janicek Paul M. Leopold

"WHY CAN'T WE BE 'FRIENDS'?": ETHICAL CoNcERNs IN THE UsE

OF SocIAL MEDIA................. Vanessa

S. Browne-Barbour 551

PRIVACY RIGHTS IN A PUBLIC SOCIETY: PROTECTING YOUR CLIENT AND YOURSELF

FROM INVASIONS OF PRIVACY .............. Reginald xi

A. Hirsch 579

TRANSCRIPTS

Marshall Davis Brown 611 Bobby Newman J.D. "Bucky" Allshouse Honorable Roy Moore Pamela E. George

PANEL DrscussmN: THE REAL ZEAL ..

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FOREWORD

BY PAMELA

E.

GEORGEt

Over the past forty years the practice of family law has evolved so that it is currently one of the most sophisticated, if not complicated, areas of practice. Gone are the days of divorce decrees that did little more than break the bonds of marriage, appending a list of properties that each party would take at the end of the marriage. Child custody was seldom an issue, the presumption being that a child should be placed with their mother.

The evolution that family law has undergone is most likely linked to the advent of board certification in family law by the Texas Board of Legal Specialization. 1 Beginning in 1975, lawyers in Texas could be­ come board certified in family law;2 thereafter, one began seeing cases tried in the family law courts that were anything but one dimensional.

Creative lawyers began importing principles and remedies from other areas of practice, applying them to marriage dissolution cases.

For example, issues of marital property expanded so that divorce lawyers, when dividing marital assets, had to be familiar with the law of business organizations; i.e., corporations,3 partnerships, joint ven­ tures,4 etc. From this base, lawyers began applying corporate opportu­ nity doctrine, reimbursement principles,5 and examining tax treatment to argue ultimate characterization.6 Lawyers also had to know valuat Pamela E. George has been a Professor of Law at South Texas College of Law Houston since 1981. Primarily, she teaches Texas Family Law and Texas Marital Property Law, but on occasion she teaches seminars and has been known to take on Texas Proce­ dure courses. Professor George is Board Certified in Family Law and Civil Appellate Law by the Texas Board of Legal Specialization. l. About TBLS, TEX. BOARD LEGAL SPECIALIZATION, http://www.tbls.org/ About.aspx (last visited Nov. 16, 2016).

2. Id. 3. See Vallone v. Vallone, 644 S.W.2d 455 (Tex. 1982).

4. See Small v. Harper, 638 S.W.2d 24 (Tex. App.-Houston [1st Dist.] 1982, writ ref'd n.r.e.).

5. See Anderson v. Gilliland, 684 S.W.2d 673 (Tex. 1985).

6. See Thomas v. Thomas, 738 S.W.2d 342 (Tex. App.-Houston [1st Dist.] 1987, writ denied).

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SOUTH TEXAS LAW REVIEW

tion principles for closely held businesses 7 and become familiar with the concept and valuation of goodwill. 8 Divorce lawyers even had to familiarize themselves with bankruptcy laws in order to understand the effect of bankruptcy on a pending divorce action or to be able to advise a client as to whether the filing of bankruptcy could work to their advantage.9

Likewise, the abrogation of the interspousal tort immunity doctrine for both intentional1" and negligent" torts, coupled with the recognition that tort actions could be joined with divorce,

2

made clear

that divorce lawyers suddenly had to bring tort lawyers to the divorce team or become proficient in the representation of the injured and the

tort feasor, alike.

With the advent of joint custody 3 and the swelling number of fathers seeking sole managing conservatorship,14 divorce and custody 7. See Stearns v. Martens, 476 S.W.3d 541 (Tex. App.-Houston [14th Dist.] 2015, no pet. h.); Rathmell v. Morrison, 732 S.W.2d 6 (Tex. App.-Houston [14th Dist.] 1987, no writ).

8. See Finn v. Finn, 658 S.W.2d 735 (Tex. App.-Dallas 1983, writ ref'd n.r.e.).

9. While quite a sophisticated concept, the July 2016 Texas Bar Exam inquired about the effect of bankruptcy on a pending divorce and as to what obligations set forth in a decree might be dischargeable. Texas Bar Examination, TEX. BOARD L. EXAMINERS 2

(2016), https://ble.texas.gov/2016_July_PM. 10. See Bounds v. Caudle, 560 S.W.2d 925 (Tex. 1977).

11. See Price v. Price, 732 S.W.2d 316 (Tex. 1987).

12. See Mogford v. Mogford, 616 S.W.2d 936 (Tex. Civ. App.-San Antonio 1981, writ ref'd n.r.e.).

13. See TEX. FAM. CODE ANN. §101.016 (West 2014) ("'Joint managing conservatorship' means the sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decisions may be awarded to one party."); see also id. §153.131(b) ("It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child.").

14. Section 153.132 of the Texas Family Code provides: Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights: (1) the right to designate the primary residence of the child; (2) the right to consent to medical, dental, and surgical treatment involving invasive procedures; (3) the right to consent to psychiatric and psychological treatment; (4) the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child; (5) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child; (6) the right to consent to marriage and to enlistment in the armed forces of the United States; (7) the right to make decisions concerning the child's education; (8) the right to the services and earnings of the child; and (9) except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in

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lawyers had to become experts in psychological testing and diagnosis.

Likewise, cases which focused on the termination of the parent-child relationship could also encompass criminal abuse complaints against one or more parent.' 5 These termination cases also spawned a variety of evidentiary concerns as they ping-ponged between criminal and family law courts.

The afore mentioned subjects which are now part and parcel of a sophisticated family law practice are by no means exhaustive. These examples just establish that family law is anything but homogenous; but, why is this being discussed in this Foreword to an Ethics Symposium issue?

Just as the practice of family law can now be described as all encompassing, so are the ethical concerns that arise in a family law case.

As each new area of law has been pulled into the family law arena, so have the ethical considerations been expanded. While, historically, the ethics symposiums that have been presented at South Texas College of Law Houston focused on the ethics in a single area of law, ethical concerns in the practice of family law are not so easily corralled. The breadth of subjects existing within the discipline of family law gave rise to a multitude of topics that could have been explored for the 2016 Ethics Symposium. The student editors succeeded in presenting a varied, cutting edge Ethics Symposium, that provided an in depth analysis of a myriad of ethical issues while providing a bit of entertainment.

Thus, the 22nd Annual South Texas College of Law Symposium, Ethical Considerations in Family Law, presented by the South Texas Law Review that was held on February 5, 2016, explored ethics from a myriad of legal disciplinary perspectives. The symposium also considered the distinction between the zealous lawyer working within ethical guidelines and the lawyer who has become a zealot. Moderators at the Symposium included the Honorable Roy L. Moore, Judge of the 245th Judicial District Family Court in Harris County, Texas, who tirelessly and insightfully led discussion throughout the day. Later in the day, distinguished family law practitioner J.D. "Bucky" Allshouse, joined Judge Moore and challenged the audience and speakers alike with his questions and comments. Greg Enos, publisher of and reporter for the

relation to the child's estate if the child's action is required by a state, the United

States, or a foreign government.

Id. § 153.132.

15. See, e.g., In re J.L., 163 S.W.3d 79 (Tex. 2005).

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[Vol. 57:xiii

Mongoose, delivered the luncheon address, which opened many an eye to the power of the press.

To start the Symposium, Andrew L. Milne, one of New Hampshire's Disability Rights Center staff attorneys, 16 made a timely presentation entitled, "Sharia and Anti-Sharia: Ethical Challenges for the Cross-Cultural Lawyer Representing Muslin Women." While primary ethical concerns are the same whether representing the Muslim or non-Muslim woman, certain cultural mores existing in the Muslim community can give rise to special ethical concerns. A knowledge of and sensitivity toward these cultural mores can aid an attorney in the representation of a Muslim woman, particularly in today's post 9/11, post 2016 election world. Mr. Milne discussed the strata within the Muslim community and Muslim religion and the ethics involved in representing Muslim women within that varied strata. The focus of the article and the presentation was the representation of the conservative Muslim woman and what divorce means for her within her religious community.

As clearly enunciated in the presentation, an attorney has the ethical duty to not rely upon anecdotal information when representing a Muslim woman, as such can lead to a paternalistic approach that serves neither the client's interests nor her needs. As Mr. Milne explained, "[o]n one hand, there is some reason to be concerned about the welfare of Muslim women in family law, but on another hand there is an insidious tendency to objectify, and thereby re-victimize, Muslim women while purporting to attack Muslim patriarchy." 17 Mr. Milne further explained that, culturally, some Muslim women must cope with having to obtain a divorce decree in the state courts while knowing that such a decree might not be recognized within their community. Accordingly, the attorney must be sensitive to the importance of obtaining marital dissolution under Sharia. Ethically, a lawyer representing a woman in such a situation must make respectful accommodations so that the client's religious and spiritual needs are met while obtaining a divorce in a state court.

During the discussion at the symposium, there was a question from the audience regarding the testimony of a witness, a Muslim woman, dressed in the face covering niqab. Something so easy as confirming identity presents an ethical dilemma for the judge and the law16. Andrew L. Milne was also a former Clinical Teaching Fellow at South Texas College of Law Houston.

17. Andrew L. Milne, Sharia and Anti-Sharia: Ethical Challenges for the Cross-Cultural Lawyer Representing Muslim Women, 57 S. TEX. L. REV. 449, 450 (2016).

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yer alike, when trying to preserve the sanctity of testimony while honoring a person's chosen religion. Judge Moore mentioned that a female bailiff can sometimes be utilized to establish identity, while respecting a woman's beliefs. Mr. Milne's article provides an entree to ethical and effective representation of the Muslim woman that should be read before taking on such representation.

The Honorable David Farr, Judge of the 312th Family District Court,18 presented a paper entitled, "The Buck Stops Here . . .or Maybe Not." 9 The Judge acknowledged that the legislature has, with consistency and vehemence, made an attempt to legislate away much judicial discretion.2" Nonetheless, as any practitioner knows and every judge recognizes, a trial judge's discretion, especially in the family law arena, still looms large.

The Judge's primary and well accepted premise is that the existence and application of judicial discretion in family law cases, as a practical matter, can never be legislated totally out of existence. However, the Judge was very careful to explain that there are bounds to that discretion and, accordingly, it cannot be exercised in an unbridled fashion. A trial court is bound by common law precedent and statute and Judge Farr recognized that "[t]he sword in our judicial system is wielded by the Texas Commission on Judicial Conduct. ' 21 To use, or perhaps abuse, that discretionary power could encompass a crossing of ethical boundaries, many of which are addressed by Judge Farr. In considering the unethical exercise of judicial discretion, one judge and decision comes to mind, Roy S. Moore,2 2 Chief Justice of the Alabama Supreme Court, who ordered probate judges in his state to ignore and refuse to apply edicts of the federal courts regarding the celebration and recognition of same sex marriages. Judge Moore was suspended on Friday, September 30, 2016, having been unanimously found by a nine-member panel to have violated Alabama's judicial ethic ca-

18. Judge Farr is a graduate of Texas Southern University and has taught Family Law at South Texas College of Law Houston.

19. Law Review member, Calvin McLean, aided Judge Farr in the preparation of his article and presentation.

20. See, e.g., TEX. FAM CODE ANN. §§ 153.251-317 (Standard Possession Orders), 154.121-.133 (Child Support Guidelines) (West 2014 & Supp. 2016).

21. Judge David D. Farr & Calvin McLean, The Buck Stops Here... or Maybe Not, 57 S. TEX. L. REV. 469, 471 (2016).

22. Not ever to be confused with our beloved Judge Roy L. Moore of the 245th District Court, Harris County, Texas.

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nons.23 Judge Farr's paper is timely and instructive in furthering the understanding of ethical limits placed on the judiciary.

The Honorable Leta Parks, former Associate Judge in the 247th Family District Court,2 4 wrote a wonderful paper entitled "In re Lee: How the Parental Right to Self-Determination Came to Trump Judicial Authority, ' 2 that served as a basis for a panel discussion.

Dean James Alfini,26 led the panel composed of Judge Leta Parks, Judge Bruce Wettman, 27 and Jeffrey Uzick, 21 and essentially dissected the In re Lee29 opinion which made clear that Texas courts take a very strict approach in their interpretation of statutes, even if a judge's contrary holding is asserted to have been made to protect the child. As explained by the panel, the Lee case concerned parties (former wife and former husband, parents of a daughter) who came to a mediated settlement agreement which allowed their daughter to visit with mother, even though mother had married a registered sex offender.3" The agreement of the parties encompassed many safeguards so that the child would not be in the presence of mother's current husband.3 1 The father, contrary to his mediated agreement, appeared and objected to entry of a judgment based on that mediated agreement.3 2 The court, hearing testimony regarding current husband's status as a registered sex offender as well as other allegations against the current husband, refused to enter the order based on the mediated settlement agreement.3 3 23.

Campbell Robertson, Roy Moore, Alabama Chief Justice, Suspended Over Gay

Marriage Order, N.Y. TimZs (Sept. 30, 2016), http://www.nytimes.com/2016/1O/01/us/roymoore-alabama-chief-justice.html?_r=0.

24. Judge Parks also taught for many years at South Texas College of Law Houston, taking on Family Law Advocacy and Mediation courses.

25. Law Review member, Mary Borrego, aided Judge Parks in the preparation of her article and presentation.

26. Former Dean of South Texas College of Law Houston, 2003-2009, who currently teaches courses in Mediation, Constitutional Law, and Professional Responsibility at South Texas.

27. Judge Wettman, is a former Judge of the 247th District Family Court of Harris County, Texas and currently serves as Senior District Judge for the Second Administrative Judicial Region of the State of Texas. In addition, Judge Wettman directs the Mediation Clinic at South Texas College of Law Houston.

28. Jeff Uzick is a 1984 graduate of South Texas College of Law Houston. He is known as a formidable litigator having taken more than one hundred cases to a jury verdict. Mr. Uzick has applied those trial skills to being one of Houston's premier family law mediators and was recently named a Texas Super Lawyer in the area of mediation.

29.

See In re Lee, 411 S.W.3d 445 (Tex. 2013).

30. Id. at 447.

31. Id. at 447-48.

32. Id. at 448.

33.

Id.

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FOREWORD

Nonetheless, the Texas Supreme Court determined that the Texas Legislature "says what it means and means what it says."3' 4 Texas Family Code §153.0071 provides that notwithstanding the fact that a mediated settlement agreement meets all requisites to be binding3 5 and the fact that a party has right to judgment thereunder,3 6 that the only basis for declining to enter a judgment, based on the applicable statute, was if "(1) a party to the agreement was a victim of family violence, and that circumstances impaired the party's ability to make decisions; and (2) the agreement is not in the child's best interest. 3' 7 The fact that the Lee trial judge expressed concern about the safety of the child in light of the sexual offender status of the mother's husband did not cause the clear edict of the statute to yield to judicial discretion. 8 This symposium panel explained why the parents' right to make a thoughtful, but questionable decision, is supported by a parent's basic and innate right and duty to act in a child's best interest, although such might be contrary to a court's determination. The panel also explained that Amicus Briefs filed by the Family Law Section of the State Bar of Texas took the side of the mother, supporting entry of judgment based on the agreement, because to do otherwise would not only be contrary to statute, but would render mediation meaningless.

The panel also delved into a mediator's ethical constraints and duties when faced with disclosures of child abuse. This panel went a long way in furthering the understanding of an opinion that was met by some with incredulity.

The Honorable Diane Guariglia, Associate Judge of the 311th Family District Court,3 9 authored a paper entitled, "Dirty Deeds Done Not Dirt Cheap."4 Judge Guariglia's symposium paper exposes the gamut of infractions and liberties taken by lawyers that crossed ethical barriers landing themselves before a variety of tribunals to an34. With apologies to Lewis Carol and the March Hare. See Lewis Carol, ALICE'S ch. 7 (Stanley Appelbaum et. al. eds., Dover Thrift ed.

1993).

35. Tex. Fam. Code Ann. § 153.0071(d) (West 2014).

36. Id. § 153.0071(e).

ADVENTURES IN WONDERLAND

37.

38.

Id. § 153.0071(e-1).

In re Lee, 411 S.W.3d at 452-53.

39. Judge Guariglia also served as Associate Judge in the 245th Family District Court in Harris County; she is also Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization.

40. With a clear understanding of the hourly rates charged by lawyers, Judge Guarigliahas, for the title of her article, taken liberty with the AC/DC song "Dirty Deeds Done Dirt Cheap;" so apologies to AC/DC and songwriters Angus Young, Malcolm Young, and Bon Scott. Law Review member, Benjamin Schlitt Ritz, aided Judge Guariglia in the preparation of her article and presentation.

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swer for their actions. In this instance, reading is believing... and, oh what our fellow bar members have done. In some instances, the lawyers are deemed responsible for these ethical breaches and sanctions are imposed against the attorney; however, very often it is the client who must pay sanctions or who will have their pleadings struck for these ethical breaches. Building on the notion that divorce lawyers represent good people who, caught in the throes of divorce, are at their very worst, there are times that the clients themselves engage in "dirty deeds." Judge Guariglia explores cases focusing upon client's misbehavior, as well as the attorney's. In addition, a rather unique take on dirty deeds involves the Judge's analysis of applying the Craddock41 standard in suits affecting the parent child relationship.

Ms. Heather L. King, 42 presented a paper that she co-authored with Jessica Hall Janicek and Paul M. Leopold, entitled "When Evidentiary Matters Cross Ethical Boundaries. ' 43 Ms. King's energetic and entertaining presentation was enlightening, especially as to matters of spoliation of evidence and the duty to preserve. Spoliation is of great concern in divorce cases because it is usually one's client, the husband or the wife, who has access to and control over the evidence.

Unlike a civil business lawsuit, there is no corporate structure or constraining business guideline that causes or requires a spouse to maintain what might be evidence. This responsibility of a spouse to maintain evidence is fraught with temptation to destroy when one can seemingly eliminate evidence that might be considered harmful with a simple click of a mouse, as in the case of social media postings. Ms. King delves into the lawyer's duty to inform a client of their responsibilities regarding the preservation of evidence and the harsh consequences that could befall a client who does not live up to these responsibilities. Ms. King provides a federal and Texas perspective on this issue and also provides a foundation for the next two papers.

Professor Vanessa Browne-Barbour 44 presented her paper entitled, "'Why Can't We Be "Friends"?': Ethical Concerns in the Use of

41. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).

42. Shareholder and Manager of the South Lake, Texas office of the Dallas based family law firm, Koons Fuller; Ms. King is Board Certified in Family Law by the Texas Board of Legal Specialization and among other positions has served as President of the Texas Academy of Family Law Specialists.

43. Law Review member, Urvashi Morolia, aided Ms. King in the drafting and editing of this article.

44. Professor of Law, South Texas College of Law Houston, teaches courses in Family Law and Torts.

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Social Media"4 5 Professor Browne-Barbour focused on the most popular forms of social media in use today including: Facebook, Twitter, Snapchat, Twitter, LinkedIn, and Instagram. Indeed, the recent past presidential campaign was rife with communications and accusations made via Twitter and the election itself might have been affected by the use of good old-fashioned email. The drama that played out during the 2016 presidential campaign via social media is indicative of the use of these same social media aids in divorce, custody, and other family law matters, albeit on a scale that, in comparison, is a microcosm.

While Ms. King approached the use of social media from a spoliation viewpoint, Professor Browne-Barbour explores the lawyer's duty to use such sources in the preparation of the of their case.

From a practitioner's standpoint, Professor Browne-Barbour's article is invaluable in its inclusion and analysis of any possibly applicable rules from the Model Rules of Professional Conduct. Another informative portion of her article is the consideration given to use of social media for attorney-client communication and the possibility of unknowingly entering into an attorney-client relationship. The absolute willingness of parties to bare themselves in social media as is discussed by Professor Browne-Barbour is balanced somewhat by the final article in this Symposium Issue.

The final article in the 22nd Annual South Texas College of Law Symposium, authored by Mr. Reginald Hirsch,4 6 is entitled "Privacy Rights in a Public Society: Protecting Your Client and Yourself from Invasions of Privacy."4 7 Mr.Hirsch examines technological tools and exposes their potential for delving into the most private aspects of a client's life; indeed, of every person's life. This potential for the invasion of privacy is also considered by Mr. Hirsch from the standpoint of the trial lawyer and the necessity for the lawyer to keep abreast of technological tools, their uses, and their updates. If one just considers GPS tracking devices and cell phones and the information that can be obtained therefrom, there is infinite, potentially harmful, information that not only can be uncovered, but will probably never be considered private again. Nonetheless, the availability and use of technology must 45. Inspiration for the title of this article is based in part on the 1975 hit song by the band WAR. 46. Mr. Hirsch, a University of Houston Graduate, has exclusively practiced family law in Houston, Texas for more than 40 years; he is Board Certified in Family Law by the Texas Board of Legal Specialization and is a member of the American Academy of Matrimonial Lawyers.

47. Mr. Hirsch was aided in the preparation of his article by South Texas Law Review member, Joseph Anderson.

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be considered in a cautionary light when weighed against the right to privacy that is protected by the Constitution of the United States,4 8 as well as by Texas common law. Simply put, privacy can still be invaded and Mr. Hirsch has provided numerous examples that have pitted technology against constitutionally protected privacy to provide us with a better understanding of the limits to which technology can be used.

The final portion of this Symposium Issue encompasses transcribed 4 9 excerpts from a panel entitled "The Real Zeal," moderated by the Honorable Roy L. Moore5" and by Mr. J.D. "Bucky" Allshouse. 51 Both moderators have enjoyed success as very effective and successful trial counsel in family law cases. Indeed, Mr. Allshouse, who maintains a Houston practice representing high profile clients, often sees himself pitted against the two panel members, Mr. Bobby Newman and Mr. Marshall Davis Brown. As for Judge Moore, he often presides over trials in which Mr. Newman and/or Mr. Brown participate. No two people, Judge Moore and Mr. Allshouse, could have been better to moderate this panel. Although unnecessary to the panel presentation, even I, as Faculty Editor of this Symposium, was able to ask a question or two of this dynamic duo, Newman and Brown.

As for the panel members,52 Mr. Newman53 is a highly successful and ever well prepared trial attorney who, for the most part, focuses his practice on family law cases. Mr. Newman has never shied away from a courtroom or a jury and his preparation is evidenced by his

48. As recognized by the 14th Amendment to the United States Constitution.

49. Panel presentation transcribed by Brazil and Company, court reporters.

50. Judge Moore presides over the 245th Family District Court, Harris County; he is Board Certified in Family Law by the Texas Board of Legal Specialization. Judge Moore teaches Trial Advocacy at South Texas College of Law Houston.

51. Mr. Allshouse, a 1975 graduate of South Texas College of Law Houston, is Board Certified in Family Law by the Texas Board of Legal Specialization, a member of the American Academy of Family Law Specialists, a Texas Super Lawyer, and a member of the Board of Trustees of Rice University from which he graduated in 1971.

52. Ms. Wendy Burgower, well known, successful, and respected Texas family law attorney, was unable to participate in the panel as planned, due to illness. Ms. Burgower, a Board Certified Family Law Specialist, member of the American Academy of Matrimonial Lawyers, Super Lawyer, and former Chair of the Family Law Section of the State Bar of Texas, was sorely missed.

53. Mr. Bobby Newman of the firm Lilly, Newman & VanNess, L.L.P., is a 1994 graduate of South Texas College of Law Houston and has been named a Rising Star, a Super Lawyer, and a Top Texas Lawyer.

2016]

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xxiii

54 success in numerous high profile cases. Mr. Marshall Davis Brown, David to his friends, is perhaps one of the most entertaining of Texas family law trial attorneys. However, his folksy manner should never lead to underestimating his ability to try a most elegant case for some of Houston's upper echelons. Both Mr. Newman and Mr. Brown, with a little prodding from Judge Moore and Mr. Allshouse, discuss their approach to the courtroom. The two explain that being a good and ethical lawyer does not mean that your representation must be devoid of theatrics and sometimes, even humor. Juries get bored as do judges and exemplary ethics do not bar a bit of showmanship. As Mr. Brown said to me before the panel took their places, "I don't cheat, I don't steal, I don't suborn perjury," but that does not mean Mr. Brown does not make candid observations or challenge what may be occurring in the courtroom in a memorable, if colloquial way. The best way to understand is to read the transcription!

Finally, this Foreword cannot go forward without an expression of gratitude to the many people that made the 22nd Annual South Texas College of Law Symposium, Ethical Considerations in Family Law the great success that it was. First, I must thank Professor Elizabeth Dennis, the Faculty Advisor to the South Texas Law Review, for entrusting me with the responsibility of acting as Editor for the Symposium. This undertaking was truly a highlight for me during my thirty-five year tenure at South Texas College of Law Houston. Second, Jake Hubble, Scholarly Publications Coordinator did so much more than coordinate the publication, he seamlessly coordinated everything, including the assigned seating at the formal dinner for the Symposium speakers. Jake's attention to detail made my job easy, thank you!

Finally, the Law Review Students who participated in the Symposium are deserving of thanks beyond what words on these pages can express. While focused on preparing the most scholarly of issues, the students took just as seriously my requests that luncheon be served on china, with glass glasses, with proper flatware, and cloth tablecloths and napkins. A small matter, but something that in my mind added to the special and elevated nature of the day.

These students who so willingly accommodated my requests, some of them quirky, at best, are: Joseph Anderson, Kyle Boudousquie, Mary Borrego, Kelsie Haaland, Evan Korngold, James Law-

54. Mr. Marshall Davis Brown, graduated from South Texas College of Law Houston in 1980, is Board Certified in Family Law, and is a member of numerous trial law organizations in and outside of the family law area.

xxiv

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rence, Drake Lawsage, Michael Lewis, David Mann, Rebecca Marshall, Calvin McLean, Urvashi Morolia, Benjamin Ritz, Cody Thomas, and William Vaughn. I know that many of these students have, at this writing, graduated. I know that each and every has embarked on a legal career that will be fulfilling to them and will make South Texas College of Law Houston, and me, very proud. Big thank you and hugs to you all!

Pamela Elizabeth George Professor of Law, South Texas College of Law Houston November 14, 2016

SHARIA AND ANTI-SHARIA: ETHICAL CHALLENGES FOR THE CROSS-CULTURAL LAWYER REPRESENTING MUSLIM WOMEN ANDREW L. MILNEt I. IN TRODU CTION ...............................................................................

II. STORY OF FARAH ...........................................................................

III. ENHANCED ETHICAL CHALLENGES ...............................................

A. Objectives of Representation ..................................................

B. Competence and Confidentiality.............................................

C. Paternalism.............................................................................

IV. PATERNALISM AND VICTIMIZATION ..............................................

A . A nti-ShariaLaws ....................................................................

B . Victim ization ...........................................................................

C. ShariaPluralism andIslamic Feminism.................................

D. Dom estic Violence ..................................................................

E . Divorce....................................................................................

V.

C ON CLU SION .................................................................................

I.

449

452 455 455 456 457 458 458 461 463 464 466 468

INTRODUCTION

Almost all representation can be called cross-cultural. Few people have the same cultural experience, and the distance between their respective experiences may be especially wide when one person is an attorney and member of a relatively exclusive social bracket.1 I will focus in particular on ethical challenges that non-Muslim attorneys may face when representing Muslim women in divorce cases. Ethical challenges are especially salient in the cross-cultural representation of Muslim women in divorce for several reasons. " I conducted the representation and research on which this article is based as a Clinical Teaching Fellow at South Texas College of Law Houston. I would like to thank the staff, faculty, and funders of the Randall 0. Sorrels Legal Clinics for their support. I would also like to thank participants in South Texas College of Law Houston's faculty scholarship presentations and Ethics Symposium for their feedback. Above all, I am grateful to my clients who inspired and informed this project.

1. See Susan Bryant, The Five Habits: Building Cross-CulturalCompetence in Lawyers, 8 CLINICAL L. REv. 33, 41-42 (2001).

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The number of Muslim Americans in the United States is growing, likely expanding the demand for legal services on behalf of Muslim clients.'

This demand is especially visible in family law, not only because it is a common area of law for Americans to participate in, but also because differences between some Muslim and non-Muslim cultural practices lend themselves easily to controversy. The latter tendency is not helped by the content of family law cases-marriage and divorce, custody of children, disparities of wealth and power, relations of control and abuse-which are at once intimately personal and subject to deep-seated cultural norms. And this cross-cultural divide excites especially fierce passions in post-9/11 America.3 Adding another layer of complication in this fraught dynamic is the tendency of the rhetoric around it to make Muslim women an object of special concern. For example, the anti-Sharia movement has relied on the narrative of Muslim women victimized by their culture to support legislation purporting to ban "Sharia law"4 from state courts. 5 On one hand, there is some reason to be concerned about the welfare of Muslim women in family law, but on another hand there is an insidious tendency to objectify, and thereby re-victimize, Muslim women while purporting to attack Muslim patriarchy.

On top of all this, most lawyers in the U.S. are neither Muslim nor familiar with Muslim culture, and therefore encounter an unfamiliar set of norms, practices, and power relations when representing Muslim clients in family law.6 Few attorneys know the first thing about Sharia7 and many 2. See Muslim Americans: No Signs of Growth in Alienation or Support for Extremism, PEW RES. CENTER 20 (Aug. 30, 2011), http://www.people-press.org/files/legacy-pdf/MuslimAmerican-Report.pdf.

3. See, e.g., Lila Abu-Lughod, Do Muslim Women Really Need Saving? Anthropological Reflections on CulturalRelativism and ItsOthers, 104 AM. ANTHROPOLOGIST 783, 784 (2002); Asifa Quraishi, What ifSharia Weren't the Enemy?: Rethinking International Women's Rights Advocacy on Islamic Law, 22 COLUM. J. GENDER & L. 173, 235-36 (2011).

4. See infra text accompanying notes 66-70 (explaining why the term "Sharia law" is a misnomer).

5. See AzIZAH AL-HIBRI, THE ISLAMIC WORLDVIEW: ISLAMIC JURISPRUDENCE: AN AMERICAN MUSLIM PERSPECTIVE 2 (2015); Abed Awad, The True Story of Sharia in American Courts, NATION (June 14, 2012), http://www.thenation.com/article/true-story-sharia-americancourts.

6. See Liwen Mah, The Legal ProfessionFacesNew Faces:How Lawyers' Professional Norms Should Change to Serve a ChangingAmerican Population, 93 CALIF. L. REV. 1721, 176970 n.290 (2005).

7. The Arabic word has multiple transliterations in English, including Sharia, Shariah, Shari'a, Shari'ah. Avi Brisman, The Criminalization of Peacemaking, CorporateFree Speech, and the Violence of Interpretation:New Challenges to Cause Lawyering, 14 CUNY L. REV. 289, 294 n.12 (2011). For convenience, I have chosen the more common "Sharia" for use throughout this article except when quoting a source that uses a different spelling. Similarly, I use "Quran"

2016]

SHARIA AND ANTI-SHARIA

harbor mistaken assumptions about it.' Yet, Sharia may be crucially important to a client's state court case, not only on a personal, spiritual level, but also on a social, practical level. An example, and important focus of this Article, is that a court decree ending the marriage under state law may not end the client's marriage under Islamic law, and the latter may be more important to the client's welfare even though she lives in the state court's jurisdiction.9 In other words, Islamic legal norms can undermine the effectiveness of an attorney's representation in the state court case and thereby deserve the attorney's serious consideration.

Considering all of the above, it should be no surprise that the operation of Muslim culture and legal norms in a family law case presents the attorney with enhanced ethical challenges. To be clear, I am not articulating new, unfamiliar ethical challenges. I will be discussing familiar ethical challenges that apply in many family law cases, such as confidentiality, competence, diligence, autonomy, and counseling; the difference is how these challenges can be enhanced in the cross-cultural representation of Muslim women in divorce, particularly in America's current political climate, where fears about Muslims are rampant in the media and campaign talking points,"° and where, as I discuss below, Muslim women are often cast as victims of their own culture. 1 One may wonder why the political climate should impact one's representation of a particular client. When an attorney represents a client in family law, the attorney represents a person, not a demographic group, and in a very private issue, not a political cause. But, as I discuss below, the political climate can unwittingly distort the lawyer's perceptions, create false assumptions, and limit his or her problem-solving. 2 This Article draws upon my experience representing Muslim women clients in Houston, Texas. In particular, I discuss the example of a client I call Farah, whose story teaches important lessons to the cross-cultural lawyer. It should be said, however, that Muslim American women are not

for the Islamic holy book, although there are multiple transliterations, including Qur'an and Koran.

8.

See AL-HIBRI, supra note 5, at ix-x.

9. AYELET SHACHAR, MULTICULTURAL JURISDICTIONS: CULTURAL DIFFERENCES AND WOMEN'S RIGHTS 3, 59-60 (2004).

10. One of the more recent and well-publicized examples is 2016 Republican presidential candidate Donald Trump's call to bar Muslims from entering the U.S. Patrick Healy & Michael Barbaro, Donald Trump Calls for Barring Muslims from Entering US., N.Y. TIMES, http://www.nytimes.com/politics/first-draft/2015/12/07/donald-trump-calls-for-banning-muslimsfrom-entering-u-s (last updated Dec. 7, 2015, 10:42 PM).

11.

See discussion infra Section IV.B. 12. See discussion infra pp. 19-23.

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monolithic, nor is Muslim American culture.13 On the contrary, two important premises of this Article are a Muslim American woman's agency within her culture, and the inherent pluralism of Islam. But the ethical issues I want to discuss are especially salient in the context of a rather patriarchal household in a relatively insular, conservative, Muslim American community. I do not mean to imply this pattern is representative of all or most Muslim Americans, 14 only that it is representative of ethically challenging family law cases for a cross-cultural attorney.

II.

STORY OF FARAH

I represented Farah in a divorce and custody case against her violent, controlling husband. Both were South Asian immigrants living in an area of Houston with a high concentration of other South Asian Muslims.15 Their community was rather tight-knit, insular, and conservative, centering around a mosque whose leader, the imam, was influential in the community. 16 Divorce is rarely easy for any client, but Farah's membership in a Muslim minority community posed distinctive hardships. Like many other women who are members of a Muslim community in a non-Muslim society, Farah faced ostracism, the shame of breaking family honor for individual welfare, the stigma of being divorced, and religious threats that she would

13. See Quraishi, supra note 3, at 217 ("[T]he tendency to treat the Muslim world as monolithic only helps to legitimize the religious right's monopolistic claim to speak for all Muslims and to de-legitimize the assertions of progressive scholars .... " (quoting Ayesha M. Imam, Women 's Reproductive and Sexual Rights and the Offense of Zina in Muslim Laws in Nigeria, in WHERE HUMAN RIGHTS BEGIN: HEALTH, SEXUALITY, AND WOMEN IN THE NEW MILLENNIUM 65, 85 (Wendy Chavkin & Ellen Chesler eds., 2005) (internal quotation marks omitted)); cf Mah, supra note 6, at 1722-23 (discussing the heterogeneity of minority cultures in the U.S.). See generally JULIE MACFARLANE, ISLAMIC DIVORCE IN NORTH AMERICA: A SHARI'A PATH IN A SECULAR SOCIETY 137, 170 (2012) (describing wide range of marriage and divorce practices among North American Muslims, including less and more restrictive examples).

14. See, e.g., Gregory C. Sisk & Michael Heise, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts, 98 IOWA L. REV. 231, 278-79 (2012) (describing Muslim Americans, both men and women, as attaining a high degree of employment, education, and assimilation in U.S. culture); Andrew Kohut & Luis Lugo, Preface to PEW RES. CENTER, supra note 2 (detailing moderation and diversity among Muslim Americans in many respects).

15. See, e.g., Stephen L. Klineberg & Jie Wu, Diversity and TransformationAmong Asians in Houston: Findingsfrom the Kinder Institute's Houston Area Asian Survey (1995, 2002, 2011), KINDER INST. FOR URB. RES. 10 (Feb. 2013), https://issuu.com/kinderinstitute/docs/2013_houston area asian-survey-high/1.

16. See Julie Macfarlane, Understanding Trends in American Muslim Divorce and Marriage: A Discussion Guide for Families and Communities, INST. FOR SOC. POL'Y & UNDERSTANDING 10 (Jan. 2012), http://www.ispu.orgpdfs/ISPU%2OReportMarriage%2011_MacfarlaneWEB.pdf.

SHARIA AND ANTI-SHARIA

2016]

be damned for defying Islam. 7 Moreover, Farah had to overcome distrust of the American legal system's fairness toward her as a woman, as a member of an ethnic minority, and especially as a Muslim.18 Part of this distrust was concern for her culture, that her attorney or the judge would blame her culture or Islam and she would be responsible for further tarnishing the image of Muslims who were already maligned by many Americans. Many in her community knew of her husband's abuse yet opposed Farah's decision to reach outside the community for help in obtaining a divorce.

Farah sought help from the mosque, but the imam's goal was the opposite of hers: to reconcile the couple. The Quran instructs couples in conflict to attempt reconciliation with the help of a mediator from each family.' 9 The imam set up mediations at the mosque, which were unsuccessful because Farah did not believe her husband's physical, sexual, emotional, and economic abuse would stop. The imam reminded Farah that Muhammad said, "the most hated of permissible things to Allah is divorce."2 He sent respected males of the mosque to her home trying to persuade her against divorce. Farah listened dutifully, but was not convinced.

Besides the social barriers to separation were economic ones: like many women in a traditional South Asian family, Farah had little formal education or job experience.2" Upon separating, she and her children had to rely on the support of her parents-which was not easy since they were also opposed to her divorce. She could not afford legal representation, but was fortunate to find free representation at a law school clinic. Farah even felt she could not seek support from the area's social services organizations for South Asian women for fear they would be more loyal to the mosque than

17. See Nooria Faizi, Comment, Domestic Violence in the Muslim Community, 10 TEX. J. WOMEN & L. 209, 216-18 (2001); Zahra Elkassabgi, A Family Lawyer's Guide to Effectively Engaging Cases of Emotionally Abused Muslim Arab Immigrant Women, NAT'L CENTER ON DOMESTIC

&

SEXUAL

VIOLENCE

6-7

(May

3,

2009),

http://www.ncdsv.org/images/Emotional%20Abuse%20of /o20Muslim%20Women_5-09.pdf. See generally, SHACHAR, supra note 9 (exploring tensions flowing from the "multiple affiliations" of

women members of minority groups).

18. See Gabrielle Birkner, Muslim Panel:Many DistrustLegal System, N.Y. SUN (Apr. 26, 2007), http://www.nysun.com/new-york/muslim-panel-many-distrust-legal-system/53287/.

19.

THE MEANING OF THE HOLY QUR'AN 4:35 (Abdullah Yusuf Ali ed. & trans., 1993); Macfarlane, supra note 16, at 29.

20. See Urfan Khaliq, Beyond the Veil?: An Analysis of the Provisions of the Women's Convention in the Law as Stipulated in Shari'ah,2 BUFF. J. INT'L L. 1, 33 (1995).

21. See, e.g., Roshan Chitrakar, Overcoming Barriers to Girls' Education in South Asia: Deepening

the

Analysis,

UNITED

NATIONS

http://www.uniceforg/rosa/whole-bookb.pdf

CHILDREN'S

FUND

3-4

(2009),

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to her.22 Nor did she feel she could reach out to non-Muslim organizations that she worried would not understand her culture.23 These factors made Farah's case the most emotionally difficult I have seen a client experience, even though I have represented numerous victims of domestic violence. Yet Farah, although tormented by the disapproval swirling around her, never wavered in her goal to protect herself and her children from her husband's abuse. Together, we obtained a divorce, injunctions against her husband, and favorable custody and support orders.

I could stop there with a relatively happy ending, and then go on, smugly, to discuss why lawyers have an ethical obligation to help people in the position Farah was in, and provide tips for representation. But there is another layer complicating this story and the ethical challenges of crosscultural representation.

About a week before the final hearing, Farah informed me that after the Texas court granted her a divorce, she would in fact not be divorced where it mattered most-her community in Houston.24 In Islam, Farah told me, although the husband can unilaterally divorce the wife without cause or consent, the wife cannot divorce her husband without the husband's consent unless she convinces an Islamic judge that she has good cause, which would not be easy because divorce was considered disfavored in Islam.25 And Farah's husband was refusing to consent. As a result, after receiving a Texas divorce, Farah would not be eligible to remarry within her culture and courting any other men would be adultery, a very serious offense.26 Given Farah's financial insecurity, this inability to remarry was an especially dire prospect for her and her children. Here, the ethical issues become interesting for several reasons.

22. Cf Faizi, supra note 17, at 221.

23. Id. at 218-20.

24. This situation is known in the literature as a "limping marriage." See, e.g., MACFARLANE, supra note 13, at 235-37; Sameer Ahmed, Pluralismin British Islamic Reasoning: The Problem with Recognizing Islamic Law in the UnitedKingdom, 33 YALE J. INT'L L. 491, 49293 (2008); Ann Laquer Estin, Unofficial Family Law, 94 IOWA L. REv. 449, 463-64 (2009); Alan Reed, Transnational Non-Judicial Divorces: A Comparative Analysis of Recognition Under English and US.Jurisprudence, 18 LOY. L.A. INT'L & COMP. L. REv. 311, 314 (1996).

25. See Nathan B. Oman, How to Judge Shari'a Contracts: A Guide to Islamic Marriage Agreements in American Courts, 2011 UTAH L. REV. 287, 302-03 (2011).

26. See Abed Awad & Noura Jebara, ChippingAway at Divorce Quagmirefor Muslim and Jewish Women, N.J. L.J., Feb. 8, 2012, at 1; Macfarlane, supra note 16, at 34.

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III. ENHANCED ETHICAL CHALLENGES A.

Objectives ofRepresentation

First, perhaps the most fundamental ethical duty a lawyer owes the client is to pursue the objectives of representation. 27 The Texas Disciplinary Rules of Professional Conduct exhort the attorney to "act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client's behalf., 28 Farah's primary objective was divorce. Based on past experience in representing clients in family law, I assumed I could accomplish Farah's objective by obtaining a judicial decree of divorce in a Texas court. Then, I learned that this decree would be practically ineffective in her community, even though that community was 2 9 located in Texas.

One might argue that addressing this Islamic law issue is not the role of a non-Muslim attorney practicing law in the state courts of Texas because it is a religious or cultural matter outside the scope of representation. However, in discharging my duty of dedication to Farah's interests and zealous advocacy on her behalf, I could not simply perform the legal services that were sufficient for a typical client because Farah was not a typical client and the usual course of action would fall short of accomplishing her goals." Worse, the outcome of the divorce case would leave Farah's abuser with a tool of manipulation-her marital status and freedom to remarry-that was deeply important to her and her children's livelihood, to her status in her community, and to her belief system. This prospect struck me as unacceptable.

One might further argue that the most the attorney should be expected to do in this situation is try to obtain a better outcome in the state law case to ameliorate the inequities of her cultural circumstances; for example, obtaining a more favorable property division or support orders to compensate Farah for her inability to remarry. However, as in many family law cases, this couple had almost no marital assets to distribute and the husband did not generate reliable income from a third-party employer who

27.

28.

See MODEL RULES OF PROF'L CONDUCT R. 1.2(a) (2015).

TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.01 cmt. 6, reprinted in TEX. GOV'T

CODE ANN., tit. 2, subtit. G, app. A (West 2013) (TEx. STATE BAR R. art. X, § 9).

29. See Estin, supra note 24, at 464.

30. Cf Katherine R. Kruse, Fortress in the Sand: The Plural Values of Client-Centered Representation, 12 CLINICAL L. REv. 369, 382 (2006) (discussing client-centered lawyering).

456

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could be subject to a wage-withholding order.31 And neither Farah nor I wanted the kids to be pawns in negotiation, so we had little leverage.

B.

Competence and Confidentiality

Under the ethical rules, a lawyer is expected to acquire the knowledge and skill necessary for effectively representing the client.32 Making up for the shortfall in the effectiveness of my representation would require treading unfamiliar ground: learning a great deal more about Islamic law and culture, and then striving to have some positive effect for the client within that unfamiliar arena. One way I wanted to acquire the necessary knowledge was to speak with Muslim friends and colleagues to learn more about the cultural norms, practices, and actors at play in Farah's situation.

This strategy brought me to another ethical quandary, which I will introduce with a confession: I never represented anyone named Farah. That name is, of course, a false one, which should be no surprise for it is a common technique in discharging one of the attorney's most elemental ethical duties, confidentiality.33 But I draw your attention to this issue because it demonstrates how even familiar, basic ethical demands like confidentiality may be enhanced in unexpected ways by cross-cultural representation.

Remember that, like many members of a minority culture, Farah lived in a very tight-knit, insular community; moreover, she had to overcome much adversity to take the step she did, and it is not common for members of her community to take that step.34 Therefore, when speaking with people who may be members of, or connected to, that community, simply withholding obvious identifiers like my client's name was not enough.

It turned out to be difficult to ask the right questions and to resist my interlocutor's requests for more detail. There were times I lost sleep because I worried I had not done enough to afford my client anonymity, and there were also times when I did not get as much helpful information as I might have had I been more forthcoming, which shows how the ethical imperative to protect confidentiality can come into tension with the ethical imperative to acquire the appropriate knowledge for effective representation.

Attorneys representing cross-cultural clients can employ less straightforward techniques to skirt through this Scylla and Charybdis 31.

See, e.g., Smith v. Smith, 607 So. 2d 122, 126-27 (Miss. 1992) (reversing a $50,000 lump-sum alimony award because there were few marital assets and husband's self-employed income was overestimated by the lower court).

32.

33.

See MODEL RULES OF PROF'L CONDUCT R. 1.1 (2015).

MODEL RULES OF PROF'L CONDUCT R. 1.6.

34.

See supra text accompanying notes 16-23.

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scenario: learn as much as possible from your client herself and perhaps people she trusts; learn as well from sources that will never talk, such as books, articles, websites, and movies; and when you do speak to unsafe sources, avoid painting a picture of your client's situation by asking general questions, and by fabricating some details to throw your interlocutor off the scent. For example, one might preface a question with, "Let's say hypothetically I have a client from India with two children," when in fact your client is from Pakistan with four children. I will end this section with another confession: in this Article, I am withholding and fabricating other details besides my client's name in my continuing effort to protect her.

Sometimes honesty is not the best policy.

C.

Paternalism

Now I come to the core ethical challenge I experienced in representing the client I am calling Farah: avoiding paternalism. The risk of paternalism is endemic in lawyering, which is not surprising considering that the lawyer's job involves protecting the client's interest better than she can without a lawyer.35 Paternalism occurs when the attorney does not merely presume he or she knows better how to pursue the client's interests legally, but rather presumes he or she knows better what the client's interests are.36 The disciplinary rules seek to prevent paternalism by exhorting an attorney to "abide by a client's decisions concerning the objectives of representation."37 Moreover, the attorney "shall... reasonably consult with the client about the means by which the client's objectives are to be accomplished."38 For example, despite a criminal defense attorney's thorough counseling, a defendant intends to the take the fall for his no-good brother.

The attorney must abide by the client's decision as to the objective of representation, not substitute his or her better judgment.39 An example applied to Farah might be if I advised her not to bother with an Islamic divorce because she would be better off leaving her patriarchal culture and marrying outside it. Fortunately, I knew better than to engage in this clear

35. See, e.g., Kruse, supra note 30, at 401; David Luban, Paternalism and the Legal Profession, 1981 WIS. L. REV. 454, 460 (1981); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1, 22 (1975).

36. See Jason J. Kilborn, Who's in Charge Here?: Putting Clients in TheirPlace, 37 GA. L. REV. 1, 37-38 (2002).

37. MODEL RULES OF PROF'L CONDUCT R. 1.2(a).

38. Id. R. 1.4(a)(2).

39. Id. R. 1.2(a).

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paternalism. It is unfair and unrealistic to expect someone to give up her culture.40 But there is a subtler variation on paternalism, one that the adversarial legal system unfortunately invites in many cases: casting the client as a victim. Victimization is a limiting narrative that militates against the client's self-empowerment. 41 Again, this ethical challenge is enhanced in cross-cultural representation, for it can be especially tempting to cast a minority group member as a victim of her culture.4 2 This characterization is limiting on a large scale, pitting the client against her community and culture, when an attorney should be empowering the client within the 43 client's cultural context.

Casting the client as a victim of her culture is especially tempting for a lawyer representing a Muslim client like Farah. When I first met with her, I learned she had an arranged marriage, that her husband abused her and claimed Islam gave him the right to do so, and that her community vehemently opposed her pursuit of a divorce. These facts readily led me to assume Farah was a victim of her culture." This conclusion is especially easy to arrive at in America's current political climate, which trends toward Islamophobia.45 How such a perspective disserves Muslim women clients is the focus of the next section.

IV. PATERNALISM AND VICTIMIZATION

A.

Anti-Sharia Laws

Since 2010, no fewer than thirty-nine states have considered laws that purport to ban Sharia from state courts,46 and eight states have enacted such 40. See, e.g., SHACHAR, supra note 9, at 10-11, 41, 55-56, 61, 68-69 (explaining the factors making it unfair and unrealistic for many minority women to leave the minority culture in order to enjoy equal rights).

41. See, e.g., Dina Francesca Haynes, Client-Centered Human Rights Advocacy, 13 CLINICAL L. REV. 379, 390-91 (2006) (discussing victimization of clients in human rights advocacy).

42. Id. 43. See generally, SHACHAR, supra note 9, at 29 (discussing the effects of specifically attempting to empower marginalized communities).

44. And this assumption made me susceptible to a "rescue mentality," the mindset that I, as a non-Muslim, should "save" a Muslim woman from her culture. See Quraishi, supra note 3, at 231-32.

45. See supra text accompanying note 10.

46. Bills or constitutional amendments have been proposed in Alaska, Arkansas, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Maine, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming. See Database,GAVEL TO GAVEL, http://gaveltogavel.us/database (last visited Feb. 17,

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2016]

a law.4 7 A ninth state, Oklahoma, led the wave of anti-Sharia laws in 2010 with a constitutional amendment proposed by its legislature and approved by its voters, but the law was enjoined from certification by the federal 48

courts.

Oklahoma's proposed "Save Our State Amendment" provided that its "courts shall not look to the legal precepts of other nations or cultures. law international the courts shall not consider Specifically, 49 or Sharia Law." A Muslim American residing in Oklahoma filed suit, complaining the law would officially condenm his religion and prevent a court from probating his will, which makes references to Islamic teachings.5" The Tenth Circuit held that the amendment, if certified, would likely violate the Establishment Clause of the First Amendment by discriminating among religions without a compelling state interest in doing so.

51

The court decided that although Oklahoma had a "valid state concern" in determining what law is applied in its courts, this interest was not compelling because Oklahoma failed to "identify any actual problem the challenged amendment seeks to solve."52 Oklahoma's lawyers admitted "that they did not know of even a single instance where an Oklahoma court had applied Sharia law.., let alone that such applications or uses had resulted in concrete problems in Oklahoma."5 3 The Tenth Circuit went on to observe that even if there was a compelling state interest, the proposed amendment was not closely fitted to furthering that interest because it went "further than preventing courts from 'applying' Sharia law. The amendment 54 forb[ade] state courts from 'considering' those laws."

2016) (select "Jurisdiction" from the "Type" drop-down menu to generate a list that includes antiSharia bills and proposed amendments).

47. Anti-Sharia bills or constitutional amendments have been enacted or passed in Alabama, Arizona, Kansas, Louisiana, Mississippi, North Carolina, South Dakota, and Tennessee. See ALA. CONST. amend. DCCCLXXXIV; ARIZ. REV. STAT. ANN. §§ 12-3101 to -3103 (Supp. 2012); KAN. STAT. ANN. §§ 60-5101 to -5108 (Supp. 2012); LA. REV. STAT. ANN. § 9:6001 (Supp. 2016); MISS. CODE ANN. § 11-63-1 (2015); N.C. GEN. STAT. ANN. §§ 1-87.12 to .20 (2015); S.D. CODIFIED LAWS § 19-8-7 (Supp. 2013); TENN. CODE ANN. § 20-15-101 to -106 (Supp. 2012).

48. Awad v. Ziriax (Awad 111), 966 F. Supp. 2d 1198, 1201, 1207 (W.D. Okla. 2013).

49. Awadv. Ziriax (Awad I1), 670 F.3d 1111, 1118 (10thCir. 2012) (emphasis omitted); see H.R.J. Res. 1056, 52d Leg., 2d Reg. Sess. (Okla. 2010).

50. Awad v. Ziriax (Awad 1), No. CIV-10-1186-M, 2010 U.S. Dist. LEXIS 119660, *4 (W.D. Okla. Nov. 9, 2010), aff'd, 670 F.3d 1111 (10th Cir. 2012).

51. Awad II, 670 F.3d at 1128-29, 1132 (applying the Larson test). Under the Larson test, a law that discriminates against a religion is valid only if it is "closely fitted to the furtherance of any compelling governmental interest asserted." Larson v. Valente, 456 U.S. 228, 255 (1982).

52. AwadlI, 670 F.3d at 1130.

53. Id. 54. Id. at 1131; see also H.R.J. Res. 1056, 52d Leg., 2d Reg. Sess. (Okla. 2010).

460

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Federal injunction notwithstanding, the Save Our State Amendment was not a failure for the anti-Sharia movement in at least two ways. First, the anti-Sharia legislation movement was "an end in itself, aimed at keeping Muslims on the margins of American life" and "a political wedge to create fear and hysteria."55 This view gains support from David Yerushalmi, the lawyer dubbed "The Man Behind the Anti-Shariah Movement" by the New York Times, who said that if an anti-Sharia law "passed in every state without any friction, it would have not served its purpose... to get people asking this question, 'What is Shariah?"' 5 6 The anti-Sharia movement extended to the federal level with Newt Gingrich's proposal to ban Sharia from federal courts during his 2012 presidential campaign. 7 A second accomplishment of the Save Our State Amendment was pointing the way forward for the anti-Sharia movement: their strategy shifted to revising the wording of the laws to avoid obvious unconstitutionality. 8 The eight Sharia bans still standing do not explicitly single out Sharia or Islam. 59 The model legislation on which these bans are largely based, called "American Law for American Courts," provides that: Any court, arbitration, tribunal, or administrative agency ruling or decision shall... be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions ...in whole or in part on any law, legal code or system that would not grant the parties ...the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions. .... 60 The reality that Sharia remains the target is no secret in the media.61 And the group primarily responsible for organizing the campaign for facially neutral anti-Sharia laws, the American Public Policy Alliance, baldly targets Sharia law on its webpage about the model legislation, saying that "increasingly, foreign laws and legal doctrines, including Shariah law principles, are finding their way into US [sic] court cases," and that the model legislation "was crafted to protect American citizens' constitutional 55. Andrea Elliot, The Man Behind the Anti-Sharia Movement, N.Y. TIMES (July 31, 2011), http://www.nytimes.com/2011/07/31/us/31shariah.htmL. 56. Id. 57. Id. 58. See id.; see also H.R.J. Res. 1056, 52d Leg., 2d Reg. Sess. (Okla. 2010).

59. See ALA. CONST. amend. DCCCLXXXIV; ARIZ. REV. STAT. ANN. §§ 12-3101 to -3103 (Supp. 2012); KAN. STAT. ANN. §§ 60-5101 to -5108 (Supp. 2012); LA. REV. STAT. ANN. § 9:6001 (Supp. 2016); MISS. CODE ANN. § 11-63-1 (2015); N.C. GEN. STAT. ANN. §§ 1-87.12 to .20 (2015); S.D. CODIFIED LAWS § 19-8-7 (Supp. 2013); TENN. CODE ANN. §§ 20-15-101 to -106 (Supp.2012).

60. American Laws for American Courts, AM. PUB. POL'Y ALLIANCE, http://publicpolicyalliance.org/legislation/american-laws-for-american-courts (last visited Feb. 25, 2016).

61. See, e.g., Awad, supra note 5.

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foreign laws and foreign legal rights against the infiltration and incursion of 6a Law. doctrines, especially Islamic Shariah B.

Victimization

Of particular concern to the ethical issues of paternalism and victimization, advocates for anti-Sharia laws have purported to justify these bans as necessary to protect Muslim women. A related organization that supports the model legislation claims it "is needed especially to protect law." 63 women and children" from "grave injustices by virtue of... Islamic The report's lead example of Sharia in state courts is a New Jersey case, 64 widely referenced in the movement to justify anti-Sharia laws, in which an abused Muslim woman was denied a final restraining order when the trial court did not find criminal intent 65because the husband's religious beliefs allowed him to force sex upon her.

An important omission from the New Jersey case, and reports citing the case in support of anti-Sharia laws, is that 'whether the husband can 66 compel sex' is a contested question within Islam. It is expedient for those behind the anti-Sharia movement to treat Sharia as a fixed code imposed by Muslim men because the "colonialist tale of oppressed Muslim women in need of western rescue remains a powerful trope for motivating American public opinion." 67 Nor did the report emphasize the fact that this ruling was overturned on appeal because courts already have the laws with which to prevent religion-based exemptions from generally applicable criminal laws.68 This body of constitutional jurisprudence spans from Reynolds, upholding the criminalization of polygamy, to Smith, denying 69 accommodation for Native American religious use of an illegal drug.

Even more worryingly for Muslim women, not only do anti-Sharia laws unnecessarily discriminate against Islam, the resulting sense of persecution that many"Muslims feel from such Islamophobia can have the unfortunate side effect of further entrenching patriarchal interpretations of 62. American Lawsfor American Courts, supra note 60.

63. Shariah in American Courts: The Expanding Incursion of Islamic Law in the U.S. Legal 2014), 9, (Dec. 67 7, POL'Y SECURITY FOR CENTER System, http://www.centerforsecuritypolicy.org/wpcontent/uploads/2014/12/Shariah in AmericanCourtsl.pdf.

64. Awad, supra note 5; see also CENTER FOR SECURITY POL'Y, supra note 63, at 23.

65. S.D. v. M.J.R., 2 A.3d 412, 422 (N.J. Super. Ct. App. Div. 2010).

66. See, e.g., Abed Awad, Religion-Based Claim in Abuse Case Wisely Piercedby Appeals Court, N.J. L.J., Sept. 17, 2010, at 1; Macfarlane, supranote 16, at 40-41.

67. Quraishi, supra note 3, at 240.

68.

See CENTER FOR SECURITY POL'Y, supra note 63, at 23.

69. S.D., 2 A.3d at 422 (citing Emp't Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 890 (1990); Reynolds v. United States, 98 U.S. 145, 166 (1878)).

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Islam by provoking Muslim communities to turn inward and double-down on conservative norms. 70 As Ayelet Shachar explains, "pressures that are imposed on the group from the wider society surrounding it" can provoke "'reactive' groups [to] ossify and reify their once-living doctrine out of the fear of cultural assimilation."'', And Julie Macfarlane similarly explains, based on interviews with a wide range of North American Muslims, a common strategy in response to post-9/l1 hostility "is withdrawal, including a falling back on familiar norms and customs and a reassertion of 72 identity.

This clinging to patriarchal norms tends to more deeply entrench the inferior status of women within Muslim communities through persisting constraints on their freedom and education. This in turn makes it even harder for Muslim women to enact or advocate for egalitarian interpretations of Sharia. "[W]here the minority culture as a whole is subject to repressive pressures from the outside society .... group members feel.., obligations to rally around their cultural membership, rather than any inclinations to struggle for reform from within. ' 73 Muslim women in post-9/1 1 United States may experience especially great pressure to protect their cultural identity from perceived threats from the mainstream culture.

The perception of persecution from dominant culture puts pressure on women to "demonstrate group loyalty by accepting the standard interpretation of group doctrine as the only correct reading of their group's 74 tradition."

Relatedly, the simplistic, essentialist view of Sharia-as well as the patronizing view of Muslim women---expressed by anti-Sharia laws undermines efforts by Muslim women to advance progressive interpretations of Islam in the wider public discourse beyond Muslim communities. Targeting Sharia tends to essentialize and reify the ongoing process of interpretation by premising the ban on the presumption of a uniform, identifiable Sharia rather than the evolving, adaptive dynamic of Islamic law. 75 So, while it may be "possible to re-interpret those traditions 70. See, e.g., Sarah M. Fallon, Note, Justice for All: American Muslims, Sharia Law, and Maintaining Comity within American Jurisprudence,36 B.C. INT'L & COMP. L. REv. 153, 154-55 (2013). Similarly, as a Muslim feminist blogger laments in the Islamist nation of Malaysia, "'Liberal' has become a dirty word in Malaysia, where it can mean anything from being Westemised and elitist, to simply being immoral." Alicia, No Country for Muslim Women, MUSLIMAH MEDIA WATCH (June 16, 2009), http://www.patheos.com/blogs/nmw/2009/O6/no-

country-for-muslim-women.

71.

SHACHAR, supra note 9, at 39-40.

72. Macfarlane, supra note 16, at 7.

73. SHACHAR, supra note 9, at 61.

74.

75.

Id. at 39.

See id. at 39-40.

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that impose systemic risks and costs on certain insiders without may be endangering the group's identity," the insiders calling for changes 76 norms.

Western importing and accused of betraying the group ShariaPluralism and Islamic Feminism

C.

In the course of representing Farah, I made a fortuitous discovery that helped me see how blaming her culture would be a disservice and missed opportunity for Farah. I read a law journal article by Nooria Faizi, a Muslim-American woman making a textual argument from the Quran and collected teachings of Muhammad that Islam does not permit spousal abuse, though men manipulate verses to justify abuse. 77 I shared the article with Farah, who devoured it and told me, memorably: "These are the words of my thoughts." In that moment, the article and Farah introduced me to what I would later identify as Sharia pluralism and Islamic feminism.

Sharia is usually understood as Islamic law.78 But Sharia is not a legal code to be enforced by a sovereign, contrary to the pretensions of ISIS and some countries. 79 Rather, Sharia is considered God's law, never completely knowable by mere humans, and therefore subject to individual interpretation by any Muslim who is versed in the techniques of interpreting Sharia, based primarily on the Quran and collected teachings of Muhammad.8" The resulting pluralism of Sharia creates space for Islamic feminists, who are working to reclaim the egalitarian core of Islam.81 Their primary technique is reinterpretation of Sharia, which means going straight to the source, the Quran, rather than relying on the interpretations of their 82 imams and husbands.

76. Id. at 40.

77. Faizi, supra note 17, at 210-11.

78. Asifa Quraishi, Who Says Shari'a Demands the Stoning of Women? A Description of Islamic Law and Constitutionalism,1 BERKELEY J. MIDDLE E. & ISLAMIc L. 163, 164 (2008).

79. See, e.g., Abdullahi A. An-Na'im, Complementary, Not Competing, Claims of Law and

Religion: An Islamic Perspective,39 PEPP. L. REv. 1231, 1244-45 (2013). Accordingly, a fatwa is not a directive but a legal opinion, not like the order of a judge, but more like the interpretation of a law professor. Quraishi, supra note 3, at 171.

80. See, e.g., An-Na'im, supra note 79, at 1243-44; Ziba Mir-Hosseini, Muslim Women's Quest for Equality: Between Islamic Law and Feminism, 32 CRITICAL INQUIRY 629, 632-33

(2006).

81.

See, e.g., Nahida, Quranic Verses and Misconceptions: Divorce and Male Privilege,

FATAL FEMINIST (June 16, 2012), http://thefatalfeminist.com/2012/06/16/quranic-verses-andKARAMAH, Mission, & Vision misconceptions-divorce-and-male-privilege; http://karamah.org/about/vision-and-mission (last visited Feb. 22, 2016) ("KARAMAH's primary mission is to educate both Muslims and non-Muslims about the just, gender equitable foundation of Islam.").

82. See SHACHAR, supra note 9, at 66 n.18 ("Women's attempts to transform their cultures' gender-biased family law norms can often begin through a challenge of the ways in which

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Islamic feminism's arguments are aided by a compelling historical premise: Islam was originally far more egalitarian than it has come to be interpreted over time in patriarchal cultures.83 Scholars point out that at the time of its origin in the seventh century, Islam radically improved the status of women in Arab societies, granting women new rights, such as the rights to own property, enter into contracts, consent to marriage or not, request divorce, serve on the front lines in battle, get an education, and become Islamic scholars.84 Muslim women actually fared better in terms of social equality than European women up until the turn of the twentieth century, when the Ottoman Empire began Westernizing and several subsequent wars left power vacuums throughout the Middle East.8 5 In response to these power shifts, the region began to see the rise of Islamic fundamentalism, entrenching politicized, patriarchal interpretations of Sharia-a tendency that is still growing in the form of ISIS, for example. 86 The ensuing decline of women's status in the Muslim world is thus not explained by religion but by political power-holders, from the Middle Ages to the present, reinforcing cultural patriarchy in the name of Islam.87 As a prominent Muslim feminist in Morocco put it: "Women have no problem with Islam. They have a problem with power."88 D.

Domestic Violence

Consider the issue of domestic violence as an example of how complex the role of culture becomes, how presumptions about Sharia can be counterproductive, and how Islamic feminists advance arguments for equality within Islam and because of it, rather than outside of and despite it.

Research indicates that Muslim women in North America experience domestic violence at about the same rate as the general population. 89 Although this rate is alarmingly high-about one in three women-the

cherished religious scriptures have traditionally been interpreted . . . . as in the case of various Muslim feminists bringing reinterpretations to the Qur'an and the shari 'a.").

83. See Awad, supra note 66, at 2.

84. Id.; Quraishi, supra note 3, at 218.

85. See An-Na'im, supra note 79, 1245-46 (describing changes in Islamic law during shifts of power up to and including the current political climate in the Middle East).

86. See Quraishi, supra note 3, at 214-16, 218, 237-38 (describing the more recent patriarchal and fundamentalist interpretations of Sharia versus the classical, more balanced interpretations).

87. Quraishi, supra note 3, at 175-76.

88. Id. at 219 (quoting Daniel Steinvorth, Interview with Moroccan Islamist Nadia Yassine, SPIEGEL ONLINE INT'L (July 3, 2007, 2:22 PM),

http://www.spiegel.de/international/world/interview-with-moroccan-islamist-nadia-yassine-ourreligion-is-friendly-to-women-a-492040.html).

89.

See Macfarlane, supra note 16, at 26.

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invariance with the general rate suggests there is nothing peculiar to Muslim culture about the incidence of abuse, cutting against a tendency in America to attribute most interspousal violence to deviant behavior yet attributing Muslim interspousal violence to Muslim culture only. 90 It is no surprise, then, that in a Muslim community, seeking outside help from the police or courts may be disfavored because it "would be disloyal to the community." 91 What does appear to be more distinctly a characteristic of Muslim culture is the husband's tendency of "trading on a cultural expectation of male dominance, that enable[s] him to rely on community tolerance of his behavior," because some Muslims believe that Islam permits beating a disobedient wife. 92 In other words, although Muslims are not more likely to engage in domestic violence, Islam is heavily used to justify domestic violence.

At the same time, there are many Muslims who contest the belief that Islam permits domestic violence, such as Nooria Faizi, the legal scholar who wrote the article I shared with Farah. 93 Using an interpretative technique parallel to one I discuss below in regard to divorce rights, one Muslim scholar named Azizah al-Hibri persuasively reinterprets the Quranic verse about men being the protectors or maintainers of women, which has been historically interpreted to justify male dominance and the wife's duty of obedience, as a limitation on men who had been failing to protect and maintain their wives, rather than as granting men a power that women did not have.94 The problem is that voices like those of Faizi, al-Hibri, and many other scholars cited in this Article are less audible in both mainstream American discourse and in the lives of women like Farah, who may lack much education both in general and in regard to Islam, leaving them at the mercy of their husband, parents, and imam. Non-Muslims can play a role in reinforcing this dynamic by assuming stereotypes about Islam are true, thereby perpetuating those patriarchal norms that some Muslims are struggling to undermine. Accordingly, a non-Muslim lawyer representing a Muslim woman can further entrench the patriarchy faced by the client. But the mere existence of Islamic feminism points to why we should not presume patriarchal characterizations of Islam. To do so concedes the

90. Id. 91. Id.; see also Elkassabgi, supra note 17, at 3-4.

92. Faizi, supra note 17, at 211-12; Macfarlane, supra note 16, at 26.

93. See Faizi, supra note 17, at 213.

94. See Aziz al-Hibri, Islam, Law and Custom: Redefining Muslim Women's Rights, 12 AM. U. J. INT'L L. & POL'Y 4, 32-33 (1997).

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premise of patriarchal Islam, thereby giving patriarchy the upper hand in defining Islam.

E.

Divorce

The issue of divorce is an important example of how patriarchal views of Sharia are susceptible to egalitarian critiques. The prevailing view of Sharia is that divorce is taboo because it is the "most hated permitted thing." 95 But scholars point out that the process of divorce is detailed in over twenty Quranic verses, and some of those verses treat divorce not only as permissible but as unexceptional, appearing to carry little of the stigma it does today in Muslim communities.96 There is a story from Muhammad's life in which a woman named Jamilah complained to Muhammad that although she could find no fault with her husband, she just could not stand him anymore; Muhammad instructed her husband to accept Jamilah's divorce. 97 In her study of divorce among North American Muslims, Julie Macfarlane interviewed imams with a wide range of views on divorce, including one who inferred from such stories that "[d]ivorce... is as simple as not being attracted to a man." 98 But, this imam noted, few Muslims today follow that principle, suggesting that, surprisingly, "divorce was much more accepted at the time of the Prophet than our community remembers." 99 Another prevailing view is that the husband can unilaterally divorce the wife, but the wife cannot unilaterally divorce the husband.10 0 Indeed, the Quran does prescribe the process by which a man may divorce his wife; it specifies the man can effect divorce by saying "Talaq," meaning "I divorce you," three times in three consecutive months.1" 1 Muslim feminists point out, however, that the Quran is actually silent on the question of whether women may unilaterally divorce their husbands.10 2 This disparity has been historically interpreted as granting men the exclusive unilateral right to divorce.10 3 But it can be read another way: as restricting men's right to divorce, subjecting men who want to divorce to strict rules about how and

95.

See supra text accompanying note 20.

96.

MACFARLANE, supra note 13, at 141.

97. Id. at 141-42; MOHAMMAD ALI SYED, THE POSITION OF WOMEN IN ISLAM: A PROGRESSIVE VIEW 67 (2004).

98.

MACFARLANE, supra note 13, at 142.

99. Id. 100. See supra text accompanying note 25.

101. See THE MEANING OF THE HOLY QUR'AN 2:228-31 (Abdullah Yusuf Ali ed. & trans., 1993); Oman, supra note 25, at 304-05.

102. Nahida, Quranic Verses and Misconceptions: Divorce and Male Privilege, supra note 81.

103. See id.

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when they can do so. 10 4 From this view, the disparity in the Quran means that women are not restrictedin their right to initiate divorce. According to this interpretation, the Quran does not grant men the right; rather, men and women both had the right already, and the Quran restricts men from abusing that right.105 There is evidence suggesting the work of Islamic feminists is improving divorce equality for Muslim American women. "Muslim scholars are paying increasing attention to the idea of a progressive twentyfirst-century shari'a ....[a]sserting that equality and social justice are core principles of shari'a. ..."06 Increasingly, Muslim American women are initiating divorce by resorting to state courts, as Farah did) °7 Some imams are advising couples that a divorce under state law ends the Islamic marriage as well,1 8 referencing a fatwa issued by the European Council for Fatwa and Research-a group of Islamic scholars-that "recognize[es] an uncontested civil divorce as the equivalent of a religious divorce, with no further steps necessary" to end the Islamic marriage. 9 Other imams assume the role of an Islamic judge and grant a divorce to a wife who would otherwise be stuck in an Islamic marriage, without stringent regard 11 0 for proving cause.

Returning to the ethical concerns of a practicing lawyer, how does all of this apply in ethically representing an individual client like Farah? I am not suggesting that a non-Muslim attorney should enter a mosque and tell an imam about Islamic law; such a confrontation is not likely to benefit the client. Rather, the attorney can exercise a core function of a lawyer's duty to the client: counsel her about the law, in this instance, Islamic law.111 Do not assume that the client already knows her rights according to her own cultural norms; she may not have had the benefit of an Islamic education, and therefore she may be at the mercy of the men in her community for understanding Islamic law. 12 Al-Hibri argues that Muslim women "will not be liberated through the use of a secular approach imposed from the outside," but rather by obtaining a religious education exposing non104. See id.

105. See SYED, supra note 97, at 66.

106. MACFARLANE, supra note 13, at 8.

107. Id. at 167.

108. Id. at 235.

109. Id. 110. These imams may reason that the husband's refusal to divorce itself constitutes harm sufficient to prove cause for divorce. See Ziba Mir-Hosseini, A Woman's Right to Terminate the Marriage Contract: The Case of Iran, in THE ISLAMIC MARRIAGE CONTRACT: CASE STUDIES IN ISLAMIC FAMILY LAW 215, 223 (Asifa Quraishi & Frank E.Vogel eds., 2008).

111. See MODEL RULES OF PROF'L CONDUCT pmbl. [2] (2015).

112. See al-Hibri, supra note 94, at 3.

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patriarchal interpretations of Sharia and "build[ing] a solid Muslim feminist jurisprudential basis which clearly shows that Islam not only does not deprive them of their rights, but in fact demands these rights for them... 3 V.

CONCLUSION

The crucial prerequisite for Islamic feminism is education, including Islamic education." 4 Muslim feminists base their arguments on the sources of Sharia, the Quran, and the teachings of Muhammad." 5 "Islamic education is an indispensable tool of empowerment for practicing Muslim women ....because fluency in Islamic law is a very effective way to overcome patriarchal customs in Muslim communities ....

giving them

confidence to resist exercises of power by fathers and husbands attempting 1 16 to violate their ...rights.

I speculate that the United States could be the home for an increasing recognition of Sharia pluralism and a corresponding strengthening of Islamic feminism. There are increasing numbers of Muslim Americans with access to education and the opportunity to discover non-patriarchal interpretations of Islam." 7 But the right conditions require we not spread paternalistic conceptions of Islam that reinforce patriarchal interpretations.

We also must avoid Islamophobia-like that manifested in anti-Sharia laws-that is likely to trigger turning inward toward the patriarchal customs we claim to oppose in Muslim communities.

As family law attorneys should educate themselves and their Muslim women clients about the pluralism of Islam, attorneys should share this knowledge with other attorneys, judges, and lawmakers. The ethical rules say: "As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education." '18 When considering this prescription, the family attorney should understand Islamic law to be included in the meaning of law because it has real effects in the lives of a growing number of American family law clients.

113. Id. 114. See id.; Quraishi, supra note 3, at 226.

115. See, e.g., Quraishi, supra note 3, at 216; Nahida, Reclaiming Shari'ah: (PartI) the Process, FATAL FEMrNIST (July 13, 2012), http://thefatalfeminist.com/2012/07/13/reclaimingshariah-the-process.

116.

Quraishi, supra note 3, at 226.

117. See Section ]: A DemographicPortraitof Muslim Americans, PEw RES. CENTER (Aug. 30, 2011), http://www.people-press.org/2011/08/30/section- 1-a-demographic-portrait-of-muslimamericans/ (estimating there were 2.35 million Muslims in the United States in 2007, increasing to 2.75 million in 2011).

118. MODEL RULES OF PROF'L CONDUCT pmbl. [6] (2015).

THE BUCK STOPS HERE... OR MAYBE NOT HONORABLE DAVID D. FARRt & CALVIN MCLEANtt

I. IN TRODUCTION ...............................................................................

469

A . JudicialR eview .......................................................................

471

B. C.

471 473 473

Post-JudgmentAppeal ...........................................................

InterlocutoryAppeal ...............................................................

1. Writ of M andamus ............................................................. a. Failed to Perform a Clear Legal Duty or Committed a Clear Abuse of Discretion ....................................... b. Available Legal Remedies Are Inadequate ................ c. Writ of Habeas Corpus ...............................................

II. LEGISLATURE TAKES DISCRETION AWAY FROM THE COURT ........

A. Chapter3 7 of the Texas Government Code ............................

B. Chapter 36 of the Texas Government Code ............................

III. THE TEXAS COMMISSION ON JUDICIAL CONDUCT .........................

V . C ON CLU SION ..................................................................................

I.

474 475 475 476 477 478 479 482

INTRODUCTION

When I began practicing law in 1994, the Texas Family Code was a fraction of its current size. The extra pages reflect all of the new things that t Judge David Farr is in his third term as Judge of the 312th Family District Court. In 2010, he completed an active duty assignment in Iraq before taking the bench. Prior to his active duty, Judge Farr served as Associate Judge of the 257th District Court for five years and prosecuted child support cases for five years. As a member of the Texas Army National Guard, he has been a Judge Advocate Officer since 1997 and has since been promoted to Colonel. He has also served active duty assignments in Bosnia, Kosovo, and New Orleans after Hurricane Katrina.

Judge Farr is board certified in family law, a veteran of the Global War on Terror, and a member of the Texas Aggie Bar Association. He was also a member of the Texas A&M Corps of Cadets from 1987 until 1991. He is a former board member for both the IBA's Family Law Section and Gulf Coast Family Law Specialists. Judge Farr is currently an adjunct professor at the University of Houston and was previously an adjunct professor at South Texas College of Law Houston.

Additionally, he has Master Status with the Burta Raybum Inns of Court. Judge Farr earned his B.A. in History from Texas A&M University and his J.D. from Texas Southern University Thurgood Marshall School of Law. He resides in Houston with his wife, Betsy, and their three children. tt J.D., South Texas College of Law Houston, December 2016.

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have been statutorily addressed in family law. No matter how many pages are added in the future, it will remain, impossible for the legislature to address every issue that may arise. For this reason, judicial discretion will always be necessary. Judicial discretion takes many forms: When a judge decides how many cases to assign to their daily docket, decides the time for docket call, or sets court reporting or filing rules they have exercised discretion. Discretion begins where the law ends. 1 Texas legislators recognize this, and they have granted broad discretion to judges and courts.2 The Texas Legislature recognizes that judicial discretion is necessary to ensure fair outcomes in Texas family law cases.3 President Harry S. Truman had a sign on his desk that read, "The buck stops here."4 This phrase is often thought to mean that my decisions are final; however, it really meant the holder of the sign would not "pass the buck" or pass their assigned duties to others. 5 Although discretion is necessary and is broadly granted to courts, this discretion is not unlimited. Judicial discretion is defined by Black's Law Dictionary as "[t]he exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right."6 The focus of this Article is the final two points of the definition: (1) judicial discretion is guided by rules and principles, and (2) a court must possess the power to act or not act when the court exercises discretion.

Guidance and rules are given to trial courts by appellate courts and the legislature.7 The power to act or not act is granted to trial courts by the constitution or statutes.8 The buck, therefore, has not been passed to trial courts to exercise unfettered discretion. Trial courts have simply been afforded the ability to act or not act by the constitution and the legislature and are guided by the rulings of higher courts. Appellate courts set guidelines through precedent, and the legislature either grants or removes power through laws.9 Thomas Hobbes stated in Leviathan that a covenant

1. See Bostwickv. Bostwick, 11 S.W. 178, 179 (Tex. 1889).

2. See Moore v. Moore, 213 S.W. 949, 949 (Tex. Civ. App.-Beaumont 1919, no writ).

3.

Tucker v. Thomas, 405 S.W.3d 694, 704 (Tex. App.-Houston (14th Dist.] 2011), rev'd in part on other grounds, 419 S.W.3d 292 (Tex. 2013).

4.

"The Buck Stops Here" Desk Sign, HARRY S. TRUMAN LIBR. & MUSEUM, http://www.trumanlibrary.org/buckstop.htm (last visited Apr. 12, 2016).

5.

CAMBRIDGE ACADEMIC CONTENT DICTIONARY 685 (1st ed. 2009).

6. BLACK'S LAW DICTIONARY 565 (10th ed. 2014).

7. See In re Lee, 411 S.W.3d 445, 450 (Tex. 2013); Niskar v. Niskar, 136 S.W.3d 749, 756 (Tex. App.-Dallas 2004, no pet.).

8. Tex. Dep't of Transp. v. Marquez, 885 S.W.2d 456, 458 (Tex. App.-El Paso 1994, no writ) (citing Curry v. Wilson, 853 S.W.2d 40, 45 (Tex. Crim. App. 1993) (en banc)).

9. See In re K.E.M., 89 S.W.3d 814, 818-19 (Tex. App.-Corpus Christi 2002, no pet.).

THE BUCK STOPS HERE... OR MA YBE NOT

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without a sword is of no effect. 10 If there were no punishment for trial court judges who blatantly refused to be guided by judicial precedent or be bound by legislative limits, there would be little incentive to adhere to precedent or the law. Most judges do not want to be overturned, but I am certain that no judge wants to be punished or removed. The sword in our judicial system is wielded by the Texas Commission on Judicial Conduct.11 A.

JudicialReview

Texas judges are granted broad discretion to promote the efficient use of time and resources of the courts, litigants, and counsel.12 This discretion is not unlimited.13 Litigants may challenge the discretion of the court by 14 either pre-judgment appeal or post-judgment appeal.

B.

Post-JudgmentAppeal

The standard of review applied by Texas intermediate appellate courts to most appealable family law issues is an abuse-of-discretion standard.15 Under this standard of review, "[a] trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principles. 16 "In family law cases, the abuse-ofdiscretion standard of review overlaps with traditional sufficiency standards of review. ... ."" The sufficiency standard is but one factor of the abuse-of-

discretion standard; as a result, legal and factual sufficiency are not independent grounds of error but are relevant factors in our assessment of whether the trial court abused its discretion.18 Under an abuse-of-discretion 10.

11.

See THOMAS HOBBES, LEVIATHAN 111-12 (Everyman's Library 1965) (1651).

See TEX. CONST. art. V, § 1-a.

12. Richard v. Towery, No. 01-11-00132-CV, 2013 WL 1694861, at *18 (Tex. App.Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.) (quoting In re S.C.S., No. 05-06-01600CV, 2008 WL 1973570, at *3 (Tex. App.-Dallas May 8, 2008, no pet.) (mem. op.)).

13. See In re Marriage of Walker, No. 06-97-00114-CV, 1998 Tex. App. LEXIS 3786, at *4 (Tex. App.-Texarkana June 25, 1998, no pet.).

14.

15.

See State v. Naylor, 466 S.W.3d 783, 797 (Tex. 2015).

Rivas v. Rivas, 452 S.W.3d 49, 54 (Tex. App-El Paso 2014, no pet.); In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.-Dallas 2009, pet. denied); see Sheikh v. Sheikh, 248 S.W.3d 381, 386-87 (Tex. App-Houston [1st Dist.] 2007, no pet.); Grayson v. Grayson, 103 S.W.3d 559, 561 (Tex. App-San Antonio 2003, no pet.). But see Matthiessen v. Schaefer, 897 S.W.2d 825, 828 (Tex. App.-San Antonio 1994) (Duncan, J., dissenting), revd on other grounds, 915 S.W.2d 479 (Tex. 1995) (per curiam) (stating appellate court should review award of attorney's fees by normal sufficiency of evidence standard, and not subsume sufficiency of evidence into abuse of discretion standard).

16. In re A.B.P., 291 S.W.3d at 95 (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re M.J., 227 S.W.3d 786, 790 (Tex. App.-Dallas 2006, pet. denied)).

17.

Id.

18.

Id.

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review, appellate courts evaluate two factors: (1) whether the trial court had sufficient evidence to exercise discretion and (2) whether the court erred in its exercise of discretion.19 Even if the appellate court determines that the evidence was insufficient for the court to exercise discretion, the court must still proceed to prong two and determine if the court's exercise of discretion was either arbitrary or unreasonable. 20 This is a high burden to overcome for an appellee. Although abuse of discretion is a high standard, trial courts are sometimes reversed under the abuse-of-discretion standard.2 ' Guiding 22 rules and principles for trial courts are set by appellate court precedent. If a trial court follows binding precedent, the court will not be overturned. 3 In many instances there is no precedent to guide the courts and appellate courts allow the trial court to evaluate each case on a case-by-case basis.24 Family law trial courts will be reversed under an abuse-of-discretion standard if the record is insufficient to support the court's ruling.25 The first prong of the abuse-of-discretion test is basically a sufficiency of the evidence test. 26 Appellate courts examine the record as a whole in order to

determine if there was an abuse of discretion.27 If the record is incomplete, insufficient to support the trial court's ruling, or nonexistent, the first prong will support reversal.28 If requested, family courts must make written findings of fact and conclusions of law. 29 There is a presumption that a failure to make findings of fact and conclusions of law harms the complaining party if a proper and timely request is made.3" However, if no harm is shown on the face of the record, failure to make these findings will

19. Id.; Norris v. Norris, 56 S.W.3d 333, 338 (Tex. App.-El Paso 2001, no pet.).

20. See Norris, 56 S.W.3d at 338.

21. Sheikh v. Sheikh, 248 S.W.3d 381, 395 (Tex. App.-Houston [lst Dist.] 2007, no pet.); Castle v. Harris, 960 S.W.2d 140, 144 (Tex. App.-Corpus Christi 1997, no pet.); McMaster v.

McMaster, 574 S.W.2d 594, 597 (Tex. Civ. App.-San Antonio 1978, writ dism'd).

22. See Niskar v. Niskar, 136 S.W.3d 749, 756 (Tex. App.-Dallas 2004, no pet.).

23. In re Gillespie, 124 S.W.3d 699, 704 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (citing In re Smith Barney, Inc., 975 S.W.2d 593, 599 (Tex. 1998)).

24. Amos v. Amos, 79 S.W.3d 747, 749 (Tex. App.-Corpus Christi 2002, no pet.).

25. See Gillespie v. Gillespie, 644 S.W.2d 449,451 (Tex. 1982).

26. See Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.-El Paso 1998, no pet.).

27. Gillespie, 644 S.W.2d at 451; Sharp v. Sharp, 710 S.W.2d 696, 698 (Tex. App.-Dallas 1986, no writ).

28. See Carter v. Carter, 225 S.W.3d 649, 651 (Tex. App-El Paso 2006, no pet.); Dahmann v. Dahmann, No. 01-03-0058-CV, 2004 WL 1485799, at *5 (Tex. App.-Houston [lst Dist.] July 1, 2004, no pet.) (mem. op.); Williams v. Williams, No. 09-98-345-CV, 1999 WL 642375, at *3 (Tex. App.-Beaumont Aug. 12, 1999, no pet.) (per curiam, not designated for publication).

29. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996).

30. See TEX. R. Ctv. P.296; Wagner v. Riske, 178 S.W.2d 117, 119 (Tex. 1944).

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THE BUCK STOPS HERE... OR MAYBE NOT

473

not warrant reversal. 3 ' Error is harmful if it prevents an appellant from 32 properly presenting a case to the appellate court.

C.

InterlocutoryAppeal

An interlocutory appeal is "[a]n appeal that occurs before the trial court's final ruling on the entire case." 3 3 "Some interlocutory appeals involve legal points necessary to the determination of the case, while others involve collateral orders that are wholly separate from the merits of the action."34 Appellate courts generally have jurisdiction to hear appeals only if it is from a final judgment. 35 "Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides appellate jurisdiction."36 An order is not final unless it disposes of all pending claims and parties in the underlying proceeding or there is an order for severance that appears in the record.37 There are few remedies that a party may seek in an interlocutory appeal. The next few paragraphs will discuss mandamus and habeas corpus as remedies in interlocutory appeals.

1.

Writ of Mandamus

A writ is "[a] court's written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act."38 Mandamus is an "'extraordinary' remedy, reserved for 'manifest and urgent necessity,' and will not issue unless relator satisfies a heavy burden of establishing 'compelling 39 circumstances."'

A party seeking mandamus relief must show that respondent (in this case the court) (1) either failed to perform a clear legal duty or committed a clear abuse of discretion and (2) that available legal remedies are inadequate.4" In Texas, mandamus relief may not be granted for reversible error alone nor for incidental trial rulings, such as venue

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

Wagner, 178 S.W.2dat 120.

TEx. R. APP. P. 44.1 (a)(2).

BLACK'S LAW DICTIONARY, supra note 7, at 118., Id. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992).

Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (per curiam).

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 209 (Tex. 2001).

BLACK'S LAW DICTIONARY, supra note 7, at 1845.

Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996).

Id. at 682 (citing Walker v. Packer, 827 S.W.2d 833, 839 n.7, 840-41 (Tex. 1992)).

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decisions, which are considered correctable by appeal.4 1 Texas courts recognize that cases involving suits affecting the parent-child relationship, such as custody and support issues, need to be resolved quickly and therefore an ordinary appeal would not provide an adequate remedy.42 A party may file a petition for writ of mandamus with a court of appeals or directly with the Texas Supreme Court because they share mandamus jurisdiction.4 3 Although direct petitions are allowed, they are limited to cases with compelling circumstances. 44 "If [a] petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals."45 a. Failed to Perform a Clear Legal Duty or Committed a Clear Abuse of Discretion Mandamus relief is extraordinary relief,46 so it stands to reason that the standard of review for mandamus relief should be extraordinary as well.

Appellate courts rarely interfere with the discretion of trial courts in mandamus requests. 47 The standard of review for mandamus requests is clear abuse of discretion.48 Under this standard of review, the appellate court will not overrule the discretion of the trial court without a finding that the decision is without basis or guiding principles of law. 49 The reviewing court may not substitute its judgment for that of the trial court when the trial court exercised discretion in regard to fact questions.50 In order to prevail, "[t]he relator must establish that the trial court could reasonably have reached only one decision."5 Even if the appellate court "would have decided the issue differently, it cannot disturb the trial court's decision 41.

See In re Rowe, 182 S.W.3d 424, 426 (Tex. App.-Eastland 2005, orig. proceeding) (citing Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 308 n.I1 (Tex. 1994); In re Mo. Pac. R.R., 998 S.W.2d 212, 215 (Tex. 1999)).

42. In re Mo. Pac. R.R., 998 S.W.2d at 215; In re Calderon, 96 S.W.3d 711, 715 (Tex. App.-Tyler 2003, orig. proceeding) ("Remedy by regular appeal, though available, is frequently inadequate to protect the rights of parents and children to a trial in a particular venue." (citing Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987))).

43. See TEX. Gov'T CODE ANN. § 22.002(b) (West 2004 & Supp. 2015), § 22.221 (West 2004).

44. TEX. R. APP. P. 52.3(e).

45. Id. 46.

Tilton, 925 S.W.2d at 681.

47. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917-18 (Tex. 1985) (orig. proceeding).

48. Id. at918.

49. Id. 50. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989)).

51. Id. at 840.

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unless it is shown to be arbitrary and unreasonable. 5 2 In respect to a trial court's determination of the legal principles controlling its ruling, the standard is much less deferential to the trial court.53 A trial court has absolutely no discretion in determining what the law is or applying the law to the facts.54 A "failure by the trial court to analyze or apply the law correctly will constitute [clear] abuse of discretion, and may result in appellate reversal by extraordinary writ."55 b.

Available Legal Remedies Are Inadequate

Even if there is a failure to follow the law by the trial court, or a clear abuse of discretion, the relator still must pass prong two of the test.

Mandamus relief will be denied unless relator can prove that the available legal remedies are inadequate.56 If a clear and adequate remedy at law is available, such as a normal appeal, mandamus relief will not be granted.57 Mandamus is intended to be an extraordinary remedy, available only in limited circumstances.5 8 "The writ [of mandamus] will issue 'only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies."' 59 c.

Writ of Habeas Corpus

Texas family court judges, as previously stated, have broad discretion." Habeas corpus relief is not a discretionary matter; issuance is a matter of right.6 1 Once a relator establishes a legal right to possession of a child and the absence of a dire emergency, relief shall be granted as a matter of right.62 So why do we discuss habeas corpus in an Article on discretion? Because trial judges may wrongly decide a plea for habeas corpus relief. A trial court's grant or denial of habeas corpus relief is not

52. Id. 53. Id. 54. Id. 55. Id. 56. See Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex. 1986) (per curiam).

57. Walker, 827 S.W.2d at 840.

58. Tilton, 925 S.W.2d at 681.

59. In re Salazar, 142 S.W.3d 412, 414 (Tex. App.-El Paso 2004, no pet.) (quoting Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989)).

60. See Bostwick v. Bostwick, 11 S.W. 178, 179 (Tex. 1889).

61. In re Guerrero, 440 S.W.3d 917, 923 (Tex. App.-Amarillo 2014, no pet.).

62. Id.

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appealable.63 Mandamus relief would be available if the ruling was against 64 guiding principles of law.

Prior to 1969, intermediate civil appellate courts had no jurisdiction to issue writs of habeas corpus as an original matter. 65 In 1969, the legislature granted the Court of Civil Appeals the authority to issue writs of habeas corpus in certain limited situations related to divorce, custody, and support.6 6 The statute was amended in 1981 to apply to the courts of appeals.6 7 Texas intermediate courts of appeals have no original jurisdiction over petitions or applications for habeas corpus relief in connection with criminal proceedings. 68 Thus, while discretion is indeed great for Texas family law court judges, it is not as great, at least in this regard, as that afforded to Texas criminal law judges.6 9 II.

LEGISLATURE TAKES DISCRETION AWAY FROM THE COURT

We are all familiar with the concept of separation of powers. The Texas constitution forbids one branch of government from exercising the powers granted to another branch.7" Therefore, once the legislative branch exercises its given authority and states what the law is, the judicial branch may not lawfully substitute its judgment for that of the legislative branch.71 In other words, once the legislature lawfully speaks to a matter, discretion has been removed from the court. The Eighty-Fourth Texas Legislature passed two bills that will have a great impact on family law cases.72 The first of these two bills was Senate Bill 1876, which sets the procedure for the appointment of ad litems, guardians, and mediators in about one-third of Texas counties.73 The second bill was Senate Bill 1369, which added 63. Id. 64. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).

65. See Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 105 (Tex. 1962).

66. Act of April 15, 1969, 61st Leg., R.S., ch. 96, §1, 1969 Tex. Gen. Laws 249, amended

by Act of June 1, 1981, 67th Leg., R.S., ch. 291, §41, 1981 Tex. Gen. Laws 781.

67. TEX. REV. CIV. STAT. ANN. art. 1824a (West Supp. 1982).

68.

Sara Rodriguez, Appellate Review of PretrialRequests for Habeas Corpus Relief in

Texas, 32 TEX. TECH L. REV. 45, 51 (2000) (citing Exparte Lewis, 663 S.W.2d 153, 154 (Tex. App.-Amarillo 1983, orig. proceeding); 43 GEORGE E. Dix & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 47.16 (1995)).

69.

See id.

70.

71.

TEX. CONST. art. II, § 1.

See, e.g., Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).

72. See Mena Ramon, New Court Appointment Procedures and Reporting Requirements Enacted by the 84th Legislature - Senate Bill 1876 and Senate Bill 1369, in IN CHAMBERS: OFFICIAL PUBLICATION TEX. CENTER FOR JUDICIARY 22, 22 (Fall 2015).

73. See Act of May 29, 2015, 84th Leg., R.S., ch. 1223, § 1, secs. 37.001-005, 2015 Tex. Gen. Laws 4071 (current version at TEX. GOV'T CODE ANN. §§ 37.001-005 (West Supp. 2015)).

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477

reporting requirements regarding the appointment and payment of appointed ad litems, guardians, and mediators. 74 This section will discuss Senate Bills 1876 and 1369 and the impact they will have on Texas family courts. This section will also discuss how an abuse of discretion in appointing ad litems, guardians, and mediators may have led to the changes enacted by the Texas Legislature. As the old Texas saying states, "pigs get and when discretion is not handled properly, it is fat, hogs get slaughtered," 75 away. taken often A.

Chapter 3 7 of the Texas Government Code

Senate Bill 1876 was introduced by State Senator Zaffirini on March 25, 2015.76 On September 1, 2015, Senate Bill 1876 became law as Chapter 37 of the Texas Government Code.77 This law established new procedures for appointing attorney ad litems, guardian ad litems, mediators, and guardians.7 8 The law applies to courts that were created by the Texas constitution, by statute, or authorized by statute in Texas counties with a population of 25,000 or more people. 79 The most significant change is that Texas family judges may no longer utilize the court's discretion in ad litem, mediator, or guardian appointing an attorney ad litem, guardian 80 exception. statutory a is there unless The new law mandates that each court of this state shall establish and maintain four lists. 8 The first required list includes attorneys who are 82 qualified to serve as attorney ad litem and are registered with the court.

The second list is for all persons who are qualified to serve as guardian ad litem and are registered with the court. 83 The third list is all persons who are registered with the court to serve as mediators.84 The final list is for all attorneys and private professional guardians who are statutorily qualified to serve as a guardian and are registered with the court. With the exception of a mediator who is agreed upon by all parties,8 6 all appointments are made 74. See Act of May 30, 2015, 84th Leg., R.S., ch. 1199, § 1, secs. 36.001-.006, 2015 Tex. Gen. Laws 4025 (current version at TEX. GOV'T CODE ANN. §§ 36.001-.006 (West Supp. 2015)).

75. 149 CONG. REc. 4176 (2003).

76. S.J. ofTex., 84th Leg., R.S. 600 (2015).

77. TEX. GOv'T CODE ANN. § 37.001 (West Supp. 2015).

Id.

78.

79.

Id.

80.

81.

82.

See id. §§ 37.001, 37.002 (§ 37.002 lists the relevant exceptions).

Id. § 37.003.

Id.

83.

Id.

84.

85.

86.

Id. Id. See id. § 37.004.

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from a list. 87 And, as previously mentioned, there are four statutory exceptions.88 The first exception allows a judge to appoint an alternative dispute resolution system that has been established by the county commissioners. 89 Secondly, there is an exception that allows the judge to appoint volunteer advocates. 9" The third exception allows the appointment of a county domestic relations office (DRO).9' The final statutory exception allows the appointment of a guardian who is neither a professional guardian 92 nor an attorney.

B.

Chapter36 of the Texas Government Code

On March 18, 2015 Senate Bill 1369 was introduced by Senator Zaffirini in the Texas Senate.93 This bill was signed by Governor Abbot on June 19, 2015 and became effective as Chapter 36 of the Texas Government Code on September 1, 2015. 94 Although this law places new duties on clerks of family courts, its impact is large upon Texas family law judges. 95 Under existing standards, which were the result of a Texas Supreme Court order, Texas judges were required to report fees paid during the month of $500 or more for each appointment under Titles 1, 2, and 4 of the Texas Family Code. 96 Because of the statutory changes made by the Texas Legislature, Texas courts are now required to not only report payments that were made during the month, but they also must report all appointments.9 7 One may say that these changes only affect the clerk because the law places the reporting burden on the court clerk.98 The court is punished for failing to provide information to the clerk, but there is no listed punishment for clerks who fail to report.9 9 So, although the duty to report lies with the clerk, the responsibility of reporting lies with the court.10 0 Hereinafter the

87.

88.

89.

90.

91.

See id. § 37.003.

Gov't Id. § 37.002.

Id.; see TEX. CIV. PRAC. & REM. CODE ANN. § 152.001 (West 2011 & Supp. 2016).

GOv'T § 37.002; see TEX. FAM. CODE ANN. § 107.031 (West 2014).

Gov'T § 37.002.

92.

Id.

93. S.J. ofTex., 84th Leg., R.S. 491 (2015).

94. See SB 1369, TEX. LEGISLATURE ONLINE, http://www.capitol.state.tx.us/BillLookup/BillStages.aspx?LegSess=84 R&Bill=SB 1369 (last visited June 30, 2016); TEX. Gov'T CODE ANN. § 36.004 (West Supp. 2015).

95. Gov'T § 36.004(a); see Ramon, supra note 73, at 24.

96. Ramon, supra note 73, at 26.

97. Id. 98. See GOv'T § 36.004(a).

99. See id. § 36.005.

100. See id.

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OR MAYBE NOT

requirements of Chapter 36 of the Texas Family Code will be referred to as requirements placed upon the court and not the clerk.

Chapter 36 of the Texas Government Code requires that the court adhere to the following new reporting requirements in addition to all existing reporting requirements and that the Office of Court Administration 10 of the Texas Judicial System shall prescribe the reporting format. ' Now, Texas courts must report appointments to not only family law cases under Titles 1, 2, and 4 of the Family Code but all family law cases of ad litems, mediators, guardians, and competency evaluators. 102 The court must include the name of the appointing judge and the date of appointment. 0 3 The court must report the number and style of the case, and if the total amount paid to the appointed person exceeds $1,000, the court must report all information about the case that is available to the court.10 4 The number of cases each person is appointed to must be reported as well as the total amount paid to each person and the source of the compensation.10 5 The clerk must post the report at the courthouse and on the website of the court. 0 6 Chapter 36 of the Texas Government Code does not specifically state that a family law judge must complete any action. This statute only requires that the clerk prepare and post the report and that the court provide relevant information for reporting."0 7 Judges are however required to follow the provisions of Chapter 37 of the Texas Government Code and Chapter 36 serves as the police power of Chapter 37. But for the loss of state grant funding threat of Chapter 36, there would not be a penalty for judges who did not follow the provisions of Chapter 37.'0° The legislature holds the power of the purse and that power is indeed an influential power.

III. THE TEXAS COMMISSION ON JUDICIAL CONDUCT The State Commission on Judicial Conduct is an independent Texas state agency created by an amendment to the Texas constitution in 1965.109 The State Commission on Judicial Conduct (the Commission) has thirteen members. 1 0 The makeup of the Commission is as follows: one justice of a

101.

Id. § 36.004(a)(1), (c).

102.

103.

Id. § 36.004(a)(1).

Id. § 36.004(a)(2).

104.

105.

106.

107.

108. ineligible

Id. § 36.004(a)(3), (6).

Id. § 36.004(a)(4)-(5).

Id. § 36.004(b)(1), (2).

See id. § 36.004.

Cf id. § 36.005 (West Supp. 2015) (holding that courts that fail to report will be for state funding).

109.

See TEX. CONST. art. V, § l-a(2).

110.

Id.

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Court of Appeals, one District Judge, one Judge of a County Court of Law and one Judge of a Constitutional County Court; each of which are appointed by the Texas Supreme Court.' Two members are licensed Texas attorneys who have practiced for ten years and are appointed by the Board of Directors of the State Bar of Texas with the advice and consent of the Texas Senate." 2 Five members are citizens who are at least thirty years old and are not licensed attorneys or salaried public officers or employees; these five are appointed by the Governor of Texas with the advice and consent of the Texas Senate.113 The final two members are one Justice of the Peace and one municipal court judge who are appointed by the Texas Supreme Court with the advice and consent of the Texas Senate.' 14 The thirteen commissioners are unpaid but may be compensated for necessary Commission expenses.1' 5 The Commission is responsible for investigating allegations of judicial misconduct or judicial disability involving all Texas judges except for federal judges and administrative law judges. 1 6 The Commission's mission is to "protect the public, promote public confidence in the integrity, independence, competence, and impartiality of the judiciary.""' 7 They also seek to "encourage judges to maintain high standards of conduct both on and off the bench."' 18 "The Commission accomplishes [its] mission by investigating allegations of judicial misconduct or incapacity."'119 The Commission may initiate an investigation based on allegations of judicial misconduct from many sources, even news 20 reports.

The Commission is generally an investigative entity.' 2' However, the Commission is empowered to issue admonitions, warnings, reprimands, and require additional training or education. 122 The Commission may also recommend removal or retirement but does not have the power of removal. 123 If a judge or justice has been indicted for a felony or charged with a misdemeanor that involves official misconduct, the Commission may 111.

Id.

112. Id. 113. Id. 114. Id. 115. Id. § l-a(4).

116. Frequently Asked Questions, ST. COMMISSION ON JUD. http://www.scjc.texas.gov/faqs.aspx (last visited June 5, 2016).

117. Mission Statement, ST. COMMISSION ON JUD. http://www.scjc.texas.gov/about/mission-statement.aspx (last visited June 5, 2016).

118. Id. 119.

120.

121.

122.

Id. FrequentlyAsked Questions, supranote 117.

See TEX. CONST. art. V, § l-a(8).

Id. 123. See id. § 1-a(8)-(9).

CONDUCT, CONDUCT,

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suspend the judge with or without pay. 124 If the Commission receives a sworn complaint that the judge or justice is intentionally and continuously violating the code of judicial conduct, clearly failing to perform their duties, or bringing discredit to the judiciary or the administration of justice, the commission may recommend suspension to the Supreme Court. 125 The recommendation must be preceded by notice and an opportunity to be heard.

12 6

If the Commission recommends the removal or retirement of a Judge or Justice, a tribunal will review the Commission's recommendation. 127 The tribunal shall be provided the entire record of the Commission.'28 The 29 tribunal is composed of seven justices from Texas Courts of Appeal.'

Each Court of Appeals designates one member for potential candidacy, and potential candidates are randomly selected from this pool. 3 Service on the tribunal is considered part of the Justices' official duties so they are not further compensated.' 3 ' The tribunal reviews the record for factual and legal sufficiency and may receive additional evidence for good cause. 3 2 Within ninety days of the filing of the record with the tribunal, the tribunal must wholly reject the recommendation of the Commission or order public censure, removal, or retirement. 133 The order of the tribunal is appealable to the Texas Supreme Court.'3 4 The standard of review is substantial 35 evidence.'

Substantial evidence review is the same as the abuse of discretion standard that is applied in civil cases.' 36 The review is to determine whether the finding is clearly unjust because it is so contrary to the great weight of evidence. 13 The tribunal cannot substitute their findings for the Commission's findings.' 38 The Commission's ruling shall stand if there 13is9 enough competent evidence to sustain their ruling or recommendation.

124.

125.

126.

127.

128.

Id. § 1-a(6)(A).

Id. Id. See id. § 1-a(9).

Id.

129.

Id.

130.

131.

132.

133.

134.

135.

136.

Canales, 137.

138.

139.

Id. Id. Id. Id.

Id. Id. See In re Bartie, 138 S.W.3d 81, 84 (Tex. Rev. Trib. 2004, no appeal) (citing In re 113 S.W.3d 56, 68 (Tex. Rev. Trib. 2003, pet. denied).

Id. Id.

Id.

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Just as with trial courts, credibility of witnesses and weight afforded to 140 evidence is the province of the trial court.

V.

CONCLUSION

Judicial discretion will always exist in Texas family law. It does not exist because Texas legislators have shirked their responsibility and refused to make laws for all judicial functions. Judicial discretion exists for judicial efficiency and in an effort to always have just results."' Limits must be placed on judicial discretion to ensure certainty and uniformity. Chief Justice Roberts mentioned at his Senate confirmation that he believes in stare decisis.14 2 Appellate review provides binding and persuasive precedent. Mandamus relief offers more timely relief in the face of extraordinary harm. Stare decisis along with laws provide comfort to our citizens that they may obtain justice in our judicial system.

No system is fool proof however. There must also be a police power that has the ability to impose sanctions upon wrongdoers. The sword of justice must sometimes be used against those whose job it is to ensure justice. The administration of judicial discipline in Texas is transparent.

This assures our citizens that our system shall remain trustworthy. Finally, if members of the judiciary continually abuse their judicial discretion, they may be removed by the legislature. As previously stated, discretion ends where the law begins.

140. Id. 141.

See supra note 13 and accompanying text.

142. Confirmation Hearingon the Nomination ofJohn G. Roberts, Jr.to be ChiefJustice of the United States, 109th Cong. 142-143 (2005).

IN RE LEE: How THE PARENTAL RIGHT TO SELFDETERMINATION CAME TO TRUMP JUDICIAL AUTHORITY HONORABLE LETA S. PARKSt I.

IN TRODUCTION .............................................................................. 483

II. INR E LEE ...............................................

484 A. FactualBackground................................................................

484 B. The Sex Offender Issue............................................................

486 III. THE BEST INTEREST STANDARD AND RIGHTS TO D ETERM INATION ............................................................................ 487

IV. ALTERNATIVE DISPUTE RESOLUTION AND THE FAMILY COURTS. 490 V. ETHICAL DUTIES OF MEDIATORS IN FAMILY LAW CASES ............. 495

A. B. C. D. E. F.

The Necessity of Neutrality .....................................................

Competency of the Mediator...................................................

Self-D etermination..................................................................

Litigation: Effects and Costs...................................................

Confidentiality ........................................................................

The MediatorShall Not Provide Legal Advice .......................

496 498 499 499 500 500

V I. C ON CLU SION .................................................................................. 501

I.

INTRODUCTION

The evolution of the modem family and the continual adaptation of the laws governing families have substantively and procedurally challenged the role and authority of the judiciary over the years. From the common law days of judges exercising ultimate control over the legal relationship of a nuclear family, our society has morphed into a system where judicial authority is gradually diminishing. With regards to increasing parental autonomy, the legal system is still at a developing stage. In re Lee represents a significant leap in the evolutionary process by severely

t The author of this article was the mediator in In re Lee. At the time of the mediation, she had been a board certified family law specialist for twenty years and had eighteen years of experience as a family court associate judge. The author relies on these personal experiences throughout this article.

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curtailing the state's authority to determine what is in the best interest of the child.

This Article will examine the significance of the In re Lee case decided by the Texas Supreme Court in light of the historical forces that led to the final ruling.1 These divergent forces include the judicial right to determine what is in a child's best interest and the modem trend toward autonomous parental decision-making through the mediation process. This historical analysis will reveal why the court's ruling was an inexorable conclusion that the right to self-determination by the parents is superior to judicial intervention.

II. IN RE LEE A.

FactualBackground

Benjamin Redus and Stephanie Lee, while engaged in an adulterous relationship, conceived and became parents to a child.2 In 2007, under an order of paternity, the mother was awarded the exclusive right to determine the child's residence.' Subsequently, the father brought a motion to modify in which he alleged a material and substantial change in the circumstances regarding the child.4 Additionally, the father alleged that the mother had relinquished possession of the child to him for six months, that she neglected the child, placed the child in danger, and made poor parenting decisions regarding the child.5 During mediation, the parties entered into an agreement wherein the father had the right to determine the child's domicile and the mother would have parenting time under certain restrictions.6 The terms of the agreement included an injunction against Stephanie's husband from coming within five miles of the child due to his status as a nonviolent sex offender. 7 Moreover, the mother was required to notify the child's father of her whereabouts during her periods of possession, so the father could verify her compliance with the agreement.' The mediated settlement agreement (MSA) was properly executed under the requirements of the Texas Family Code, 9 yet, at a hearing on entry, which was only attended by

1.

2.

3.

4.

5.

6.

7.

In re Lee, 411 S.W.3d 445 (Tex. 2013).

See id. at 447.

Id. Id.; see also TEX. FAM. CODE ANN. §§ 156.001, 156.101 (West 2014).

In re Lee, 411 S.W.3d at 447.

Id. See id.

8. Id. 9. FAM. § 153.0071(d) ("A mediated settlement agreement is binding on the parties if the agreement: (1) provides, in a prominently displayed statement that is in boldfaced type or capital

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the father and his counsel, the father withdrew his consent to the entry, stating that he now thought the agreement was not in the child's best interest.1 ° The father went on to make an allegation never before madethat the mother's husband had slept with the child naked.1 1 The associate judge at the entry hearing denied judgment based on this allegation, finding 12 the agreement was not in the child's best interest.

On appeal to the district judge, the entry of judgment was also denied, even though the father did not repeat his allegations of the husband's purported misconduct.13 Additionally, both parties testified that they believed the agreement was in the child's best interest at the time of the mediation, neither the child nor the mother was a victim of domestic violence, nor had the mother ever left the child with her husband unsupervised.14 Nonetheless, the district judge denied entry of a judgment.15 The judge indicated that the parties were free to enter another agreement and set the case for trial. 6 However, because there were no allegations of domestic violence, there was little else the parties could do to safeguard the child other than restrict the mother to supervised visitation. 7 Subsequently, the mother "petitioned the court of appeals for a writ of mandamus ordering ' The the trial court to enter judgment on the [previously agreed] MSA."18 court of appeals denied the mandamus, finding no abuse of discretion by refusing to enter the judgment.19 The mother then petitioned the Texas Supreme Court, which granted the mandamus, finding the court did abuse its discretion in denying entry ofjudgment.2 0 letters or underlined, that the agreement is not subject to revocation; (2) is signed by each party to the agreement; and (3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.").

10. SeelnreLee, 411 S.W.3dat448.

11. Id. 12. See id.

13. Id. 14. See id.

15. Id.

16.

Id.

17. See id. at 457-58. Considering that the initial agreement had substantial safeguards for the child in place, it is interesting to speculate on what terms the judge may have found acceptable. Id. 18. Id. at449.

19.

Id.

20. Id. at 449-50. In Texas, the Supreme Court and the Courts of Appeals have concurrent jurisdiction over mandamus actions. See TEX. CONST. art. V, §§ 1, 3, 6; TEX. GOV'T CODE ANN. §

22.002 (West 2004); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004).

Mandamus relief typically "requires a showing of: (1) a clear abuse of discretion and (2) no adequate remedy by appeal." Douglas S. Lang & Rachel A. Campbell, Survey of Recent Mandamus Decisions of the Texas Supreme Court, 1 SMU L. REv. 101, 102 (2014) (internal quotation marks omitted), available at http://smulawreview.law.smu.edu/getattachment/Joumals/TX-Survey/2015-Texas-

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B.

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The Sex Offender Issue

Although not critical to the legal analysis of the court's ruling in In re Lee, the fact that the spouse of one of the parties in the case was a registered sex offender cannot be overlooked.2 1 The fact that society has such an emotionally charged reaction to the label of "sex offender" is reflected by the Texas Supreme Court's lengthy history and deliberation of the case.22 In fact, the first question out of the mouth of one of the Texas Supreme Court Justices was, "That sounds too simplistic, so you're asking that the trial judge not look into the order in this one... it looks like one of the parties is a sex offender?"2 3 This is a curious question, considering this issue had no legal bearing on the case nor had anyone alleged that domestic violence had occurred.2 4 However, it is clear that the term Registered Sex Offender triggers strong reactions even among the judiciary. In fact, it may be said that few crimes raise the anger and fear of the public as much as sexual offenses.

There are broad ranges of crimes that require registration as a sex offender.25 While this Article does not concern itself with the laws regarding sexual offenses, nor the post-conviction behaviors of those who are required to register as a result, it is sufficient to say that all states require sex offenders to register with a variety of agencies.26 Although few would Survey/Mandamus-(1).pdf. Moreover, in 2013, only 2.25% of the over 200 writs of mandamus filed in the Texas Supreme Court were granted. Id. at 103. Thus, mandamus is "an extraordinary and limited remedy." Id. 21.

See Oral Argument at 1:00, In re Lee, 411 S.W.3d 445 (Tex. 2013) (No. 11-0732), available at http://texassupremecourt.mediasite.com/mediasite/Play/fa9135da206140b79e830dcc6 7213a741d. Specifically, note the first comments made by Justice David Medina. Id. 22.

The In re Lee case was first sent to the Fourteenth Court of Appeals where mandamus relief was denied after the trial court refused to enter judgment on the MSA. In re Lee, 411 S.W.3d at 449. The relator then filed a mandamus with the Texas Supreme Court on September 15, 2011. See id. Oral argument was held on February 28, 2012. Id. at 445. The case was not decided until September 27, 2013, two years after filing the petition for review and almost nineteen months after oral argument. Id. Typically, mandamus actions are ruled upon within ninety-four days. See Pamela Stanton Baron, Texas Supreme Court Docket Analysis: September 1, 2010, in TEXASBARCLE: 24TH ANNUAL ADVANCED CIVIL APPELLATE PRACTICE COURSE ch. 3, at 4-5 (2010).

23.

Oral Argument, supra note 21, at 1:00.

24.

An important issue discussed in In re Lee was whether an assumption existed that the parents could not act in the best interest of their child if the MSA involved the child's interaction with a registered sex offender. See In re Lee, 411 S.W.3d at 455-60. Moreover, the actual underlying sexual offense was never discussed in the courts. See id.

25.

See generally, TEX. CODE CRIM. PROC. ANN. art. 62.001(5)(A) (West Supp. 2015); TEX. FAM. CODE ANN. § 261.001(1)(E) (West 2014 & Supp. 2015); TEX. PENAL CODE ANN. §§

21.02, 21.11, 22.011, 22.021, 25.02 (West 2011 & Supp. 2015). Texas law punishes as felonies all sex offenses against children that result in mandatory registration for the offender.

26. This is true whether the offense is public exposure, statutory rape, or aggravated sexual assault of a child. See Larry Primeaux, The Impact of Sex Offender Status on Child Custody and

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IN RE LEE

argue against tough laws to protect children from sexual predators, the question of the severity of such a categorization of nonviolent and even consensual relationships between teenagers should eventually be addressed to adequately match and potentially limit the consequences associated with a lifetime registration as a sex offender.27 III. THE BEST INTEREST STANDARD AND RIGHTS TO DETERMINATION

Texas's statute28 plainly guarantees parties to an MSA an entry of judgment except in certain limited circumstances. 29 In spite of the statute's clear mandate, some courts continue to operate as if the first clause, concerning a finding of domestic violence, does not exist, and continue to conduct best interest hearings when it is unnecessary.3" Additionally, although there is settled history of a specific statute controlling a general statement of policy,31 many judges, as well as the respondent in In re Lee, base their claims on the Best Interest Doctrine.3 2 Part of this rationale may be because the typical language in proposed MSA orders often states: "And the court finds it is in the child's best interest."33 However, according to the Texas Supreme Court, such language is not necessary because the court is not actually conducting a best interest inquiry.34 In fact, the courts are prohibited from conducting such an inquiry if an MSA was executed validly and there is no involvement of family violence.3 5

Visitation,

BETTER

CHANCERY

PRAC.

BLOG

(May

16,

2011),

https://chanceryl 2.wordpress.com/2011/05/16/the-impact-of-sex-offender-status-on-childcustody-and-visitation. In statutory rape cases, "the danger of a repeat offense [i]s low for that particular crime," although they are lumped in with violent sexual assault. See id.

27. Specifically, whether a young man engaged in a consensual sexual relationship with his underage girlfriend should be placed in the same category as a man engaged in a violent, nonconsensual, sexual act with a child.

28. FAM. § 153.0071.

29. Id. § 153.0071(e-1) ("[A] court may decline to enter a judgment on a mediated settlement agreement if the court finds that: (1) a party to the agreement was a victim of family violence, and that circumstance impaired the party's ability to make decisions; and (2) the agreement is not in the child's best interest.").

30. See, e.g., In re Lee, 411 S.W.3d 445, 448-49 (Tex. 2013).

31.

See TEX. GOv'T CODE ANN. § 311.026 (West 2013).

32. FAM. § 153.002 ("The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child."); In re Lee, 411 S.W.3d at 480 (Green, J., dissenting).

33. See generally, In re Lee, 411 S.W.3d at 448 (involving an MSA with language to the effect of "the best interest of the child").

34. See id. at 453.

35. See id.; see also id. at 461 ("[T]rial courts have numerous tools at their disposal to protect children that operate in conjunction with, rather than in opposition to, the mandate in section 153.0071.").

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The Best Interest Doctrine is used by most American courts to determine a range of issues regarding the well-being of children in suits affecting the parent-child relationship. These issues include the conditions under which the parents should have possession, access, control, rights, privileges, and duties toward the child as well as financial support issues.36 This Article is not a treatise on the best interest standard; however, a cursory overview into this universally accepted doctrine is necessary as the judicial role in its determination is now being minimized.

The Best Interest Doctrine has evolved over centuries, from the recognition in ancient times that children were in need of protection to today's uniquely American standard.37 While every state has its own guidelines via statute or case law, ultimately, the best interest factors are discretionary and allow judges to rely on their own values and experiences." When a judge must decide what is best for a child without knowing the full extent of the circumstances, it is, without a doubt, a subjective value judgment.3 9 Not only is this a huge responsibility, but the method of selection of those who are entrusted with it is hardly optimal.4" Specifically, the majority of judges are elected officials with law degrees who, although they may be parents themselves, are not specifically trained in childhood development, abuse issues, mental health and personality disorders, and the plethora of other factors that go into parenting.4 1 In many jurisdictions, they may not even be exclusively family court judges.4 2 However, certainly, the courts can utilize resources to help make their

36. See Tran v. Nguyen, 480 S.W.3d 119, 128 (Tex. App.-Houston [14th Dist.] 2015, no pet.); see also Mellisa Holtzman, JudicialDecision Making in Contested Adoptions: The Influence of Children'sBest InterestsArguments, 42 CAP. U. L. REV. 407, 415 (2014).

37. Lynne Marie Kohm, Tracing the Foundationsof the Best Interests of the Child Standard in American Jurisprudence,10 J.L. & FAM. STUD. 337, 339-40, 370 (2008).

38. See id. at 337; see also Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

39. Kohm, supra note 37, at 373.

40. See id. at 371-74.

41. See id.

42. Many states, such as New York, have rotating dockets for judges, where they will exclusively hear criminal cases for a period of time, then civil, and then family. See Council on Judicial Admin., The ChiefJudge's Court RestructuringPlan, with CertainModifications, Should 1998), Adopted, N.Y.C. BAR (Jan. 8, Be (proposing a http://www2.nycbar.org/Publications/reports/show-html-new.php?rid=46 restructuring of New York's nine separate courts for efficiency and other reasons and also

discussing judges' enormous and diverse caseloads). In Texas, counties with larger populations may have courts of exclusive jurisdiction, where the judges only preside over family, civil, or criminal cases. See About Texas Courts, TEX. JUD. BRANCH, http://www.txcourts.gov/about-texascourts/trial-courts.aspx (last visited Mar. 29, 2016). However, in more rural counties, judges may hear all types of cases. See id.

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determination through social workers, guardians, and attorneys ad litem, 3 Court Appointed Special Advocates (CASA) workers," and forensic mental health professionals, which are all part of the family court arena."a In reality, however, there is not enough time or financial resources available to utilize proper and necessary resources.

46 Historically, the Best Interest Doctrine is a facet of Parens Patriae.

In the 1970's, the Best Interest Doctrine replaced the Tender Years Doctrine (Tender Years) in most states. 4 7 Tender Years recognized the role of the mother as the parent who typically spent more time caring for the basic needs of the children, and shifted the common law presumption that children belong to their father to the supposition that a young child should be in the custody of the mother.48 For decades in the United States, the mother was presumed to be the more suitable parent.4 9 Mothers who did not have custody of their children were eyed with suspicion. A combination of the rights of children, gender equality, and recognition of the role of fathers in their children's lives has led to more changes in custodial presumptions, which has led legislators to decree there could no longer be preference given based on gender.5" This led the presumption to be shifted to the 43. In Texas, the courts may appoint an Amicus Attorney as well to assist the court in determining the best interest of the child. TEX. FAM. CODE ANN. § 101.0017 (West 2014), § 107.001 (West 2014 & Supp. 2015).

44. CASA workers are specially trained volunteers who assist the courts in determining the best interest of children. FAM. § 107.031. They are not the same as guardians ad litem, although their roles may overlap. See id.; see also In re K.M.L, 443 S.W.3d 101, 106 n.2 (Tex. 2014) ("A CASA volunteer, or Texas Court Appointed Special Advocate, can be appointed to serve as guardian ad litem or a volunteer advocate for the child .. " (citing FAM. § 107.031; TEX. CASA, http://www.texascasa.org (last visited Mar. 16, 2016))).

45. See FAM. § 107.001(5)(B); see also, e.g., Stoufflet v. Stoufflet, 03-08-00003-CV, 2009 WL 722280, at *3 (Tex. App.-Austin Mar. 20, 2009, no pet.) (mem. op., not designated for publication) (exemplifying the role of mental health professionals in family court).

46. West's Encyclopedia of Am. Law, Parens Patriae, ENCYCLOPEDIA.COM (2005), http://www.encyclopedia.com/doc/1G2-3437703246.htnil. Parens Patriae is "[a] doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf." Id. The Parens Patriae Doctrine "has its roots in English common law." Id. Various powers and obligations were reserved for the sovereign and were referred to as the "royal prerogative." Id. (internal quotation marks omitted). The sovereign (generally a King) exercised these functions as the father of the country. Id. And if the sovereign be a Queen, she would be the mother of the country. Id. In the United States, the Parens PatriaeDoctrine primarily refers to the treatment of children by the state. Id. It can also be applied to the mentally ill or others who are unable to manage their own affairs. Id. "The state is the supreme guardian of all children within its jurisdiction, and state courts have the inherent power to intervene to protect the best interests of children whose welfare is jeopardized by controversies between parents." Id. 47. See Kohm, supra note 37, at 368-69.

48. See Elizabeth Gresk, Opposing Viewpoints: Best Interests of the Child vs. the Fathers' Rights Movement, 33 CHILD. LEGAL RTS. J. 390, 391 (2013); Kohm, supra note 37, at 346-47.

49. Gresk, supra note 48, at 391; Kohm, supra note 37, at 367-68.

50. Kohm, supra note 37, at 368-69.

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primary caretaker of the child, as opposed to solely to the mother. 1 Of course, where parents never lived together and have no history of co-

parenting, this presumption becomes meaningless, which then leads to the individual parenting qualities of the parties becoming determinative. This makes the decision of the family court judge even more difficult and confusing-especially if neither of the parties have parenting experience.

There are those who argue the Best Interest Doctrine is simply unworkable and too indeterminate to be of use in legal matters. "[N]ot only is there no consensus on what is 'best,"' but also, it is relatively impossible

for a judge to have sufficient information "to make an objective decision."52 Specifically, a best interest determination by a judge "allows a level of judicial discretion that is difficult to reconcile with [a] historic commitment to the rule of law."53 Unrestrained judicial discretion leads to inconsistent legal precedent and ultimately jurisprudential chaos due to lack of

monitoring individual biases or inappropriate motivation by the decision maker.54 Thus, because it may be said that the ultimate purpose of the best

interest standard is to provide stability and benefit to the child within the parent-child relationship, the responsibility for establishing stability belongs to the parents first, and courts should only interfere when parental roles are abdicated.55 IV. ALTERNATIVE DISPUTE RESOLUTION AND THE FAMILY COURTS

Alternative Dispute Resolution (ADR), in general and particularly in family law, has a long and complex history. Depending on the historical source, the ADR concept was developed in Greece as an alternative to sword fighting to solve disputes.56 Additionally, the Greek term for "mediator" is used in the Bible in 1 Timothy 2:5: "For there is one God and one mediator between God and men, the man Christ Jesus."57 Mediation

51.

Kohm, supra note 37, at 368; see also FAM. § 153.003 ("The court shall consider the

qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining: (1) which party to appoint as sole managing conservator; (2) whether to appoint a party as joint managing conservator; and (3) the terms and conditions of conservatorship and possession of and access to the child.").

52. Kohm, supra note 37, at 370.

53. Gary Crippen, Stumbling Beyond Best Interests of the Child: Reexamining Child Custody Standard-Setting in the Wake of Minnesota's Four Year Experiment with the Primary CaretakerPreference, 75 MINN. L. REv. 427, 499-500 (1990).

54. See Kohm, supra note 37, at 374; see also Crippen, supra note 53, at 442-44.

55. Kohm, supra note 37, at 375-76 (citing Ex parte G.C., Jr., 924 So. 2d 651, 685 (Ala. 2005) (Parker, J., dissenting)).

56. History of Mediations, G.R. (RANDY) AKIN, P.C., http://randyakin.com/history-of-

mediations/2707987 (last visited Apr. 1,2016).

57. Id.; 1 Timothy 2:5 (King James).

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then expanded into the United States through the Christian religious group, Quakers. 8 Quakers were credited with developing the modem view of ADR, which was later implemented by the Federal Mediation and Conciliation Service to resolve labor disputes and subsequently became an outlet to resolve conflicts among immigrant communities.59 As far as family law in the United States, alternatives to court intervention date back to at least the 1930's.6° However, progress has been slow toward making ADR a mainstream alternative to litigation, even though professionals working within the legal system have made alternative efforts to address disputes within families.61 Yet, because of the increase in divorces (partially attributed to the no-fault divorce laws) and changes in cultural and societal morals, formal ADR statutes have been enacted.62 Early on, family law mediation was generally a multidisciplinary practice in which most mediations were conducted by mental health professionals and child development specialists. The Association of Family and Conciliation Courts (AFCC)-an international organization of mental health professionals, judges, social workers, mediators, and financial experts-was an early proponent of mediation in family law cases that effectively helped high conflict families in the legal system.6 3 Additionally, the AFCC has been instrumental in raising awareness regarding how family conflicts lead to certain family law issues that are unique to the legal system. 64 Specifically, the recognition that family conflicts often stem from psychological issues within the family that continue after formal divorce or other court orders has been key in developing adequate ADR alternatives to litigation.65 In the 1980's, the Conciliation Courts Review, now the Family Court Review, postulated that the adversarial process did not satisfy the search for 58. See F. Matthews-Giba, Religious Dimensions of Mediation, 27 FORDHAM URB. L.J. 1695, 1701-02 (2000).

59. See id.; see also, e.g., Jerome T. Barrett, The FMCS Contribution to NonlaborDispute Resolution, 108 MONTHLY LAB. REV. 31, 32-33 (1985) (discussing the FMCS's contributions in resolving social conflicts outside its labor-relations expertise).

60. See Debra Berman & James Alfini, Lawyer Colonization of Family Mediation: Consequences and Implications, 95 MARQ. L. REV. 887, 888 (2012); see also Ann L. Milne et al., The Evolution of Divorce and Family Mediation: An Overview, in DIVORCE AND FAMILY MEDIATION: MODELS, TECHNIQUES, AND APPLICATIONS 3, 5 (Jay Folberg et al. eds., 2004).

61.

See Berman & Alfini, supra note 60, at 888-89, 895; see also Milne et al., supra note 60, at 5-6.

62. Berman & Alfini, supra note 60, at 889; Milne et al., supra note 60, at 4-5.

63. See History, ASS'N FAM. & CONCILIATION CTS., http://www.afccnet.org/About/History (last visited Apr. 6, 2016); see also Berman & Alfini, supra note 60, at 889-90, 894; Milne et al., supra note 60, at 5-7.

64. See ASS'N FAM. & CONCILIATION CTS., supra note 63.

65. Milne et al., supra note 60, at 5-6; see also ASS'N FAM. & CONCILIATION CTS., supra note 63.

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truth in family law and created a powerful justification for a partnership between the mental health and legal community.6 6 This is because, although the adversarial process may be suitable in resolving conflict in most areas of the law, in family law, specifically in suits affecting the parent-child relationship, a judicial decree does not end the relationship, but rather familial relationships are continued for the sake of the children.6 7 Ideally, parents will learn to successfully co-parent even after separation. However, if parents cannot properly communicate, it is the child who suffers most.68 As extensive research has shown, children are damaged more by ongoing conflicts between parents than a divorce.69 Replacing the Best Interest of the Child with the Best Interest of the Family is a paradigm shift most members of the judiciary are not prepared to make, as looking after the well-being of all the family members is not within the purview of the courts.7 0

In the 1990's, the American Bar Association (ABA), in recognizing that parents could not financially or emotionally afford to continually litigate in court every time a disagreement arose, established Model Standards to permit lawyers to serve as mediators. 71 Through the establishment of the ABA's standards, trained professionals could work with the parents in developing communication skills and rules of compromise that would lead to more effective and efficient co-parenting.72 In 2001, the AFCC, ABA, and other ADR organizations collaborated on the 73 set of standards for mediators that are currently in use.

In Texas, the origin of the movement toward attorney-mediators may be traced back to the mediation statute passed in 1987 in the Civil Practice and Remedies Code. 74 The statute was enacted to formalize the state's 66. See Susan M. Yates & Peter Salem, Family Court ADR: Decades of Cultivating Innovation,20 DISP. RESOL. MAG. 4, 5-6 (2013); see also Milne et al., supra note 60, at 4-6.

67. See Parks et al., Defining Parenting Coordination with State Laws, 49 FAM. CT. REV. 629, 634 (2011); see also Milne et al., supra note 60, at 4-6.

68. See ASS'N FAM. & CONCILIATION CTS., supra note 63.

69. Joan B. Kelly, Current Research on Children's Postdivorce Adjustment: No Simple Answers, 31 FAM. & CONCILIATION CTS. REV. 29, 31 (1993). But see JUDITH S. WALLERSTEIN & JOAN BERLIN KELLY, SURVIVING THE BREAKUP: How CHILDREN AND PARENTS COPE WITH DIVORCE 306-07 (1980).

70. See TEX. FAM. CODE ANN. § 153.002 (West 2014).

71.

Berman & Alfini, supra note 60, at 891; see also Model Standards of Practicefor Family andDivorceMediation, 35 FAM. L.Q. 27, 30 (2001).

72. See Model Standards of Practicefor Family and Divorce Mediation, supra note 71, at 28.

73. Berman & Alfmi, supra note 60, at 891. There are many additional reasons for the takeover of mediation in Texas by attorneys. See id at 901-02. Even the free service offered by the Dispute Resolution Center in Harris County requires volunteer mediators to be lawyers. Id. at 897-99.

74. Id. at 895-96.

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policy of encouraging the peaceable resolution of disputes.75 This statute opened the door for judges to refer any type of civil case to a neutral third party, and that was almost always a lawyer.7 6 Among the family law bar, the initial reaction to mediation of any type was met with a tremendous pushback in the late 1980's and into the 1990's.77 The belief was that mediation did not work and that it would be impossible to get parties who 78 were in the midst of a divorce or other legal dispute to agree on anything.

Much of this had to do with the fact that lawyers simply were not trained in ADR, and they certainly wanted to avoid sending their cases to someone else who might resolve the issues, thus depriving the attorney of a good source of income.7 9 Gradually, as family court judges began to experiment with referring cases to mediation in order to facilitate their dockets, lawyers began to get trained in ADR.8 ° However, the resistance persisted throughout between lawyers who mediated and those the 1990's with a sharp divide 81 exclusively. litigated who One of the obstacles to finding lawyers who would invest in formal ADR training to focus their practice on mediation was the ability of parties to back out of an MSA. Prior to the enactment of section 153.0071 of the Texas Family Code in 1995, which granted the parties the right to a judgment on an MSA agreement, parties could spend many hours in mediated negotiations only to have their agreement denied entry because one party had "buyer's remorse." 82 This change in the law brought more lawyers to the mediation table, as well as judges using mediation as a way to move through their dockets more efficiently. 83 Additionally, in 2002, mediation became required in Harris County, Texas, through implementation of local rules.84 There are also courts that require mediation to selfbefore any hearings are held. 85 This sets parties on a path 86 dockets. court alleviating as well as determination immediately, 75.

76.

77.

78.

79.

80.

81.

See TEX. C1v. PRAC. & REM. CODE ANN. § 154.002 (West 2011).

See generally id. § 154.052.

See Berman & Alfini, supra note 60, at 889. at 895.

See id.

See id.

See Milne et al., supra note 60, at 6.

Berman & Alfini, supra note 60, at 895, 900-01.

82.

Cf TEX. FAM. CODE ANN. § 153.0071 (West 2014). This provision in the family code is

key to this article and the Texas Supreme Court's ruling in In re Lee. 83. See FAM. § 153.007.

84. See Mary Pat Treuthart, In Harm's Way? Family Mediation andthe Role of the Attorney Advocate, 23 GOLDEN GATE U.L. REV. 717, 761-62 (1993). The Family Court's Local Rules requiring mediation in certain cases were adopted in 2002. Harris Cnty. (Tex.) Dist. Ct. (Fam. L. Div.) Loc. R. 7.1.

85. See, e.g., Berman & Alfini, supra note 60, at 889.

86. Milne et al., supra note 60, at 6.

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However, not all parties are eager to go to mediation. Therefore, it is important for the mediator and the parties to understand that although attending mediation may be mandatory, reaching an agreement is not.87 By their very nature, agreements must be voluntary or they are not agreements. 88 A person appointed to facilitate a dispute resolution process shall assist and may encourage the parties to reach a settlement, but must not compel them. 89 Additionally, it is important to note that cases of domestic violence are rarely sent to mediation. In fact, the Domestic Relations Office in Harris County, Texas has a long-held policy of refusing to mediate cases when there has been even the barest allegation of domestic violence, and the statute itself prohibits enforcing an MSA based on any claim of family violence. 90 Moreover and more significantly, unless one of the parties has been a victim of family violence that impaired their ability to make decisions, the judge is not required to make a "best interest" finding on an entry of an MSA. 91 Although attorneys may have usurped the roles of mediators, particularly in Texas, attorneys are not practicing law when they are mediating. Mediators are neutral third parties and attorneys are advocates.

This distinction may seem obvious when it comes to parties to a divorce or a suit affecting the parent-child relationship; however, it should be emphasized to avoid the suggestion that mediators should act in the best interest of children or family involved in mediation.92

87. See Treuthart, supra note 84, at 776. In the 1990's and even into the 2000's it was common for mediators to keep parties and attorneys in sessions lasting into the early morning hours and refuse to let them leave until a deal was reached.

88. Id. at 718.

89. TEX. CIv. PRAC. & REM. CODE ANN. § 154.053 (West 2011).

90. TEX. FAM. CODE ANN. § 6.602(d) (West 2006) ("A party may at any time prior to the final mediation order file a written objection to the referral of a suit for dissolution of a marriage to mediation on the basis of family violence having been committed against the objecting party by the other party. After an objection is filed, the suit may not be referred to mediation unless, on the request of the other party, a hearing is held and the court finds that a preponderance of the evidence does not support the objection. If the suit is referred to mediation, the court shall order appropriate measures be taken to ensure the physical and emotional safety of the party who filed the objection. The order shall provide that the parties not be required to have face-to-face contact and that the parties be placed in separate rooms during mediation.").

91.

See, e.g., In re Lee, 411 S.W.3d 445, 461 (Tex. 2013).

92. See Mary Novak, In re Lee Part 3: Implicationsfor Stakeholders, JUST CT. ADR (Nov. 19, 2013), http://blog.aboutrsi.org/2013/court-opinions/in-re-lee-part-3-implications-for. stakeholders/ ("The court majority considers mediators to be an important part of child protection.

The ruling says that mediation has 'safeguards inherent in that particular form of dispute resolution,' such as mandatory mediation training and special training for family disputes. ...

Following In re Lee, should mediators now act as advocates for children in mediation?").

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V. ETHICAL DUTIES OF MEDIATORS IN FAMILY LAW CASES In authorizing, and often mandating families to resolve their issues through ADR, judges have relinquished their authority over some family law matters. The assumption that judges may overrule the decisions of parents who have availed themselves of the legal system is no longer valid.93 It is therefore necessary to evaluate the ethical duties of the mediators who are the principals in this alternative to judicial decisionmaking.

Model Standards and Ethics Codes for Mediators have been promulgated by a variety of professional organizations. Between 1982 and 1984 the AFCC convened three national symposia on divorce mediation standards resulting in the 1984 Model Standards of Practicefor Family and Divorce Mediation.94 The American Bar Association's Family Law Section drafted Standards of Practice for Lawyer Mediators in Family Law Disputes in 1984. 9' However, controversy surrounded the efforts to impose ethical standards on attorney mediators because many believed the governing standards of professional responsibility for lawyers were 96 mutually exclusive and incompatible with actions as a mediator. Yet, in 1984 the Model Standards helped clarify the potential conflicts of allowing lawyers to ethically operate as mediators, and later, the Academy of Family Mediators, JAMS, 97 and various state and local community organizations promulgated their own ethical guidelines. 98 Although some variations exist, the basic principles are universal: 1. The mediator should always be a neutral third party and remain impartial throughout the mediation process; 2. Self-determination of the parties is the underlying principle of all mediation; 3. A mediator should be competent to mediate a particular matter; 4. A mediator should maintain the confidentiality of the process; and

93.

SeeInreLee,411 S.W.3dat461.

Symposium on Standards of Practice, Model Standards of Practicefor Family and 94.

(2000), ii ii, at Foreword, Reporter's Mediation Divorce

http://www.americanbar.org/content/dar/aba/migrated/family/reports/mediation.authcheckdam.p df [hereinafter 1984 Model Standards].

95. Id. 96. Id. at 15.

97. Formerly known as Judicial Arbitration and Mediation Services, it is a United States based, for-profit organization of mediation and arbitration services. About the JAMS Name, JAMS, www.jamsadr.com/about-the-jams-name/ (last visited Oct. 11, 2016).

98.

1984 Model Standards, supra note 94.

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5. A mediator should refrain from providing legal advice. 99 Although many other practical and aspirational goals have been promulgated, these five standards are nationally applicable."°° A.

The Necessity of Neutrality

It should be obvious that a mediator must always be an impartial third party. The mediator must provide "a procedurally fair process in which [all parties are] given an [equal] opportunity to participate.""1 1 Different styles of mediation exist depending on the profession of the mediator, the type of case being mediated, and the prevailing preferences in the community. 102 Originally, mediation was designed as a process in which the parties, their attorneys, and the mediator convened together in one room or location. 103 This method, commonly referred to as the joint method or conference method, still prevails in many jurisdictions. 014 In other areas, such as Texas, the caucus method prevails, especially in family law cases.105 This is a type of shuttle diplomacy where the parties and their advocates each have separate rooms and the mediator goes back and forth between them. 10 6 Regardless of which method is employed, the mediator should endeavor to spend time equally among the parties, although as a practical matter he or she may have to spend more time with one side than the other.0 7 In a case such as this, the mediator should explain to the party not getting equal time why this is happening."10 Should the mediator find that he or she is becoming biased during the process, and no longer able to operate in an impartial manner, they should withdraw. 0 9 Although the well-being of children is one of the focuses of the mediation process, this does not mean that the mediator has a duty to

99.

See generallyMediators Ethics Guidelines, JAMS, http://www.jamsadr.com/mediatorsethics (last visited Feb. 24, 2016); Model Standards of Conduct for Mediators (2005), http://www.americanbar.org/content/dam/aba/migrated/201 1build /dispute-resolution/model-standards-conduct-april2007.authcheckdam.pdf [hereinafter Model Standards].

100.

See MediatorsEthics Guidelines, supra note 99.

101.

Id. 102.

David A. Hoffman, Mediation and the Art ofShuttle Diplomacy, 27 NEGOT. J. 263, 267 (2011).

103.

See id. at 266.

104.

See id. at 266-67.

105.

Berman & Alfini, supra note 60, at 901.

106.

See generally Hoffman, supra note 102; Joshua Kadish, Family Law Mediation, MEDIATE.COM 6 (1996), http://www.mediate.com/kadish/docs/famlaw-med.pdf.

107.

Hoffman, supranote 102, at 282-84.

108.

Id. 109.

Mediators Ethics Guidelines,supra note 99.

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protect the child's best interest.11 ° However, if the parties were attempting to collaborate on illegal conduct, whether the children would be involved or not, the mediator certainly would have a duty to withdraw.I"l But, because an MSA is essentially a contract between the parties, it is subject to contract law; therefore, the parties are prohibited from memorializing an enforceable agreement if it contains illegal provisions.1 2 Any suggestion that a mediator should somehow act as an advocate or protector of the children is illadvised and at odds with the neutral role required of a mediator. An attorney who is functioning as a mediator is not practicing law because the rules that govern mediators are very different than the rules for lawyers.

One can and should bring knowledge, experience, and skills to the role of mediator, and the mediator may question and probe the parties, and even offer suggestions regarding desires and motivations, but they should never take on a role as an advocate.113 Yet, if any issue of child abuse or domestic violence comes to light during the mediation for the first time, the mediator, like all professionals, has a duty to report. 1 14 In fact, it is almost universal that mediation should 5 not take place when there is a history of family violence or abuse."

However, in some jurisdictions this standard has been relaxed (even in some cases where there are protective orders in place) and may then result in mediation being conducted through the caucus method as opposed to the joint method.116 Although parties are still allowed to object to mediation when there has been family violence," 7 today, many parties realize that

Rather, according to Standard VIII of the Model Standards of Practice for Family and 110.

Divorce Mediation, a family mediator must merely "assist participants in determining how to promote the best interests of children." 1984 Model Standards,supra note 94, at 1.

See MODEL RULES OF PROF'L CONDUCT R. 1.2(d) (2015) ("A lawyer shall not counsel 111. a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent... ."); see also id. R. 1.16(b)(2) (2015) (allowing a lawyer to withdraw from representation if a client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent).

Heather L. King & Jessica Hall Janicek, Attacking and EnforcingMediated Settlement 112.

Agreements, in STATE B. TEX., 35TH ANNUAL MARRIAGE DISSOLUTION INSTITUTE ch. 17, at 6-7 (Apr. 2012).

ALISON TAYLOR, THE HANDBOOK OF FAMILY DISPUTE RESOLUTION: MEDIATION 113.

THEORY AND PRACTICE 11-20 (2002).

See TEX. FAM. CODE ANN. § 261.101(c) (West 2014) (Persons required to report 114. includes attorneys or mediators whose personal communications might otherwise be privileged.

Almost all states have similar reporting requirements.).

FAM. § 6.602(d). Whenever there is a credible allegation of family violence, a court 115. cannot compel the parties to mediate. Id. The author of this Article has mediated many cases where Protective Orders had been 116. granted, yet the parties agreed to mediate.

FAM. § 6.602(d).

117.

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using caucus style mediation is preferable to avoid exposing the victim to the potential humiliation and intimidation of the courtroom. 18 B.

Competency of the Mediator

Most jurisdictions require some minimal training of mediators.11 9 Many law schools now provide ADR training and specialized training is available through a variety of private and public organizations. 2 0 However as a practical matter, mediators are often selected based on their level of experience and specialized knowledge.' 2' "Mediators have a duty to know the limits of their ability [and] to avoid taking on assignments they are not [qualified for]."' 22 Although a mediator is bound not to give legal advice, in Texas, most attorneys prefer former judges as mediators because of their knowledge of the law and likely judicial outcomes. 123 Certainly, when a judge appoints a mediator, it is expected that they are competent.1 24 Especially if the court requires mediation, the judge has a duty to make sure the appointed mediator is appropriately experienced and credentialed1 25 It would hardly be fair to mandate parties mediate, either appoint or approve a mediator selected by the parties, and then refuse entry of an agreement because the mediator was not qualified.

118.

There is growing recognition that mediation using the caucus method can be very effective in some cases where there has been family violence. Treuthart, supra note 84, at 725.

The courtroom can be every bit as intimidating and even more humiliating than a private caucus session.

119.

To qualify for appointment by the court as an impartial third party when a case is referred to an ADR procedure like mediation, a person must meet certain requirements for training in alternative resolution techniques. TEX. CIV. PRAC. & REM. CODE § 154.052(a) (West 2011); see also § 154.052(b) ("To qualify for an appointment ... in a dispute relating to the parent-child relationship, a person must complete. . . an additional 24 hours of training in the fields of family dynamics, child development, and family law.").

120.

See, e.g., Frank Evans Center for Conflict Resolution, Classes, S. TEX. C. L., www.stcl.edu/feccr/classes.html (last visited Mar. 3, 2016).

121.

In reality, judges often appoint people who do not have these formal requirements.

David A. Hoffman, Ten Principles of Mediation Ethics, in MEDIATION: APPROACHES AND INSIGHTS 55, 56 (Russ Bleemer ed., 2005). They may be lawyers who have had a lot of experience representing children or resolving family matters, or they may be lawyers who contribute to the judge's campaign.

122.

Id. 123.

14 Kay Elkins-Elliott, Texas PracticeSeries: Texas Methods of Practice§ 76.15 (3d ed.

2016); see infra note 140.

124.

See In re Lee, 411 S.W.3d 445, 457 (Tex. 2013).

125.

See id.

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Self-Determination

Self-determination by the parties is the fundamental principle of mediation. 26 The mediator's role is to facilitate self-determination by 27 assisting the parties in finding mutually agreeable workable solutions.1 The parties must be given the opportunity to accept or reject proposals and 128 the mediator should never attempt to force the parties into a settlement.

The mediator does not have to personally approve of the terms of the agreement, and only if the terms agreed upon are illegal or otherwise violate 129 public policy, should the mediator refuse to sanction it.

D.

Litigation: Effects and Costs

Mediation allows participants to settle disputes without the potential harmful effects and financial costs that may result from litigation. 3 ' Additionally, mediation is particularly suitable in family law cases because the costs are so great and last well beyond the actual time spent in the courtroom. This is the basis for Texas's policy of "encourage[ing] the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children." 3 ' Some children may suffer from protracted litigation and often times end up permanently alienated from their parents with psychological and emotional disturbances. 32 In fact, some state legislatures have recognized that the conflict associated with litigation is much greater than the conflict that led to the dispute in the first place.133 In addition, the process of high conflict litigation often leaves parents permanently unable to co-parent their children.134 The ADR process, whether through mediation, parenting coordination, or another method, enables the parties to learn that cooperation is possible, which can be the foundation of future successful co-parenting.

126.

John D. Feerick, Toward Uniform Standards of Conduct for Mediators, 38 S.TEX. L. REV. 455, 460 (1997).

127.

Id. at 460.

128.

Id. at 460-61.

129.

Id. at 464, 483.

130.

See Treuthart, supra note 84, at 719-20.

131.

TEX. CIV. PRAC. & REM. CODE ANN. § 154.002 (West 2011).

132.

Joan B. Kelly, Developing Beneficial ParentingPlan Models for Children Following Separationand Divorce, 19 J. AM. ACAD. MATRIM. LAW. 237, 240 (2005).

133.

In re Lee, 411 S.W.3d 445, 449 (Tex. 2013).

134.

Kelly, supra note 132, at 252.

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Confidentiality

Confidentiality is another one of the universally accepted rules of mediation. Confidentiality has two aspects. First, the mediator has a duty to protect the privacy and confidentiality of the parties from outside persons. 135 The mediator must also not reveal any communications that took 136 place in mediation, and may never be compelled to testify in court.

Second, when the mediator is utilizing the caucus method, he or she must not reveal what was stated in a private meeting with one party to the other party without the permission of the party. 137 It is critical that a mediator understand more than just the legal issues in dispute, which are not subject to the rule of confidentiality because they are a matter of record in a proceeding. Additionally, in order to successfully facilitate negotiations, the mediator needs to have an understanding of the underlying emotions, trigger points, and motivations of each party. Often, parties reveal incidents or feelings to the mediator that they do not want the other side to know about-but they are crucial to settlement. The parties should be made to feel free to express themselves, knowing what they say will not be revealed outside the room. Sometimes people are willing to reach agreements because it will avoid their exposure in litigation. The skilled mediator must be made aware of these motivations without ever revealing them. Thus, the MSA may contain terms that are confusing to those who were not privy to the negotiations, but this is where trust in the process and the competency of the mediator must prevail.

F.

The Mediator Shall Not ProvideLegal Advice

Finally, the last universally accepted ethical standard for mediators that this paper will address is the prohibition against giving legal advice.

This is an area where the temptation for attorney-mediators to violate the standard can be great. Pro se parties in particular often expect that when they hire a mediator, they will be given legal advice as part of the process.

Some attorney-mediators feel comfortable with giving factual legal information, such as the recitation of statutes or case law. Legal advice is more specific in making suggestions about how a party should interpret or utilize the law in a particular case. The distinction is particularly sticky when lawyers hire former judges as mediators. Often, they do this because they want to know what a particular outcome would likely be in court given 135.

Kadish, supra note 106, at 6-7, 16-17.

136.

Id. at 7.

137.

Id. at 19. There are mediators who take the opposite position: communications made during caucuses are not confidential to the opposite party. Id.

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the circumstances of their case. Is this giving legal advice? Many would say yes,138 but it is certainly a widespread practice, particularly in Texas.139 However, in order to maintain neutrality, the mediator should never advocate that a party take a particular legal position or accept an offer of settlement, especially if counsel represents them, because it is their attorney's role and a mediator must never usurp it. Should a party ask a mediator for advice, the mediator should explicitly state that is not what they are there for, and if they have an attorney present, to refer them to the attorney.

VI. CONCLUSION

Family law is a dynamic field in which the changing values of society, evolving definitions of what constitutes a family, and increasing awareness of the need for individual solutions for each family all play a role. From centuries of the practice of the sovereign having ultimate control of the family unit, to decades of judges usurping parental authority with one-sizefits-all parenting plans, we are now evolving to a place where parents are encouraged to cooperate in designing parenting plans suited to their individual needs.

Limitations on judicial time and capability are responsible for much of this evolution. It is simply not possible for a person wearing a black robe to be an expert on the law as well as family systems and childhood development, let alone have the time to devote to each individual family's particular needs. Although families subjecting themselves to the jurisdiction of the courts are often laden with challenges that prevent them from making the best parenting decisions, they now have resources available to assist them in making parenting plans. From mental health professionals to parenting coordinators and mediators, parents can avail themselves of the help they need to make well-informed agreements. The judiciary should be a last resort for parental decision-making when all else has failed. This is

138.

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.053, 154.073 (West 2011).

Additionally, some states have no written exceptions in their mediation statutes, such as Oregon's ORS § 36.100, although they may exist in other laws. California has an extensive list, created both judicially and by statute. See Max Factor III & Alice M. Graham, Better PracticeTip: Recognized Exceptions to Mediation Confidentiality and Remedies That Every Litigator Should Know,

MEDIATE.COM (July 2005), http://www.mediate.com/articles/factorm4.cfm;

see also Kadish,

supra note 106, at 18-19.

139.

In the author's experience, attorneys almost always want to know, and inform their client, about what will likely happen in court. This is why attorneys select former judges as mediators. It serves as a reality check for clients who may have unreasonable positions or expectations as well as a way to encourage settlement.

502

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especially true if parents have been compelled to expend the time and money for ADR. Therefore, mediation and other forms of ADR are not simply ways to lighten the dockets of judges, but are tools for empowering parents to develop a cooperative relationship that must exist in order to have any chance of raising healthy children.

DIRTY DEEDS DONE NOT DIRT CHEAP

BY HONORABLE DIANE

M. GUARIGLIA

CONTRIBUTIONS BY BENJAMIN L. S. RITZ

I. IN TRODU CTION ...............................................................................

504 II. D ISCOVERY A BUSES .......................................................................

504 A. Failureto Specifically Identify Witnesses Fails to Prove F a tal ........................................................................................

50 4 B. CompellingDiscovery Against a Pro Se Litigant Sans CitationResults in Sanctions ..................................................

505 III. COURT ORDER VIOLATIONS ...........................................................

507 A. Failureto Attend Mediation Leads to Sanctions .................... 507 B. Failureto Attend Mediation,Appear, and Communicate with the Court Leads to Sanctions .......................................... 508 C. Court Sanctions Attorney Seeking Enforcement Where the Court H ad No Jurisdiction......................................................

509 D. Accusing the Court of Trickery and Collusion with Opposing Counsel Leads to Sanctions.................................... 510 IV . PROCEDURAL M ISDEEDS .............................................

512 A . Void D ecree ... Or N ot..........................................................

512 B. Involuntary PremaritalAgreement ......................................... 513 C. Sneaking a Sanctions Orderto the Court Without Serving Opposing Counsel...................................................................

516 D. Husbandand Wife Cheat Wife's Attorneys Out of Fees ......... 517 E. Husband Tries to Justify a Bill of Review by His Wife's PregnancyAnnouncement ......................................................

519 F. Court SanctionsAttorney for Pleadingan Abolished Cause of A ction ..................................................................................

520 V. SHOULD DEFAULTS IN SAPCRS BE DIFFERENT UNDER C RAD DOCK? ....................................................................................

VI. C ON CLU SION ..................................................................................

522

525

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I.

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INTRODUCTION

Lawyers have been known to commit more than a few dirty deeds.

Some involve inappropriately controlling what goes into the consideration of the court or jury. Others might involve failing to follow the court's authority, failing to communicate, or accusing the court of inappropriate action. The most common, however, is to commit procedural misdeeds such as tricking others into signing documents, filing documents late, or putting forward abolished causes of action-or, even dirtier, getting their clients to join in.

This Article covers a variety of misdeeds committed by attorneys and clients alike, along with one good deed that turned out well, but only in the end. This Article ends with a discussion of whether, when considering the best interests of the child, using the standard Craddocktest might be a dirty deed of its own.

II.

DISCOVERY ABUSES

Discovery abuses generally fall into two categories: action and inaction. The latter might include failing to present evidence to requesting counsel when they should have done so. The former might include using the rule of discovery to try to compel information to which they might not be entitled.

A.

Failureto Specifically Identify Witnesses Fails to Prove Fatal

In Van Heerden v. Van Heerden's contested custody case, the husband moved to strike the wife's witnesses because she failed to properly describe them.1 The wife listed her testifying relatives only as "Petitioner's father" and "Petitioner's sister"2 without any detail as to the witnesses' knowledge or intended testimony.' The trial court struck the wife's witnesses, causing her to lack the testimonial support for her side of the argument.4 As a result, the trial court made the husband primary joint managing conservator of the children.5 The appellate court held, however, that the wife's description of the witnesses was sufficient, the witness testimony was unique and not cumulative, and the exclusion of the witnesses probably resulted in an 1. Van Heerden v. Van Heerden, 321 S.W.3d 869, 875 (Tex. App.-Houston [14th Dist.]

2010, no pet.).

2. Id. at 876.

3. Id. 4. Id. at 875.

5. Id. at 873, 875.

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improper judgment.6 Texas Rule of Civil Procedure 194.2(e) requires only "a brief statement of each identified person's connection with the case," 7 and further, comments to the rules provide examples, such as "treating physician" or "social worker," whose connection with the case may be inferred! Therefore, a statement of familial relationship in a custody matter is sufficient.9 Further, the testimony was not cumulative because the maternal dad's and sister's differing observations would better inform the court as to the best interests of the children.1" Finally, the appellate court held that the exclusion of the witnesses resulted in an improper judgment because "the trial court stifled her ability to present the merits of her 1 case." 1

Because there had been no misdeed to sanction, the court did a disservice to the children by silencing potential fact witnesses who may have had relevant information concerning their best interest. 12 B.

Compelling Discovery Against a Pro Se Litigant Sans CitationResults in Sanctions

In In the Interest of M.0., the attorney for the wife filed a post-divorce motion to modify the parent-child relationship. 3 The attorney also served discovery requests without serving the pro se litigant, the husband, with citation.14 When the husband failed to respond, the wife's attorney moved to compel discovery and get attorney's fees as sanctions against him.15 Because the court was unaware of the lack of citation, the trial court granted the sanctions.16 Once the husband was served with citation, his attorney successfully challenged the motion to compel and the sanctions.17 Instead, the wife's attorney was sanctioned for failing to serve the husband with citation and 6. Id. at 877-78.

7. Id. at 876 (internal quotation marks omitted); TEX. R. CIv. P. 194.2(e).

8. Van Heerden, 321 S.W.3d at 876 ("[T]he 'provision does not contemplate a narrative statement of the facts the person knows, but at most a few words describing the person's identity as relevant to the lawsuit."' (quoting TEX. R. Civ. P. 192.3(c) cmt. 3)); see also L.B. v. Tex. Dep't of Family & Protective Servs., No. 03-09-00429-CV, 2010 WL 1404608, at *6 n.16 (Tex. App.Austin Apr. 9, 2010, no pet.) (mem. op.) (discussing the term "social worker").

9. Van Heerden, 321 S.W.3d at 876.

10. Id. at 877.

11. Id. at 879.

12. Id. at 878-79.

13. In re M.O., No. 04-02-00326-CV, 2003 WL 21653865, at *1 (Tex. App.-San Antonio July 16, 2003, pet. denied) (mem. op.).

14. Id. 15. Id. 16. Id. 17. Id.

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for concealing that fact from the court when requesting the motion to compel and the sanctions.18 The wife's attorney refused to pay the sanctions and filed an interlocutory appeal, which was dismissed for lack of jurisdiction. 9 After the final hearing on the modification case, she appealed 20 the sanctions, but the appellate court upheld them.

The appellate court held the wife's attorney was required to obtain service on the husband.21 While she argued that she was not required to serve citation for a modification, she was "clearly wrong."22 Further, the appellate court held the trial court could sanction the wife's attorney for the motion to compel and sanctions sought against the husband, the subsequent enforcement of the sanctions, and the interlocutory appeal of sanctions.23 The appellate court clarified that: [T]he signing of a pleading or motion constitutes a certificate that the pleading or motion is not being presented for an improper purpose; that each contention is warranted by existing law; that each contention has evidentiary support, and that each denial is warranted on the evidence or is reasonably based on a lack of information or belief.24 A party may be awarded "attorney's fees and expenses incurred in presenting or opposing a motion."" The wife's attorney had signed those motions and appeals and was responsible for her dirty deeds.2 6 As a cautionary note, while the wife's attorney had to pay the sanctions ordered by the trial court, she did not have to pay the husband's attorney fees for defending the appeal27 because he failed to preserve error for the recovery of those fees.28 He did not file an affidavit of fees or establish proof of fees by any method other than mentioning the fees in a brief.29 The appellate court was "not inclined to award attorney's fees based on unsworn statements in a brief."3 So, even if an attorney is defending a

18. See id.

19. Id. 20. Id. at *5.

21. Id. at *4.

22. Id. (citing TEX. FAM. CODE ANN. § 156.003 (West 2014) ("A party whose rights and duties may be affected by a suit for modification is entitled to receive notice by service of citation.")).

23. Id. at *4-5.

24. Id. at *5 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 10.001 (West 2002)).

25. Id. (citing Civ. PRAC. & REM. § 10.002).

26.

Id.

27.

28.

29.

30.

Id. Id. Id. Id.

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frivolous appeal, they still need to prove up their fees if they want to tax them to the other side.

III. COURT ORDER VIOLATIONS

One of the most common and dirtiest deeds an attorney can do is to do anything, such as failing to show up at mediation, appear at to fail hearings, or communicate with opposing counsel. This inaction interferes with the inherent functioning of the court, and the court does not hesitate to sanction such behavior. Further, courts have little patience for attorneys who bring cases where the court clearly lacks jurisdiction. Finally, courts are unsurprisingly sensitive to being accused of trickery and collusion by one of the parties. This next section illustrates each of these misdeeds.

A.

Failureto Attend Mediation Leads to Sanctions

In In re K.A.R., neither the husband nor his attorney appeared for a 31 scheduled mediation and were both sanctioned. Eleven days prior to the Monday mediation in Houston, the husband had written a letter instructing his attorney to dismiss his suit to modify, but his attorney delayed and stonewalled.32 On the Sunday before the mediation, the wife's attorney's office finally received notice that the husband was nonsuiting his case and 33 would not attend, but the attorney was already in Houston. While a fax was also sent to the mediator's office, no motion had been filed with the 34 trial court requesting permission not to attend. The wife requested and the trial court granted sanctions against the husband and his attorney for 35 interfering with the court's core functions.

When the husband's attorney appealed the sanctions, the appellate court upheld the sanctions because, inter alia, neither the husband nor his 36 attorney had the authority to modify the trial court's orders unilaterally.

Specifically, the court stated, "[w]hen [the husband's attorney] chose to

31. In re K.A.R., 171 S.W.3d 705, 709 (Tex. App.-Houston [14th Dist.] 2005, no pet.).

32. Id. at 708-09. The husband's attorney failed to speak with his client until three days before mediation despite an inquiry from the wife's attorney. Id. Also, the husband's attorney tried to convince his client not to nonsuit up to the Sunday morning before mediation. Id. 33. Id. at 709.

34. Id. 35. Id. at709, 714.

36. Id. at 715. The husband's attorney also appealed on the basis that the husband was not personally served, the trial court shortened the notice period, the motions for sanctions were not verified, and no evidence of court interference existed. Id. at 712-14. The appellate court held that motions for sanctions need not be personally served, that the court has the authority to shorten the notice period, that verifications are often attached to motions for sanctions but are not required, and that the evidence was sufficient to support an order for sanctions. Id.

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cancel the court-ordered mediation, she effectively usurped the court's role and displaced the court as a decision maker.... [and] interfered with a core function of the court. ' 37 The appellate court further held that the attorney was liable outside of her client's failure to attend because she was accountable for her own actions-she could have sought permission from the other party not to attend, or requested to postpone or reschedule the mediation.38 B.

Failureto Attend Mediation, Appear, and Communicate with the Court Leads to Sanctions

In In the Interest of. V.G., mom retained an attorney to modify the divorce decree to give her greater access to the children.3 9 Mom's attorney first failed to appear at mediation without timely notifying the other side.4" She had a criminal jury trial set near the time of the mediation and failed to notify opposing counsel until the day before mediation." While mom's attorney did orally request a continuance from opposing counsel, which was denied, she did not file a continuance with the court until jury deliberations had begun in her criminal matter.4 2 Following the denial, she participated in the docket call by phone, which led to a late exchange of discovery documents.43 Her next series of misdeeds surrounded trial. Mom's attorney provided opposing counsel with some discovery documents the day before trial.44 On the day of trial, she failed to appear and instead only left a message on the trial coordinator's voicemail saying that her dad was seriously ill in Mexico.45 At the court's request, she provided medical records to explain her absence, but only in Spanish.46 When opposing counsel translated the documents, they discovered that the attorney's dad had been discharged two days prior to trial. 47 Later she explained that her dad had thought he was going to die at home, but instead recovered.48 To compound the error, she failed to immediately contact the court to reschedule the trial upon her 37.

38.

39.

12, 2007,

Id. at 715.

Id. In re J.V.G., No. 09-06-015CV, 2007 WL 2011019, at *1 (Tex. App.-Beaumont July no pet.) (mem. op.).

40.

Id. at *8.

41.

42.

43.

44.

Id. Id. Id. Id.

45.

Id.

46.

47.

Id. at *8-9.

Id. at *9.

48.

Id. at *9-10.

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return.49 For this pattern of bad behavior, the trial court sanctioned mom's attorney in the amount of $5,000 with 10% interest. 50 The appellate court agreed that the trial court could find the attorney's actions "significantly interfered with the court's management of its docket as well as the issuance and enforcement of its orders."51 Therefore, the appellate court upheld the sanction because the trial court was in the "best position to consider the offensive conduct in question and to craft sanctions appropriate to punish that conduct" to preserve its "independence and integrity. "52 C.

Court Sanctions Attorney Seeking Enforcement Where the Court Had No Jurisdiction

In In the Interest of C.F., mom's attorney filed a motion to enforce child support in a court that lacked continuing exclusive jurisdiction to enforce the underlying order. 3 Originally, mom had filed a petition for divorce in 1990 and received temporary child support, but that case was 4 ultimately dismissed for want of prosecution. In 1994, dad filed for 55 divorce and the divorce decree was granted with no child support order. In response to the Attorney General trying to collect child support from her, mom's attorney filed for enforcement of child support under both the 1990 and 1994 filings. 5 6 The trial court sanctioned mom's attorney for unsupported filings under Rule 13 of the Texas Rules of Civil Procedure, ordering the attorney to pay dad's attorneys' fees to defend against enforcement.57 The appellate court upheld the trial court's sanctions against mom's attorney because a modicum of legal research would have prevented the error. 58 The 1994 case contained no child support order, so no child support was owed.5 9 As to the 1990 temporary child support order, mom argued that section 157.005 of the Texas Family Code allows enforcement of temporary child support orders jegardless of "the status of the underlying divorce itself."60 The appellate court held that section 157.005 of the Texas Family 49. See id.

50. Id. at*1.

51. Id. at*10.

52. Id. 53. See In re C.F., Nos. 04-03-00383-CV, 04-03-00384-CV, 2004 WL 397087, at *1 (Tex. App.-San Antonio Mar. 3, 2004, no pet.) (mem. op.).

54. Id. 55. See id.

56. Id. 57. Id. at *1, *3 (citing TEX. R. Civ. P. 13).

58. See id. at *3-4.

59. Id. at *4.

60. Id. at *2.

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Code grants the court jurisdiction over temporary orders only as long as the case is active, not after dismissal. 6 "[N]either section 157 .005 [sic] nor section 157.261 permits a trial court to revive its jurisdiction once that jurisdiction is lost after a case is dismissed for want of prosecution. '62 In fact, the appellate court noted that dismissal "more strongly indicates reconciliation than continued marital discord. ' 63 Because the enforcement request had no basis in law or fact, the bad-faith actions of mom and her 64 attorney were sanctionable.

D.

Accusing the Court of Trickery and Collusion with Opposing Counsel Leads to Sanctions

Accusing a court of trickery and collusion with opposing counsel unsurprisingly leads to sanctions when an attorney brings those accusations in bad faith.65 In Clack v. Wollschlager, mom's attorney did just that in a footnote contained within a motion.66 Clack was a custody case for a child who needed continuous medical care. 67 Mom sued to be appointed the sole managing conservator of the child with, among other requests, the right to designate the child's primary residence with no geographical limitations. 68 While the jury trial awarded mom sole managing conservatorship, the jury did not reach the geographical limitation issue. 69 After a hearing, the judge restricted mom's ability to designate the child's primary residence to Midland County and contiguous counties.7" Subsequently, mom's attorney moved for judgment to be entered without the geographical restriction, and in a footnote to the motion, accused the judge and dad's attorney of trickery and collusion in

61.

Id. (construing TEX. FAM. CODE ANN. § 157.005 (West 2014)).

62. Id. 63. Id. (quoting Rosser v. Rosser, 620 S.W.2d 802, 804 (Tex. Civ. App.-Houston [14th Dist.] 1981, writ dism'd w.o.j.)).

64. See id at *4 (noting that the Attorney General's report showed the husband owed no child support).

65. Rule 3.05(b) of the Texas Disciplinary Rules of Professional Conduct prohibits a lawyer from communicating ex parte with a tribunal to influence the tribunal on a pending matter. TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.05(b), reprintedin TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (West 2013) (TEx. STATE BAR R. art. X, § 9).

66.

Clack v. Wollschlager, No. 11-12-00269-CV, 2014 WL 2109384, at *1, *3 (Tex.

App.-Eastland May 15, 2014, pet. denied) (mem. op.).

67.

68.

69.

70.

Id.at*1.

Id. Id. at *2.

Id.

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the footnote.71 Enraged, dad's attorney moved for sanctions against mom 72 and her attorney for unjustly besmirching his reputation.

Because the footnote accused the presiding judge of misconduct, the Supreme Court of Texas assigned the sanctions hearing to another judge who ultimately found that the accusation was made in bad faith and 73 sanctioned both mom's attorney and her co-counsel.

Mom's attorney's allegations of trickery and collusion arose from an appearance of improper familiarity between the judge and dad's attorney, as from dad's attorney's assistant saying that they were well as a warning text "'up to something."' 7 4 Mom's attorney's evidence was that the judge and dad's attorney had both been at a ten-person dinner and at the same table at a CLE event.75 Further, dad's attorney frequently got coffee from the trial, and the court coordinator had printed out court's staff hallway during 76 him. for some documents Between these events and the subsequent hearing, the legal assistant who had sent the text was fired for giving herself an $11 raise, keeping her daughter fictionally on the payroll for an $18,000 gain, and stealing plane 77 ticket credits to fly with her husband to Baltimore, Maryland. Yet, when she testified, she would only say that the judge and dad's attorney were 78 friends not engaged in an unethical relationship. While mom's attorney could have interviewed the court coordinator or people from the dinner or the CLE table, she did not.79 Because dad's attorney had explanations for each of these accusations and mom's attorney had not interviewed any 80 witnesses, the investigating court found for dad's attorney. Mom's attorney appealed. 8 ' The court of appeals affirmed, citing three reasons why sanctions were properly awarded. First, mom could have objected to the jury charge itself prior to its submission to the jury.8 2 Mom and her attorney were well aware of the possibility that the court could add this geographical restriction 71.

72.

73.

74.

Id. at *2-3.

Id. at *3.

Id. at *3-4.

Id.

75.

Id.

76.

77.

78.

79.

Id. at *4, *9.

Id. at *3 n.4.

Id. at *9.

Id. at *8-9.

80.

See id. at *4.

Id. at*1.

81.

82. Id. at *7-8. Even if mom had requested a geographical restriction, the Family Code allows a jury to restrict only a joint managing conservator, not a sole managing conservator. TEX. FAM. CODE ANN. § 105.002(c) (West 2014). Mom was awarded sole managing conservatorship.

Clack, 2014 WL 2109384, at *7-8.

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because of the form of the question, as well as letters, oral argument, and briefs from dad's attorney.83 Second, mom could have interviewed the witnesses to verify her perceptions of trickery and collusion, but did not.84 Finally, mom's attorney could have pursued other avenues, such as grievance procedures, to address her concerns, rather than using a passiveaggressive footnote.85 Because "the allegations were groundless, gratuitous, and brought in bad faith," the appellate court affirmed the sanctions against mom and her 86 attorney.

IV. PROCEDURAL MISDEEDS

Procedural misdeeds are the most common type of dirty deed because so much of what an attorney does is governed by the rules of civil procedure or the rules contained in the Texas Family Code. In this paper, this category also includes attorneys who are a little bit too clever or think they are. Procedural misdeeds may also include well-intended actions that did not technically follow the rules, and this discussion begins with one such act.

A.

Void Decree... Or Not.

Chapter 201 of the Texas Family Code governs the power of associate judges.87 And although it is well-established that associate judges can and often do sign decrees in uncontested cases, default judgment cases, and cases in which the associate judge heard the trial of the case by referral of the case by the presiding judge, an associate judge may not sign the final decree in a case heard and rendered on by the presiding judge.88 In Jackson v. Saradjian, following a contested custody case, parties waited months for the outgoing presiding judge to sign their divorce decree.89 The incoming judge, who was due to take the seat in January, was also the associate judge of the court.90 After numerous requests, in November, the associate judge signed the decree that had been submitted by the parties.91 The wife's 83. Clack, 2014 WL 2109384, at *8.

84. Id.at *8-9, *12.

85. See id. at *12 (discussing the grievance procedures under the Texas Disciplinary Rules of Professional Conduct).

86. Id.at *12, *15.

87. FAM. § 201.007.

88. See id.

89. Jackson v. Saradjian, No. 01-11-00128-CV, 2013 WL 4680223, at *1 (Tex. App.Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem. op.).

90. Id. 91. Id.

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of law, but took no other attorney requested findings of fact and conclusions 92 power. plenary court's the preserve to action Once the decree was signed, the wife filed a motion to declare the decree void on the grounds that the associate judge had no authority to sign the final decree.93 In March, however, to clarify the finality of the decree the former associate, now presiding judge, signed a judgment nunc pro tunc 94 The that comported with the former presiding judge's earlier rendition.

95 wife appealed the validity of the November and March decrees.

The appellate court held that while an associate judge did not have the authority to sign a final decree, the nunc pro tunc decree was the final decree, although mislabeled. 96 Because the November decree was not 97 signed by the presiding judge, it had "no legal effect as a judgment."

Thus, the case remained open and "the trial court did not lose plenary former power." 98 Therefore, the March nunc pro tunc decree signed by the 99 decree. final the was judge, presiding new the now associate judge, The appellate court held the nunc pro tunc label was in error because "[a] judgment nunc pro tunc is only proper if the trial court is correcting clerical error in its judgment and plenary power over the judgment has lapsed."' 0 Because the court retained plenary authority, the court was not 0 issuing a nunc pro tunc correction, but a final decree.'

B.

Involuntary PremaritalAgreement

Premarital agreements are presumptively enforceable, but not if the 02 individual can prove that they signed the document involuntarily.

Generally, to determine involuntariness, a court can consider "(1) whether a party has had the advice of counsel, (2) misrepresentations made in procuring the agreement, (3) the amount of information provided and (4)

92.

Id.

93.

Id.

94.

95.

96.

97.

98.

99.

100.

Id.

Id. Id. at *2.

Id. Id. Id. Id.

101. Id. 102. See TEX. FAM. CODE ANN. §§ 4.002 (presumptively enforceable), 4.006(a)(1) (involuntariness defense) (West 2006).

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whether information has been withheld.' °3 In Moore v. Moore, the trial court found that the premarital agreement was signed involuntarily. 1°4 At her groom's suggestion, the bride agreed to sign a premarital agreement to protect her from "loans, liens, and lawsuits."' 5 Initially, the groom suggested that they use his attorney in a collaborative effort.'0 6 After the groom realized the agreement could be vulnerable if the bride did not have her own attorney, he suggested she hire an attorney.'0 7 The bride's attorney reviewed the premarital agreement and advised the bride that values and schedules needed to be filled into the agreement before the attorney could advise her on what she was giving up.' 08 The bride's attorney then met with and informed the groom's attorney to request those changes, and the groom's attorney agreed to get back to him.' 09 The groom's attorney never again communicated with the bride's attorney. 1" Instead, all references to values were removed from the agreement and schedules were attached that did not include values.'1 ' Later, while preparing to travel to Martha's Vineyard for the wedding, the bride called the groom's attorney to check on the status of the document. 112 The groom's attorney said he was finishing up the document." 3 When the bride called the groom's attorney again, he said that he had finished the premarital agreement, that her attorney had approved it, and that it had been sent to Big Spring, Texas, from where the couple was leaving for Martha's Vineyard.' When the bride checked with her groom upon arrival and every day up until their wedding, the groom claimed that he did not have the document until four to five hours before the wedding." 15 The groom had, in fact, had the document since they were in Big Spring, 6 Texas, but had hidden the document until just before the wedding. 11 The bride presumed that the new document included the changes requested by her attorney, but was alarmed at an additional waiver of

103.

Moore v. Moore, 383 S.W.3d 190, 195 (Tex. App.-Dallas 2012, pet. denied) (clarifying that the Uniform Premarital Agreement Act does not expressly define voluntariness).

104. Id. at 194.

105. Id. at 193.

106. Id. 107. Id. 108. Id. 109. Id. 110. Id. 111. Id. 112. Id. 113. Id. 114. Id. 115. Id. at 194.

116. Id.

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disclosure.117 The disclosure verified that her groom had provided "the nature, extent, and value of his assets" and obviated the need for future disclosure.11 8 Because her attorney was unavailable, the groom called his attorney, who advised the bride that her attorney had approved the premarital agreement and disclosures for her signature.11 9 As the now-wife later discovered, her attorney had not approved those documents, not reviewed the final draft, nor approved the groom's attorney to represent anything to his client.1"' She had not had the advice of her counsel; many misrepresentations were made concerning the document, and asset values and schedules were incomplete or misleading.12 1 The trial court held that the wife "did not sign the [prenuptial] agreement voluntarily and ' The husband appealed, challenging the sufficiency refused to enforce it."122 of the evidence, but the appellate court upheld the trial court's decision.12 3 The husband made three legal arguments, all of which were rejected by the appellate court-he did not threaten or coerce her signature, the disclosures were self-proving under contract law, and4 his wife should not 12 have relied upon his or his attorney's representations.

First, the husband argued that because he had neither threatened nor coerced her signature, there was no evidence of involuntariness.125 The appellate court clarified that the husband's cases did "not purport to limit the kinds of evidence that might show involuntariness. Rather, each case ' Thus, the appellate court depends upon its own facts and circumstances."126 disagreed with husband, holding that express threats and coercion are only one way to demonstrate involuntariness.127 Second, he argued that because she had signed the disclosures stating her attorney had reviewed it, and that she had read and understood it, and that she was signing the agreement voluntarily, they stood on their own. 128 Again, the appellate court disagreed, stating that trick or artifice would suffice to negate the presumption that the recitations were true, and the husband's artifice had prevented his bride from getting legal advice. 2 9

117.

118.

119.

Id. Id. at 194, 196.

Id. at 194.

120.

Id.

121.

122.

123.

124.

125.

126.

Id. at 193-94.

See id. at 192-94.

Id. Id. at 196-97.

Id. at 196.

Id.

127.

See id.

128.

129.

Id. Id. at 196-97.

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Moreover, because the Texas Family Code expressly provides that "a premarital agreement is not enforceable if it is not voluntarily signed[,] [he] cannot preclude [his bride] from making this showing by including recitations in the very agreement that she alleges was not voluntarily 130 signed.

Third, the husband argued his wife could not legally have relied upon his lawyer's representations.' As the appellate court clarified, however, the inquiry is not to the elements of fraud or fraudulent inducement, but to ' The court whether the premarital agreement "was signed involuntarily."132 of appeals concluded that the trial court had sufficient evidence to hold that the premarital agreement was signed involuntarily. 133 C.

Sneaking a Sanctions Order to the Court Without Serving Opposing Counsel

In Lawrence v. Kohl, dad filed a third-amended child support enforcement against mom, and mom's attorney filed a response that included a motion for sanctions.134 The trial court sanctioned dad and his attorney without notice or hearing.13 After dad's attorney discovered the signed sanctions order, dad's attorney requested hearings to withdraw the sanctions order and to seek sanctions against mom's attorney. 3 6 Mom's attorney did not come forward to verify the error until the hearing to withdraw the sanctions37 The judge withdrew the sanctions and, in a subsequent hearing, sanctioned mom's attorney for the fees incurred to set aside the erroneously signed sanctions order.' 38 Mom's attorney appealed, challenging the legal basis for the sanctions, as well as the sufficiency of the evidence, but the appellate court upheld the sanctions order. 139 Mom's attorney argued that Texas Rule of Civil Procedure 13 did not authorize sanctions for failure to aid the court. 140 As to the legal basis, the appellate court agreed that while Rule 13 may not 130.

131.

132.

133.

134.

Id. at 197; TEX. FAM. CODE ANN. § 4.006(a)(1) (West 2006).

Moore, 383 S.W.3d at 197.

Id. Id. Lawrence v. Kohl, 853 S.W.2d 697, 698 (Tex. App.-Houston [1st Dist.] 1993, no

writ).

135.

136.

137.

Id. Id. Id. at 700.

138. Id. at 699.

139. Id. at 699, 700-01.

140. Id. at 700. Rule 13 authorizes a court to sanction an attorney for signing false or groundless claims for the purposes of delay, such as a sanction of attorney's fees under Rule 215(2)(b) of the Texas Rules of Civil Procedure. TEX. R. Crv. P. 13.

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expressly authorize sanctions for these facts, the trial court did not specify the authority for its sanction order. 141 Instead, the appellate court held that the trial court used its inherent authority to curb bad behavior for interference with the court's core functions-namely sneaking in orders that the court then had to reverse. 142 A court must find "some evidence and factual findings that the conduct complained of significantly interfered with the court's legitimate exercise of one of the enumerated core functions. "143 The appellate court held that the evidence was sufficient because mom's attorney refused to assist the court in correcting the error but rather waited until the hearing to withdraw the sanctions order to admit the existence of the error. 144 Further, the sanction must be limited to "'the extent necessary to deter, alleviate, and counteract bad faith abuse of the judicial process.'"145 Here, the sanctioned amount was only sufficient to repay dad 146 for fees expended to correct the error.

Mom's attorney also argued that the sanctions were unconstitutional because he did not receive notice, nor were the sanctions supported by the pleadings.147 As to the constitutional question, he had received due process by notice and a hearing prior to the impositions of sanctions.148 As to the allegation of unsupported sanctions, the appellate court held that the trial court could consider the conduct of the entire litigation, not only the pleadings. 149 D.

Husbandand Wife Cheat Wife 's Attorneys Out of Fees

In Tedder v. Aldridge, after a jury verdict, the wife's attorneys withdrew and intervened, suing both parties for fees.15 ° The trial court granted a deal concocted by the husband and wife.151 They agreed that her attorneys would recover against her alone,152 and soon afterward, she 153 The wife's former attorneys appealed. 15 4 bankruptcy. declared

141. Lawrence, 853 S.W.2d at 700.

142. See id.

143. Id. 144. Id. at 700-01.

145. Id. at 700 (quoting Kutch v. Del Mar College, 831 S.W.2d 506, 510 (Tex. App.Corpus Christi 1992, no writ)).

146. Id. at 699.

147. See id. at 699-700.

148. Id. at 699.

149.

See id.

150.

151.

152.

153.

154.

Tedder v. Gardner Aldrich, LLP, 421 S.W.3d 651, 652 (Tex. 2013).

Id. Id. Id. Id.

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The central issue which worked its way to the Supreme Court of Texas was whether legal services are necessaries for which the other spouse is statutorily liable. 155 The high court took up the case to clarify the distinction between community and joint debt.156 The court said, "Much of the judicial discussion of 'community debt' is based on the erroneous supposition that all 'community debts' are equally shared by the spouses whether they are both makers of the debt or not."' 15 7 In fact, if a debt is community and thus against the community estate, each spouse can be held liable for the debt individually, 158 provided that either the spouse acts as159an agent for the other spouse or the spouse incurs the debts for necessaries.

Because the husband clearly did not act as the agent of the wife to secure the wife's attorney's services, the only remaining question was whether the attorney's fees were necessaries.160 The court clarified, "We have suggested that a spouse's necessaries are things like food, clothing, and habitation-that is, sustenance-and we have squarely rejected the view that a spouse's legal fees in a divorce proceeding fall into this category.""16 Thus, the court upheld prior decisions that attorney's fees were not necessaries but instead "a factor to be considered by the court in making an equitable division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances.' ' 162 Because the wife's attorney's fees were not necessaries, the Supreme Court of Texas held that the trial court correctly approved the decree wherein the husband did not have to pay the wife the amount of her attorney's fees. 163 She could then be discharged in bankruptcy.

Although they were successful, working together to cheat an attorney out of her fee is certainly a dirty deed.

155. Id. Subsequent to this case, the legislature modified section 6.708(c) of the Texas Family Code to allow enforcement "by any means available for the enforcement of a judgment for debt." TEX. FAM. CODE ANN. § 6.708(c) (West Supp. 2015). While beyond the scope of this paper, the legislature changed the rule to provide statutory authority for attorney's fees awards in divorce cases. See Chris Nickelson, Recovering Attorney's Fees, in 1 STATE B. TEX., 40TH ANNUAL ADVANCED FAMILY LAW COURSE ch. 2, at 14-15 (2014).

156. Tedder, 421 S.W.3d at 654.

157. Id. (quoting Joseph W. McKnight, Family Law: Husband and Wife, 37 SW. L.J. 65, 7677 (1983)).

158. Id. at 655 (citing FAM. § 3.202 (West Supp. 2015))).

159. Id. (citing FAM. § 3.201(a)).

160. Id. 161. Id. at 656 (footnote omitted).

162. Id. (citation omitted).

163.

Id.

DIRTY DEEDS DONE NOT DIRT CHEAP

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E.

Husband Tries to Justify a Bill of Review by His Wife's Pregnancy Announcement

Some divorce cases involve two bad actors, both husband and wife. In Thomas v. Thomas, the husband filed a motion for a new trial in a contested custody divorce challenging the custody determination.16 4 His wife had testified under oath that she was not pregnant.165 She then waited until the last day the husband could amend his motion for new trial to inform him that she was pregnant.166 Instead of filing an amendment immediately, he waited eleven days to file an untimely motion complaining of the pregnancy revelation, which was denied.167 Then, rather than appeal, he filed a bill of review claiming that his wife's concealment of the pregnancy deprived him of facts and witnesses necessary to argue that the court should set aside the custody determination.168 He also argued that he had insufficient time to present a defense against the paternity of the child, whom he later disclaimed.16 9 The trial court dismissed the bill of review.17 ° The husband appealed, but the court of appeals affirmed. 7 1 On appeal of his bill of review, the husband had to prove "(1) a meritorious defense to the cause of action alleged to support the judgment, (2) that the petitioner was prevented from making by the fraud, accident or 17 2 wrongful act of his opponent, and (3) the petitioner was not negligent., The husband argued he was unable to present a meritorious defense because his wife had concealed her pregnancy, robbing him of potential facts and

witnesses. 173 As the appellate court noted, however, the husband's argument was misplaced, because the trial court had determined the custody of his two existing children, not the new one. 7 4 Therefore, the wife's intrinsic fraudlying under oath-would not have prevented him from litigating the custody of his two existing children.175 Extrinsic fraud, which "denies a party the opportunity to fully litigate at trial all the rights or defenses that

164.

Houston 165.

166.

167.

168.

169.

170.

171.

172.

173.

174.

175.

Thomas v. Thomas, No. 14-06-00069-CV, 2007 WL 2386365, at *1 (Tex. App.[14th Dist.] Aug. 23, 2007, no pet.) (mem. op.).

Id. at *2.

Id. at*1.

Id. Id. at *1-2.

Id. at *2.

Id. at*1.

Id. Id. Id. at *2.

Id. Id.

520

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could have been asserted" before the court, affects a bill of review; intrinsic fraud does not.

176

As to his defense against paternity of the new child, the appellate court held the husband was only concerned about the custody of his existing children. 7 7 The wife argued that her husband had time to file a motion for new trial that day even after notice of her pregnancy. 178 Her husband argued that the timing was insufficient because he could not calculate the conception date or identify the father that day. 179 As the appellate court noted, however, the husband admitted in his reply brief that the purpose for the bill of review was to seek a new trial on the right to determine residence of the existing two children, not the new one. 80 Thus, the court held that the husband was "employ[ing] a legal fiction for the sole purpose of relitigating matters which were appealable when he filed his bill of review."'81

F.

Court SanctionsAttorneyfor Pleadingan Abolished Cause ofAction

In Stites v. Gillum, in the wife's counter-petition for divorce, the wife sued the husband's mistress, accusing her of interfering with the husband and wife's familial relationship.' 8 2 The mistress moved for summary judgment.' 83 The trial court granted it on the basis that finding interference with the familial relationship could only be based on either criminal conversion or alienation of affection, and both causes of action had been abolished in Texas.' 84 Additionally, the woman moved for and the trial court granted and severed from the divorce proceedings an $18,000 sanction award against the wife's attorney for Texas Rule of Civil Procedure 13 violations.' 85 The wife's attorney appealed and the sanctions 86

award was affirmed. 1

On appeal, the wife's attorney argued they were trying to extend the law either through the causes of action of interference with family relationships or intentional infliction of emotional distress.'87 But, because the wife's attorney failed to allege the element of extreme or outrageous 176.

177.

178.

179.

180.

181.

182.

183.

184.

185.

186.

187.

Id. Id. Id. Id. Id. Id. Stites v. Gillum, 872 S.W.2d 786, 787-88 (Tex. App.-Fort Worth 1994, writ denied).

Id. at 788.

Id. Id. (citing TEX. R. Civ. P. 13).

Id. at 787.

Id. at 789.

DIRTYDEEDS DONE NOT DIRT CHEAP

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conduct in their pleadings, the appellate court held that intentional infliction of emotional distress was never asserted.188 The court clarified that "[a] pleading should contain 'a short statement of the cause of action sufficient to give fair notice of the claim involved. . . .' [and] the petition should be construed liberally in favor of the pleader."18' 9 Here, the court held the wife's attorney failed to allege, nor could the court reasonably infer, extreme and outrageous conduct in either their counter-petition or their summary judgment. 9 ' Further, the cases concerning interference with family relationships were distinguishable from the present case as discussed below.191 As to the claim for interference with family relationships, the court compared this case with four cases. In the first case the wife's attorney offered, Salinas v. Fort Worth Cab & Baggage Co., a wife was sexually assaulted by a taxi driver.192 The wife sued the taxi company for negligent hiring practices because the relationship with her husband suffered following the attack.193 She suffered "the loss of love, society, affection and companionship with him."' 94 The appellate court distinguished Salinas from the present case because it was decided shortly before the abolishment of alienation of affection. 9 5 The appellate court also distinguished this case because Salinas involved a negligence action, whereas this case and alienation of affection cases involve an intent to alienate the affections of one spouse.

19 6

The second and third cases relied on by the wife's attorney had promising language, but were also distinguishable because they focused on the rights of the child, not of the husband and wife.197 The wife's attorney pointed to the Supreme Court of Texas's statement in Reagan v. Vaughn that "injuries to the familial relationship are significant injuries and are worthy of compensation." '98 Reagan discussed a child's rights to recover for an injury to a child's parent and Sanchez v. Schindler allowed a parent

188.

189.

190.

191.

192.

1987)).

193.

194.

195.

196.

197.

198.

Id.at 794.

Id. at 793 (citations omitted).

Id. at 794.

Id.at 791-92.

Id. at 791 (citing Salinas v. Fort Worth Cab & Baggage Co., 725 S.W.2d 701 (Tex. Salinas, 725 S.W.2d at703-04.

Id. at 703 n.1.

Stites, 872 S.W.2d at 791.

Id. Id. Id. (quoting Reagan v. Vaughn, 804 S.W.2d 463, 464 (Tex. 1990)).

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to recover for the wrongful death of a child, but neither concerned the husband-and-wife relationship.1 99 The court in Stites, distinguished a final case, Weirich v. Weirich, because it involved a grandmother helping a father kidnap his children as opposed to a scenario involving a wife's action against her husband's mistress.200 Weirich involved a mother's accusations against a third party's interference with child custody, whereas the instant case involved a spouse's action "against a third party for intentional or purposeful inference with the familial relationship of the two spouses." ' While the wife's attorney cited promising language by the Supreme Court of Texas indicating a trend towards recognizing a cause of action for interference with the familial relationship, the appellate court found the facts too distinguishable. 0 2 Thus, the appellate court affirmed the trial court's sanction award against the wife's attorney for alleging an abandoned cause of action.203 V.

SHOULD DEFAULTS IN SAPCRs BE DIFFERENT UNDER CRADDOCK?

This case is an invitation to dialogue concerning the role of default judgments in Suit[s] Affecting the Parent-Child Relationship (SAPCR). In In re KA.C. 0., the trial court granted default judgment against dad when he and his counsel failed to appear at a bench trial.20 4 Soon afterward, the trial court denied dad's motion for new trial.205 The appellate court ultimately reversed the trial court's holding and remanded the case for a new trial because the Craddock v. Sunshine Bus Lines, Inc. factors were met.20 6 Under the Craddock test, a default judgment should be set aside and a new trial ordered when the defaulting party "(1) shows that the failure to appear was not intentional or the result of conscious indifference, but was due to an accident or mistake; (2) sets up a meritorious defense; and (3) shows a new trial would cause neither delay nor work an injury to the [non-defaulting party] .-207 Because no one properly notified the husband of the trial setting, 199. Id. (citing Reagan, 804 S.W.2d at 464; Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex. 1983)).

200. Id. at 792 (citing Weirich v. Weirich, 796 S.W.2d 513, 514 (Tex. App.-San Antonio 1990), rev'd, 833 S.W.2d 942 (Tex. 1992)).

201. See id.

202. Id. (citing Weirich, 796 S.W.2d at 948 n.4).

203.

Id. at 797.

204. In re K.A.C.O., No. 14-07-00311-CV, 2009 WL 508295, at *2 (Tex. App.-Houston [14th Dist.] Mar. 3, 2009, no pet.) (mem. op.).

205. Id. 206. Id. at *10.

207. Id. at *3 (citing Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939)).

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prong of Craddockand did not have to meet the second he satisfied the 2first 08 prongs. third or The appellate court, however, expressed hesitance about applying the Craddock test to SAPCRs because, inter alia, the test fails to take into account the best interests of the child, which is central in the Family Code.20 9 Craddock was designed to apply in general civil litigation where only two competing interests are involved, whereas in SAPCR cases, "three interests [are] involved[-]the mother's, the father's, and, of paramount importance, the child' S.''21o Therefore, one interest which is enshrined by the Texas Family Code is ignored. Next, the second prong of Craddock concerning meritorious defenses is difficult to apply in family law cases where the court considers "only factors ...

in determining best interest"

rather than bright-line tests.21 ' Third, the legislature has gone to considerable lengths to rid family law of the adversarial aspects of civil law ,a child. ' 212 Fourth, the goal of by styling petitions as "In the Interest of Craddock is finality of judgments for traditional civil cases, but "the trial court hearing the issues in a SAPCR retains continuing jurisdiction because the Family Code contemplates that substantive changes will occur in the ' Finally, this appellate court's concern is decree and to the family unit."213 joined by other appellate courts in San Antonio, Austin, Corpus Christi, and Forth Worth. 214 Despite all of these concerns, the court applied Craddock because they were bound to do so.21 For the first prong, the appellate court found that the husband's failure to appear was neither intentional nor a result of conscious indifference because he was not properly served with notice.2 16 The father first had to overcome the presumption that he was properly notified.217 The dad and one of his witnesses arrived at 8:40 a.m. for an 8:00 a.m. bench trial, but the trial was already concluding. 2 8 The trial court awarded the wife her requested relief by default judgment.2 19 In his motion for a new trial, dad and the witness both claimed that his lawyer had advised them trial would

208. Id. at *6.

209. Id. at *3 (citing Lowe v. Lowe, 971 S.W.2d 720, 725-27 (Tex. App.-Houston [14th Dist.] 1998, pet. denied)).

210. Id. at *3 n. 1 (citing Lowe, 971 S.W.2d. at 725).

211. Id. (citing Lowe,971 S.W.2d. at 726).

212. Id. 213. Id. (citing Lowe, 971 S.W.2d. at 726-27).

214. Id. 215. Id. 216. Id. at *4-5.

217. Id. at *4.

218. Id. at *2, *4.

219. Id. at *2.

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start at 10:00 a.m.22 ° The dad had spent Friday preparing for trial and had arranged for witnesses from France and Belgium to be present for the 10:00 a.m. hearing.22 1 The dad also attached to his motion subpoenas for witnesses showing the 10:00 a.m. time.222 The dad also stated that at a prior hearing the associate judge had advised them off the record of the 10:00 a.m. start time.223 The mom did not file a written response to dad's motion for a new trial nor contradict his assertions at the trial court, but did argue against him on appeal.224 The mom argued that her husband had notice because of (1) the docket sheet; (2) the judge's statement at an earlier hearing; (3) the judge's statements at the motion for a new trial hearing; and (4) because everyone else involved in the trial setting, her party, the judge, and the court staff, were present for the 8:00 a.m. bench trial. 225 The appellate court concluded (1) the docket sheet was a memorandum of convenience of the clerk and trial court and not part of the record; (2) the record showed no mention of the judge's statement concerning a start time at the earlier hearing; (3) while the court did say on the record at the new trial hearing that it had previously advised the husband of the 8:00 a.m. start time, mom had to controvert the husband's factual assertions, not the court; and (4) the mom failed to make this argument at the trial court or provide any supportive authority in a contravening motion. 226 Thus, because no facts contravened the dad's version of events, his excuse and actions were sufficient to satisfy Craddock's first element.22 7 Finding the first element satisfied and the burden of the second and third elements relieved, the appellate court held that the trial court erred in overruling the dad's motion for new trial.228 While this tale might serve as a warning to those who would rely on a strict interpretation of Craddock in family law cases, this case should provide awareness of the discussion on whether Craddockshould be used in SAPCR cases at all. If a majority of the state's courts agree that the test ignores the children's best interests and originates in an adversarial setting not appropriate in family law, should not the state fashion a new test more appropriate for this interest and setting?

220.

221.

222.

223.

224.

225.

226.

227.

228.

Id. at *4.

Id. Id. Id. Id. Id. Id. at *4-6.

Id. at *6.

Id.

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525

VI. CONCLUSION

This paper has covered a variety of dirty deeds to serve as cautionary tales. Some of these deeds are obvious, such as failing to communicate with opposing counsel or follow the court's orders. Others are more subtle, such as poor handling of suspicions of ex parte collusion or trying to carve out new causes of action. Hopefully, these tales will help other attorneys avoid sanctions, recriminations, and embarrassment.

WHEN EVIDENTIARY MATTERS CROSS ETHICAL BOUNDARIES HEATHER

L. KING, JESSICA HALL JANICEK, & PAUL M. LEOPOLDt

528 I. INTRODUCTION ...............................................................................

52 8 II. E S I ..................................................................................................

529 A. What is ESI? ...........................................................................

B. The New FederalRules of Civil Procedure............................ 530 C. GroundbreakingFederalCase Law ....................................... 531.

1. Zubulake v. UBS W arburg LLC ....................................... 531 531 2. Zubulake I and III .............................................................

532 3. Zubulake IV and V ............................................................

533 D. ESI Considerations.................................................................

533 1. Model Orders....................................................................

533 2. The Sedona Guidelines......................................................

535 3. E-Discovery............................................

537 a. Competency ................................................................

538 b. Confidentiality ............................................................

541 c. Candor ....................................................................... d. The Unknown Ethics... and Data ............................. 541 III. SPOLIATION AND THE DUTY TO PRESERVE .................................... 543 543 A. The Zubulake Guidelines........................................................

B. Pension Committee (Zubulake Revisited) ............................... 544 C. Texas Spoliation Rules and Sanctions .................................... 545 D. The Standardof Carefor Advising Clients About the Duty 547 to PreserveEvidence...............................................................

547 1. Texas State Courts ............................................................

548 2. Texas Federal Courts........................................................

550 IV. CONCLUSION ..................................................................................

t The authors wish to thank Greg B. Enos for his article "Cell Phone Towers and Cell Phone Transmissions"; M. Chad Gerke for his article "Ethical Issues of Getting Social Media into Evidence"; Joseph Indelicato, Jr., and Nina Indelicato for their article "Ethical Pitfalls of Social Media"; David Lopez for his article "Spoliation and Legal Malpractice"; Robert J. McEwan for his article "Ethical Issues and More in the Age of Electronic Communication"; Kristal Thomson for her article "Ethical Pitfalls for Family Law Practitioners"; and Peter S. Vogel for his article "Ethical Issues in Social Media."

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I.

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INTRODUCTION

Divorce lawyers have reported seeing an increase in the use of social networking evidence in U.S. divorce cases, according to an American Academy of Matrimonial Lawyers (AAML) survey released in 2010.1 An overwhelming 81% of the nation's top divorce attorneys say they have seen an increase in the number of cases using social networking evidence during the past five years. Facebook is the primary source for online divorce evidence; 66% of the survey audience named Facebook as the source of compromising information used in litigation followed by MySpace at 15%, Twitter at 5%, and other choices combined listed at 14%.2 Along with social networking sites, advancements in technology continue to change how attorneys perform discovery. Although the discovery process may change, ethical standards remain the same. This paper will discuss the ethical implications concerning both electronically stored information (ESI) and traditional evidence.

II.

ESI

For several years, case and statutory law have been outlining the duties and obligations of parties to litigation in regards to electronic discovery and evidence.' The subjects of civil litigation and business organizations make up most of the cases and scholarly articles that address electronic discovery.

Although family law cases do not normally involve large organizations that have ESI, some sort of electronic data is constantly finding its way into family law cases, such as email, Myspace, Facebook, text messages, websites, or a plethora of other ESI. Every litigator must keep in mind the developing case and statutory law because of the important guidelines they provide for dealing with electronic evidence and discovery.

For trial lawyers to know when, where, and how to retrieve ESI, they must consider this ever-changing statutory and case law and develop a basic understanding of how electronic data and information is generated, transferred, and stored. A lawyer must develop a discovery strategy early in the case so that crucial ESI is not overlooked, lost, or destroyed.

1.

AAML

Big Surge in Social Networking Evidence Says Survey ofNation's Top Divorce Lawyers, Feb. 10, 2010), http://www.aaml.org/about-the-academy/press/press-releases/e-

discovery/big-surge-social-networking-evidence-says-survey-.

2. Id. 3.

Xavier Rodriguez, E-Discovery and Electronic Evidence Update, 42 ADVOC. (TEx.) 1,

3 (2008) (explaining Rule 26(f) involves a conference as to whether discovery of ESI is necessary); see also id. at 2 ("The scope of the duty to preserve extends to electronic documents, such as e-mails and back-up tapes." (quoting AAB Joint Venture v. United States, 75 Fed. Cl. 432, 441 (2007)) (internal quotation marks omitted)).

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529

What is ESI?

A.

Family law cases characteristically involve four different categories of ESI: (1) voice transmissions, including audio recordings, cell phone transmissions, and voice mail; (2) computer-generated data, including spreadsheets, computer simulations, emails, website information (such as social networking sites), and information downloaded from a GPS device; (3) information from cell phones, tablets, handheld computing devices, and/or PDAs, including calendars, text messages (SMS/MMS), notes, digital photos, applications (apps), music and address books; and (4) video transmissions. Personal computers can also contain a plethora of hidden information, such as the past history of websites visited and information downloaded from the internet.

The landmark case, Zubulake v. UBS Warburg, LLC, sets forth five classes of data that help attorneys understand ESI, where it can be found, and how easily it is accessed for purposes of production.4 These classes include: 1. Active/Online Data: Includes data files that are currently in use and works in progress such as word processing documents, spreadsheets, electronic calendars, address books, and all of the items contained on hard drive. This is considered the most accessible the computer's 5 data.

2. Near-line Data: Includes the data contained on robotic storage devices. Although retrieval time can range between a few to two minutes, this data is still considered very milliseconds 6 accessible.

3. Archival or Offline Data: Includes the information copied to removable media and stored in a location other than on the computer.

The accessibility time of this data can range from minutes to days, depending on where the data is stored.7 4. Backup Tapes: The imaging of the computer's system to a tape drive for archival reasons. Restoration of backup tapes is more timeThe court in Zubulake considered consuming and usually very costly.

8 this type of data inaccessible.

5. Erased or Damaged Data: Includes deleted files and fragments of files that are randomly placed throughout the disk. This is the least

4.

5.

Zubulake v. UBS Warburg LLC (Zubulake 1), 217 F.R.D. 309, 318-19 (S.D.N.Y. 2003).

Id. at318.

6.

Id. at 318-19.

7.

Id. at319.

8.

Id. at319-20.

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accessible form of ESI, 9and the court in Zubulake considered this type of data inaccessible.

The above forms are the different categories ESI may fit into, but the data itself can be found in a variety of sources, including desktop computers, laptop computers, hard drives, removable media devices (floppy disks, tapes, CDs, jump drives/zip drives), handheld computer devices, tablets, optical disks, network hard disks, network storage, remote internet storage, backup devices, archives, personal digital assistants, cellular phones, camera phones, iPods, MP3 players, internet service providers, and other types of computer systems.

B.

The New FederalRules of Civil Procedure

The Supreme Court of the United States approved amendments to the Federal Rules of Civil Procedure in 2006 that address the discovery of ESI.' ° The changes specifically amended Rules 16, 26, 33, 34, 37, and 45.11 The following includes some of the most relevant changes to the discovery of electronic information: - Amended Rule 16(b)(3)(B)(iii) allows the court to include in its scheduling order orders that provide for the disclosure or discovery of ESI. 2 - Amended Rule 26(a)(1)(A)(ii) requires each party to initially disclose, without awaiting a discovery request, a copy of or 13 description by category and location of all ESI. - Amended Rule 26(b)(2)(B) states that a party need not provide discovery of ESI "from sources that the party identifies as not reasonably accessible because of undue burden or cost."14 - Amended Rule 34 added "electronically stored information" as a category subject to a general discovery request, from any party to any 15 party, to produce and inspect, copy, test, or sample.

- Amended Rule 37(f) provides that, absent exceptional circumstances, sanctions cannot be imposed for loss of ESI resulting

9. Id. 10. See Carl G. Roberts, The 2006 Discovery Amendments to the FederalRules of Civil Procedure, A.B.A.: LAW PRAC. MGMT. SEC. (Aug. 2006), http://apps.americanbar.org/lpm/lpt/articles/tch08061 .shtml#container.

11.

FED. R. Civ. P. 16, 26, 33, 34, 37, 45.

12. FED. R. CIV. P. 16(b)(3)(B)(iii).

13. FED. R. Civ. P. 26(a)(1)(A)(ii).

14. FED. R. CIv. P. 26(b)(2)(B).

15. FED. R. Civ. P. 34(a)(1).

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WHEN EVIDENTIARY MATTERS CROSS ETHICAL BOUNDARIES

531

from the routine, good-faith operation of an electronic information system. 16

- Amended Rule 45 contains the procedures17 for requesting and responding to subpoenas when ESI is involved.

C.

GroundbreakingFederal Case Law

1.

Zubulake v. UBS Warburg LLC

Judge Scheindlin, of the Southern District of New York, announced in a series of opinions-culminating in what is commonly referred to as Zubulake I, III, IV, and V-what have become significant protocols in the world of electronic discovery. 8 The holdings of the Zubulake opinions addressing electronic discovery are significant and groundbreaking, even though many states had released opinions prior to Zubulake, including Texas.

2.

Zubulake I and III

In Zubulake I, released in 2003, Laura Zubulake, plaintiff, requested all documents regarding communications between herself and the defendants, UBS.19 UBS produced emails and live data, but it failed to search its backup tapes, archives, or servers for documents responsive to the request.21 Zubulake requested UBS do so, to which UBS objected, arguing that the cost of searching and retrieving the data was unreasonably high, approximately $175,000, and that Zubulake's request of the electronic data should be denied. 21 Judge Scheindlin, after considering the arguments of both parties, held that electronic documents are as equally subject to 22 discovery as paper documents.

The court analyzed the cost of discovery based on the accessibility of the data to be retrieved and held that fragmented, erased, and damaged data, as well as data held on backup tapes, was inaccessible, and thus a costshifting analysis must be considered to determine which party would pay

16. FED. R. CIV. P. 37(f) advisory committee's note; see FED. R. CIv. P. 37(e).

17. FED. R. Civ. P. 45.

18. See Zubulake v. UBS Warburg LLC (Zubulake V), 229 F.R.D. 422 (S.D.N.Y. 2004); Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212 (S.D.N.Y. 2003); Zubulake v.

UBS Warburg LLC (Zubulake 111), 216 F.R.D. 280 (S.D.N.Y. 2003); Zubulake v. UBS Warburg LLC (Zubulake 1), 217 F.R.D. 309 (S.D.N.Y. 2003).

19. Zubulake 1, 217 F.R.D. at 312.

20. Id. at 312-13.

21. Id. at 312.

22. Id. at317.

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for the production of the inaccessible data.23 Judge Scheindlin created a then-new seven factor-balancing test to determine whether the cost of production should be shifted: 1. The extent to which the request is specifically tailored to discover relevant information; 2. The availability of such information from other sources; 3. The total cost of production, compared to the amount in controversy; 4. The total cost of production, compared to the resources available to each party; 5. The relative ability of each party to control costs and its incentive to do so; 6. The importance of the issues at stake in the litigation; and 7. The relative benefits to the parties of obtaining the information.2 4 Judge Scheindlin, subsequent to applying this test, ordered UBS to produce all of the electronic information on its servers and backup tapes that Zubulake requested and to pay 100% of the costs associated with the production. 25 The court, upon review and application of the seven factor balancing test, determined that Zubulake would be responsible for 25% of the remaining production costs, while UBS would pay for the other 75%.26 3.

Zubulake IV and V

Judge Scheindlin handed down Zubulake IV in 2003, and both parties learned that relevant ESI, created after litigation had commenced, had been destroyed and were only available on UBS's backup tapes. 27 The court held that UBS violated its duty to preserve the evidence because it should have known the evidence would be relevant to future litigation.28 In Zubulake V, the court subsequently addressed the responsibility of counsel regarding electronic discovery and evidence and provided steps that counsel should take to create a "litigation hold" on ESI. 29 This litigation hold to prevent the spoliation of evidence is discussed in more detail in Section III of this paper.

23.

24.

25.

26.

27.

28.

29.

2004).

Id. at 320.

Id. at 322.

Id. at 324.

Zubulake v. UBS Warburg LLC (Zubulake 11), 216 F.R.D. 280, 291 (S.D.N.Y. 2003).

Zubulake v. UBS Warburg, LLC (Zubulake IV), 220 F.R.D. 212, 215 (S.D.N.Y. 2003).

Id. at 219-20.

Zubulake v. UBS Warburg, LLC (Zubulake V), 229 F.R.D. 422, 433-34 (S.D.N.Y.

2016] WHEN EVIDENTIARYMATTERS CROSS ETHICAL BOUNDARIES D.

ESI Considerations

1.

Model Orders

533

Several courts are now adopting model orders to promote the just and speedy production of ESI because it has become such a major player in discovery issues and is constantly the topic of pretrial discussions. For example, the Eastern District of Texas has adopted its own model order regarding e-discovery in patent law cases. 31 Six notable highlights of the model order include: 1. "A party's meaningful compliance" with the model order and "efforts to promote efficiency and reduce costs will be considered in cost-shifting determinations."

2. ESI Production requests shall not include metadata without a showing of good cause or compliance with a mandatory disclosure order.

3. "Each electronic document shall be produced in... Tagged Image File Format ('TIFF') ... format."

4. "Absent a showing of good cause, no party need restore any form of media upon which backup data is maintained in a party's normal or allowed processes, including but not limited to backup tapes, disks, SAN, and other forms of media...."

5. "Absent a showing of good cause, voice-mails, PDAs and mobile phones are deemed not reasonably accessible and need not be collected and preserved."

6. General ESI requests "shall 31not include e-mail," as a specific request must be made for email.

2.

The Sedona Guidelines

Shortly before Zubulake I came down, the Sedona Conference, a working group of lawyers, consultants, academics, and jurists, began a 32 public comment draft on the best practices regarding electronic evidence.

The Sedona Conference has since published several articles regarding the management, best practice, discovery, and production of ESI. 33 Mainly

30. [Model] Order Regarding E-Discovery in Patent Cases, AM. LAW., http://pdfserver.amlaw.com/legaltechnology/ModelEDiscoveryPatentOrder wCommentary.pdf (last visited Mar. 7, 2016).

31. Id. 32. See Publications, SEDONA CONF., https://thesedonaconference.org/publications (last

visited Mar. 24, 2016).

33. See id.

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intended for organizations, the Sedona Conference has published the following guidelines for managing electronic information and records: have reasonable policies and procedures - "An organization should 34 for managing" its ESI.

- "An organization's information and records management policies practical and tailored to the and procedures should be realistic, 35 circumstances of the organization." * "An organization need not retain all electronic information ever generated or received."36 - "An organization adopting an information and records management policy should also develop procedures that address the and ultimate disposition or creation, identification, retention, retrieval 37 destruction of information and records."

- "An organization's policies and procedures must mandate the suspension of ordinary destruction practices and procedures as necessary to comply with preservation obligations related to actual or reasonably anticipated litigation, government investigation or 38 audit."

The Sedona Conference has also created the following guidelines to help determine whether litigation should be reasonably anticipated and whether a duty to take affirmative steps to preserve relevant information exists: - "A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, or when it takes litigation, seriously contemplates initiating 39 specific actions to commence litigation."

- "Adopting and consistently following a policy or practice governing an organization's preservation obligations are factors that may demonstrate reasonableness and good faith."40 - "Adopting a process for reporting information relating to a probable threat of litigation to a responsible decision maker may assist in demonstrating reasonableness and good faith."4' 1

34.

THE SEDONA CONFERENCE, THE SEDONA GUIDELINES: BEST PRACTICE GUIDELINES & COMMENTARY FOR MANAGING INFORMATION & RECORDS IN THE ELECTRONIC AGE iv (2005).

35.

Id.

36.

Id.

37.

Id. atv.

38.

Id.

39. The Sedona Conference, The Sedona Conference Commentary on Legal Holds: The Trigger & the Process, 11 SEDONA CONF. J. 265, 269 (2010).

40.

41.

Id. Id.

2016]

WHEN EVIDENTIARYMATTERS

CROSS ETHICAL BOUNDARIES

535

* "Determining whether litigation is or should be reasonably faith and reasonable evaluation anticipated should be based on a good 42 of relevant facts and circumstances."

- "Evaluating an organization's preservation decisions should be based on the good faith and reasonableness of the decisions how [the undertaken (including whether a legal hold is necessary and 43 legal hold] should be executed) at the time they are made.

3.

E-Discovery

Many cases highlight the pitfalls of electronic discovery and illustrate the risks that a failure to have document-preservation procedures and litigation-hold policies in place can produce. While these cases generally address corporations, many principles can also apply to individuals. In Texas, a federal judge ordered Microsoft to pay $25 million in damages and almost $2 million in attorney's fees for, among other things, its failure to produce during discovery a key email on a timely basis and to disclose the existence of a database. 44 The chances that privileged information will be inadvertently produced significantly increases with the proliferation of electronic information and e-discovery. To avoid the risk of waiver of privileges, one must meticulously review ESI. Additionally, agreements that permit a responding party to "clawback" inadvertently produced privileged documents or data should exist. For example, Oracle America sued Google and alleged that Google's Android infringed on Oracle's Javarelated copyrights. 45 Google argued that an inadvertently produced email draft from its engineer to Oracle's vice president was privileged.4 6 The court denied Google's claims of attorney-client privilege. 47 "Software is available that can identify draft emails so that they can be removed from production."48 An attorney should also consider the ethical considerations in how ESI is obtained. Rule 4.4 of Professional Conduct states: (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third 42. Id. at 270.

43. Id. 44. See i4i Ltd. P'ship v. Microsoft Corp., 670 F. Supp. 2d 568, 572-73 (E.D. Tex. 2009), aff'das modified, 598 F.3d 831 (Fed. Cir. 2010), aft'd, 564 U.S. 91 (2011).

45. Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974, 975 (N.D. Cal. 2012), rev'd, 750 F.3d 1339 (Fed. Cir. 2014).

46. See Henry Kelston, Google's EDD Search Blunder in Oracle Case: The $1 Billion Mistake?, LAW TECH. NEWS (Feb. 17, 2012) (LEXIS).

47. See id.

48. Joseph Indelicato, Jr. & Nina Indelicato, Ethical Pitfalls of Social Media, in STATE B. TEX., 35TH ANNUAL MARRIAGE DISSOLUTION INSTITUTE ch. 8, at 9 (Apr. 2012).

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person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored 49 information was inadvertently sent shall promptly notify the sender.

For example, the Philadelphia Bar Association Professional Guidance Committee issued an ethics opinion that declared it unethical for attorneys to direct their staff to "friend" deponents on Facebook, even if the likelihood that the deponent would accept the friend request is high.50 The Guidance Committee stated that such "friending" is misconduct because it is dishonest, misleading, and fraudulent conduct.51 As the person attempting to friend the deponent would omit highly material facts in their communication, such as the fact that the person is associated with the attorney, such request would be a violation of the Pennsylvania Rules of Professional Conduct.52 The Texas Rules of Professional Conduct, specifically Rule 8.04, are substantially the same as Pennsylvania Rules of Professional Conduct 8.4; thus, similar conduct could be considered misconduct in Texas as well.53 In a related example, the New York State Bar Association's Committee on Professional Ethics declared that scanning the public pages of a party's social networking site is not an ethical violation.5 4 In resolving a similar situation as Philadelphia, the New York Committee took a twofold approach-first, it stated that by attempting to "friend" a represented party, the attorney would violate the no-contact rule of ethics, and second, if the attorney attempted to "friend" an unrepresented party, the attorney would be required to clarify the lawyer's role and refrain from giving any legal advice.55 Again, these rules are substantially the same as those found in Texas, specifically Rules 4.02 and 4.03 of the Texas Disciplinary Rules of Professional Conduct, so the same outcome should result in Texas.56

49.

MODEL RULES OF PROF'L CONDUCT R. 4.4 (2015).

50. Phila. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02, at 3 (2009).

51. 1d. at 4 (citing PA. RULES OF PROF'L CONDUCT R. 8).

52. Id. at2.

53.

Compare PA. RULES OF PROF'L CONDUCT R. 8.4(c) ("It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation; .... "), with TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 8.04(a)(3), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (West 2013) (TEx. STATE BAR R. art. X, § 9) ("A lawyer shall not.. engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ....

54. N.Y. State Bar Ass'n Comm. on Prof 1 Ethics, Op. 843 (2010).

55. Id. 56.

TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 4.02,4.03.

2016] WHEN EVIDENTIARY MATTERS CROSS ETHICAL BOUNDARIES

537

Because so many people now know that the information on many social networking sites is publicly available, no ethical prohibitions should exist in regard to reviewing that publicly available information about a party. Those who use social networking sites "logically lack a legitimate expectation of privacy in the materials intended for publication or public posting."5 7 A user who provides personal information for others to see on a information social networking site is not seeking to preserve that personal 58 as private, but is making a conscious decision to publicize it.

In addition to the rules already discussed, attorneys should remember Rule 4.04 ("Respect for Rights of Third Persons") of the Texas Disciplinary Rules of Professional Conduct because of the linked or shared nature of the content on social networking sites. It states, "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."59 Texas attorneys may also record phone calls without informing the person on the other side of the phone conversation without violating any ethical rules.6" In November 2006, the Texas Center for Legal Ethics and Professionalism issued Opinion 575, which reversed three prior opinions it had held since 1953 concerning the recording of phone conversations.61 Opinion 575 lays out certain qualifications but ultimately concludes that "the undisclosed recording of telephone conversations by a Texas lawyer should not be treated 62as a violation of the Texas Disciplinary Rules of Professional Conduct. a. Competency "A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence .... ",63 Lawyers should know their limits, no matter the issue, and pecuniary benefits should play no role in that decision. ESI and ediscovery are prime examples of fields with such limits that continue to become more predominate as electronics become more readily available and cheaper. For an inexperienced, yet ethical attorney, the Rules of 57. Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001).

58. See Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432, 438 (Md. 2009) ("The act of posting information on a social networking site, without the poster limiting access to that information, makes whatever is posted available to the world at large.").

59.

TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 4.04.

60. Greg B. Enos, Cell Phone Towers and Cell Phone Transmissions: Cell Phone Evidence and Spying 2013, in STATE B. TEX., SEX, DRUGS & SURVEILLANCE ch. 14, at 6 (Jan. 2013).

61. Tex. Comm. on Prof 1Ethics, Op. 575 (2006).

62. Id. 63.

TEX..DISCIPLINARY RULES PROF'L CONDUCT R. 1.01(a).

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Professional Conduct provide an easy out: simply include another lawyer who is competent. 64 For all types of issues, whether the attorney is experienced or not, fairness and the best interests of the client can only be dealt on an equal playing field. If the attorney is not yet competent in ediscovery, or if the attorney has less than adequate competence and faces a problem beyond what the attorney can handle, the attorney must retain cocounsel who is properly competent rather than avoiding it or doing it negligently. 65 The attorney has an ethical duty to do so, even though this 66 may deprive the attorney of fees or embarrass the attorney's pride. b. Confidentiality Many lawyers use social media as a personal and business tool of communication with family, friends, clients, and potential clients. Family law is especially sensitive to confidentiality issues. Clients also often receive help paying the bill from another family member or a friend who may feel entitled to information concerning the client's case.

The confidentiality of the information in text messages or emails that one sends to clients is another issue that commonly occurs. Rule of Professional Conduct 1.05 governs this issue. Specifically, Rule 1.05(c)(l)(3) controls when an attorney can release confidential information to third parties and states: "A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the 67 client, [and] the client's representatives."

Attorneys must remember that confidential information includes, by definition, both privileged and unprivileged information. 68 Therefore, to properly analyze the issue, one must apply both the disciplinary rules and Rule of Evidence 503.69 Applying both the disciplinary rules and the rules of evidence shows that the attorney-client privilege belongs to the client. 71 "Therefore, it is important that when the client brings their designated 'hand-holder,' the attorney should be clear and meet with the client alone first. '71 The attorney should, during that meeting, re-explain the lawyer-client privilege with the 64. Id. R. 1.01(a)(1).

65. Gary Wiener, The Ethical Minefield of E-Discovery, 49 HOUS. LAW., Nov./Dec. 2011, at 32, 33.

66. Id. 67.

TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.05(c)(1)-(3).

68.

69.

70.

Id. R. 1.05(a).

Id. R. 1.05; TEX. R. EvID. 503.

See Kristal C. Thomson, Ethical Pitfalls for Family Law Practitioners,in STATE B.

TEX., 37TH ANNUAL MARRIAGE DISSOLUTION INSTITUTE 5 (June 2015).

71.

Id.

2016] WHEN EVIDENTIARY MATTERS CROSS ETHICAL BOUNDARIES

539

client.7 2 "If, after explanation, the client still wants the hand-holder to be in the room, then ask the client to sign a waiver document reflecting that you have explained the privilege."73 The attorney, when reviewing the attomey-client privilege with the client, should also explain that any information that the attorney gives to the client that the client shares with a third party becomes non-privileged information.74 The attorney has the responsibility to instruct the client to not forward text messages or emails that the attorney wrote to any third parties.75 The attorney also has the responsibility to review with "client[s] the relative privacy of their emails and text messages."7 6 Some suggestions include exploring the problems that cloud accounts that are shared by the whole family, and including the following paragraph in your fee agreements: [I]f you wish to communicate with this firm via electronic mail, you agree to take any steps necessary to ensure that your email address is private and that no other party has access to your email address. This firm believes that the best practice is to create a new email address to be used strictly for attorney-client communication.77 Clients should also be encouraged "to password protect their phones' 78 If the attorney especially if the parties are still living in the same house. believes that the client's electronic communications are not confidential, then the attorney should find alternative ways to communicate with the client.7 9 There are plenty of national cases concerning lawyers who post clients' confidential information.8" One example is from the 2012 case where a public defender, Anya Cintron Stem, defended Fermin Recalde on murder charges.8 1 Recalde's family brought fresh clothing for him to wear during the trial, and the corrections officers held up the items for routine inspection.8 2 Stem took a photo of Recalde's leopard-print underwear with 72.

73.

Id. Id.

74.

75.

76.

77.

Id. Id. Id. Id.

78.

Id.

79.

Id.

80. See, e.g., In re Skinner, 740 S.E.2d 171, 172 (Ga. 2013); In re Quillinan, 20 DB Rptr.

288, 289-90 (Or. 2006); In re Peshek, 798 N.W.2d 879, 879-80 (Wis. 2011).

81. Mocking Lawyer Posts Photo of Her Client's Leopard Print Underwear on Facebook 2012), 13, (Sept.

MAIL DAILY Case, Murder in Mistrial Causing http://www.dailymail.co.uk/news/article-2202778/Lawyer-psts-pht-clients-leopard-printunderwear-Facebook-causing-mistrial-murder-case.html.

82. Id.

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her cell phone, and subsequently posted the photo to her Facebook page with a caption commenting on the family's belief that this was "proper attire for trial."83 Stem had allegedly made an earlier post that questioned her client's innocence as well.84 Stem's Facebook settings were private, but someone saw the post and notified the judge, who granted a mistrial in the caseY5 Stem was promptly terminated from her employment and her supervisor stated, "clients are entitled to lawyers' loyalty and respect [and] posting humiliating photos undermines the client-lawyer relationship."86 Under the disciplinary rules, an attorney should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rule of Law.87 An attorney's ethical obligation to protect a client's confidential information helps facilitate proper representation and also encourages potential clients to pursue legal assistance.88 Not only do the disciplinary rules discuss confidentiality, but the rules of evidence and the law of agency discuss confidentiality as it relates to the attorney-client privilege.89 Furthermore, the "clawback" provision of the rules of civil procedure helps attorneys retrieve inadvertently produced documents that are subject to privilege, so long as the attorney promptly catches the error. 90 Under Rule 193.3(d) of the Texas Rules of Civil Procedure, the erroneous production of privileged information will not waive the privilege if the attomey both promptly catches the error within ten days after production and notifies opposing counsel of the error. 91 Aside from the intentional posting of confidential information, as in the Recalde case discussed above, attorneys may negligently violate their ethical duties by failing to redact ESI, often to meet deadlines. Though the "clawback" provision could apply, some state bar associations have analyzed the equivalent ABA Model Rule and warned, "If... the disclosure occurred because counsel failed to review the documents to be made available to possessing counsel with the

83.

84.

85.

86.

Id. Id. Id. Id.

87.

TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.05(b), reprinted in TEX. Gov'T CODE ANN., tit. 2, subtit. G, app. A (West 2013) (TEX. STATE BAR R. art. X, § 9).

88. Id. R. 1.05(b) cmt. 1.

89. Id. R. 1.05(b) cmt. 3.

90. TEX. R. CIV. P. 193.3(d).

91.

Id. Rule 502 of the Federal Rules of Evidence affords a reasonably similar protection.

FED. R. EviD. 502.

2016] WHEN EVIDENTIARY MATTERS CROSS ETHICAL BOUNDARIES

541

thoroughness and preparation... or the skill and care92required under [the Rules], the inadvertence could be an ethical violation." c.

Candor

Attorneys are officers of the court and, as such, are expected to not make false statements. Bolstering that responsibility is disciplinary rule 3.03(a), which states that a lawyer may not offer "evidence that the lawyer knows to be false."9 3 "The seminal case that sent ethical shockwaves through the litigation world was Qualcomm v. Broadcom."94 In Qualcomm, "the magistrate judge found that Qualcomm intentionally withheld tens of thousands of key documents, blamed Qualcomm's outside counsel for failure to properly supervise the production, and ordered Qualcomm to pay $8.5 million in sanctions."95 The judge also referred six of Qualcomm's outside attorneys to the California bar for investigation of ethical violations.9 6 "Even though the six attorneys were acquitted, that court made its point loud and clear: attorneys have an ethical obligation to be honest and forthcoming with the court, and to do their best to ensure that their clients do so as well."97 Attorneys have the duty to make "a reasonable inquiry and a reasonably diligent effort in responding to discovery requests and not to conceal potentially relevant material," which should compel them "to review and produce ESI with the same candor and good faith as documents stored in a rusty old file cabinet or a client's desk with hardcopy 98 drawer." d.

The Unknown Ethics... and Data

"Metadata is the computer-generated data about a file, including date, time, past saves, edit information, etc."99 Metadata is also embedded in other ESI, including word processing documents and "describes the 92. Laura Catherine Daniel, Note, The Dubious Origins and Dangers of Clawback and Quick-Peek Agreements: An Argument Against Their Codification in the Federal Rules of Civil

Procedure,47 WM. & MARY L. REV. 663, 681-82 (2005) (quoting D.C. Bar Legal Ethics Comm., Ethics Op. 256 (1995)); see also Colo. Bar Ass'n Ethics Comm., Formal Op. 119, at 1 (2008).

93. TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.03(a)(1), (5).

94. Robert J. McEwan, Ethical Issues and More in the Age of Electronic Communication, in STATE B. TEX., 19TH ANNUAL NEW FRONTIERS IN MARITAL PROPERTY LAW ch. 2, at 12 (Oct.

2014) (citing Qualcomm, Inc. v. Broadcom Corp., No. 05CV1958-B (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7, 2008), vacated in part,2008 WL 638108 (S.D. Cal. Mar. 5, 2008)).

95.

Id.

96.

97.

Qualcomm, Inc., 2008 WL 66932, at *18.

McEwan, supra note 94, at 12 (citing Wiener, supra note 65, at 34).

98.

Id. (citing David Cross & Ty Carson, Ethics and E-Discovery--'ReasonableInquiry' in

the Wake ofQualcomm v. Broadcom, 9 Digital Discovery & E-Evidence (BNA), Jan. 1, 2009, at 2 (2009)).

99. Id.

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characteristics, origins, and usage of the document." 100 Anyone can easily manipulate metadata. °1 "Certain metadata such as the software used to create the file, who created the file, and when the user created the file tends to be relatively benign.""1 2 Other, more important, metadata may reveal "a record of changes made to the content and comments typed in during the revision process, as well as who made the changes and comments."'0 3 "For instance, a Microsoft Word document may contain a complete version history of the document if the application's 'Track Changes' setting had been selected." ' 4 "Metadata and other forms of 'dark data' raise two ethical dilemmas: should it be redacted, and if it's not redacted by accident can it be 'mined' for information."10 5 For the first issue, attorneys have discretion to redact any data.106 On the one hand, changing or deleting metadata within an electronic file is tantamount to changing the file itself, and therefore amounts to intentional spoliation of the data. On the other, many attorneys have for years tried to avoid the review of metadata by imaging all electronic files into paper or TIFF format[-]thereby stripping all metadata except for the visible content[-]and then including an electronic "load file" containing limited metadata so that the receiving counsel can load the files and metadata into their own document review platform. 107 .

Under Rule 196.4 of the Texas Rules of Civil Procedure, a requesting party must specify the form of production sought, and a responding party must produce ESI that is responsive and reasonably available in the same native format. 108 "While there certainly is nothing unethical about redacting and logging hidden metadata that may be subject to privilege, a lawyer arguably breaches her ethical duty of competence if her 'technophobia' results in privileged metadata ending up in the hands of her more technically-adept opponent."' 0 9 For the second issue, Texas courts and Texas' Professionalism Committee are silent. 1 0 "A technologically proficient user who knows what she is looking for and how to find it can unearth a potential treasure trove of

100.

101.

102.

103.

104.

105.

106.

107.

108.

109.

110.

Id. at2.

See id.

Id. at 12.

Id. Id. Id. Id. Wiener, supranote 65, at 35.

TEX. R. Civ. P. 196.4.

McEwan, supra note 94, at 12.

Id.

2016] WHEN EVIDENTIARY MATTERS CROSS ETHICAL BOUNDARIES

543

useful metadata"' ' such as "a list of people who collaborated on a ' 2 document and the date on which it was created and sent." This particular metadata could impeach a witness who testifies that he was the sole creator 1 13 of a document, or that he created and sent the document on another date.

The bar associations around the country that have addressed this issue "cannot agree as to whether metadata mining is ethical or unethical, or even whether a bright-line test is appropriate.""' As the use of ESI in litigation increases, an attorney's ethical duties to clients and to the court demand the learning of e-discovery. 115 A lawyer should not only develop legal knowledge of e-discovery but also learn to recognize the ethical dilemmas of ordinary discovery requests and their responses." 6 III. SPOLIATION AND THE DUTY TO PRESERVE

A.

The Zubulake Guidelines

As stated above, Zubulake V involves an attorney's responsibility concerning electronic discovery and evidence." 7 One of the main duties that the Zubulake opinions address is the duty to preserve ESI when a party reasonably anticipates litigation." 8 Zubulake V offers three steps attorneys should take to maintain compliance with a party's preservation obligation: 1. Counsel must issue a "litigation hold" at the beginning of litigation or whenever litigation is reasonably anticipated. The hold should be re-issued periodically so that new employees are aware of it and all employees are reminded of their duties.

2. Counsel should communicate directly with "key players" in the litigation (i.e. people identified in a party's initial disclosure and any supplemental disclosure).

3. Counsel should instruct all employees to produce electronic copies of their relevant active files and make sure that all backup media

111.

112.

113.

114.

A.B.A.,

Id. Id. Id. at 12-13.

Id. at 13 (citing Legal Tech. Research Ctr., Metadata Ethics Opinions Around the U.S.,

http://www.americanbar.org/groups/departments-offices/ega-technlogy-esures/resources/h arts fyis/metadatachart.html (last visited Mar. 24, 2016)).

115. Id.

116.

Id.

117.

118.

Zubulake v. UBS Warburg LLC (Zubulake V), 229 F.R.D. 422, 432 (S.D.N.Y. 2004).

See id. at 433; The Sedona Conference, supra note 39, at 279.

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which the party has a duty to retain is identified and stored in a safe place.119 "A litigation hold notice should describe the matter at issue, provide specific examples of the types of information at issue, identify potential 120 sources of information, and inform recipients of their legal obligations., Case law has made it clear that no duty exists to preserve information if that 21 information is not relevant. 1 B.

Pension Committee (Zubulake Revisited)

In Pension Committee of the University of Montreal Pension Plan v.

Banc of America Securities LLC, another opinion that Judge Scheindlin released, Judge Scheindlin revisited the Zubulake issues and clarified many of them concerning discovery abuse. 2 2 Following are some of the key points from the opinion: 1. Negligence, gross negligence, and willfulness involved in discovery issues are all addressed on a case-by-case basis. However, Judge Scheindlin set forth a list of what constitutes negligence, gross negligence, and willful conduct, although the list is not exhaustive: a. Gross Negligence: The failure to issue a written litigation hold, to identify all of the key players and to ensure that their electronic and paper records are preserved, to cease the deletion of email or to preserve the records of former employees that are in a party's possession, custody, or control; and to preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources. b. Willful Actions: The failure to collect records from key players identified during the process, and the intentional destruction of relevant paper or electronic email or records, including backup tapes. c. Negligent Actions: The failure to collect information and data from employees, even if they are not key players as identified in the

119. Heather L. King & Jessica Hall Janicek, Spoliation of Evidence, in PARALEGAL DIVISION STATE B. TEX., SPOLIATION OF EVIDENCE at 21 (Sept. 2015) (citing Zubulake V, 229 F.R.D. at 433-34; The Sedona Conference, supra note 39, at 279).

120. Id. 121. See Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 217 (S.D.N.Y. 2003) ("Must a corporation, upon recognizing the threat of litigation, preserve every shred of paper, every e-mail or electronic document, and every backup tape? The answer is clearly, 'no'.

Such a rule would cripple large corporations, like UBS, that are almost always involved in litigation.").

122. Pension Comm. of the Univ. of Montreal Pension Plan v.Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 461-62 (S.D.N.Y. 2010), abrogatedin part by Chin v. Port Auth., 685 F.3d 135 (2d Cir. 2012).

2016] WHEN EVIDENTIARY MATTERS CROSS ETHICAL BOUNDARIES

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process, and the failure to assess the accuracy and validity of selected search terms.

2. The duty to preserve evidence arises when a party reasonably anticipates litigation. Thereafter, a party must put a "litigation hold" to preserve the relevant documents. Many times, the plaintiffs duty to preserve is triggered before the defendant's.

3. The party claiming spoliation "must prove the following three elements: that the spoliating party (1) had control over the evidence and an obligation to preserve at the time of the destruction or loss; (2) acted with a culpable state of mind upon destroying or losing the evidence; and (3) that the missing evidence is relevant to the innocent party's claim or defense. Relevance and prejudice may be presumed when the123spoliating party acts in bad faith or grossly negligent manner."

C.

Texas Spoliation Rules and Sanctions

In Texas, the "legal inquiry involves considering: (1) whether there was a duty to preserve evidence; (2) whether the alleged spoliator either negligently or intentionally spoliated evidence; and (3) whether the spoliation124prejudiced the nonspoliator's ability to present its case or defense."'

Also, a duty to preserve arises "only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be potentially relevant to that claim."'125 "There are few cases in Texas awarding sanctions for failing to properly preserve, search for, and produce responsive ESI.' 126 However, if a party intentionally or willfully fails to comply with the Rules, courts become unforgiving. 2 7 For example, in the federal case of Green v. Blitz U.S.A., Inc., the court ordered the defendant, a year after the jury awarded damages and the case was closed, to pay $250,000 in sanctions to the plaintiff and to furnish a copy of the opinion awarding sanctions to: every [p]laintiff in every lawsuit [the defendant] has had proceeding against it, or is currently proceeding against it, for the past two years.

The Court issues an additional $500,000.00 sanction that will be tolled for thirty (30) days from the date of this Memorandum Opinion & Order. At the end of that time period, if [the defendant] has certified with this Court that it has complied with the Court's order, 123.

124.

125.

126.

127.

Id. at 463-67.

Trevino v. Ortega, 969 S.W.2d 950, 954-55 (Tex. 1998) (Baker, J., concurring).

Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003).

King & Janicek, supra note 119, at 22.

Id.

546

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the $500,000.00 sanction will be extinguished. Finally, for the next five years, [the defendant] is ordered that in every new lawsuit it participates in as a party, whether plaintiff, defendant, or in another official capacity, it must file a copy of this Memorandum Opinion & 128 Order with its first pleading or filing in that particular court.

The court ordered such "based on the fact that the defendant failed to properly search for reasonably available data, including emails and Word 1' 29 documents, on obviously relevant and accessible custodian material.

"Following a jury's award at the 'low end' of damages, in part based on the defendant's defense, the plaintiffs counsel learned through discovery in another case that certain emails and documents existed that refuted the defense."13 The plaintiff sought those documents through discovery and motions to compel, "but the defendant denied their existence (without, it turns out, properly searching for that material). In fact, the person tasked with searching for responsive documents told the court that, 'I am about as computer literate - illiterate as they come. '131 "The court did not accept the defendant's 'illiterate' defense and found that its utter failure to consult its IT department or seek other assistance in searching for reasonably available data was a willful violation of its discovery obligations.1 32 The court, after a review of the newly discovered evidence put forth by the plaintiff, found that the evidence would have affected the jury's decision and, therefore, established sanctions, both 1 33 monetary and otherwise.

"Though the sanctions in Green are extreme, they illustrate what courts in Texas and the Federal system have been emphasizing for yearsparties cannot simply ignore potential evidence that may exist and is relevant to an opposing party's discovery requests. 1 34 Therefore, attorneys must make sure to comply with the rules by having "a basic understanding of their clients' respective electronic storage systems, interview their clients to identify reasonably available ESI, and work with their opposing counsel 135 to determine the form of production.,

128. Green v. Blitz U.S.A., Inc., No. 2:07-CV-372 (TJW), 2011 WL 806011, at *1 (E.D. Tex. Mar. 1, 2011), withdrawn, 2014 WL 2591344 (E.D. Tex. June 10, 2014).

129. King & Janicek, supra note 119, at 23.

130. Id. 131. Id. (quoting Green, 2011 WL 806011, at *6).

132. Id. 133. Id. 134. Id. 135. Id.

2016] WHEN EVIDENTIARYMATTERS CROSS ETHICAL BOUNDARIES D.

547

The Standardof Carefor Advising Clients About the Duty to Preserve Evidence

"Texas lawyers are subject to one standard of care in connection with the duty to preserve evidence in3Texas state courts and a different standard 6 of care in Texas federal courts.'

1.

Texas State Courts

The standard of care is what a reasonably prudent attorney in the same or similar circumstances would do.' 37 A reasonably prudent Texas attorney, familiar with spoliation laws, who has been retained by a client who has been sued in state court would have first determined that a duty exists to preserve evidence that is material and relevant to the dispute.' 38 The attorney would advise the client of that duty immediately.' 3 9 "Depending on the circumstances, it could constitute professional negligence for a lawyer not to inform the client of the duty."' 40 Second, the attorney would inform the client that the client, not the client's attorney, must take reasonable, as opposed to extraordinary, measures to safeguard relevant, material evidence.' 4 Third, the attorney would inform the client that "the deliberate destruction of evidence can lead the court to impose a range of sanctions, including the use of a spoliation instruction and the striking of 142 pleadings.'

"It does not appear that Texas jurisprudence, in its current state, requires lawyers to do anything more with regard to advising clients about the duty to preserve evidence. Presently, there is no authority for holding Texas lawyers in state court cases to [Zubulake's] list of counsel responsibilities."' 43 A federal district judge's decision on a matter of state

136. David Lopez, Spoliation and Legal Malpractice, in STATE B. TEX., BUSINESS TORTS INSTITUTE ch. 18, at 6 (Oct. 2010).

137.

Id.

138. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003).

139. Lopez, supra note 136, at 6.

140. Id. ("Situations in which a client seeks advice about an incident that has happened but in which no lawsuit has been filed may or may not involve a duty to preserve evidence. In such situations, the lawyer has a duty to advise the client to preserve evidence only if a reasonable person would anticipate litigation to arise from the incident.").

141. Trevino v. Ortega, 969 S.W.2d 950, 957 (Tex. 1998).

142. Lopez, supra note 136, at 6.

143. Id. at 7.

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law is not binding on a state court. 14 4 Moreover, only three reported Texas 145 cases have cited Zubulake.

2.

Texas Federal Courts

The Fifth Circuit's holding that federal law governs spoliation of evidence in federal court changes the standard of care for attorneys in federal court from the standard applicable to attorneys in Texas state court.1 46 In other words, if a client claims legal malpractice based on attorney negligence that occurred during an underlying federal lawsuit, the standard of care applied is "based on what a reasonably prudent federal court practitioner would have done under the same or similar circumstances, not147on what a reasonably prudent state court practitioner would have done., Although that standard may change, "does Zubulake define the standard of care in Texas federal courts? A strong argument can be made that, based on the reported decisions, Zubulake does not set the standard of care for federal court practitioners in Texas in advising their clients about the duty to preserve evidence." 148 Several years have passed, but "the Fifth Circuit has not adopted Zubulake., 149 A federal district court in Texas, however, has cited Zubulake for the proposition that attorneys have duties "with respect to the identification and preservation of evidence.""15 If those duties exist, then attorneys practicing in federal court in Texas should advise their clients that: - the client has a duty to preserve evidence in its possession, custody or control that is relevant and material to the dispute, - bad faith spoliation of evidence may result in severe sanctions, including the use of a spoliation instruction, - the destruction of documents not known by the client to be relevant as part of routine file maintenance does not amount to bad faith, and - it is unsettled whether negligent spoliation of evidence is sanctionable.15 1

144. Id. 145. See In re Waste Mgmt. of Tex., Inc., 392 S.W.3d 861, 877 (Tex. App.-Texarkana 2013, orig. proceeding); MRT, Inc. v. Vounckx, 299 S.W.3d 500, 511 (Tex. App.-Dallas 2009, no pet.); In re Honza, 242 S.W.3d 578, 581 (Tex. App.-Waco 2008, pet. denied).

146. Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005) (citing King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003)).

147. Lopez, supra note 136, at 7.

148. Id. 149. Id. 150. Id. at 4.

151. Id. at7.

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549

Under these minimum guidelines, no duty appears to exist for attorneys to instruct clients to issue a litigation hold, to instruct clients periodically to re-issue an existing litigation hold, to fully familiarize themselves with their clients' document retention policies or information technology architecture, to consult information technology personnel, to communicate with any key players, to identify each source of potentially relevant information, or to retain any potentially relevant backup tapes.152 "The concern for lawyers in federal cases in Texas is that they may be held to a [Zubulake]-like standard of care higher than the minimal standard derived from Fifth Circuit and Texas district court decisions. ' An expert could "opin[e] in a malpractice case that a reasonably prudent lawyer would do more than the minimum required by case law-i.e.,... undertake most 15 4 or all of the measures delineated by Judge Scheindlin in Zubulake.'

There are many reasons for this concern. First, many federal judges in Texas "view Zubulake as setting the gold standard for the identification, preservation and production of' ESI. 155 Second, a perception among members of the bar may exist that Zubulake governs attorney conduct in Texas federal courts. 156 "Third, Federal Rule of Civil Procedure 26(f)(3)(C) requires counsel, in connection with the Rule 26(f) conference, to prepare a discovery plan that provides for the disclosure and discovery of electronically stored information."' 57 To properly satisfy the Rule 26(f) duty, attorneys must, to some degree, perform some of the tasks outlined in Zubulake, "such as issuing a litigation hold, identifying sources of potentially relevant information, and becoming familiar with the client's document retention policies and document management system."' 5 8 Finally, some of the Zubulake responsibilities may seem daunting, but others should be performed in any case because of their relative ease. " "Examples of the evidence preservation letters [that attorneys send] to clients and opponents that track the [Zubulake] principles of management, production and 1 60 preservation of electronic evidence are readily available."

152.

153.

Id. Id.

154.

Id.

155.

156.

157.

158.

159.

160.

(2015).

Id. Id. Id. Id. Id. at7-8.

Id. at 8; see, e.g., 6 WILLIAM V. DORSANEO III, TEXAS LITIGATION GUIDE § 99.103

550

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IV. CONCLUSION

Although new technology may stir up the discovery process in litigation, attorneys need to keep abreast of current technology and trends to avoid ethical pitfalls along the way. As attorneys continue to know and live by the Rules of Professional Conduct and stay up-to-date with advancements in technology, traditional and electronic evidence will not be a barrier to act ethically toward your client, opposing counsel and parties, the bench, and yourself.

"WHY CAN'T WE BE 'FRIENDS'?": ETHICAL CONCERNS IN THE USE OF SOCIAL MEDIAt VANESSA

S.

BROWNE-BARBOURtt

552 553 III. ETHICAL CONCERNS IN LAWYERS' SOCIAL MEDIA USE ............... 555 A. ABA Commission on Ethics 20/20 .......................................... 555 I. IN TRODU CTION ...............................................................................

II. BACKGROUND ON SOCIAL MEDIA .................................................

Social Media and the Client-LawyerRelationship .................

1. Comp etence .......................................................................

2. Confidentiality...................................................................

3. Conflict of Interests...........................................................

C. Avoid Inadvertently CreatingClient-Lawyer Relationships on Social M edia ......................................................................

D. Communications with Non-Clients .........................................

E. The Advocate's Use of Social Media ......................................

F. Fairnessand M isconduct ........................................................

G. UnauthorizedPracticeof Law ................................................

B.

556 556 566 569 570 573 574 574 576

IV . C ON CLU SION .................................................................................. 577

t The title of this Article is based in part on the name of a popular song that was released in 1975, by WAR, a band that fused rock, rhythm and blues, jazz, Latin, and funk music. http://www.songfacts.com/detail.php?id=7610, last visited on January 23, 2016.

The band got the idea for this song when they were traveling in Japan in the early '70s. War drummer Harold Brown told us: "We're all connected by language, and by our food, and by our culture. Most racists don't know why they're racist. But you pick them up and take them over and drop them in a country, like India or Pakistan, guess what? 'Why can't we be friends?' Because all of a sudden you find out we're more alike inside than we are on the outside. We started realizing that that's really important. You travel all over the world, you can't speak a lot of their language. But one thing they do know, they know your body language, how you may react."

Why Can't We Be Friends?by War, Songfacts, http://www.songfacts.com/detail.php?id=7610 t last visited Mar. 10, 2016). tt Professor of Law, South Texas College of Law Houston. The author is grateful for the invitation to participate in the 2 2 nd Annual South Texas College of Law Houston Ethics Symposium, Ethical Considerationsin FamilyLaw, from the South Texas Law Review, its editors

and staff, Prof. Pamela E. George, Symposium Editor, Assistant Dean Elizabeth Dennis, and Professors Shelby A.D. Moore, and Val D. Ricks, Faculty Advisors. The author also is grateful for the research assistance of Domonique Broadus, as well as the editing assistance from Amanda Garza, Brandon Gosch, Emily Pendleton, and Cody Thomas.

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INTRODUCTION

The first segment of the Article title is based on a song released in the mid-1970's that recognized how connected we are to others in the world and embraced the commonality of humanity.' Merely fifteen years ago, one could hardly imagine the ease with which we can make and maintain those connections through social media. Social media use is pervasive among non-lawyers, and is an essential tool for competent lawyers to remain competitive. In fact, it was only 12 and 12.5 years ago, respectively, that Facebook 2 and MySpace launched.' Today, the number and types of social media used to share information have increased substantially to include not only Facebook and MySpace, but also Linkedln, Twitter, Tumblr, Google+, YouTube, Instagram, Snapchat, and Flickr. Worldwide, it is estimated that more than one billion people use Facebook on a daily basis to share information online, including instant electronic messages, documents, photographs, and videos.4 Facebook users spend nearly 10.5 billion minutes each day on Facebook, which provides an online community where users can develop networks of "friends" and share personal information.5 In light of the amount of time Americans spend online, and the ease with which users freely share information with others, it follows that lawyers should utilize social media to research and investigate cases on behalf of their clients. Such use of social media to gain access to publicly available information concerning parties and witnesses is consistent with, and may be required by, a lawyer's duty of competence in this technological age.

This Article opens with background information on social media and its pervasive presence in our daily lives. Part III of this Article addresses ethical concerns presented when lawyers use social media to communicate with clients and non-clients, including potential ethical concerns presented when lawyers extend or accept invitations to friend represented individuals, witnesses, and jurors. Additionally, this Article discusses several Model Rules of Professional Conduct (Model Rules) that potentially impact a lawyer's use of social media. Among these are Rules 1.1 (competence), 1.6 1. See Why Can't We Be Friends? by War, Songfacts, http://www.songfacts.com/detail.php?id=76 10 (last visited Mar. 10, 2016).

2. Mark Fahey, Facebook Turns 12 - Trillions in Time Wasted, CNBC (Feb. 4, 2016 11:39 AM), http://www.cnbc.com/2016/02/04/facebook-tums- 12--trillions-in-time-wasted.html.

3.

Felix Gillette, The Rise and Inglorious Fall of Myspace, BLOOMBERG (June 22, 2011, 10:01 PM), http://www.bloomberg.com/news/articles/2011-06-22/the-rise-and-inglorious-fall-ofmyspace.

4. The Top 20 Valuable Facebook Statistics - Updated December 2015, Zephoria Digital Marketing, https://zephoria.com/top-15-valuable-facebook-statistics (last visited Apr. 16, 2016).

5.

Fahey, supra note 2.

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ETHICAL CONCERNS IN THE USE OF SOCIAL MEDIA

(confidentiality), 4.1 (truthfulness in statements to others), 4.2 (communication with persons represented by counsel), 5.3 (supervision), 5.5 (unauthorized practice of law), 7.2 (advertising), and 8.4 (misconduct).

This Article also considers ethical concerns of inadvertently creating online an attorney-client relationship, as well as advising clients regarding preservation and spoliation of content on social media pages. Finally, the Article concludes with several recommendations on how lawyers can avoid potential ethical pitfalls when using social media in their law practice. The conclusion cautions lawyers to be aware of and to avoid the potential pitfalls associated with social media use.

II.

BACKGROUND ON SOCIAL MEDIA

There are many and varied definitions of social media, some of which are broader than others. 6 For purposes of this Article, social media, generally, may be described as "a group of Intemet-based applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of User-Generated Content."7 Social networking sites, a form of social media, are functional tools that allow users to engage in interactive communication of information.8 Several examples of frequently used social media include "Facebook, Linkedln, Pinterest, Google+, Twitter, Blogs, Tumblr, YouTube, Flickr, Slideshare,

6. See, e.g., Vanessa S. Browne-Barbour, A Fork in the Road: The Intersection of Virtual Law Practice and Social Media, 52 WASHBURN L.J. 267, 275 (2013). "There are numerous categories of social media, including social networking, photo sharing, blogs and microblogs, podcasts, audio, video, and publishing." Id. (citing Mirna Bard, 15 Categories of Social Media, MIRNABARD.COM, http://www.mirmabard.com/2010/02/15-categories-of-social-media/ (last visited June 18, 2016)).

7. Robert H. Jerry II & Lyrissa Lidsky, Public Forum 2.1: Public Higher Education Institutions and Social Media, 14 FLA. COASTAL L. REv. 55, 59 (2012) (quoting Andreas M. Kaplan & Michael Haenlein, Users of the World, Unite! The Challenges and Opportunities of Social Media, 53 BUs. HORIZONS 59, 61 (2010)) (internal quotation marks omitted). More generally, social media may be defined as "the collective of online communications channels dedicated to community-based input, interaction, content-sharing and collaboration." What is Social Media?, WHATIS.COM, http://whatis.techtarget.com/definition/social-media (last visited Mar. 10, 2016) (providing examples of several different types of social media, such as microblogging, wikis, and social networking).

8. Susan C. Hudson & Karla K. Roberts (Camp), Drafting and Implementing an Effective Social Media Policy, 18 TEX. WESLEYAN L. REv. 767, 769 (2012) (citing Lon S. Cohen, Is There a Difference Between Social Media and Social Networking?, COHENSIDE (Mar. 3, 2009), http://cohenside.blogspot.com/2009/03/is-there-difference-between-social.html) ("[W]e acknowledge a slight difference between the two-'social media' being the means by which to broadcast communications and 'social networking' being a functional tool for sharing information.").

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Yelp, Docstoc, and Scribd." 9 "These social media platforms allow users to

communicate, interact, as well as share information, videos, and photos." 1 ° Social media, as a technological advancement, impacts virtually every aspect of modem daily life of many Americans, including the work place, politics, civic life, dating, and communicating with others. 1 Social media usage has increased dramatically during the past decade. 2 In 2005,

approximately 7% of American adults used social networking sites.13 By 2015, that number increased nearly tenfold.14 Currently, nearly two-thirds of American adults use some form of social media. 5 Among young adults, between eighteen and twenty-nine years old, the number is substantially higher, with nearly 90% of young adults regularly using social networking sites.' 6 In the United States, nearly 84% of all adults have gone "digital, meaning they have a smartphone, tablet, or computer," and worldwide, social media places first in Internet activity. 7 By far, the three most commonly used social networking sites are Facebook, Twitter, and LinkedIn. 18 Among these three, Facebook has the

most users.' 9 In 2015, there were more than 1.59 billion individuals worldwide actively using Facebook each month.2" Based upon a recent American Bar Association (ABA) survey, however, LinkedIn is the most popular social media platform used by lawyers. 2 With nearly 300 million

9. Browne-Barbour, supra note 6, at 275.

10. Id. "A full archive of Pew Research Center reports on different social media platforms such as Facebook, Twitter, Instagram, Pinterest and Linkedln as well as social media usage on mobile devices in general can be found at: http://www.pewintemet.org/topics/social-networking/."

Andrew Perrin, Social Media Usage: 2005-2015, PEW RES. CENTER 3 (Oct. 8, 2015), http://www.pewintemet.org/2015/10/08/social-networking-usage-2005-2015.

11.

Perrin, supra note 10, at 2.

12. Id. 13. Id. 14. Id. 15. Id. "Worldwide, there are approximately one billion social media users, including more than nine hundred million Facebook users, with more mobile users than those having fixed connections." Browne-Barbour, supra note 6, at 275.

16. Perrin, supra note 10, at 4 (observing that social media usage is "[u]biquitous [a]mong [y]oungest [a]dults, [n]otable [a]mong [o]lder [a]dults").

17. Bonie Montalvo Navarrete, Be Tweet Life and Death: Utilizing Social Media While Avoiding Legal Malpractice, FLA. B.J., July/Aug. 2015, at 52, 52.

18. Julian L. Bibb, IV, Note, The Modern Justice's Dilemma: How to Harness Social Media to Garner[Reelection] Support While MaintainingEthical Propriety, 38 J. LEGAL PROF. 295, 298 (2014).

19. See Navarrete, supra note 17, at 52.

20. Zephoria Digital Marketing, supra note 4 (reflecting a fourteen percent increase from the previous year). Facebook's popularity can be demonstrated by the 4.5 billion "likes" generated by its users, as well as the nearly 1.59 billion active mobile device users. Id. 21. Allison Shields, Blogging and Social Media, ABA TECHREPORT (2015), availableat http://www.americanbar.org/publications/techreport/2015/SocialMedia.html.

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means to users, LinkedIn provides lawyers with simple, cost-effective 22 business. new develop to and professionals other with network Increasingly, consumers turn to the Internet before making decisions on purchases and services.23 A recent survey indicates that "89 percent of consumers turn to [search engines] to find information on products, services or businesses prior to making purchases."24 In 2012, nearly 58 million individuals, representing approximately 20% of the population in the United States, sought the services of a lawyer.25 Among those 58 million individuals, "76 percent, or more than 44 million people, searched using online resources including search engines, websites, and social media sites like Facebook." 26 In light of the number of consumers that conduct Internet research before making a decision to retain a lawyer, lawyers should consider using the Internet and social media for marketing and networking.

III.

A.

ETHICAL CONCERNS IN LAWYERS' SOCIAL MEDIA USE

ABA Commission on Ethics 20/20

Technology affects nearly every aspect of our lives, including law practices.2 7 With respect to the practice of law, technology affects not only the way lawyers deliver legal services to clients, but also how lawyers "store confidential information, communicate with clients, conduct 28 discovery, engage in research, and market legal services." Understanding how to use technology is essential to any legal practice, whether small or 22. Navarrete, supra note 17, at 52.

23. John H. Cook IV, Public Interest in the DigitalAge: Towards a 21st Century Spectrum Policy, 13 COLO. TECH. L.J. 71, 80 (2015).

24. Id. (quoting Katherine Griwert, 89 Percent of Consumers Use Search Engines for Purchase Decisions, BRAFTON (Feb. 2, 2012), http://www.brafton.com/news/89-percent-of-consumersusescarch-engines-for-purchase-decisions) (internal quotation marks omitted).

25. Michael J. Zussman & Glen R. McMurry, 44 Million Reasons Why You Should Use Social Media in Your Law Practice,FED. LAW., June 2013, at 16, 17.

26. Id. (footnote omitted) (citing Be a Social Media Rock Star with Your Firm's Blog and Win More Business: Top 10 Tips for Generating New Business Through Blogging and Social at available (2012), 1 LEXISNEXIS Media, 2 2 2 Tips% 0for% Succ http://blog.larrybodine.com/uploads/file/LexisNexis%20%2Top%2010% essful%20Law%2OFirmo%20Blogging.pdf, Top 10 New Year's Resolutions to Generate More at available (2012), 1 LEXISNEXIS 2013, in Clients http://www.bycraigmcguire.com/images/LexisNexis-Martindale-Hubbell-_Top10 NewYear-sResolutionsto_Generate NewClientsin_2013.pdf).

27. ABA Comm'n on Ethics 20/20, ABA Comm'n on Ethics 20/20: Introduction and http://www.americanbar.org/content/dam/aba/ 2012), (Aug. 4 A.B.A. Overview, administrative/ethics_2020/20120508_ethics 20_20_final hod introdution andoverviewjreport. authcheckdam.pdf.

28. Id.

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"big law."2 9 In 2012, following a three-year study on the transformational impact of technology and globalization on modem law practices, the ABA Commission on Ethics 20/20 issued resolutions and reports to provide guidance and to update legal ethics rules. 30 As technology advances at a rapid pace, lawyers must meet the challenge of keeping abreast of the changing technologies. In fact, a recent ABA Legal Technology Survey Report reveals that "attorneys are using social media marketing more than ever before, with solos and small firms leading the way in engaging on social media networks, blogging and website development."'" Among the increasing number of social media platforms available, Linkedln is the one most preferred by lawyers, "with 99% of large firms (100+ attorneys), 97% of mid-size firms (10-49 attorneys), 94% of small firms (2-9 attorneys) and 93% of solos having a Linkedn profile."32 Given these statistics on the number of social media users, as well as the number of prospective clients that rely on social media when searching for a lawyer, the Internet, and social media resources must be a part of a lawyer's tool kit for networking, professional development, and maintaining a competitive practice. Yet, lawyers must be aware of potential landmines when navigating through social media.

B.

Social Media and the Client-Lawyer Relationship

1.

Competence

The Model Rules of Professional Conduct governing competence require lawyers to "provide competent representation" of their clients.33 "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the

29.

See id. at 4-5.

30. Id. at 1. "In August 2009, then-ABA President Carolyn B. Lamm created the Commission on Ethics 20/20 to tackle the ethical and regulatory challenges and opportunities arising from these 21st century realities." Id. Regarding the impact of globalization on the practice of law, the Ethics 20/20 Commission observed that there are nearly 36,750,000 foreign-born U.S. residents. Id. at 7. These foreign-born residents require legal representation in matters concerning

"family law, estate planning, and business relationships in their countries of origin or the countries

of origin of their spouses or business associates." Id. 31.

Stephen Fairley, How Attorneys Are Using Social Media in 2015 [NFOGRAPHIC], NAT'L L. REv. (Feb. 20, 2015), http://www.natlawreview.com/article/how-attorneys-are-usingsocial-media-2015-infographic; see Allison Shields, Blogging and Social Media, ABA TECHREPORT (2014), available at

http://www.americanbar.org/publications/techreport/2014/blogging-and-social-media.html.

32.

33.

Fairley, supra note 31.

MODEL RULES OF PROF'L CONDUCT R. 1.1 (2015).

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557

representation." 34 A lawyer's duty of competence includes the duty to keep abreast of relevant technology. 35 Specifically, "a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject."36 To date, twenty states have adopted the ABA Model Rules requiring lawyers to be competent in the use of technology in their legal practice.37 The scope of the duty to keep abreast of relevant technology likely will be determined on a case-by-case basis through ethics opinions and cases that interpret Rule 1.1, comment 8.38 The development of these ethics opinions and cases must also evolve to reflect rapidly changing technologies.39 In a recent formal opinion titled Ethical Obligations for

34. Id. The Comment section on Competence provides relevant factors to consider when determining competence. These factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.

Id. cmt. 1; see CTR. FOR PROF'L RESPONSIBILITY, A.B.A., A LEGISLATIVE HISTORY: THE DEVELOPMENT OF THE ABA MODEL RULES OF PROFESSIONAL CONDUCT, 1982-2013 43 (Art

Garwin ed., 2013).

35. See MODEL RULES OF PROF'L CONDUCT R. 1.1. See generally STANDING COMM. ON PROFESSIONALISM, A.B.A., ESSENTIAL QUALITIES OF THE PROFESSIONAL LAWYER 189 (Paul A.

Haskins ed., 2013); Margaret M. DiBianca, Ethical Risks Arising from Lawyers' Use of (and Refusal to Use) Social Media, 12 DEL. L. REV. 179, 182-83 (2011); Jon M. Garon, Technology Requires Reboot ofProfessionalismand Ethicsfor Practitioners,J. INTERNET L., Oct. 2012, at 3, 3-4; Louise Lark Hill, Technology - A Motivation Behind Recent Model Rule Revisions, 40 N. KY. L. REV. 315, 321 (2013); Michael McNemey & Emilian Papadopoulos, Hacker's Delight: Law Firm Risk andLiability in the Cyber Age, 62 AM. U. L. REV. 1243, 1259 (2013). See Monica McCarroll, Discovery and the Duty of Competence, 26 REGENT U. L. REV. 81, 81 (2013), for a discussion of e-discovery and the duty of competence.

36. MODEL RULES OF PROF'L CONDUCT R. 1.1 cmt. 8 (emphasis added).

37. Robert Ambrogi, 20 States Have Adopted Ethical Duty of Technology Competence, L. http://www.lawsitesblog.com/2015/03/11 -states-have-adopted-ethical-duty-ofBLOG, SITES technology-competence.html (last updated Dec. 23, 2015) (Arizona, effective Jan. 1, 2015; Arkansas, effective June 26, 2014; Connecticut, effective Jan. 1, 2014; Delaware, effective Mar. 1, 2013; Idaho, effective July 1, 2014; Illinois, effective Jan. 1, 2016, Iowa, effective Oct. 15, 2015; Kansas, effective Mar. 1, 2014; Massachusetts, effective July 1, 2015; Minnesota, approved Feb. 24, 2015; New Hampshire, effective Jan. 1, 2016; New Mexico, effective Dec. 31, 2013; New York, adopted by the New York State Bar Association on Mar. 28, 2015; North Carolina, approved, with slight modification, July 25, 2014; Ohio, effective Apr. 1, 2015; Pennsylvania, effective Nov. 21, 2013; Utah, effective May 1, 2015; Virginia, effective Mar. 1, 2016; West Virginia, effective Jan. 1, 2015; and Wyoming, effective Oct. 6, 2014).

38. MODEL RULES OF PROF'L CONDUCT R. 1.1 cmt. 8.

39. See, e.g., N.H. Bar Ass'n Ethics Comm., Advisory Op. 2012-13/4 (2013) (lawyer must have basic understanding of technology and keep abreast of changes); N.Y. State Bar Ass'n

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Attorneys Using Social Media, the Pennsylvania Bar Association commented on a lawyer's duty to keep abreast of technology. 40 The opinion

requires lawyers to be aware of how social media sites operate, as well as "the issues they raise in order to represent clients whose matters may be impacted by content posted on social media websites," including "the ' manner in which postings are either public or private." 41 The opinion

further advised that competent representation pursuant to Rule 1.1, comment 8, means that "a lawyer should (1) have a basic knowledge of how social media websites work, and (2) advise clients about the issues that 42 may arise as a result of their use of these websites.,, A lawyer's duty of competence, as it relates to technology, includes using technology to protect client information.4 3 ABA Formal Ethics Opinion 11-459 provides that [a] lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, 44 where there is a significant risk that a third party may gain access.

Comm. on Prof 1 Ethics, Ethics Op. 842 (2010) (lawyer has duty to keep up with advances in technology used in law practice).

40. See generally Pa. Bar Ass'n Comm. on Legal Ethics & Prof 1 Responsibility, Formal Op. 2014-300, at 1-2 (2014) (holding that any conduct that would not be permissible with other forms of communication would also not be permissible using social media).

41.

42.

Id. at 3.

Id. at 4.

43.

ABA Comm. on Ethics & Prof 1 Responsibility, Formal Op. 11-459, at 2 (2011); see

also ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT § 1.1 (2015) (citing Ala. State Bar Ass'n Disciplinary Comm'n, Ethics Op. 2010-02, at 16 (2010) (lawyer storing client files in cloud must ascertain how cloud provider will store data and keep abreast of changes in technological security); Ariz. State Bar Comm. on the Rules of Prof'l Conduct, Formal Op. 09-04 (2009) (duty of competence extends to computer security); State Bar of Cal. Standing Comm. on Prof'l Responsibility & Conduct, Formal Op. 2010-179, at 5 (2010) (lawyer must possess basic awareness of available security for electronic technology used in lawyer's practice or associate with someone who does); Prof'l Ethics Comm. of the Fla. Bar, Formal Op. 10-2 (2010) (lawyer must keep current with developments in technology to protect confidentiality of client information on electronic devices); N.H. Bar Ass'n Ethics Comm., Advisory Op. 2012-13/4 (2013) (lawyer must have basic understanding of technology and keep abreast of changes); N.Y. State Bar Ass'n Comm. on Prof l Ethics, Ethics Op. 842 (2010) (lawyer has duty to keep up with advances in technology used in law practice); Ohio State Bar Ass'n Professionalism Comm., Informal Advisory Op. 2013-03, at 3 (2013) (opinion contains suggestions on how lawyer may competently store electronic client files in cloud); Pa. Bar Ass'n Comm. on Legal Ethics & Prof'l Responsibility, Formal Op. 2009-100, at 5 (2009) (duty of competence requires lawyer to ensure that client information in document metadata is not transmitted to opponent and determine whether metadata in documents received from opponent may be reviewed and/or used)). All explanatory parentheticals come directly from the ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT § 1.1 (2015).

44. ABA Formal Op. 11-459, supra note 43, at 1.

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Although the formal opinion addresses e-mail communications, "sending or receiving substantive communications" by "other electronic 45 means" should include social media communications. Further, when sending documents electronically, lawyers should make certain that documents to avoid inadvertent metadata has been removed from the 46 information. confidential of disclosure Additionally, the duty of competence in technology requires lawyers not only to protect the confidentiality of client information stored on servers and transmitted electronically, but also lawyers using cloud-based technology to store client information must implement security measures to protect client confidentiality.4 7 In addition to Rules 1.1 (competence) and 1.6 (confidentiality), additional ethics rules are implicated when lawyers use cloud-based technology as part of the lawyer's practice, including rules 1.4 (communications), 1.15 (safekeeping property), and rules 5.1-5.3 48 (governing responsibilities of supervisors, subordinates, and non-lawyers).

Common among the more than twenty ethics opinions governing lawyers' use of cloud services is that a lawyer must use reasonable care in selecting a cloud service provider.49 A 2014 Law and Technology article provided a safety checklist for lawyers that identifies nearly forty specific items related to protecting your cloud-based data. 5' The checklist includes basic information lawyers should be aware of such as, access to data, antivirus protection, backups, education concerning use of services, firewalls, geographic location where data will be stored, and privacy laws of the 51 location, password policies, security, and terms of service agreement.

A lawyer's obligation to protect client information applies to electronically stored information on servers housed in brick and mortar 52 offices, as well as when storing information in the cloud. The security

45.

Id.

46. See, e.g., Formal Op. 2009-100, supra note 43, at 1 ("[Aln attorney has an obligation to avoid sending electronic materials containing metadata, where the disclosure of such metadata would harm the client's interests.").

47. See, e.g., Informal Advisory Op. 2013-03, supra note 43, at 1 (permitting the use of cloud services but cautioning that client data must remain secure and confidential); Ethics Op. 2010-02, supra note 43, at 15-16 (permitting use of cloud services but requiring security measures to maintain client confidentiality and duty of competency requires lawyers to keep technological changes).

48. Peter Krakaur, Flying in the Clouds: A Safety Checklist; How to Protect Your Data When Using Cloud Services, LAW TECH. NEWS (July 21, 2014) (LEXIS).

49. Id. 50. Id.

51.

See id.

52. See Joshua Lenon & Jack Newton, Legal Cloud Computing Association Publish First 2016), 3, (Feb. PRWEB Firms, Law for Doctrine' Security 'Cloud http://www.prweb.com/releases/2016/02/prwebl3196376.htm (explaining that according to the

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measures implemented must be reasonable in view of the risk.53 One risk 5 4 associated with electronically stored information is cyberattack.

According to a National Research Council (NRC) Report, "[c]yberattack refers to the use of deliberate actions-perhaps over an extended period of time-to alter, disrupt, deceive, degrade, or destroy adversary computer systems or networks or the information and/or programs resident in or transiting these systems or networks."55 In its report, the NRC makes a distinction between cyber-attacks and cyber-exploitations. 56 Cyberexploitations may be defined as "non-destructive actions that extract confidential information."57 The NRC Report states that it may be difficult to distinguish between the two because similar technology is used.5 Regarding access to information concerning jurors, an en banc panel of the Missouri Supreme Court determined that lawyers should make reasonable efforts to learn of a potential juror's litigation history before the juror is empaneled. 5 9 The trial court presumed bias and prejudice from a juror's "intentional concealment" of the juror's litigation history and granted a new trial in the medical malpractice case, following a verdict for the defendant.60 Although the court affirmed the trial court's determination, the court stated that [1]itigants should not be allowed to wait until a verdict has been rendered to perform a Case.net search [Missouri's automated case management system] for jurors' prior litigation history when, in many instances, the search also could have been done in the final stages of jury selection or after the jury was selected but prior to the jury being empanelled.6'

results of a 2015 ABA Legal Technology Survey, 31% of the lawyers responding reported using cloud-based services in their law practice).

53. David G. Ries, Safeguarding Confidential Data: Your Ethical and Legal Obligations, LAW PRACTICE, July/August 2010, at 49.

54. See Jay P. Kesan & Carol M. Hayes, Mitigative Counterstriking: Self-Defense and Deterrence in Cyberspace, 25 HARV. J.L. & TECH. 429, 438-39 (2012).

55.

COMM. ON OFFENSIVE INFO. WARFARE, NAT'L RESEARCH COUNCIL OF THE NAT'L AcADs., TECHNOLOGY, POLICY, LAW, AND ETHICS REGARDING U.S. ACQUISITION AND USE OF

CYBERATTACK CAPABILITIES 10-11 (William A. Owens et al. eds., 2009) [hereinafter NRC REPORT].

56. Id.at 10-11.

57. Kesan & Hayes, supra note 54, at 440 (citing NRC REPORT, supra note 55, at 10-11) ("Crawlers are one form of cyber exploitation used to mine large quantities of data.").

58. Id. (citing NRC REPORT, supra note 55, at 81).

59. Johnson v. McCullough, 306 S.W.3d 551, 559 (Mo. 2010) (en banc) (per curiam), superseded by statute, Mo. SUP. CT. R. 69.025 (requiring lawyers to conduct reasonable investigation, including a search of the state online case management system to avoid waiver of a jury nondisclosure claim concerning a juror's litigation history).

60. Id. at 555.

61.

Id.at 559.

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The court, essentially, publicly chided the lawyers involved for not utilizing the Internet to search for information before trial and stated that "in light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court's attention at an earlier stage." 62 As the Missouri case indicates, a lawyer's competence with respect to technology may be fails to use the Internet to access readily available questioned when a lawyer 63 information. public Addressing the question of whether conducting informal discovery of information publicly available on social media sites is necessary, in light of formal discovery rules, one scholar argues that there are four reasons that searching the Internet for publicly available information is encompassed within a lawyer's duty to investigate. 64 The first reason is that "lawyers cannot merely assume that social media content will be obtained in formal discovery, as informal social media search results may dictate what private social media content is discoverable., 65 The argument here is that formal discovery requests require a factual predicate. 66 Information obtained from informal searches of public sites can provide content that serves as a factual predicate for the grant of access to content on private social media pages.67 An additional consideration is that formal discovery will produce information within a party's control or right of control, in contrast to the broader scope of inquiry that includes a party's "friends."

The second reason presented is that the duty of competence under the ethics rules requires a diligent search of social media.68 Rule 1.1, comment 8, mandates that "a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant

62. Id. at 558-59; see also N.Y. Cnty. Lawyers Ass'n Comm. on Prof lEthics, Formal Op. 743 (2011) ("The trial court chided the attorney for failing to perform intemet research on the juror, and granted a new trial, observing that a party should use reasonable efforts to examine the litigation history of potential jurors." (citing Johnson, 306 S.W.3d at 559)).

63. Johnson, 306 S.W.3d at 558-59; see also Formal Op. 743, supra note 62 ("The trial court chided the attorney for failing to perform internet research on the juror, and granted a new trial, observing that a party should use reasonable efforts to examine the litigation history of potential jurors." (citing Johnson, 306 S.W.3d at 559)).

64. Agnieszka McPeak, Social Media Snooping and Its Ethical Bounds, 46 ARIZ. ST. L.J. 845, 875-76 (2014) (citing MODEL RULES OF PROF'L CONDUCT R. 1.3 (2015); RESTATEMENT

(THIRD) OF THE LAW GOVERNING LAWYERS § 16 cmt. d (2000); FED. R. CIV. P. 11); see also DiBianca, supra note 35, at 182-83 (arguing that knowledge of social media is required under both Model Rule 1. 1's competence requirement and Model Rule 1.3's diligence requirement).

65. McPeak, supra note 64, at 876.

66.

67.

Id. Id.

68.

Id. at 876-77 (citing MODEL RULES OF PROF'L CONDUCT R. 1.1 cmt. 8).

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technology."6' 9 The commentator argues that the duty of competence is broad enough to require lawyers to conduct social media searches while investigating and researching cases.7" As the scope of comment 8 is shaped on a case-by-case basis, "some courts have recognized a requirement to perform computer-aided legal and factual research in some instances... [which] should encompass social media searches."71 "Several commentators also argue that lawyers are now expected to look at the public portions of social media pages for impeachment or other evidence in the course of litigation, even beyond cases in which social media is the basis of a claim."72 The third reason presented is that ignorance is no excuse.73 A lawyer's failure to conduct an investigation for information that is publicly available online because the lawyer lacks the requisite technological skill will not protect the lawyer.74 Procedural rules typically "require all pleadings to be well-grounded in fact and law."75 Following a review of a Virginia state court case in which a lawyer failed to investigate how access to social media is obtained before accusing opposing counsel of "hacking" the client's social media account, the commentator concluded that ignorance of technology is no excuse. 76 Rather than relying on the client's assertions concerning access to social media sites, a lawyer "[is] expected to educate himself about the relevant technology directly, and inquire further into the 77 underlying facts and law.

The fourth and final reason offered for requiring a lawyer to search publicly accessible content on social media sites is that such searches are simple and cost-effective. 78 The reasonableness of the costs associated is a relevant factor in determining whether the lawyer has adequately 69.

MODEL RULES OF PROF'L CONDUCT R. 1.1 cmt. 8.

70. McPeak, supra note 64, at 877.

71.

Id. (citing Weatherly v. Optimum Asset Mgmt., Inc., 928 So. 2d 118, 121 (La. Ct. App. 2005)).

72. Id. at 877-78 (citing John G. Browning, Facebook, Twitter, andLinkedln - Oh My! The ABA Ethics 20/20 Commission and Evolving EthicalIssues in the Use of Social Media, 40 N. KY. L. REV. 255, 258-59 (2013); Hope A. Comisky & William M. Taylor, Don't Be a Twit: Avoiding the Ethical Pi~falls Facing Lawyers Utilizing Social Media in Three Important ArenasDiscovery, Communications with Judges and Jurors,and Marketing, 20 TEMP. POL. & Civ. RTS.

L. REv. 297, 297 (2011); Jan L. Jacobowitz & Danielle Singer, The Social Media Frontier: Exploring a New Mandatefor Competence in the Practice of Law, 68 U. MIAMI L. REV. 445,

467-68 (2014)).

73. Id. at 878.

74. Id. at 879.

75.

76.

(2010)).

77.

78.

Id. at 878.

Id. at 878-79 (citing Lester v. Allied Concrete Co. (Lester 1), 80 Va. Cir. 454, 454 Id. at 879.

Id.

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investigated facts.79 Thus, the duty of competence reasonably includes the requirement to conduct a search of publicly available content on social media sites.

Lawyers have a duty to investigate and research their cases.8" One of the easiest and most cost-effective ways to conduct informal discovery of a case is to use the Internet.81 Social media sites hold a wealth of publicly available information concerning parties, witnesses, and other non-parties, and jurors.82 Public information is merely "information available to anyone viewing a social media network without the need for permission from the person whose account is being viewed."83 As discussed, infra, lawyers must be aware of and comply with ethics rules that govern communication with others, including parties, non-parties, witnesses, jurors, and judges, particularly when the social media site automatically generates messages to 84 the account holder concerning such views.

In 2014, the ABA issued Formal Opinion 466 concerning a lawyer viewing jurors' internet presence, including social media sites.85 The opinion reviewed the relevant provision of the Model Rules governing communication with jurors86 and considered separately three levels of activities when a lawyer conducts research of a jurors' online presence.87 The first level of activity involves a lawyer's passive "review of a juror's

79. Id. 80. MODEL RULES OF PROF'L CONDUCT R. 1.1 &cmt. 5 (2015).

81.

Soc. Media Comm. of the Commercial & Fed. Litig. Section, Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association, N.Y. ST. B. ASS'N 1-2, http://www.nysba.org/socialmediaguidelines (last updated June 9, 2015).

82. Id. (commenting that review of social media content is "one of the best ways" for lawyers to obtain information without formal discovery).

83. Id. at 15.

84. Id. at 2 ("[W]hen a lawyer conducts research, unintended social media communications or electronic notifications received by the user of a social media account revealing such lawyer's research may have ethical consequences.").

85. ABA Comm. on Ethics & Prof 1 Responsibility, Formal Op. 466, at 1 (2014). In footnote 3 of Formal Op. 466, the Committee stated: While [the] Committee does not take a position on whether the standard of care for competent lawyer performance requires using Internet research to locate information about jurors that is relevant to the jury selection process, [it is] also mindful of the recent addition of Comment [8] to Model Rule 1.1. This comment explains that a lawyer "should keep abreast of changes in the law and its practices, including the benefits and risks associated with relevant technology."

Id. at 2 n.3 (quoting MODEL RULES OF PROF'L CONDUCT R. 1.1 cmt. 8).

86. Id. at 3 (citing MODEL RULES OF PROF'L CONDUCT R. 3.5 (governing communications with jurors before, during, and after trial); In re Holman, 286 S.E.2d 148, 148-49 (S.C. 1982) (disciplinary proceeding warranted disbarment for attorney's "serious crime" of communicating with a juror selected for trial in which lawyer represented defendant)).

87. Id. at 2.

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website or [Electronic Social Media (ESM)] that is available without making an access request where the juror is unaware that a website or ESM has been reviewed."8 8 The second level concerns the "active lawyer review where the lawyer requests access to juror's ESM."89 The third and final level of activity is where the lawyer passively reviews a juror's website or ESM, and the "juror becomes aware through a website or ESM feature of 90 the identity of the viewer."

Regarding the first level of activity, a lawyer's "[p]assive review of a juror's website or ESM, that is available without making an access request, and of which the juror is unaware, does not violate Rule 3.5(b)." 91 The rationale is that the lawyer is merely accessing publicly available information that is comparable to "driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer's jury-selection decisions." 92 Several jurisdictions have issued ethics opinions consistent with the ABA's view that a lawyer's access to publicly available website and social media content would not constitute a communication in violation 9 of Model Rule 3.5(b).

3

Social media account holders may adjust privacy settings to limit access.

Depending on the privacy settings chosen by the ESM subscriber, some information posted on ESM sites might be available to the general public, making it similar to a website, while other information is available only to a fellow subscriber of a shared ESM 88. Id. at 2. Electronic social media sites are defined as those for which the user can restrict access to content. Id. at 1-2.

89. Id. at2.

90. Id. 91. Id.at 4.

92. Id. 93. Id. at4 n.5 (citing Or. State Bar Ass'n, Formal Op. 2013-189, at 578 (2013) ("Accessing the publicly available information on [an opposing party's, witness's, or juror's] social networking website is not a 'communication' prohibited by [ethics rules]."); Formal Op. 743, supra note 62 ("It is proper and ethical under RPC 3.5 for a lawyer to undertake a pretrial search of a prospective juror's social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to 'friend' jurors ....");Ky. Bar Ass'n, Formal Op. KBA E-434, at 1 (2012) ("A lawyer may access or otherwise use the social network site of a third-person to benefit a client, as long as the conduct does not violate the Rules of Professional Conduct.")). See also N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Advisory Op. 843 (2010) ("[A] lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer's client in litigation as long as the party's profile is available to all members in the network and the lawyer neither 'friends' the other party nor directs someone else to do so."); Or. State Bar Ass'n, Formal Op. 2005-164, at 453 (2005) ("Accessing an adversary's public Web site is no different from reading a magazine or purchasing a book written by that adversary."); N.H. Bar Ass'n Ethics Comm., Advisory Op. 2012-13/05 (2013) (ethical rules permit merely viewing witnesses' unrestricted, publicly-accessible Facebook and Twitter accounts).

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service, or in 94some cases only to those whom the subscriber has granted access.

Regarding the second level of activity, ABA Formal Opinion 466 determined that a lawyer's request for access to a juror's restricted social media accounts is active conduct, rather than passive activity. 95 Such requests for access, much like friend requests, constitute ex parte communications in violation of Model Rule 3.5(b). 96 The conclusion remains the same when a lawyer has another person make the request for access to juror's social media sites.97 Regarding the supervision of nonlawyer staff, the applicable principle is that a lawyer cannot do indirectly through the acts of another anything that the rules of ethics prohibit the 98 lawyer from doing directly.

The New York State Bar Association generally agrees that lawyers "may view the public portion of a person's social media profile or public posts even if such person is represented by another lawyer."9 9 New York State Bar Association, however, cautions that "certain social media networks may send an automatic message to the person whose account is being viewed which identifies the person viewing the account as well as other information about such person," which may constitute an unintended communication.'00 Communication may be defined, generally, as "the process of bringing an idea, information or knowledge to another's perception-including the fact that they have been researched."1 °1 Such an unintended communication may "be viewed an improper communication with someone who is represented by counsel.""1 2 In contrast, the ABA takes the opposite position that this third level of activity involving automatically generated reports when a lawyer has viewed the user's social media pages constitutes communication from the social media service, rather than the lawyer.103 As the ethics rules governing this level of activity may vary, lawyers should be aware of certain

94.

95.

ABA Formal Op. 466, supra note 85, at 2.

Id. at 4.

96.

Id.

97. Id. 98. Id. (citing MODEL RULES OF PROF'L CONDUCT R. 8.4 (2015); S.C. Bar Ethics Advisory Comm., Ethics Advisory Op. 93-27 (1993) (lawyers cannot circumvent the rule prohibiting communication with prospective jurors by using agents)).

99. Soc. Media Comm. of the Commercial & Fed. Litig. Section, supra note 81, at 15.

100. Id. 101.

ABA Formal Op. 466, supra note 85, at 5.

102. Soc. Media Comm. of the Commercial & Fed. Litig. Section, supra note 81, at 15.

103.

ABA Formal Op. 466, supra note 85, at 5.

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technological specifications of the social media accounts they access, and 104 whether such passive viewing will trigger an unintended communication.

2.

Confidentiality

One "fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation.""1 5 Rule 1.6 expressly prohibits disclosure of information about the lawyer's representation of a client "unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)," which states that a lawyer may reveal information related to criminal activity, bodily harm, and death. 10 6 Further, "[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.""1 7 Model Rule 1.6, comment 18 discusses a lawyer's duty to act competently to preserve the confidentiality of client information. 0 8 Relevant factors to consider when evaluating the reasonableness of the lawyer's efforts to protect client information include, among other things, "the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer's ability to represent clients."' 9 Competence in the use of technology includes the responsibility to be aware that sharing information on websites and social media sites may be creating a digital footprint. " 0 That digital footprint cannot easily be deleted, and under certain circumstances, can never be deleted."' "Such data have long, perhaps permanent, digital lives such that statements may be recovered, circulated or printed years after being sent.""' 2 A primary reason for the permanency of content on websites and social media sites is that information shared on websites and social media sites with one person may

104.

105.

106.

107.

108.

109.

110.

See id. at 5-6.

MODEL RULES OF PROF'L CONDUCT R. 1.6 cmt. 2 (2015).

Id. R. 1.6(a)-(b).

Id. R. 1.6(c).

See id. R. 1.6 cmt. 18.

Id. See ABA Comm. on Ethics & Prof 1 Responsibility, Formal Op. 462, at 2 (2013).

111.

Id.

112.

Id.

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be shared with others, ad infinitum, at which point the creator of the content no longer has control of the shared content.113 In 2013, the ABA issued Formal Opinion 462 to advise judges on social media and observed that "[i]n contrast to fluid, face-to-face conversation that usually remains among the participants, messages, videos, or photographs posted to ESM may be disseminated to thousands of people ' without the consent or knowledge of the original poster."114 When using social media, "relations over the internet may be more difficult to manage because, devoid of in-person visual or vocal cues, messages may be taken ' out of context, misinterpreted, or relayed incorrectly."115 Recently, a Redlands, California based law firm reported to the California Attorney General's office that it had fallen victim to a form of "Cryptolocker" cyberattack." 6 Cryptolocker is a form of malicious software ' "that encrypts files on a victim's computers until they pay a ransom." 117 "Security researchers estimate that Cryptolocker has infected more than 234,000 computers, with half of those affected in the United States as of April 2014. " 118 According to the United States Department of Justice,

"[m]ore than $27 million in ransom payments were made in the first two months after Cryptolocker first appeared." ' 119 In the case of the Redlands law firm, apparently, "[t]he virus infected an attorney's work computer possibly through a phishing email and made its way to an in-house server containing client information" and encrypted the firm's electronic files. 12° In addition to the state attorney general's office, the law firm also contacted the FBI and hired a specialist to evaluate

113. See id.

114. Id. 115. Id. 116. Y. Peter Kang, 'Cryptolocker' Virus Holding Law Firm Data for Ransom, LAW360 (Mar. 9, 2015, 6:49 PM), http://www.law360.com/articles/629305/cryptolocker-virus-holdinglaw-firm-data-for-ransom.

117. Id. The Cryptolocker hacking scheme reportedly originated with a Russian hacker, Evgeniy Mikhailovich Bogachev; however, shortly thereafter, copycat versions of the virus surfaced. Id. Although the U.S. Dept. of Justice has seized control of the original Crypotlocker virus, Bogachev remains at large. Id. Recently, even law enforcement departments have fallen victim to hackers seeking ransom to decrypt information. See, e.g., Noel Brinkeroff, Illinois and Massachusetts Police Pay Bitcoin Ransom to Hackers, ALLGOV (Apr. 7, 2015), http://www.allgov.com/news/controversies/illinois-and-massachusetts-police-pay-bitcoin-ransomto-hackers-150407?news=856172; Maine Police DepartmentsPay Hackers to Unlock Computer System, PORTLAND PRESS HERALD (Apr. 10, 2015), http://www.pressherald.com/2015/04/10/police-departments-pay-hackers-to-unlock-computersystem (reporting that a county sheriffs office and four towns paid $300 in bitcoins to have ransomware removed from computer and avoid destruction of their data).

118. Kang, supra note 116.

119. Id. 120. Id.

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the case.12 1 The law firm also sent a letter notifying its clients of the breach.122 In the letter to its client, the law firm stated that it "did not and will not pay any such ransom, which would only encourage and fund such criminals in their illegal activities. ' According to the firm, "the majority of its clients did not have personal information on the infected computer and server and that the loss of data was 'fairly minimal' thanks to data backups and hard copies of documents."' 24 In December 2015, a Jacksonville law firm reported that hackers seized control of the law firm's files and demanded a $2,500 ransom to be paid in bitcoins. 125 The kidnapping hackers encrypted the files, rendering them useless to the firm.. 126 Following two days of investigation by its IT service, the law firm was faced with the choice of paying the ransom or losing all of the firm's files. 127 After ten days, the firm paid the ransom, and the hackers unencrypted the firm's files. 128 Given the risks associated with Internet-related activities, including use of social media, lawyers must implement reasonable measures to meet their ethical duties to protect confidential client information and to maintain competence in technology.

Professional cyber security companies are available to assist in the process of protecting data. One such entity, the Legal Cloud Computing Association (LCCA), a consortium of leading cloud computing service providers, recently released a set of security guidelines to assist the legal profession and legal technology providers "to address cybersecurity concerns and implement best practices for security into their joint operations.- 12 ' "The LCCA guidelines incorporate industry best-practices, data privacy guidance from North American and European governments, and legal-specific requirements recommended by bar associations and courts."13 The LCCA guidelines provide standards to address issues including: "Geographic data residency location and disclosure requirements; [e]ncryption and data integrity best practices; [r]estricting access to cloud-stored data by third parties; [and] [d]ata loss prevention 121.

122.

123.

Id. Id. Id.

124.

Id.

125.

Max Marbut, Jacksonville Law Firm Not Immune to Hacker's Scheme to Hold Information for Ransom, DAILY RECORD (Feb. 15, 2016, 12:17 PM), https://www.jaxdailyrecord.com/showstory.php?Story-id=547048.

126. Id. 127. Id. 128.

Id. 129. Lenon & Newton, supra note 52. Members of the consortium include "Clio (Themis Solutions, Inc.), DirectLaw, Inc., NetDocuments Inc., Nextpoint, Inc., Onit, Inc., and Rocket Matter, LLC." Id. 130. Id.

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' measures." 131 Apart from intentionally sharing information with others, lawyers must be certain to protect against inadvertent disclosure of 132 information, such as metadata hidden in a document.

3.

Conflict of Interests

When lawyers use social media, the potential for intentionally or inadvertently creating a client-lawyer relationship exists. 133 Model Rules 1.7 through 1.9 require a lawyer to identify and avoid engaging in conduct that creates a conflict with the interest of a current or former client. 13 4 To meet this obligation, lawyers must have a conflict check process to determine whether a potential new client matter conflicts with interests of 135 current or former clients.

"Loyalty and independent judgment are essential elements in the lawyer's relationship to a client."' 36 "Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests.

'137

Once the client-lawyer

relationship is established, the duty to avoid conflicts of interest with current and former clients continues.' 3 8 Further, "[i]gnorance caused by a failure to institute such procedures will not excuse a lawyer's violation of ' [Model Rule 1.7]." 139

131. Id. 132. See, e.g., Alberto G. Araiza, Comment, Electronic Discovery in the Cloud, 2011 DUKE L. & TECH. REv., no. 008, Sept. 20, 2011, 28, 38; Crystal Thorpe, Note, Metadata: The Dangers of Metadata Compel Issuing Ethical Duties to "Scrub" and Prohibit the "Mining" of Metadata, 84 N.D. L. REv. 257, 271 (2008); Robert Ambrogi, Vendors Propose Cloud Security for Legal Products, Standards L. SITES (Feb. 10, 2016), http://www.lawsitesblog.com/2016/02/legal-vendors-publish-proposed-cloud-securitystandards.html; Drew Helms, Ethics and Authentication in e-Discovery, ORANGE COUNTY LAW. (Apr. 2015), http://www.virtualonlineeditions.com/display-article.php?id= 1965196&_width.

133. See, e.g., Browning, supra note 72, at 269-70; Debra Bruce, Ethically Navigating the Social Media Landscape, 73 TEX. B.J. 196, 196 (2010); ChriStina Vassiliou Harvey et al., 10 Tips for Avoiding Ethical Lapses When UsingSocial Media, BUS. L. TODAY, Jan. 2014, at 1, 3; Sharon D. Nelson & John W. Simek, Common Ethical Pitfalls of Digital Marketing: What to Know Before Taking the Plunge into Linkedln, Facebook, Twitter, and Lawyer Referral Websites, FAM. ADVOC., Winter 2013, at 24, 25.

134. See MODEL RULES OF PROF'L CONDUCT R. 1.7-.9 (2015). "A conflict of interest is involved if there is a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or a third person." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 121 (2000).

135. MODEL RULES OF PROF'L CONDUCT R. 1.7 cmt. 3.

136. Id. R. 1.7 cmt. 1.

137. Id. 138. See id. R. 1.7 cmt 5.

139. Id. R. 1.7 cmt. 3.

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Regarding current clients, Model Rule 1.7 provides that "a lawyer shall not represent a client if the representation involves a concurrent 140 conflict of interest.

A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the 14 1 lawyers.

The Model Rules additionally provide guidelines governing conflicts of interests with current clients, including safekeeping of property, and other special conflicts of interests. 142 Notwithstanding a conflict with a client's interest, the Model Rules permit representation under certain circumstances, provided the lawyer obtains written informed consent from the client. 143 Thus, when a lawyer interacts with other individuals on Internet websites and social media sites, the lawyer should be aware of the potential for, and must avoid, conflict of interest with current and former clients.

Effective and accurate conflict checks may be difficult to obtain with respect to relationships created online, particularly when anonymous and pseudonymous identities are used. Regarding anonymity, there are 44 approximately 83 million fake profiles on Facebook alone.1 C.

Avoid Inadvertently CreatingClient-Lawyer Relationshipson Social Media

Social media presents innumerable opportunities for lawyers to engage in networking, practice development, and to socialize professionally and personally. When using social media, however, lawyers must be aware of the potential for inadvertently creating a client-lawyer relationship. 145 Model Rule 1.18 governs a lawyer's conduct with a prospective client and provides that "[a] person who consults with a lawyer about the possibility

140. Id. R. 1.7(a). See id. R. 1.8, for specific provisions governing conflicts of interest and current clients.

141. Id. R. 1.7(a).

142. See id. R. 1.8, 1.15; see also, e.g., id. R. 1.11 (special conflict rules for former and current government lawyers).

143. Id. R. 1.7(b).

144. Zephoria Digital Marketing, supra note 4 (observing that there are numerous reasons for fake profiles, "including professionals doing testing and research, and people who want to segment their Facebook use more than is possible with one account").

145. See, e.g., Browning, supra note 72, at 269-70; Bruce, supra note 133, at 196; Harvey et al., supra note 133, at 3; Nelson & Simek, supra note 133, at 25.

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of forming a client-lawyer relationship with respect to a matter is a prospective client. ' 146 When a person "consults" with a lawyer concerning the possibility of forming a client-lawyer relationship, the person becomes a prospective client. 147 "Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances.' 48 [However,] a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer's education, experience, areas of practice, and contact information, or provides legal information of general interest.

[That] person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to a client-lawyer relationship, and is discuss the possibility of forming 149 thus not a 'prospective client.'

Except as permitted by another model rule, the duty of confidentiality applies even if no client-lawyer relationship develops.150 Numerous scholars, practitioners, and bar journals caution against inadvertently creating a client-lawyer relationship while using social " ' Given social media's interactive environment, the potential for media.15 inadvertently creating a client-lawyer relationship presents itself "in a number of contexts, including online discussion groups, websites that solicit questions from lay people for response by attorneys, and law firm websites that permit prospective clients to ask legal questions."' 5 2 Despite the fact that social media is used to make the communication, "an attorney who provides specific legal advice to a lay person on-line could later be held to have created an attorney-client relationship with that person." 5' 3 Relevant 146. MODEL RULES OF PROF'L CONDUCT R. 1.18(a).

147. See id. R. 1.18 cmt. 2.

148. Id. 149. Id. (emphasis added).

150. Id. R. 1.18 cmt. 3.

151. See, e.g., Browne-Barbour, supra note 6, at 286 (suggesting lawyers avoid giving specific advice and limiting communications to general information); Browning, supra note 72, at 269; Harvey et al., supra note 133, at 3-4; Chelsi Hayden, Knowing Your Audience in an EverChanging Social Media World, J. KAN. B. ASS'N, Jan. 2016, at 10, 10 (cautioning against inadvertently creating a client-lawyer relationship); Nelson & Simek, supra note 133, at 25; Michael C. Smith, Social Media Update, ADVOC. (TEX.), Spring 2013, at 197, 197; Thomas J. Watson, Managing Risk: Lawyers and Social Media: What Could Possibly Go Wrong?, 85 WIS. at available 2012, May LAW., = 85 &issue http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?volume= 5&articleid=246.

152. Catherine J. Lanctot, Becoming a Competent 21st Century Legal Ethics Professor: Everything You Always Wanted to Know About Technology (But Were Afraid to Ask), 2015 J. PROF. LAW. (forthcoming 2016) (manuscript at 17).

153. Id.

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factors as to whether an attorney-client relationship is created include "the level of specificity and the degree of reasonable reliance."' 54 Although the required disclosures are made, such disclosures may be ineffective in 55 preventing the creation of the client-lawyer relationship. 1 In ABA Formal Opinion 10-457, the ABA advised that Internet website communications implicate not only Rule 1.18 governing prospective clients, but also ethical rules governing Model Rules 7.1 and 7.2, communications concerning a lawyer's services and advertising. 156 The opinion observed that Internet websites provide lawyers with an opportunity to market legal services twenty-four hours a day. 57 Regarding advertising, the opinion cautioned that "[l]imitations, conditions, or disclaimers of lawyer obligations will be effective only if reasonably understandable, properly placed, and not misleading."' 5 8 Any limitations, warnings, and disclaimers must be clear and in a readable format such that a reasonable person could understand. 59 The waivers, warnings, and disclaimers must be placed conspicuously and must be in the same language as the website content. 6 ° The warnings, limitations, or disclaimers may be rendered ineffective, if the lawyer's conduct or communication is inconsistent with the warnings. 6' Social media facilitates and encourages communication of information in the form of text, photographs, music, videos, and even micro-videos. 162 Facebook and Linkedn are forms of social media designed to connect with friends you know, and "friends" you don't. 63 Lawyers should be aware of and comply with the applicable ethical rules governing the use of technology and their communications with others when using social media.

154. Id. 155. Id.; see also Harvey et al., supra note 133, at 4 ("[A]ttempting to disclaim (through buried language) an attorney-client relationship in advance of providing specific legal advice in a specific matter, and using similarly buried language to advise against reliance on the advice is patently unfair and misleading to laypersons." (quoting S.C. Bar Ethics Advisory Comm., Ethics Advisory Op. 12-03 (2012)) (internal quotation marks omitted)).

156. ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 10-457, at 1-5 (2010).

Lawyer communications on the Internet potentially may trigger additional ethical rules including Model Rules 1.6 (current clients), 1.9 (former client), 4.1(a) (truthfulness in statements to others),

5.1 (responsibilities of a partner or supervisory lawyer), 5.3 (responsibilities concerning nonlawyer assistance), and 8.4(c) (misconduct). Id. at 1-2.

157. Id. at 1.

158.

159.

Id. at6.

Id.

160. Id. 161.

Id. 162. See, e.g., Perrin, supra note 10, at 3.

163.

See Stephen M. Nipper, Social Media Opens Up a Variety of New Professional Connections, ADVOC. (IDAHO), Jan. 2010, at 35, 35 (Facebook); Jessica Thaler, A Tool for Lawyers in Transition:Linkedln, N.Y. ST. B.J., Mar./Apr. 2013, at 47, 47-48 (Linkedln).

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Given the interactive nature of social media, as well as the sheer volume of communications across the various platforms, lawyers must be cognizant of the ethical rules implicated when contacting1 64others through social media, whether through blogs, Facebook, or Twitter.

D.

Communications with Non-Clients

Lawyers using social media must comply with relevant ethics rules governing communications with non-clients. 165 The rules governing communications with non-clients include 4.1 (truthfulness in statement to others), 4.2 (communication with person represented by counsel), and 4.3 (dealing with unrepresented person). 166 In representing clients, Rule 4.1 prohibits lawyers from knowingly "mak[ing] a false statement of material fact or law to a third person." 167 Statements that are only partially true or contain omissions constitute misrepresentations "that are the equivalent of ' Moreover, in representing a client, a lawyer affirmative false statements."168

is prohibited from communicating169about the matter with a person the lawyer knows is represented by counsel.

Given the nature of social media, a lawyer may not know whether the person the lawyer is communicating with is, in fact, represented by counsel. 171 Under those circumstances, Rule 4.3, governing dealings with unrepresented persons, is triggered. 17' When acting on behalf of a client, Rule 4.3 prohibits a lawyer from making statements to an unrepresented person that either states or implies that the lawyer is disinterested in the matter. 172 Further, when the interests of the unrepresented person may be in conflict with the interests of a client, the only advice the lawyer may provide is that the person should obtain legal counsel. 173 Moreover, when lawyers use social media to connect with others, "ethics opinions correctly

164. See, e.g., Gina Furia Rubel, Social Media and the Benefits to Lawyers of Adopting a Policy, 81 PA. B. ASS'N Q. 47, 57-58 (2010).

165. See, e.g., James B. Kobak, Jr. & Ignatius A. Grande, Social Media Ethics: Keeping Up with Changing Obligations,AM. BANKR. INST. J., Oct. 2015, at 20, 20; Jasmine V. Johnson, Note, Completing the Map: The Next Step in Guiding the Ethical Use of Social Media by Legal Professionals,28 GEO. J. LEGAL ETHICS 597, 598 (2015).

166. MODEL RULES OF PROF'L CONDUCT R. 4.1-.3 (2015).

167. Id.R.4.1(a).

168. Id. R. 4.1 cmt. 1.

169. Id. R. 4.2; see also id. R. 4.4 cmt. 1 ("[The rights of third persons] include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.").

170. Id. R. 4.2.

171. Id. R. 4.2 cmt. 9.

172. Id. R. 4.3.

173. Id. R. 4.3 cmt. 2.

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interpret the Model Rules as prohibiting lawyers from creating fake profiles or otherwise engaging in pretextual conduct and deceit to trick a user into 174 accepting a private-access request.

E.

The Advocate's Use of Social Media

Social media sites allow users to post immediately in various formats on a practically limitless array of topics. 175 "[B]ecause of the ease with which individuals can post information on social media websites, there may be an abundance of information about the user that may be discoverable if the user is ever involved in a legal dispute. ' 176 Thus, lawyers must be aware of their client's social media content, and should reasonably anticipate that "opposing counsel will monitor a client's social media account." 177 For similar reasons, lawyers should also consider investigating social media of non-clients for relevant content concerning their clients and cases.

F.

Fairnessand Misconduct

In the social media realm, ethics rules govern not only a lawyer's conduct and communications with non-clients, but also govern the lawyer's counsel to clients concerning content on the clients' social media pages. 78 Although clients may post content on their social media pages that may adversely impact their cases, lawyers must be cautious when advising them to remove, clean-up, or take-down the potentially damaging information.1 79 Model Rule 3.4 governs fairness to opposing party and counsel and, among other things, provides that "[a] lawyer shall not [] unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value."' 18 Rule 3.4 further prohibits lawyers from either counseling or assisting another in engaging in any of these prohibited acts.1 81 Pursuant to Rule 3.4(b), a 174. McPeak, supra note 64, at 883-84.

175. Formal Op. 2014-300, supra note 40, at 11.

176. Id. 177. Id. 178. See, e.g., John G. Browning, A Clean Slate or a Trip to the DisciplinaryBoard?Ethical Considerationsin Advising Clients to 'Clean Up' Their Social Media Profiles, 48 CREIGHTON L. REv. 763, 763 (2015).

179. See, e.g., id.; Mark M. Tba, Some Guidelines for Handling Clients' Social Media Baggage, J. KAN. B. ASS'N, Mar. 2015, at 14, 14; Kobak & Grande, supra note 165, at 20; Kathleen McDonald, An Attorney's Online Presence-A Byte of Prevention is Worth a Gig of Cure, ARK. LAW., Spring 2015, at 20, 21; McPeak, supra note 64, at 847; LUCIAN T. PERA & PAMELA A. BRESNAHAN, A.L.I. CONTINUING LEGAL EDUC., HOT TOPICS iN LEGAL ETHICS 2015 1 (Aug. 20, 2015).

180. MODEL RULES OF PROF'L CONDUCT R. 3.4(a) (2015).

181. Id.

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lawyer shall not "falsify evidence, counsel or assist a witness to testify 182 falsely, or offer an inducement to a witness that is prohibited by law.'

The ethics rules governing fairness and prohibiting certain conduct preclude the lawyer from having a third party, namely a client or other person the lawyer supervises, engage in such conduct. 1 83 Similarly, Model Rule 8.4 prohibits a lawyer from engaging in conduct that, "reflects adversely on the respects" lawyer's honesty, trustworthiness or fitness as a lawyer in other 1 84 and involves "dishonesty, fraud, deceit, or misrepresentation."'

When advising clients on social media use, lawyers should offer counsel about the responsible use of social media, inform their clients that information shared on the clients' social media pages may be used as evidence in current and future cases, and should also apprise clients of the potential serious consequences that could result from spoliation of

evidence.' 85 The consequences of spoliation can be severe, invoking a range of sanctions including adverse inference at trial, assessment of costs and fees, disciplinary action, default judgment, as well as tort and criminal liability. 186 Several cases, ethics opinions, and commentators have weighed in on the spoliation issue.' 87 For example, in a 2013 case tried in a Virginia state court, spoliation of relevant content on the client's Facebook page resulted in an adverse inference instruction at trial, sanctions against the lawyer in the amount of $542,000, and against the client in the amount of $ 18 0 , 0 0 0.188 In the subsequent related disciplinary action before the

Virginia State Bar, the lawyer "entered into an agreed disposition of the

182. Id. R. 3.4(b).

Id. R. 3.4, 5.1 (governing responsibilities of partners and supervisory lawyers), 5.2 183. (governing responsibilities of subordinate lawyers), 5.3 (governing responsibilities regarding assistance by nonlawyers).

184. Id. R. 8.4(a)-(d).

185. Browning, supra note 178, at 763-64; Peter Segrist, How the Rise of Big Data and PredictiveAnalytics Are Changing the Attorney's Duty of Competence, 16 N.C. J.L. & TECH. 527, 531 (2015); John Levin, Social Media-Advising Your Client, CBA REC., Jan. 2015, at 40,40.

186. See, e.g., Browning, supra note 178, at 789; John G. Browning & Al Harrison, "What Is That Doing on Facebook?!": A Guide to Advising Clients to 'Clean Up' Their Social Media Profiles,Hous. LAW., Jan./Feb. 2016, at 26, 26; McPeak, supra note 64, at 871-72, 890-93.

187. See, e.g., Gatto v. United Airlines, Inc., No. 10-CV-1090-ES-SCM, 2013 WL 1285285, at *1 (D.N.J. Mar. 25, 2013); Patel v. Havana Bar, Rest. & Catering, No. 10-1383, 2011 WL 6029983, at *1 (E.D. Pa. Dec. 5, 2011); Lester v. Allied Concrete Co. (Lester I1), Nos. CL08-150, CL09-223, 2011 WL 9688369, at *1 (Va. Cir. Ct. Oct. 21, 2011), aff'd inpart, rev'd inpart, 736 S.E.2d 699 (Va. 2013); Prof'l Ethics Comm. of the Fla. Bar, Proposed Advisory Op. 14-1 (2015); Formal Op. 2014-300, supra note 40, at 7; Phila. Bar Ass'n Prof'l Guidance Comm., Op. 2014-5 (2014); N.Y. Cnty. Lawyers Ass'n Comm. on Prof'l Ethics, Ethics Op. 745, at 3 (2013); N.C. State Bar Ethics Comm., 2014 Formal Ethics Op. 5 (2014); Browning, supra note 178, at 763-64; Browning & Harrison, supra note 186, at 27; Levin, supra note 185, at 40; McPeak, supra note 64, at 888-94.

188. Browning & Harrison, supra note 186, at 26.

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charges against him for engaging in 'dishonesty, fraud, deceit, or misrepresentation,' and his law license was suspended for five yearseffectively ending his legal career."' 89 In another case, the District Court of the Eastern District of Pennsylvania determined that the plaintiffs failure to preserve two relevant Facebook posts constituted spoliation and imposed sanctions.19 ° The court granted a request to have several witnesses be re-deposed at plaintiffs expense, allowed an adverse inference instruction, and assessed approximately $20,000 in costs and fees against the plaintiff. 9 ' As these cases suggest, spoliation violates ethics rules related to preservation of evidence and may result in severe consequences.

G.

UnauthorizedPracticeof Law

Lawyers' use of social media presents the potential of engaging in the unauthorized practice of law. Each of the fifty states has a rule prohibiting the unauthorized practice of law. 9 2 Model Rule of Professional Conduct 5.5 governs the unauthorized practice of law and multijurisdictional practice.'93 With limited exceptions, a lawyer may not engage in the practice of law in a state, unless the lawyer is admitted to practice in that state, and may not assist others in violating this prohibition.' 94 What constitutes the unauthorized practice of law varies between jurisdictions. 95 Consistent with the medium, a lawyer's Internet communications, including those on social media, are not limited by geographical boundaries.' 96 In contrast, a lawyer's ability to practice law is limited by geographical boundaries."' A lawyer engaging in the unauthorized practice of law in one jurisdiction may be 189. Id. at 27 (citing Disciplinary System Actions, VA. ST. B., http://www.vsb.org./profguides/actions.jul 13-dec 13.html (last updated July 9, 2014)).

190. McPeak, supra note 64, at 892-93 (citing Patel v. Havana Bar, Rest. & Catering, No. 10-1383, 2011 WL 6029983, at *1 (E.D. Pa. Dec. 5, 2011)).

191. Id. at 893 (citing Patel, 2011 WL 6029983, at *1).

192. Benjamin H. Barton, The Lawyer's Monopoly-What Goes and What Stays, 82 FORDHAM L. REv. 3067, 3081 (2014).

193. MODEL RULES OF PROF'L CONDUCT R. 5.5 (2015); see generally Thomas E. Spahn, UPL, MDP and MJP (Defining What Lawyers Do and Where They Can Do It): Part I, McGUIREWOODs LLP (Sept. 12, 2012), http://media.mcguirewoods.com/publications/EthicsPrograms/35950817.pdf.

194. MODEL RULES OF PROF'L CONDUCT R. 5.5(a).

195.

Barton, supra note 192, at 3081; Paige A. Thomas, Comment, Online Legal Advice: Ethics in the DigitalAge, 4 ST. MARY'S J. LEGAL MALPRACTICE & ETHICS 440,472-74 (2014).

196. Harvey et al., supra note 133, at 4; Kathleen Elliott Vinson, The Blurred Boundariesof Social Networking in the Legal Field:Just "Face"It,41 U. MEM. L. REv. 355, 397 (2010).

197. Harvey et al., supra note 133, at 4; Stephen M. Sheppard, The American Legal Profession in the Twenty-First Century, 62 AM. J. COMP. L. 241, 246 (Supp. 2014); Vinson, supra note 196, at 397-98.

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subject to disciplinary action in that jurisdiction, as well as in the jurisdictions in which the lawyer is admitted to practice. 198 In light of the fact that providing legal advice on social media may result in unauthorized practice of law charges, lawyers must remain vigilant when communicating online.

IV. CONCLUSION

Social media presents opportunities and challenges for lawyers who want to expand their circle of professional and personal "friends." The opportunities include the potential to increase business development, expand the lawyer's professional network, engage in professional development, and connect with old and new personal "friends." The challenges presented with a lawyer's social media use include the potential for violating numerous ethics rules, among which are the rules governing competence, client confidentiality, conflict of interest, misconduct, and the unauthorized practice of law. Given the interactive nature of social media, as well as the frequent use of anonymous and pseudonymous identities, lawyers must be cautious when communicating with non-clients to avoid inadvertently creating a client-lawyer relationship and creating conflicts of interests.

198. WENDY L. PATRICK, A.L.I. CONTINUING LEGAL EDUC., "WITH 'FRIENDS' THESE": THE ETHICS OF SOCIAL NETWORKING (Jan. 29, 2013).

LIKE

PRIVACY RIGHTS IN A PUBLIC SOCIETY: PROTECTING YOUR CLIENT AND YOURSELF FROM INVASIONS OF PRIVACY

BY REGINALD I. II.

A. HIRSCHt

INTRODUCTION ...........................................579 MODERN PRIVACY RIGHTS IN A PUBLIC SOCIETY .........................

581

III. PROTECTING YOUR CLIENT .......................................

585

A. B.

PrivacyInside the H ome ......................................

586 Privacy Outside the Home .....................................

594 IV . PROTECTING YOURSELF .........................................

600

V . C ON CLU SION .....................................................

609

I.

INTRODUCTION

In 1890, Samuel D. Warren and future Supreme Court Justice Louis D. Brandeis attempted to determine whether the existing law at the time provided a principle that could properly be invoked to protect the privacy of individuals. In their seminal law review article entitled, The Right to Privacy, they wrote:

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual ... the right "to be let alone." Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."1 In the 125 years since they wrote these words, "instantaneous photographs" have moved to hand-held devices, cell phones, and to the virtual world of the intemet and social media. And while technology

t Reginald A. Hirsch is a lawyer with the Law Office of Reginald A. Hirsch in Houston, Texas. The author would like to thank Joseph Anderson, a recent graduate of South Texas College of Law Houston for his invaluable assistance in completing this Article.

1. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890) (footnote omitted).

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continues to rapidly advance, the right "to be let alone" is under constant attack.

It is now becoming more and more important to consider the effects of technology, people's actions and reactions to individuals' privacy rights, and the necessity to protect our clients and ourselves as practitioners.

Attorneys now need to be aware of the possibilities that new technology provides. The newly amended Comment 8 to Model Rule 1.1 of the American Bar Association attests that such awareness is a necessary part of remaining competent: "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associatedwith relevant technology...."'

Audio and video recording devices, computers, GPS tracking devices, cell phones, and social media all provide new sources and forms of information that can be infinitely helpful or detrimental to a client and their case. All of these devices implicate a number of legal, ethical, and evidentiary concerns that must be taken into consideration. This Article attempts to discuss and provide awareness about some of the potential issues that can arise regarding privacy rights in the practice of family law.

First, it is important to understand the right to privacy, in general, and how it is protected in the United States and Texas by our Constitutions, the common law, and different statutes. Courts have long held that the right to privacy "is implicit in the Texas Constitution."3 And a common law right to privacy has existed under Texas law since 1973.' Additionally, several different federal and state statutes protect the privacy rights of individuals.

This Article will discuss how these statutes and various common law causes of action have been applied and attempt to provide a framework for how to protect against, as well as avoid liability for, a number of different forms of privacy invasions.

Next, this Article will discuss some of the different situations where clients' privacy rights can be threatened and how our laws have treated various types of privacy invasions inside and outside of the home. In particular, this Article will address how wiretapping, unauthorized videotaping, breach of computer data, GPS tracking, cell phones, and social media can be used to invade lawyers' and their clients' privacy and can give rise to civil and criminal liability.

2. Model Rules of Prof 1 Conduct r. 1.1 cmt. 8 (2015) (emphasis added).

3.

Collins v. Collins, 904 S.W.2d 792, 797 (Tex. App.-Houston [1st Dist.] 1995, writ denied) (en banc) (citing Tex. State Employees Union v. Tex. Dep't of Mental Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987)).

4. Billings v. Atkinson, 489 S.W.2d 858, 861 (Tex. 1973) ("The right of privacy is a right distinctive in itself and not incidental to some other recognized right for breach of which an action for damages will lie. A violation of the right is a tort.").

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Lastly, this Article will address the legal and ethical duties lawyers have to protect the privacy rights of clients and other individuals, how to protect confidential information, and how to avoid liability for their own actions and the actions of others. The central purpose of this Article is therefore to raise awareness about relevant privacy issues and provide guidance to practitioners in their attempt to maintain privacy and confidentiality in a society where the boundary between public and private information is quickly evaporating.

II. MODERN PRIVACY RIGHTS IN A PUBLIC SOCIETY In order to properly understand how to protect against different types of privacy invasions, it is first important to understand the right to privacy, in general, and how it is protected by the United States and Texas Constitutions, the common law, and different federal and state statutes. In Texas, "[t]he right of privacy has been defined as the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted publicity":' [I]t is the right to be free from the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such manner as to outrage or cause mental6 suffering, shame or humiliation to a person of ordinary sensibilities.

As Warren and Brandeis made clear, the right to privacy is an evolving concept that nevertheless has justifications in the most basic roots of the law.7 As they explained, the idea "[t]hat the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the 8 exact nature and extent of such protection."

Although the word "privacy" appears in neither the United States Constitution nor the Texas Constitution, courts have long held that the right to privacy is implicit in both.9 The right to privacy is also protected under

5. Id. at 859.

6. Id. 7. Warren & Brandeis, supra note 1, at 193.

8. Id. 9. See Griswold v. Connecticut, 381 U.S. 479, 486 (1965) ("We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system."); Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 678 (Tex. 1976) ("The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy,

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the common law.'I The Restatement (Second) of Torts provides that "[o]ne who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other."'" Under the Restatement, liability for invasions of privacy can arise in four separate situations: (2) The right of privacy is invaded by (a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or (b) appropriation of the other's name or likeness, as stated in § 652C; or (c) unreasonable publicity given to the other's private life, as stated in § 652D; or (d) publicity that unreasonably places12 the other in a false light before the public, as stated in § 652E. However, in Texas and several other jurisdictions, there is no separate 13 cause of action for "false light" invasion of privacy.

The right to privacy is also protected by a number of state and federal statutes that impose both civil and criminal liability. In 1986, Congress passed the Electronic Communications Privacy Act (ECPA). 14 The ECPA was passed as an amendment to "Title III of the Omnibus Crime Control and Safe Streets Act of 1968-the federal wiretap law-which until then protected voice, but not electronic, communications from interception."' 5 Prior to passage of the ECPA, "the federal wiretap laws protected only wire (voice) and oral communications from interception," and "Title I of [the] ECPA, the Wiretap Act, extended the federal wiretap law's protections to

or a guarantee of certain areas or zones of privacy, does exist under the Constitution." (quoting Roe v. Wade, 410 U.S. 113, 152 (1973))); Collins v. Collins, 904 S.W.2d 792, 797 (Tex. App.Houston [1st Dist.] 1995, writ denied) (en banc) ("[T]he right of privacy is implicit in the Texas Constitution." (citing Tex. State Employees Union v. Tex. Dep't of Mental Health & Mental

Retardation, 746 S.W.2d 203, 205 (Tex. 1987))).

10. Billings, 489 S.W.2d at 860.

11. Restatement (Second) of Torts § 652A (1977).

12. Id. "Texas did not recognize any of the four types of invasion of privacy until our decision in Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973), which involved the first category of invasion of privacy as developed by Prosser and recognized by the Restatement: an intrusion into the plaintiffs seclusion." Cain v. Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994).

13. Cain, 878 S.W.2d at 579-80 ("We reject the false light invasion of privacy tort for two reasons: 1) it largely duplicates other rights of recovery, particularly defamation; and 2) it lacks many of the procedural limitations that accompany actions for defamation, thus unacceptably increasing the tension that already exists between free speech constitutional guarantees and tort law.").

14. Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2522 (2012).

15. Katherine A. Oyama, Note, E-Mail Privacy After United States v. Councilman: Legislative Options for Amending ECPA, 21 Berkeley Tech. L.J. 499, 499 (2006) (footnote

omitted).

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electronic communications."' 6 Additionally, the ECPA "restructured the earlier law into three major sections: Title I (the Wiretap Act), Title II (the Stored Communications Act[]), and Title III (the Pen Register Act).""7 The Federal Wiretap Act now makes it a crime to intentionally intercept or attempt to intercept "any wire, oral, or electronic communication."18 The Stored Communications Act (SCA) controls access ' 9 to "stored electronic communications maintained by a service provider," and makes it a crime to "access[] without authorization a facility through which an electronic communication service is provided; or ...exceed[] an authorization to access that facility; and thereby obtain[], alter[], or prevent[] authorized access to a wire or electronic communication while it is in electronic storage in such system."2 ° Texas and most other states also have state wiretap statutes that protect against violations of privacy that result when individuals listen to and intercept oral and electronic communications that they are not a party to. 2' Section 16.02 of the Texas Penal Code, for example, makes it a crime to intercept or record a "wire, oral, or electronic communication" without the consent of a party to the conversation.22 And section 123.002 of the Civil Practice and Remedies Code provides that a "party to a communication may sue a person who ... intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept the communication. 2 3 However, the statute also expressly provides that the "section does not apply to a party to a communication if an interception or attempted interception of the communication is authorized by" 18 U.S.C. § 2516, which allows the federal government to intercept oral and wire communications in certain circumstances.24 It is also crime under both Federal and State law to access a computer without the consent of the owner. In particular, the Computer Fraud and

16. Id. at 504 (citing Pub. L. No. 90-351, S. REP. No. 90-1097, at 1 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153; S. REP. No. 99-541, at 1 (1986), reprintedin 1986 U.S.C.C.A.N. 3555, 3565).

17. Id. at 499 (citing Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 25102522 (2012); Stored Communications Act, 18 U.S.C. §§ 2701-2711 (2012); Pen Registers and Trap and Trace Devices Act, 18 U.S.C. §§ 3121-3127 (2012)).

18. 18 U.S.C. § 2511; see also Oyama, supra note 15, at 504 ("Before ECPA, the federal wiretap laws protected only wire (voice) and oral communications from interception.").

19. Oyama, supra note 15, at 506 (citing 18 U.S.C. § 2701).

20. Id. (alterations in original) (quoting 18 U.S.C. § 2701(a)(l)-(2)).

21. See, e.g., TEX. PENAL CODE ANN. § 16.02 (West 2011 & Supp. 2015); New Jersey Wiretapping and Electronic Surveillance Control Act, N.J. Stat. Ann. §§ 2A:156A-1 to -37 (West 2011).

22. Penal § 16.02.

23. Tex. Civ. Prac. & Rem. Code Ann. § 123.002(a) (West 2011).

24. Id. § 123.002(b); 18 U.S.C. § 2516.

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Abuse Act (CFAA) makes it a crime to "intentionally access[] a computer without authorization or exceed[] authorized access" to obtain certain information." Similarly, under Chapter 33 of the Texas Penal Code, it is a Class B misdemeanor to "knowingly access[] a computer, computer network, or computer system without the effective consent of the owner."2 6 "'Effective consent' includes consent by a person legally authorized to act for the owner.. 27 "Owner" is defined as "a person who: ... has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; [or] .. . has the right to

restrict access to the property."28 Also, section 143.001 of the Texas Civil Practice and Remedies Code provides that "[a] person who is injured or whose property has been injured as a result of a violation under Chapter 33, Penal Code, has a civil cause of action if the conduct constituting the 29 violation was committed knowingly or intentionally.

Another statute that protects the privacy rights of individuals, and which now applies to lawyers in Texas, is the Health Insurance Portability and Accountability Act of 1996 (HIPAA).3 ° The statute "was updated in 2010 by the Health Information Technology for Economic and Clinical Health Act (HiTECH)," which "require[s] any business that handles personal health information to comply with [HIPAA] regulations." 31 Furthermore, in 2011, the Texas legislature passed Texas House Bill 300 (HB 300),2 which greatly expanded application of the federal rules under

HIPAA to include "anyone that transmits protected health informationincluding lawyers."33 Therefore, at least in Texas, HIPAA applies to attorneys and anyone else "who engages in the practice of obtaining or transferring protected health information," 34 and as such, attorneys who deal with medical records are now required to comply with HIPAA regulations.3 5 25. Computer Fraud and Abuse Act of 1986, 18 U.S.C. § 1030(a)(2) (2012).

26. Penal § 33.02(a), (b).

27. Id. § 33.01(12).

28. Id. § 33.01(15) (emphasis added).

29. Civ. Prac. & Rem. § 143.001(a).

30. See Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29, and 42 U.S.C.).

31.

Reginald A. Hirsch, Privacy and Confidentiality Issues, in TEXASBARCLE: EDISCOVERY INYOUR CASE ch. 9, at 10 (2014).

32. Tex. H.B. 300, 82d Leg., R.S. (2011) (codified as amended in scattered sections of Tex. Health & Safety Code Ann. §§ 181.001-.207 (West 2010 & Supp. 2015)).

33. Charles E. Hardy & Ann W. Jamieson, The Application of HIPAA to Your Office and Your Clients, in TEXASBARCLE: 39TH ANNUAL MARRIAGE DISSOLUTION INSTITUTE ch. 7,

at 1

(2016).

34. Id. at 7.

35. See, e.g., 42 U.S.C. § 1320d-2(d)(2) (2012) (providing a number of required security standards for entities that handle health information).

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However, these statutes and common law concepts only represent a portion of the relevant body of law that addresses and affects privacy interests. For family law practitioners, the most important considerations are simply those general, legal, and practical issues that can arise in basic, every-day situations in this increasingly public society. This Article attempts to provide some awareness about these situations, how the law has been applied, and thus, how to potentially protect against certain invasions of privacy and avoid liability for these invasions and related statutory violations.

III. PROTECTING YOUR CLIENT Today, just as in 1890, and indeed much more so, "numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops."' 36 The technological advances of the past several decades have dramatically changed society, and they continue to chip away at privacy rights as society's expectations slowly change. In these changing times, it is important to stay informed about the potential pitfalls of technology and how to help protect clients' privacy rights, keep them from being subjected to liability, and observe the duty to keep certain information confidential.

Audio recording devices, video recording devices, computers, GPS tracking devices, cell phones, the internet, and social media can all be used to invade lawyers' and their clients' privacy rights and can give rise to civil and criminal liability. There are countless circumstances where privacy rights can be threatened and liability for privacy invasions can arise. The most critical aspect of all the different protections of privacy provided by the law is that they only apply if there is indeed an actual privacy interest that is being threatened.37 There must be some reasonable expectation of privacy that is capable of being protected or offended.38 This central requirement raises interesting issues in the context of a family law case. On the one hand, the home and the family are some of the

36. Warren & Brandeis, supra note 1, at 195.

37. See Villanova v. Innovative Investigations, Inc., 21 A.3d 650, 654 (N.J. Super. Ct. App. Div. 2011) (citing Restatement (Second) of Torts § 652B cmt. c (1977)).

38. See United States v. Meregildo, 883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012) ("A person has a constitutionally protected reasonable expectation of privacy when they have both a subjective expectation of privacy and that expectation is one that society recognizes as reasonable." (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring))); Pearce v. Whitenack, 440 S.W.3d 392, 402 (Ky. Ct. App. 2014) ("[U]sers would logically lack a legitimate expectation of privacy in the materials intended for publication or public posting." (quoting Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (internal quotation marks omitted))).

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most sacred aspects of life.39 The right to privacy inside the home is one of the most protected privacy rights there is. 40 However, inside the home and between spouses, what is private and what is not? To what extent can a spouse invade another spouse's privacy, and when does liability arise? One key aspect is whether the privacy invasion occurred inside the home or outside of the home. The following sections of this Article provide some helpful examples.

A.

Privacy Inside the Home

Privacy rights between spouses inside their home pose interesting and complex issues. As the Fifth Circuit has explained, "the extent of privacy family members may expect within the home vis-a-vis each other" is a very intimate question.4 1 Nevertheless, almost all courts agree that, even though spouses share "equal rights in the privacy of the bedroom, and the other spouse relinquishes some of his or her rights to seclusion, solitude, and privacy by entering into marriage, by sharing a bedroom with a spouse, and by entering into ownership of the home with a spouse," there is no exception to the right of privacy between spouses, and thus, spouses can certainly violate one another's privacy rights in certain circumstances.42 Unauthorized audio and video recording provide good examples of how the right to privacy still survives between spouses in most circumstances. However, under the Federal Wiretap Act, the Fifth and Second Circuits have recognized an exception for inter-spousal wiretapping.43 In Simpson, the Fifth Circuit held that a husband's use of electronic equipment to intercept telephone conversations between his wife and a third party in the marital home did not violate the Federal Wiretap Act.44 The court explained that, after reviewing the legislative history of the statute, it did not believe that Congress intended to decide "a very intimate question of familial relations, that of the extent of privacy family members

39. See Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir. 1974).

40. See Clayton v. Richards, 47 S.W.3d 149, 155 (Tex. App.-Texarkana 2001, pet. denied) ("When a person goes into the privacy of the bedroom, he or she has a right to the expectation of privacy in his or her seclusion.").

41. Simpson, 490 F.2d at 809.

42. Clayton, 47 S.W.3d at 155.

43. See Simpson, 490 F.2d at 804, 809; Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977).

44. Simpson, 490 F.2d at 804 ("Is the interception by a husband using electronic equipment of the conversations of his wife with a third party over the telephone in the marital home included in the statutory proscription? . . . The district court answered in the negative and we affirm, although the language and legislative history of the Act leaves the question in considerable doubt.").

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' In Anonymous, the may expect within the home vis-a-vis each other."45 Second Circuit likewise assumed "that 'nobody want[ed] to make it a crime' for a father to listen in on conversations between his wife and his eight year old daughter, from his own phone, in his own home."4 6 However, these two opinions from the Second and Fifth Circuits have been widely criticized and rejected by a number of other federal circuit courts, which have found no Congressional intent to except willfully intercepted spousal communications.47 Under section 123.002 of the Texas Civil Practice and Remedies Code, "[a] party to a communication may sue a person who.., intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept the communication" or "uses or divulges information that he knows or reasonably should know was obtained by interception of the communication., 48 However, there is no liability in Texas, under this statute or others, where at least one party to the conversation consents to having the conversation recorded or intercepted.4 9 Furthermore, in Collins v. Collins, the First District Court of Appeals made clear that in Texas there is no exception for inter-spousal wiretapping and contravened the Fifth Circuit's holding in Simpson.5" A majority of the en banc First District Court of Appeals concluded that "spouses, as any other persons, have rights of privacy under both wiretap statutes."5 1 The court noted that "[n]othing in the Texas Constitution or our common law 52 suggests that the right of privacy is limited to unmarried individuals."

Accordingly, the court held that "[n]either the state nor the federal wiretap statutes contain any exception for wiretaps between spouses."5 3

45. Id. at 809.

46. Anonymous, 558 F.2d at 679 ("The facts in the instant case ... present a purely domestic conflict-a dispute between a wife and her ex-husband over the custody of their children-a matter clearly to be handled by the state courts. We do not condone the husband's activity in this case, nor do we suggest that a plaintiff could never recover damages from his or her spouse under the federal wiretap statute. We merely hold that the facts of this case do not rise to the level of a violation of that statute.").

47. See, e.g., Heggy v. Heggy, 944 F.2d 1537, 1539-40 (10th Cir. 1991); Platt v. Platt, 951 F.2d 159, 161 (8th Cir. 1989); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984); United States v. Jones, 542 F.2d 661, 669 (6th Cir. 1976).

48. Tex. Civ. Prac. & Rem. Code Ann. § 123.002 (West 2011).

49. See Kotrla v. Kotrla, 718 S.W.2d 853, 855 (Tex. App.-Corpus Christi 1986, writ ref d n.r.e.).

50. Collins v. Collins, 904 S.W.2d 792, 797 (Tex. App.-Houston [1st Dist.] 1995, writ denied) (en banc).

51.

Id. 52. Id. 53. Id.; see also Kent v. State, 809 S.W.2d 664, 668 (Tex. App.-Amarillo 1991, writ ref d) (holding that there is no exception for inter-spousal wiretapping under the state wiretap statute).

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Likewise, in Clayton v. Richards, the Texarkana Court of Appeals made clear that, in the context of unauthorized video recording, there is also not an exception for invasions of privacy between spouses. 4 The court explained: A spouse shares equal rights in the privacy of the bedroom, and the other spouse relinquishes some of his or her rights to seclusion, solitude, and privacy by entering into marriage, by sharing a bedroom with a spouse, and by entering into ownership of the home with a spouse. However, nothing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals.

As a spouse with equal rights to the use and access of the bedroom, it would not be illegal or tortious as an invasion of privacy for a spouse to open the door of the bedroom and view a spouse in bed. It could be argued that a spouse did no more than that by setting up a video camera, but that the viewing was done by means of technology rather than by being physically present. It is not generally the role of the courts to supervise privacy between spouses in a mutually shared bedroom. However, the videotaping of a person without consent or awareness when there is an expectation of privacy goes beyond the rights of a spouse because it may record private matters, which could later be exposed to the public eye. 55

Accordingly, although the court did note how the Texas Supreme Court has "observed that the United States Constitution does not include a right to privacy in a sexual relationship with a spouse of someone else, ''56 the court held that videotaping a spouse in the marital bedroom without their consent could violate his or her right to privacy.5" Similarly, in a recent case from the Dallas Court of Appeals, Miller v.

Talley Dunn Gallery, LLC, the court addressed the right to privacy between spouses and how different forms of liability can arise for violating a spouse's privacy rights. 8 Towards the end of the couple's marriage, "Miller [the husband] began accessing [his wife] Dunn's cell phone while she was sleeping and taking photographs of text messages."59 He "also placed a digital recording device in Dunn's car to record any conversations she had while in the car and began recording conversations he had with Dunn in 54. Clayton v. Richards, 47 S.W.3d 149, 155-56 (Tex. App.-Texarkana 2001, pet. denied).

55. Id. (citation omitted).

56. Id. at 155.

57. Id. 58. Miller v.Talley Dunn Gallery, LLC,No. 05-15-00444-CV,2016 WL 836775, at *8-10 (Tex. App.-Dallas Mar. 3, 2016, no pet. h.) (mer. op.).

59. Id. at*l1.

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their home. 6 ° On appeal from the trial court's order granting a temporary injunction, the court held that there was a probable right to recovery on nearly all of the plaintiffs' claims, and as such, the court affirmed the temporary injunction as modified.6 Addressing the probable right to recovery under Texas's wiretap statute, the Interception of Communications Act (ICA),62 the court held that "Dunn established she had a probable right to recover on her claims that Miller violated the ICA by intercepting communications through the use of a recording device without the consent of any party to the communication. ' 63 Specifically, the court noted, "Miller admitted ... that he placed a recording device in Dunn's car and recorded Dunn's conversations," and therefore, since "there was no evidence that [either Dunn or] any third-party who was involved in those conversations consented to those recordings," the court held that Dunn had established a probable right to recover on claims under Texas's wiretap statute.64 Next, the court held that Dunn had also established a probable right to 65 recover on her common law claims for invasion of privacy as well.

Although Miller admitted to recording "conversations with Dunn in the privacy of their home and that Dunn was unaware the conversations were being recorded," Miller relied on the fact Texas's wiretap statute only requires the consent of one party to the communication for the recording to be legal. 66 Therefore, Miller argued that, "because he consented to the conversations being recorded, he did not violate the ICA by making the recording," and therefore, Dunn could not succeed on her intrusion upon seclusion claim. 67 The court disagreed: The ICA creates a statutory cause of action for an individual whose communications are intercepted in violation of the ICA. However, there is nothing in the ICA that precludes a common law claim for invasion of privacy - for communications not covered by the ICA. "The right of privacy is a right distinctive in itself and not incidental an action for to some other recognized right for breach of which 68 tort.", a is right the of violation A lie. will damages

60.

Id.

61.

Id. at *1, *11.

62.

63.

64.

65.

Tex. Civ. Prac. & Rem. Code Ann. §§ 123.001-.004 (West 2011).

Miller, 2016 WL 836775, at *9.

Id. Id. at *11.

Id. at*10.

Id. 68. Id. (footnote omitted) (citation omitted) (quoting Billings v. Atkinson, 489 S.W.2d 858, 861 (Tex. 1973)).

66.

67.

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The court further noted that "[a] spouse's actions, whether personally or through an agent, in making a surreptitious recording of the other spouse, who believes she is in a state of complete privacy, could be an invasion of privacy."69 Therefore, since Miller admitted to recording conversations with Dunn in the privacy of their home, the court held that Dunn had "established a probable right to recover on their invasion of privacy claim based on Miller's intrusion upon Dunn's seclusion."7 The court also held that Dunn had established a probable right to recover on her claims under chapter 143 of the Texas Civil Practice and Remedies Code, the Harmful Access by Computer Act (HACA), as well.7 1 Again, chapter 143 "establishes a civil cause of action for a person who has been injured as a result of a violation of chapter 33 [of the Texas Penal Code], if the conduct constituting the violation was committed knowingly or intentionally."72 And "[s]ection 33.02(a) of the penal code provides that a person commits an offense by knowingly accessing a computer without the effective consent of the owner."7 3 Although Miller again admitted "he took screen shots of information contained on Dunn's cell phone," he argued, among other things, "that his conduct did not violate chapter 33 of the penal code because Dunn's cell phone was community property and, therefore, he had effective consent to access the data on the cell phone."74 However, the court again disagreed with Miller's argument: Nothing in chapter 33 of the penal code incorporates community property law for the purpose of establishing ownership of the computer. Rather, the statute defines "owner" as a person who: (1) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; (2) has the right to restrict access to the property; or (3) is the licensee of 75 data or computer software.

Accordingly, because "the evidence established Dunn had a greater right to possession of the cell phone than did Miller," the court held that Dunn had "established a probable right to recover on [her] claims under the HACA. ' '76

69. Id. 70. Id. at*11.

71. Id. 72. Id. (citing Civ. Prac. & Rem. § 143.001(a)).

73. Id. (citing Tex. Penal Code Ann. § 33.02(a) (West 2011 & Supp. 2015)).

74. Id. Notably though, "[n]either party dispute[d] that Dunn's cell phone qualifies as a computer' under the statute." Id. (citing State v. Granville, 423 S.W.3d 399, 405 n.16 (Tex. Crim.

App. 2014)).

75. Id. (citing Penal § 33.01(15)).

76. Id.

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Furthermore, surreptitiously recording a spouse or otherwise violating their right to privacy could even potentially result in liability for intentional infliction of emotional distress when no other remedy is available. In the recent "revenge porn" case from Houston, Patel v. Hussain, a woman sued her ex-boyfriend for "intentional infliction of emotional distress (lIED), intrusion on seclusion, public disclosure of private facts, and defamation," claiming that "after the couple broke up, [the ex-boyfriend] ... hacked or attempted to hack her accounts, and posted secretly recorded sexual videos of [her] on the Internet."77 Although the jury awarded her $75,000 dollars on her lIED claim,7 8 the court of appeals held that the lIED claim "was unavailable as a matter of law."79 The court explained that lIED is merely a "gap-filler" tort that "'has no application when the actor intends to invade 8 some other legally protected interest, even if emotional distress results."

Accordingly, because the court concluded that "the gravamen of Nadia's complaint was fully encompassed by her invasion of privacy claims for intrusion on seclusion and public disclosure of private facts," the court reduced the judgment to remove the damages awarded for lIED. 8' Privacy interests in computers can often present an even more difficult set of circumstances. Again, under Chapter 33 of the Texas Penal Code, it is a Class B misdemeanor to "knowingly access[] a computer, computer82 network, or computer system without the effective consent of the owner." "'Effective consent' includes consent by a person legally authorized to act for the owner. 8 3 And, "[o]wner" is defined as "a person who: ... has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; [or] ... has the right to restrict access to the property."84 Also, section 143.001 of the Texas Civil Practice and Remedies Code provides that "[a] person who is injured or whose property has been injured as a result of a violation under Chapter 33, Penal Code, has a civil cause of action if the conduct constituting the violation was committed knowingly or intentionally."85 Accordingly, in Texas, a person who accesses their spouse's computer without their consent 77.

Patel v. Hussain, 485 S.W.3d 153, 157 (Tex. App.-Houston [14th Dist.] 2016, no pet.

78.

See id. at 171-72.

h.).

79. Id. at 177.

80. Id. at 176 (quoting Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)).

81. Id. at 177. The court also reduced the judgment to remove the damages awarded for defamation. Id. at 174, 184.

82. Tex. Penal Code Ann. § 33.02(a), (b) (West 2011 & Supp. 2015).

83.

Id. § 33.01(12).

84.

Id. § 33.01(15) (emphasis added). It is important to note that this definition may include

individuals who are illegally in possession of the computer. See id. § 33.01(15), (16).

85. Tex. Civ. Prac. & Rem. Code Ann. § 143.001(a) (West 2011).

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is potentially subject to both civil and criminal liability. The case may likely be different if the spouses are joint owners of the computer, or if they regularly use one another's computers, but even still, computer privacy should be taken very seriously.

In Potter v. Havlieek, for example, a husband obtained copies of his wife's emails "by accessing e-mail accounts from web browsers where [his wife] had selected the 'remember me' feature on [the] home computer."8 6 The husband also claimed that "the e-mails collected using the 'remember me' settings were collected at a time when [his wife] knew [he] was using the... computer; knew that [he] had access to the computer, and knew that '87 [he] was seeking [her] personal information from the.., computer.

Accordingly, the husband argued that because his 'Wife knew all of this and "still chose to leave 'remember me' features on so that anyone could start the computer and go to [her] e-mail accounts," she had impliedly consented to the interception of the emails.88 Nevertheless, even assuming his allegations were true, the court still concluded that such actions would not "provide a sufficient basis for a finding of implied consent."89 The court explained that, "'in light of the prophylactic purposes of [the ECPA], implied consent should not be casually inferred,".' 9 ° and thus, "[i]mplied consent is not constructive consent" under the ECPA.91 "'Rather, implied consent is consent in fact which is inferred from surrounding circumstances indicating that the party knowingly agreed to the surveillance.""'92 Therefore, because there was "no evidence that [the wife] knowingly agreed to the surveillance," the court held that there was "a substantial likelihood that Plaintiff could prevail on her claims that [the husband] violated the ECPA."93 Notably, the court did mention in passing that Ohio may recognize an inter-spousal exception to related state law claims.94 But since the court only addressed the claim under the ECPA, the decision did not discuss the issue further.

86. Potter v. Havlicek, No. 3:06-cv-211, 2007 WL 539534, at *2 (S.D. Ohio Feb. 14, 2007) (second, third, fourth, and fifth alteration in original).

87. Id. (alterations in original).

88. Id. at *2, *8 (alteration in original).

89. Id. at *8.

90. Id. (quoting Williams v. Poulos, 11 F.3d 271, 281 (1 st Cir. 1993)).

91. Id. (citing Griggs-Ryan v. Smith, 904 F.2d 112, 116 (1st Cir. 1990)).

92. Id. (quoting Griggs-Ryan, 904 F.2d at 116-17) (internal quotation marks omitted).

93. Id. at *9.

94. Id. at *8. ("The Court notes the case of Beaber v. Beaber, 322 N.E.2d 910 (Ohio Ct.Com.Pl. 1974) . . . .Beaber recognized an interspousal exception to the Ohio and federal wiretap laws .... [1]t followed the Fifth Circuit case of Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974). Several courts have followed Simpson, and many have recognized the holding of Beaber. The Ohio Supreme Court has not seen fit to correct Beaber, and this Court thus concludes from this evidence that the Ohio Supreme Court would likely recognize the existence of an

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However, in White v. White, a New Jersey court held that a wife did not violate the New Jersey Wiretap Act or commit the tort of intrusion on 95 seclusion by accessing e-mails stored on the family computer's hard drive.

First, the court concluded that there was not an inter-spousal exception to the New Jersey Wiretap Act.96 Regarding the wiretap statute, the court concluded that the wife had not accessed the emails "without authorization," because even though "she did not often use the family computer, [she] had authority to do so." 97 Therefore, because she accessed the emails "by roaming in and out of different directories on the hard drive," and did not use the husband's password without his consent, her actions did not violate the statute.98 The court also held that the wife's actions did not amount to an intrusion upon the husband's seclusion. 99 Even though the computer was kept in the sunroom, where the husband slept, the court found that the children and the wife commonly went into the sunroom, "and the entire family had access to [the computer] and used it."1 ° The court thus concluded that the husband had no reasonable expectation of privacy in the contents of the computer."1 Furthermore, the court concluded that "rummaging through files in a computer hard drive" to find evidence of an extra-marital affair was not "highly intrusive," and therefore, the court held that the intrusion upon seclusion claim also failed under the circumstances 102

of the case.

Accordingly, even inside the home, privacy rights continue to be eroded by technological advances. Indeed, in 1968, even the Senate Report on the Omnibus Crime Control and Safe Streets Act directly addressed these concerns: The tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance. Commercial and employer-labor espionage is becoming widespread. It is becoming interspousal exception .... But this is only relevant in the context of Plaintiffs state law claims.

As Plaintiff points out, however, the Sixth Circuit has rejected the Beaber interpretation and does not recognize an interspousal exception to the ECPA." (citations omitted)).

95. New Jersey Wiretapping and Electronic Surveillance Control Act, N.J. Stat. Ann. §§

2A: 156A-1 to -37 (West 2011); White v. White, 781 A.2d 85, 92 (N.J. Super. Ct. Ch. Div. 2001).

96.

97.

98.

99.

100.

101.

102.

See White, 781 A.2d at 88.

Id. at 90.

Id. at 90-91.

Id. at 92.

Id. Id. Id.

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increasingly difficult to conduct business meetings in private. Trade secrets are betrayed. Labor and management plans are revealed. No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word [relative] to each man's personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the 10 3 auditor's advantage.

And even more so than in 1968, or in 1986 when the ECPA was passed, these concerns continue to grow every day. Both inside and out of the home, privacy rights continue to be diminished as society's expectations continuously shift, and even though Congress has attempted to protect against this erosion in the past, it is still the job of attorneys to protect the privacy rights of their clients in many cases, and to shield them from liability whenever possible.

B.

Privacy Outside the Home

Privacy outside of the home and on the internet is a much more tenuous proposition in today's society than the rights one has inside their home. However, some statutes and causes of action still may protect individuals from privacy invasions outside of their houses, and courts have continued to apply these laws to a number of different situations. Under section 16.06 of the Texas Penal Code, it is a Class A misdemeanor to "knowingly install[] an electronic or mechanical tracking device on a motor vehicle owned or leased by another person.""1 4 But licensed private investigators may install a tracking device on a vehicle if they have "written consent... to install the device given by the owner or lessee of the motor vehicle.""1 5 Accordingly, the issue again is who owns the vehicle. By implication then, if a person is the "owner or lessee" of their spouse's car, it 10 6 would most likely be legal for them to place a tracking device on the car.

For example, in Villanova v. Innovative Investigations, Inc., a New Jersey court held that a wife was not liable for intrusion upon seclusion, under New Jersey law, when she placed a GPS tracking device inside the 107 glove compartment of a family vehicle primarily driven by the husband.

103.

United States v. Jones, 542 F.2d 661, 667 (6th Cir. 1976) (alteration in original) (quoting S. Rep. No. 90-1097 (1968), as reprintedin 1968 U.S.C.C.A.N. 2112, 2154).

104. Tex. Penal Code Ann. § 16.06(b), (c) (West 2011).

105. Id. § 16.06(d)(3).

106. See id.

107. Villanova v. Innovative Investigations, Inc., 21 A.3d 650, 651-52 (N.J. Super. Ct. App. Div. 2011). Notably, the vehicle was jointly owned by both the husband and the wife. Id. at 652.

Therefore, at least under Texas law, the wife would most likely not be criminally liable for placing the GPS device in the car. See PENAL § 16.06(b), (d).

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Relying on the Restatement the court first noted that "a defendant is only liable [for intrusion upon seclusion] if he or she intrudes into a private place."1 °8 The court explained that the central consideration is whether there was a reasonable expectation of privacy that was violated, and a "person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his [or her] movements from one place to another." ' 9 The court agreed with the trial court's finding that there was no evidence that the GPS device ever tracked the husband "into a secluded location that was not in public view." 110 According to the evidence in the record, the device only revealed the husband's location "on public ' roadways" and at places "in plain view of the public."1 11 Therefore, the court concluded that the "record simply d[id] not establish that any invasion of [the husband's] right of privacy occurred," and the fact that such an invasion "could have occurred is not sufficient to establish a cause of action ' for the tort of invasion of privacy." 112 Accordingly, the court affirmed summary judgment in favor of the defendants.113 Notably though, in United States v. Jones, the Supreme Court did hold that, while there may not be a reasonable expectation of privacy in the sum of one's movements over time, the government was still required to get a warrant before placing a GPS on the suspect's car in that case because it was still a search under the trespass theory of the Fourth Amendment.114 The recent dispute between Apple, Inc. and the Department of Justice over whether Apple can be ordered to assist federal agents in obtaining access to locked iPhones also sheds some light on the intricate privacy concerns implicated by cell phones and other similar devices.' 15 As one commentator noted, "The clash reflects wider debates in the United States and elsewhere over security measures used by companies to protect users of devices such as smartphones-and how much leverage authorities should

108. Villanova, 21 A.3d at 654 (citing Restatement (Second) of Torts § 652B cmt. c (1977)).

109. Id. at 656-57 (alteration in original) (quoting United States v. Knotts, 460 U.S. 276, 281 (1983)).

110. Id. at 654-55.

111. Id. at 656.

112. Id. at 654, 656; see also Troeckler v. Zeiser, No. 14-cv-40-SMY-PMF, 2015 WL 1042187, at *2-3 (S.D. Ill. Mar. 5, 2015) (discussing and relying on Villanova in reaching a similar result).

113. Villanova, 21 A.3d at 657.

114. See United States v. Jones, 132 S. Ct. 945, 949, 954 (2012) ("We hold that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search."').

115. See generally Joe Palazzolo, Bites from the Apple Order, in Plain English, Wall St. J. L. Blog (Mar. 1, 2016, 9:59 AM), http://blogs.wsj.conlaw/2016/03/01/bites-from-the-apple-orderin-plain-english.

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have to gain special access."1'16 Apple claims "that it is unable to unlock its newer iPhones for law enforcement, even when officers obtain a warrant, because they are engineered in such a way that Apple does not hold the decryption key."'1 17 Nevertheless, a federal magistrate judge in California has ordered Apple to cooperate with the federal agents by developing software to bypass security features.1 18 Apple has vowed to challenge the order though, and in a similar case pending in New York, another federal magistrate judge in Brooklyn refused to issue a nearly identical order and sided with Apple over the government." 9 Although the Department of Justice was ultimately able to gain access to the phones at issue in the California case through the use of third party software, 1E0 the government still needs Apple's help accessing the phones at issue in the New York case and other cases, and thus, the government has stated that it intends to appeal the New York District Court's order denying its request. 2 1 Obtaining copies of text messages from the telephone company also raises similar privacy concerns. The Supreme Court's recent decision in Riley v. California firmly established that individuals have a reasonable expectation of privacy in the data on their cell phones, 122 but it is not entirely clear whether text messages are subject to an equally reasonable expectation of privacy. 123 The Stored Communications Act (SCA) provides that an electronic communications service provider "shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service. , 12 1 In essence, the SCA prohibits cell phone service providers from providing text messages to individuals or 116. Ellen Nakashima, Apple Vows to Resist FBI Demand to Crack iPhone Linked to San Bernardino Attacks, Washington Post (Feb. 17, 2016), https://www.washingtonpost.com/world/national-security/us-wants-apple-to-help-unlock-iphoneused-by-san-bernardino-shooter/2016/02/16/69b903ec-d4d9-1 I e5-982302b905009f99_story.html.

117. Id. 118.

Id.

119. See Palazzolo, supra note 115.

120. See Laurie Segall, Jose Pagliery & Jackie Wattles, FBI Says It Has Cracked Terrorist's iPhone Without Apple's Help, CNNMoney (Mar. 29, 2016, 9:36 AM), http://money.cnn.com/2016/03/28/news/companies /fbi-apple-iphone-case-cracked/?iid=EL. 121.

Shara Tibken & Jon Skillings, Feds Renew Pushfor Apple's Help Cracking iPhone in NrY Case, CNET (Apr. 9, 2016, 2:05 AM), http://www.cnet.com/au/news/feds-renew-push-forapples-help-cracking-iphone-in-ny-case/.

122. See Riley v. California, 134 S. Ct. 2473, 2494-95 (2014) ("Modem cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold

for many Americans 'the privacies of life."').

123. See City of Ontario v. Quon, 560 U.S. 746, 759-60 (2010) ("Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employerprovided communication devices.").

124. 18 U.S.C. § 2702(a)(1) (2012).

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entities who were not the "addressee or intended recipient" of the text messages. 125 In other words, unless a husband or wife was a party to certain text messages, they are not permitted to obtain copies of those text messages from the cell phone company under the SCA, and under section 126 2707, they may be subject to civil liability for any violation of the statute.

However, the act distinguishes between "electronic communication service" (ECS) providers and "remote computing service" (RCS) providers.' 27 A "remote computing service" is defined as "computer storage or processing services by means of an electronic communications system." 12' Both ECS and RCS providers "can release private information to, or with the lawful consent of, 'an addressee or intended recipient of such communication,' "129 but "only an RCS can release such information 'with the lawful consent of... the subscriber."'130 In particular, the statute provides that a service provider may provide the contents of communications to people "with the lawful consent of... the subscriberin ' In other words, the case of remote computing service."131 an ECS provider can only release information if a party to the communication consents, but an RCS provider can also release information if the subscriber consents.132 Accordingly, the critical issue when it comes to obtaining copies of text messages is whether the cellphone company is an ECS or RCS provider. In Quon, the Ninth Circuit held that a cellphone service provider was an ECS provider, rather than an RCS provider, and therefore, only the individuals who sent and received the text messages at issue could consent to their release.' 33 The court concluded that, because the cellphone service provider "served as a conduit for the transmission of electronic communications from one user to another, and stored those communications as a 'backup' for the user," it was "more appropriately categorized as an ECS than an RCS."' 134 The court thus held that when the cellphone service provider in the case "knowingly turned over the textmessaging transcripts to the City, which was a 'subscriber,' not 'an addressee or intended recipient of such communication,' it violated the

125. Id. § 2702(b)(1).

126. See id. §§ 2702(a), (b), 2707(a).

127. Id. § 2702(a).

128. Id. § 2711(2).

129. Quon v. Arch Wireless Operating Co., 529 F.3d 892, 900 (9th Cir. 2008) (emphasis added) (quoting 18 U.S.C. § 2702(b)(1), (b)(3)), rev'd on other grounds sub nom. City of Ontario v. Quon, 560 U.S. 746 (2010).

130. Id. (emphasis added) (quoting 18 U.S.C. § 2702(b)(3)).

131.

18 U.S.C. § 2702(b)(3) (emphasis added).

132. Id. § 2702(b)(1), (b)(3).

133.

Quon, 529 F.3d at 902-03.

134. Id. at 902 (internal quotation marks omitted).

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' SCA."135 Under the SCA, therefore, it is very likely that a person attempting to obtain copies of text messages from the service provider must have consent of one of the parties to the text messages.

However, in Garcia v. City of Laredo, a case from the Southern District of Texas, the district court made a "distinction between accessing information on a network versus accessing information on a user's device," and held that "[t]he SCA does not apply to information that is already ' Also, in Mintz v. Mark Bartelstein & Assocs., stored on a cell phone."136 Inc., another district court held that, although the SCA generally prohibits the service provider "from disclosing the content of any text messages to Defendants pursuant to a subpoena, the SCA does not prevent Defendants from obtaining this information through other means. ' Accordingly, the court explained that the SCA does not prohibit a party from serving a request for production on another party to a lawsuit and requesting that 138 they, themselves, obtain and produce copies of text messages.

Another interesting issue is whether "private" posts on social media are protected and whether they are discoverable as evidence. While people generally "have a reasonable expectation of privacy in the contents of their home computers, ....this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet or by e-mail. ' 139 Nevertheless, at least two courts have held that the private messages and posts on social media are protected communications under

the SCA.

140

Similarly, for there to be a common law cause of action for invasion of privacy relating to someone's social media account, the central issue again becomes whether individuals have a reasonable expectation of privacy.

Somewhat analogous to the cases dealing with protection of stored

135. Id. at 903 (quoting § 2702(a)(1)).

136. Garcia v. City of Laredo, No. 5:10-cv-30, 2011 WL 9559236, at *5 (S.D. Tex. Sept. 1, 2011).

137. Mintz v. Mark Bartelstein & Assocs., Inc., 885 F. Supp. 2d 987, 994 (C.D. Cal. 2012) (citing Flagg v. City of Detroit, 252 F.R.D. 346, 366 (E.D. Mich. 2008)).

138. Id. 139. United States v. Meregildo, 883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012) (citing United States v.Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004); Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001)).

140. Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 666 (D.N.J. 2013) ("[T]he Court finds that Facebook wall posts fall within the purview of the SCA."); Crispin v.

Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010) ("With respect to webmail and private messaging, the court is satisfied that those forms of communications media are inherently private such that stored messages are not readily accessible to the general public. .

With respect to the subpoenas seeking Facebook wall postings and MySpace comments, however, the court concludes that the evidentiary record presented to Judge McDermott is not sufficient to determine whether the subpoenas should be quashed.").

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communications under the SCA, one court explained it may depend on the user's privacy settings: Facebook-and social media generally-present novel questions regarding their users' expectations of privacy. Facebook users may decide to keep their profiles completely private, share them only with "friends" or more expansively with "friends of friends," or disseminate them to the public at large. Whether the Fourth Amendment precludes the Government from viewing a Facebook user's profile absent a showing of probable cause depends, inter alia, on the user's privacy settings.

When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment. However, postings using more secure privacy settings reflect the user's intent to preserve information as private and may be constitutionally protected. 141 Relying on this reasoning, a Kentucky court of appeals also held that an individual did not have a reasonable expectation of privacy in the comment he posted on Facebook because "he chose to post his comment on a public forum.

' 142

Even though it was not clear from the record whether

the plaintiffs comment was "on a public or private area of [his] Facebook page," the court reasoned that, "as with all internet communications, [he] ran the risk that even a posting or communication he intended to remain private would be further disseminated by an authorized recipient."' 4 3 Therefore, the court concluded that he did not have a reasonable expectation of privacy in the comment he posted on his Facebook page. 144 Accordingly, the court held that dismissal of his intrusion upon seclusion claims was proper. 145 However, courts have also held that, even assuming Facebook posts are private, they still may be discoverable.146 In Perrone, for example, the court ordered the plaintiffs to give their "user name and password information" to a "neutral forensic computer expert" so the expert could 141. Meregildo, 883 F. Supp. 2dat 525 (citations omitted).

142. Pearce v. Whitenack, 440 S.W.3d 392, 401 (Ky. Ct. App. 2014).

143. Id. at 402 ("[U]sers would logically lack a legitimate expectation of privacy in the materials intended for publication or public posting ...." (quoting Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001)) (internal quotation marks omitted)).

144. Id. 145. Id. 146. See, e.g., Order, Perrone v. Rose City HMA, LLC, No. Cl-i 1-14933 (Pa. Ct. Com. P1.

May 3, 2013), 2013 WL 4011622, at *1; Order, Barnes v. CUS Nashville, LLC, No. 3:09-cv00764 (M.D. Tenn. June 3, 2010), 2010 WL 2265668, at *1; see also Katerina Milenkovski, "Private" Postings Nevertheless Discoverable, Litig. News (Aug. 2, 2013), https://apps.americanbar.org/litigation/litigationnews/top-stories/080213-private-postsdiscoverable.html.

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"access the private portion of Plaintiffs' Facebook social networking account and... download the contents of the Facebook account to [a] hard drive" for the expert to review and look for any relevant pictures or comments.147 Similarly, in Barnes, a federal judge "offered to 'friend' the [parties] and conduct an in camera review of their Facebook pages, after which he would disseminate to both parties those records he deemed relevant." 4 ' Additionally, in two Texas criminal cases, Tienda v. State, decided by the Texas Court of Criminal Appeals, and Bradley v. State, decided by the Fourteenth District Court of Appeals, the courts upheld the use of pictures and posts from the defendants' MySpace and Facebook pages as evidence to support their convictions. 149 As the court in Bradley noted, these "[v]ast online photo databases-like Facebook-and relatively easy access to them will undoubtedly play an ever-increasing role in identifying and prosecuting suspects,"15 and the growing significance of these databases is equally important in all other cases as well-criminal and civil alike.

Again, the unique and constantly evolving privacy concerns that arise in our exceedingly public society today must always be kept in mind, and as attorneys and fiduciaries, we have a responsibility to try and protect the rights of our clients in every way that we can. These different scenarios will continue to arise, and new more tenuous situations will also continue to arise in the future. The main concern is to try and remain competent in all areas of the law, and do everything reasonably possible to be aware of the different situations that can threaten the rights of clients, as well as our own.

The next section of this Article attempts to provide some guidance and awareness about how to protect our own rights and how to avoid liability for our own actions and the actions of others in this constantly changing area of the law.

IV. PROTECTING YOURSELF While protecting the rights of clients is a primary concern for attorneys, it is still, obviously, almost equally important to protect ourselves from privacy invasions and liability that can arise as a result of our own actions and those of our clients, our agents, and our employees. One major issue is whether it is ethical for lawyers to record their conversations

147. Order, Perrone,No. CI-11-14933, 2013 WL 4011622, at *1.

148. Milenkovski, supra note 146 (discussing Order, Barnes, No. 3:09-cv-00764, 2010 WL 2265668, at *1).

149. See Tienda v. State, 358 S.W.3d 633, 637 (Tex. Crim. App. 2012); Bradley v. State, 359 S.W.3d 912, 918 (Tex. App.-Houston [14th Dist.] 2012, pet. ref'd).

150. Bradley, 359 S.W.3dat 918.

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without providing notice or obtaining the consent of the other parties to the conversation. First, it is important to note, again, that the undisclosed recording of conversations is legal under both Texas and federal law as long as at least one party to the conversation consents.15 1 Thus, it would not necessarily be a crime for lawyers to record their own conversations without the consent of the other party. 5 2 However, in Texas, whether or not this is unethical is a more difficult question and the answer has changed at least twice.153 In particular, the Texas Professional Ethics Committee "has undisclosed recording of telephone considered the question of a lawyer's 1 54 conversations" four separate times.

In 1953, the Committee first considered the issue in Opinion 84 and unanimously "ruled that the undisclosed recording by a lawyer of his 155 telephone conversations was not a violation of the Canons of Ethics.However, in 1978, the Committee considered the question again in Opinion 392 and overruled Opinion 84.156 The Committee ruled that, under the Texas Code of Professional Responsibility applicable at the time, a lawyer's undisclosed recording of his telephone conversations "offends the sense of honor and fair play of most people," and therefore, the Committee explained that, normally, "no attorney should electronically record a conversation with another party, without first informing that party that the ' conversation is being recorded."157 Revisiting the issue again in 1996, the Committee reaffirmed Opinion 392, in Opinion 514, this time under the then new Rule 8.04(a)(3) of the Texas Rules of Professional Conduct.158 However, after reaffirming Opinion 392 under the new Rules, the Committee also considered "whether an attorney can ethically advise a client to electronically record a telephone conversation to which the client is a party, without first informing all other parties involved. 1 59 Noting first that "[b]oth Texas and federal law permit a party to a conversation to tape record that conversation without first informing the other parties that the conversation is being recorded," the Committee explained that "[a]n attorney is required to provide his or her client with both an accurate statement of the law, and an honest opinion of 151. See Tex. Penal Code Ann. § 16.02 (West 2011 & Supp. 2015); Tex. Comm. on Profl Ethics, Op. 514, 59 Tex. B.J. 181, 181 (1996) (citing 18 U.S.C. § 2511(2)(d) (1994); Tex. Penal Code Ann. (Vernon 1986)).

152. See Tex. Comm. on Profl Ethics, Op. 514, supra note 151, at 181.

153. See Tex. Comm. on Prof'l Ethics, Op. 575, 70 Tex. B.J. 265, 265 (2006).

154. Id. 155. Id.; Tex. Comm. on Profl Ethics, Op. 84, 16 Tex. B.J. 701, 701 (1953).

156. See Tex. Comm. on Profl Ethics, Op. 392,41 Tex. B.J. 580 (1978).

157. Id. at 580.

158. Tex. Comm. on Profl Ethics, Op. 514, supra note 151, at 181.

159. Id.

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the consequences likely to result from a particular course of conduct. 160 Accordingly, the Committee concluded that, while an attorney may advise their client that undisclosed recording of conversations was not against the law, "[a]n attorney may not solicit the aid of his or her clients to undertake 1 61 an action that the attorney is ethically prohibited from undertaking.

However, in 2006, in Opinion 575, the Committee overruled Opinions 392 and 514, and ruled that "absent more, a Texas lawyer's undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(a)(3).' 1 62 Relying on Formal Opinion 01-422 of the American Bar Association Standing Committee on Ethics and Professional Responsibility, 163 the Committee ruled that "the undisclosed recording of telephone conversations" by lawyers in Texas should not violate the rules of professional conduct: The Texas Disciplinary Rules of Professional Conduct do not prohibit a Texas lawyer from making an undisclosed recording of the lawyer's telephone conversations provided that (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute a serious criminal violation under the laws of any jurisdiction applicable to the telephone conversation recorded, and (4) the recording is not contrary to a representation made by the 64 lawyer to any person.'

Accordingly, the Texas Committee joined the ABA and other state committees by overruling its prior opinions that held undisclosed recording of conversations as unethical, and as such, it is now generally considered ethical for lawyers to record their conversations without the consent of 16 5 others.

In addition to being careful about what is said on the phone, lawyers may also need to be careful about what they say at or near the courthouse.

In November 2015, attorneys for the defendants in United States v.

160. Id. (citing 18 U.S.C. § 2511(2)(d) (1994); Tex. Penal Code Ann. (Vernon 1986)).

161. Id. (citing Tex. Disciplinary Rules Prof l Conduct R. 8.04(a)(1), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (West 2013) (TEX. STATE BAR R. art. X, § 9)).

162. Tex. Comm. on Prof I Ethics, Op. 575, supra note 153, at 266.

163. ABA Comm. on Ethics & Prof I Responsibility, Formal Op. 01-422 (2001). In Formal Opinion 01-422, the ABA Committee withdrew a prior opinion to the contrary and held that "[a] lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules [of Professional Conduct]." Id. 164. Tex. Comm. on Prof'l Ethics, Op. 575, supra note 153, at 266.

165.

Id. at 265.

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Giraudo,166 a case involving fraud in public foreclosure auctions pending in the Northern District of California, claimed that "FBI agents planted electronic recording devices outside the San Mateo County courthouse 1to 67 secretly record private conversations among the alleged co-conspirators."

From December 2009 to September 2010, the defense attorneys claimed that "government agents planted microphones in three locations near the entrance of the courthouse... inside a metal sprinkler box attached to the '168 More wall, in a large planter box and in vehicles parked on the street. than 200 hours of conversations were allegedly recorded without any legal 169 authorization.

Accordingly, the attorneys moved to suppress the recordings, claiming that the government's "unauthorized use of recording devices to capture private conversations ... violated Defendants' Fourth Amendment rights" as well as the Federal Wiretap Act. 17 1 Specifically, the motion argues, "Society recognizes that judges, lawyers, and other citizens frequently have private and privileged conversations near the courthouse, and it is reasonable to expect that such conversations will not be subject to interception." 171 Although "we do not have to assume that as soon as we leave our homes we enter an Orwellian world of ubiquitous hidden microphones," as the motion puts it, the case certainly does make clear that our privacy rights can even be threatened by the government without authorization, and even while we discuss confidential, privileged matters with a client at the courthouse. 172 Additionally, another major concern is what to do when a client or an agent you have hired invades the privacy rights of others. First, it is important to note that, in some circumstances, statutory or common law liability for invasions of privacy does not, on its own, affect the

166. United States v. Giraudo, No. 3:14-cr-00534-WHO, 2014 WL 10890796, at *16 (N.D. Cal. Oct. 21, 2014).

167. Kurt Orzeck, Latham Attys Say FBI Illegally Bugged Courthouse, Law 360 (Nov. 17, 2015, 4:35 PM), http://www.law360.com/articles/728051/latham-attys-say-fbi-illegally-bugged-

courthouse.

168. Ross Todd, Defense Claims Courthouse Was Illegally Bugged, Recorder (Nov. 16, http://www.therecorder.com/id=1202742595279/Defense-Claims-Courthouse-Was2015), = Illegally-Bugged?mcode=0&curindex=0&curpage l.

167.

169. Orzeck, supra note 170. Defendants' Notice of Motion and Motion to Suppress Evidence; Memorandum of Points and Authorities at 4, United States v. Giraudo, No. 3:14-cr-00534-CRB (N.D. Cal. Nov. 13, 2015), ECF No. 58 (citing U.S. CONST. amend. IV; Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2522 (2012)).

171. Id. at 2 (citing Kee v. City ofRowlett, 247 F.3d 206, 215 n.18 (5th Cir. 2001)).

172. Id. at 1 (quoting Wesley v. WISN Div.-Hearst Corp., 806 F. Supp. 812, 814 (E.D. Wis. 1992)).

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admissibility of evidence discovered as a result of the privacy invasion. 173 For example, "[t]he ECPA does not provide an independent statutory remedy of suppression for interceptions of electronic communications. 174 Again, attorneys have the duty to provide clients "with both an accurate statement of the law, and an honest opinion of the consequences likely to result from a particular course of conduct.117 5 Failure to properly adhere to this duty is a violation of the Code of Professional Conduct. 176 Thus, while an attorney may advise his or her client that some act is not against the law, "[a]n attorney may not solicit the aid of his or her clients to undertake an action that the attorney is ethically prohibited from undertaking."' 177 Likewise, any involvement in activity that results in criminal or civil liability to others would likewise subject the attorney to the 78 same liability or at least a lesser version thereof.1 However, lawyers also "have a duty to use due diligence in the hiring and oversight of private investigators" and other agents, and depending on the circumstances, lawyers could even be subject to vicarious liability for the acts of their agents, regardless of whether the attorney was involved in the conduct. 179 For example, in United States v. Christensen, the Ninth Circuit affirmed an attorney's conviction and three-year prison sentence for "conspiracy and interception of wire communications in violation of 18 U.S.C. § 371 and 18 U.S.C. § 2511(1)(a). ' '18° In Christensen, a private investigator, his client, a police officer, a telephone company technician, a software developer, and an attorney were all convicted of various "wiretapping, computer fraud, honest services fraud, identity theft, and conspiracy offenses." 18 '

173. See, e.g., United States v. Meriwether, 917 F.2d 955, 960 (6th Cir. 1990) ("[W]e cannot under the ECPA grant appellant's requested remedy-suppression."); Potter v. Havlicek, No. 3:06-cv-211, 2007 WL 539534, at *6 (S.D. Ohio Feb. 14, 2007) (holding that evidence obtained in a divorce case through the use of spyware could be admitted).

174. Meriwether, 917 F.2d at 960.

175.

Tex. Comm. on Profl Ethics, Op. 514, supra note 151, at 181.

176. See id.

177. Id. (citing Tex. Disciplinary Rules Prof l Conduct R. 8.04(a)(1), reprinted in TEX. GOv'T CODE ANN., tit. 2, subtit. G, app. A (West 2013) (TEX. STATE BAR R. art. X, § 9) (discussing violations of the disciplinary rules through the acts of others)).

178. See Tex. Penal Code Ann. § 7.02 (West 2011); Clayton v. Richards, 47 S.W.3d 149, 154 (Tex. App.-Texarkana 2001, pet. denied) ("The general rule in Texas is that those who pursue a common plan or design to commit a tortious act, actually take part in it or further it by cooperation or request, or to lend aid to the wrongdoer, or ratify or adopt his act are also liable for the tortious act.").

179. See Reginald A. Hirsch, Spy vs. Spy: The Legality of Using Wiretaps,Spyware, GPS and Other Eavesdropping Technologies, in TEXASBARCLE: SOAKING UP SOME CLE COURSE ch. 11, at 11 (2010).

180. United States v. Christensen, 801 F.3d 970, 1020 (9th Cir. 2015).

181.

Id.at980-81.

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The private investigator, Anthony Pellicano, had allegedly been running a "widespread criminal enterprise offering illegal private '18 2 An extensive FBI investigation services in Southern California." investigation into Pellicano and his company, PIA, eventually led to the indictment of six defendants on several different charges including numerous violations of the Racketeer Influenced and Corrupt Organizations Act.' 83 All of the defendants were convicted, including two of PIA's clients, Abner Nicherie and an attorney, Terry Christensen.184 In particular, Christensen had hired PIA to wiretap his client's ex-wife 85 The court ultimately in connection with a child support dispute.' concluded that Christensen had made an "illegal attempt to obtain intimate personal information about an opponent in litigation as part of his ' Accordingly, the court held that the attorney-client preparation for trial."186 and work product privileges did not apply to Christensen's conversations with Pellicano (which were recorded by Pellicano and eventually used to obtain a warrant to seize the recordings PIA made for Christensen), and 87 therefore, his conviction and three-year prison sentence were affirmed.'

Similarly, in a much older case, Noble v. Sears, Roebuck & Co., a California appellate court held that an attorney who hires "a detective agency for either a single investigation or for the protection of property, may be liable for the intentional torts of employees of the private detective 188 ' agency committed in the course of employment." It is not clear whether Texas would adopt this approach, but it is important to be cautious when 189 hiring private investigators and other agents to work on a case.

Furthermore, it is also important to note that, in most cases, "[i]ntentional [t]orts are not covered by malpractice insurance."' 90 In addition to properly advising clients about the risks involved in potentially invading others' privacy rights and properly supervising agents and employees, it is important to understand how to respond when a client likely has invaded another person's privacy rights. For example, as previously discussed, spouses cannot take or access their spouse's computer, or the information on that computer, without their spouse's

182.

183.

184.

185.

186.

187.

188.

189.

Id. at 980.

Id. at 981.

Id. at 982.

Id. at 983.

Id. at 1010.

Id. at 1002-03, 1020.

Noble v. Sears, Roebuck & Co., 109 Cal. Rptr. 269, 274 (Ct. App. 1973).

Hirsch, supra note 179, at 11.

190.

Id.

606

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consent in most circumstances.1 91 When presented with a situation like this, where a client accesses a computer located in their home and comes across or obtains information regarding their spouse's activities, "the practitioner should immediately contemplate the following: Was the client's access to the computer in her residence legal? If it was not, what kind of trouble am I in, if any, just by looking at the material my client obtained from the computer?" 192 In answering these questions, all of the relevant circumstances should be considered, 93 and again, the key considerations are whether the spouse maintained a reasonable expectation of privacy in the area the computer was located and whether there was a reasonable expectation of privacy in the computer itself. 194 Confidentiality considerations are also an important part of protecting the privacy rights of individuals, and both state and federal law protects the confidentiality of certain information. For example, the Texas Disciplinary Rules of Professional Conduct prohibit revealing confidential information to certain people: The Texas Disciplinary Rules of Professional Conduct make it clear that lawyers shall not knowingly "reveal confidential information of a client or a former client to (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the client's representatives, or the members, associates, or employees of a lawyer's law firm." 195 Confidential information can include "both 'privileged information' and 'unprivileged client information."' 196 This would generally include "protected health information" as well, "and as such, lawyers should

191. See Potter v. Havlicek, No. 3:06-cv-211, 2007 WL 539534, at *8-9 (S.D. Ohio Feb. 14, 2007); see also discussion supra Part III.A. 192. Hirsch, supra note 3 1, at 3.

193. Id. at 3-4 ("In order to answer these questions, all relevant criteria should be examined and weighed: 1. Where in the home was the computer located? 2. Was it in the spouse's private office, or was it in a main area of the house? 3. Was the computer or the document that was viewed password protected? If so, was the password kept secret by the spouse and not disclosed to others, or did other members of the household have access to the password? 4. Was the computer used by other family members or 3rd parties? 5. Was the computer a personal or business computer? 6. Was it used by the accessing spouse regularly or infrequently, or not at all?").

194. Id.; see also White v. White, 781 A.2d 85, 92 (N.J. Super. Ct. Ch. Div. 2001) (holding wife did not violate wiretap statute or commit tort of intrusion on seclusion by accessing e-mails stored on family computer's hard drive because family frequently used computer and went into room where computer was located).

195. Hardy & Jamieson, supra note 33, at 1 (quoting TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.05, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (West 2013) (TEX. STATE BAR R. art. X, § 9).

196. Id. ("'Privileged Information' refers to client information that is protected under the lawyer-client privilege. 'Unprivileged Client Information' is client information that is not privileged but was provided by the client and provided in the course of representation.").

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already be utilizing safeguards to protect this information."19' 7 Additionally, Chapter 521 of the Texas Business and Commerce Code requires businesses, including attorneys, to "implement and maintain reasonable procedures, including taking any appropriate corrective action, to protect [individuals] from unlawful use or disclosure [of] any sensitive personal information collected or maintained by the business in the regular course of with such business." '98 Businesses are also required to "destroy documents '1 99 encryption." or erasing, shredding, by information sensitive Moreover, given the recent amendments to HIPAA, the addition of HiTECH, and the enactment of HB 300,200 attorneys in Texas now must also comply with state and federal regulations regarding the protection and handling of health care information.2 1 Again, HIPAA "requires releases for obtaining medical records and information frequently sought during family law disputes."20 2 The statute was also "updated in 2010 by the Health Information Technology for Economic and Clinical Health Act (HiTECH)," which "require[s] any business that handles personal health information to comply with [HIPAA] regulations. ,203 While some scholars believe this added section of HIPAA does not expand coverage to include attorneys,20 4 Texas's enactment of HB 300 now undoubtedly expands HIPAA regulations to attorneys in Texas. 20 5 Again, by passing HB 300, "the Texas legislature greatly expanded the definition [of 'covered entity'] to include numerous entities outside of the health care industry. ' 20 6 Specifically, the new Texas version of the statute expands the definition of "covered entity," and thus the application of HIPAA, as follows: "Covered entity" means any person who: (A) for commercial, financial, or professional gain.., engages, in whole or in part, and with real or constructive knowledge, in the practice of assembling, collecting, analyzing, using, evaluating, storing, or transmitting protected health information....

(B) comes into possession of

protected health information; (C) obtains or stores protected health information under this chapter; or (D) is an employee, agent, or contractor of a person described by Paragraph (A), (B), or (C) insofar 197. Id. 198. Tex. Bus. & Com. Code Ann. § 521.052 (West 2015).

199. Hardy & Jamieson, supra note 33, at 1 (citing Bus. & Com. § 521.052).

200. See supra text accompanying notes 30-35.

201. Hardy & Jamieson, supra note 33, at 1.

202. Hirsch, supra note 31, at 10.

203. Id. 204. Hardy & Jamieson, supra note 33, at 7 ("It is important to note that the rules make it clear that HIPAA only applies to covered entities and business associates and after a review of these definitions, it is clear that lawyers are not covered by HIPAA .....

205. id. at 7-8.

206.

Id. at 8.

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as the employee, agent, or contractor creates, receives, obtains, 20 7 maintains, uses, or transmits protected health information.

Consequently, attorneys in Texas are now required to comply with HIPAA regulations, as well as similar state regulations.

For example, in addition to many other regulations, HIPAA requires compliance with the following security regulations: Each person described in section 1320d-l(a) of this title who maintains or transmits health information shall maintain reasonable and appropriate administrative, technical, and physical safeguards(A) to ensure the integrity and confidentiality of the information; (B) to protect against any reasonably anticipated(i) threats or hazards to the security or integrity of the information; and (ii) unauthorized uses or disclosures of the information; and (C) otherwise to ensure compliance with this part by the officers 20 8 and employees of such person.

In addition to requiring compliance with HIPAA regulations and other federal laws, Texas's version also requires each covered entity to "provide training for its employees regarding the state and federal law on protected '20 9 health information as is appropriate for that employee's specific duties.

Accordingly, attorneys should be careful to make sure that if, and when, they handle medical records, they are complying with HIPAA and state regulations,2 10 and this generally may also include special training for employees and special security safeguards.

In all of the situations discussed above, the best defense against any form of liability or privacy invasion is again to keep ourselves, our clients, and our employees informed about the potential concerns that may arise.

With respect to privacy rights, this requires awareness of things outside the law. Awareness of technological advances and their implications is critical to the effective practice of law.

207. Id. (quoting TEX. HEALTH & SAFETY CODE ANN. § 181.001 (West 2010 & Supp.

2015)).

208. 42 U.S.C. § 1320d-2(d)(2) (2012).

209. Hardy & Jamieson, supra note 33, at 8 (citing HEALTH & SAFETY § 181.101 (West Supp. 2016)).

210. See Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (per curiam); Sacks v. Hall, No. 01-13-00531-CV, 2014 WL 6602460, at *14-15 (Tex. App.-Houston [lst Dist.] Nov. 20, 2014, no pet.) (mem. op.) (holding that HIPAA does not preempt litigation privilege).

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V.

CONCLUSION

As the Model Rules suggest, "a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associatedwith relevant technology," in order to remain competent as a practicing attorney. 211 One of the principal risks associated with the recent growth in technological advances is undoubtedly the implications they have on privacy rights, and as always, "it has been found necessary from time to time to define anew the exact nature and extent" to which privacy rights are protected. 2 12 And as society continues to become more interconnected through use of the internet and a number of other technologies like computers, cell phones, GPS devices, and social media, privacy rights continue to be challenged just as they were over 125 years ago when Warren and Brandeis wrote their article that began the evolution of modem privacy rights. Attorneys need to be aware of the risks and benefits involved and be prepared to defend against the common dangers that can arise. The key concern is not only to remain constantly vigilant in our own education and practice, but also to advise our clients and employees on what not to do.

The implications extend far beyond the admissibility of evidence, and hopefully, the concepts discussed in this Article provide a helpful framework and how to react to certain situations.

211.

212.

Model Rules of Prof I Conduct r. 1.1 cmt. 8 (2015) (emphasis added).

Warren & Brandeis, supra note 1, at 193.

PANEL DISCUSSION: THE REAL ZEALt MARSHALL DAVIS BROWN & BOBBY NEWMAN, PANELISTS J.D. "BucKy" ALLSHOUSE & JUDGE ROY MOORE, COMMENTATORS PROFESSOR PAMELA E. GEORGE, FACULTY SYMPOSIUM EDITOR

PROF. GEORGE: This is our final panel of the day.

As David and Bobby are making their way to the front, I just want to say, I was in New York for the American Association of Law Schools convention; while there, we were lucky enough to see the musical "Hamilton." And, I'm obsessed with it.

Alexander Hamilton makes clear he wants to join the revolution.

Aaron Burr hears Hamilton espousing his ideas. Burr counsels, "Let me give you some advice: Talk less. Smile more. Don't let them know what you're against or what you're for."

Alexander Hamilton rejected this advice, and so has this panel. They take a stance. They are the real zeal. They're not afraid of the courthouse.

They're not afraid of putting it out there. And many times, they have been questioned for taking those stances. I wanted them here to talk to you today about their approach to lawyering.

The third member of our panel, Wendy Burgower, is unable to be with us today. Wendy's a fabulous trial lawyer, approaches things with perhaps more of a velvet glove than these two, but today she's ill. And so our thoughts are with her. We hope she gets better soon. We do miss her. I'll introduce David and I'll introduce Bobby. It's interesting, they both worked together at one time. Bobby worked for David.

MR. BROWN: No. PROF. GEORGE: With David!

t Many thanks to Brazil & Company (court reporters) for transcribing this panel discussion, presented here in edited form.

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MR. BROWN: We worked with each other.

PROF. GEORGE: With each other. Okay.

MR. NEWMAN: No, in fact I workedfor him.

PROF. GEORGE: Okay... and we begin! David you graduated from South Texas in, what, 1980?

MR. BROWN: '80.

PROF. GEORGE: And I began teaching here in '81. And I remember David-I think you had come back after you had graduated, and you were tending bar at a school sanctioned Super Bowl Party at the Harbor Lights.

MR. BROWN: I recall that.

PROF. GEORGE: Do you? I couldn't believe this guy's mouth. Still can't. He is a fabulous trial lawyer, but, oh, the colloquialisms. Actually, I don't even know if I can call them colloquialisms because they just kind of trip off David's tounge. I don't know if they're things you made up or things you've heard, but your statements can be wonderful and also appreciated on many different levels.

MR. BROWN: Free association.

PROF. GEORGE: But I want to say this: He comes on a bit like a country guy.., but I have seen David in action. We were involved in a case together, and the way he put together evidence was so incredibly creative and elegant. I am still in awe. In that case, the mother had hired a very big, white glove, law firm to represent her. Everything was just done perfectly, lovely, but she wasn't getting what she wanted. She wanted to hire the "meanest" lawyer she could find. Somebody gave her David Brown's name. He joined with the big law firm and he prepared this evidentiary presentation that basically ended the case. Do you want to tell them about that, David?

MR. BROWN: Sure. The baby daddy supported himself by selling drugs: noxious weed, cocaine and Ecstasy. And so we found people who had purchased drugs from him. Okay. So I set all the depositions, and I asked exactly the same question of all of them, different timing, different spacing or whatever.

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The first one shows up, with a lawyer. And so I say, "Why don't you remember when I asked you (inaudible) been buying dope from baby daddy here?" I expected him to take the Fifth Amendment, no problem. So I said, "State your name."

"Bucky Allshouse."

"Have you ever bought dope from Bobby Newman?"

"Yes." The next one: "State your name."

"Leta Parks."

"Have you ever bought dope from Bobby Newman?"

"Yes." And so I went through ten people, asking exactly the same questions.

And so then we put together the settlement brochure. We had a video, big screen, that had a picture of me saying, "State your name for the record."

Then, "Bucky. Bucky Allshouse," "Leta Parks," and the other eight people.

Next question: "Have you ever bought dope from Bobby Newman?

"Yes," "Take the Fifth," "Fifth Amendment," "On the advice of counsel, I'm taking the Fifth Amendment," "Take the Fifth," all the way down.

Then the next thing, "Did you buy the cocaine? Did you by the Ecstasy?" Exact same thing.

PROF. GEORGE: The Fifth Amendment, the Fifth Amendment, the Fifth Amendment!!

MR. BROWN: Fifth Amendment, Five, take the Fifth Amendment, Fifth Amendment. And we showed that, and that was it. It was over with.

PROF. GEORGE: Right. David, my question for you, before I introduce Bobby, your use of these colloquialisms, sometimes people take offenseMR. BROWN: Like, "sweating like Caitlyn Jenner eating a dill pickle?"

PROF. GEORGE: Oh my, yes. That's what we're talking about, David. And so I want to know, why do it and how do you "get away" with it? Do you have your own brand of professionalism? Your ethics are unquestioned. But tell me: is there a difference? Ethics versus professionalism?

MR. BROWN: Ethics. There is a bright line. You don't cross it. You don't lie. You don't cheat. You don't steal. You don't suborn perjury. You

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don't hide evidence. You don't do it. But if you come in and adversely affect the karma of the other side, then that's fair-fair game. Newman does it all the time. The judges are bored. Okay? I been married to a judge, [Robin Brown], for thirty-five years. They're bored.

Most of the lawyers that go in talk like lawyers and act like lawyers, you know. But if you amuse them, then you have done "small group dynamics." You have taken over the room. And now the-the trick is not to get them to do what you want them to do. It's to get them to want to do what you want them to do. That's the psychology that we all practice. And the lines are fine. And walk that line and you get away with it.

PROF. GEORGE: I think we'll move on to Bobby.

Okay. Going back to "Hamilton," there's this part in it. Aaron Burr and Hamilton, they've gone back to New York. They're both practicing law. And these are just some of the lyrics, and it's Burr again: He says, "Even though we started the very same time, Alexander Hamilton began to climb, how to account for his rise to the top? Man, he's nonstop, nonstop."

And that describes Bobby. I think anybody will tell you. I consulted on a few cases with Bobby. Only time we can meet, Sundays. He is there ... nonstop!

Bobby does work nonstop. And Bobby has had a rise to the top. In your program, it says that he graduated from South Texas College of Law in 1984. That's a misprint. 1994, correct?

MR. NEWMAN: Correct.

PROF. GEORGE: And it has been a meteoric climb to the top. He is, I mean, an incredible lawyer. But you work all the time. Now, your clients don't complain, but I've heard other lawyers-and I want to know if this bothers you at all-they talk about you billing too much, churning the bills, et cetera. And I know you're there working, and I've seen it. But how do you deal with that kind of criticism that you might hear about, about your fees?

MR. NEWMAN: Well, I mean, I think that, pound for pound, in most cases, my fees are high because the cases I have are heavily litigated, and it takes a lot of time.

But, I think that's not a fair criticism. Me and my egomania ... the reality of it is, is it's not-typically, my fees are, you know, 75% of other attorneys. If you took my practice as a whole, I'd be criticized because I have a larger number of cases. So my income might be bigger, but I'm also working longer.

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PROF. GEORGE: Bucky, I'm going to turn this over to you and Judge Moore. And we'll open up to the audience, too. That's what this panel is all about.

MR. ALLSHOUSE: David, when you talk about some of the funny things that you say, there are lawyers that you offend. And one of the questionsMR. BROWN: I don't listen to that.

MR. ALLSHOUSE: You don't listen. That's part of the problem.

But one of the things that's always in play with you is people say you really are brilliant, very smart, and why do you have to be that way?

MR. BROWN: Because I'm an asshole.

PROF. GEORGE: This is going in the Journal?

MR. BROWN: Why are you like you are instead of... ?

MR. ALLSHOUSE: Well, that's exactly right.

MR. BROWN: We are how God made us.

MR. ALLSHOUSE: You can't be something you're not.

MR. BROWN: That's right.

MR. ALLSHOUSE: So you have to espouse throughout your practice of what you do, and it's successful for you.

MR. BROWN: Pretty much.

MR. ALLSHOUSE: And although they may both be here talking about zealous lawyers, and everyone will term that a different way, but I think sometimes-and maybe it's just me-but I think sometimes people might say-mistake zealous lawyers and say, "You've gone too far" because they're getting beat or whatever. And I-I've never found, in my practice, neither one of you-you've been honest. David, you have been offensive to me at times. He calls me "Fat Boy."

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MR. BROWN: I don't call you "Fat Boy." (Simultaneous speaking) MR. ALLSHOUSE: Not to my face.

(Simultaneous speaking) MR. BROWN: I called you "Slim" yesterday.

MR. NEWMAN: There's a big difference in ethics and being ethical and being professional. They're not necessarily synonymous.

MR. ALLSHOUSE: So where do you draw the line between-and if you were teaching a class on professionalism or ethics, where do you draw the line? Or can you?

MR. NEWMAN: I mean, I think you've got to be yourself. I think David, if he's acting like a Cub Scout, would be significantly less effective.

I really do.

And, you know, obviously you don't want to be unprofessional. The other side of that coin is, I know lawyers that are super-professional but you can't trust them at all. And so someone who is nice to you and cordial to you and very respectful, that person is not necessarily honest. And-you know, and I think as you go through practice, you learn that those aren't the same things.

And while-you know, I certainly try to be professional. I get criticized just like David for, at times, being unprofessional, so it's a-I think it's hard to have a heavy litigation practice and not, at times, you know, let some of your own personality come out.

MR. BROWN: We have never thrown the first punch, okay? True story. We walk in. Somebody wants extensions on discovery. Already granted. Never had anybody-but you come start pushing buttons, we're going to push back. We've never started it. At least I haven't. And I've never known you to start it.

MR. NEWMAN: Unless I thought it was going to be advantageous.

JUDGE MOORE: That's where I want to jump in, because that's a very important point that, since I teach a lot of classes, I think being a zealous lawyer means that you yell and scream and act like that.

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The ultimate form of intimidation in litigation is being prepared. And no one is more prepared than Bobby when he comes in for a case or a hearing.

Another aspect of it with David-who I always found to be extremely prepared-but also, it is the gamesmanship of the litigators, that I have seen him both to me as a lawyer and as a judge-but I often listen to him, the way that he interacts with other lawyers, and I don't think he goes over the line, but he's trying to get his opponent off their game. And you cannot allow yourself to fall into the trap. That is his tool. And...

MR. NEWMAN: (inaudible) I see-it's really kind of comical. If you get a person who's uncomfortable being rude, calling Bucky fat, you know.

There's a lot of people might find him unprofessional in doing that. But when David will interact with someone like that, they try to give it back to him, and they're-then he's got them. They're in his world. And it's really kind of funny to watch.

JUDGE MOORE: But from my experience, I've never seen anyone be able to offend David. (inaudible) But don't fall into that trap.

MR. BROWN: I don't come on like, "I'm a lawyer, so I'm better than everybody else." I go in like Debbie inbred, (inaudible), and, you know, I can go try a lawsuit anywhere in Texas and not have to have local counsel.

The old juries say, "Gee, you're just like one of us, not a stuffed shirt."

That's the difference. You could go in and identify and make the jury the trier of fact and the judge, trier of law-make them listen to what you're saying because they're amused and they like you. Don't come on like a stuffed shirt, like somebody with an orange tie. What happens then?

JUDGE MOORE: Another thing to really take away from this, because I feel-especially Bucky in particular was one of my mentors and idols, and I didn't have that many cases early on with David, but we can all joke around with each other-they have been very kind to let me in their group-or they probably just do it because I'm a judge now. But they've always been very nice to me. And it is that you can go in and have-like we were joking around-an octagon death match, and then after the case is over, go have a drink or go play golf or go have a meal. That's an art that I see as passing. I do not see young lawyers doing that.

You're going to have to do this for a very long time. And all of us, while you may think we don't have good memories, everybody has a really good memory. And to this day, a lawyer when I was a real live lawyer, lied

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to me, flat out. And luckily, that lawyer never appeared before me and has now passed away, but I always remembered that.

I have no problem with any of these lawyers being very zealous in their argument, but if you lie to me, it's just so disrespectful. If I lied to one of the lawyers, I'd expect them to be mad at me. And just show the same thing. I'm not saying you got to be best friends.

MR. NEWMAN: Well, David and I, we were trying to a jury just last year.

MR. BROWN: Yeah.

MR. NEWMAN: We, you know, fight like cats and dogs. And he was giving me the business because he's better at that than me. But when it was over, we went and had dinner and no big deal.

MR. BROWN: And a $600 bar bill.

PROF. GEORGE: I was just going to say, what about the assertions by other lawyers that you only go to trial-I mean, you guys do settle cases, do you not?

MR. BROWN: We settle over 90% of the cases. And the way you settle a case is, you prepare for trial.

Bobby and I had a discussion and we were talking about when is it unethical not to go to trial. Tell them what you mean by that.

MR. NEWMAN: You know, here's the deal: A lot of timesobviously, if your client is wanting to settle the case, you try to settle the case, you can't press that client to go to trial. That would be unethical to try the case, then.

But more often than not, the situation is that the person's relying solely upon you to make the decision. I see that all the time when on the side of the less-educated, less-moneyed spouse, they're completely relying upon you to make the decision on whether to go to trial or not. And too often, I see lawyers settling cases because it's easier. They run up to the time of trial and, you know, they settle it and maybe settle the case light. And I think that is a very common circumstance.

Most lawyers don't like to-I won't say "most," but I think there's a large portion of lawyers that don't like to try lawsuits. And I don't think you can practice in the area of family law if you don't want to try cases, because there's going to be those situations where you're going to have to

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be willing to try the case. If you believe in your heart the offer being made is not enough and your client can do better at the courthouse, then I think it's really a disservice not to go try the case.

You know, if you're a family lawyer and you're not trying several cases a year, there's something wrong.

MR. BROWN: I think it's unethical not to go to trial because you didn't do your job, because you find out that you didn't answer interrogatories like you were supposed to, or you made a mistake on your 194s. Oops. "Oh, my God, if I go down there, I-this guy's going to make a fool out of me, so we got to settle this case." I see it happen all the time.

There are people that are better trial lawyers than are other people.

There are a lot of-many lawyers who can work cases up better than I can, but I can try a lawsuit better than that person can. Have a symbiotic relationship if you need to, but don't not go to trial simply because you're scared to go to the courthouse. The other thing is investigating-this is what Bobby was talking about. You know, we practice in front of Judge Moore and everybody else. We try a case differently to every one of y'all because we know what the idiosyncrasies are and we know who our audience is.

If you have a case and you have a guy-let's say Judge Farr, okay?

And your guy is an Army guy that deserted and ran off three times. You know, it's going to be hard to sway Judge Farr. You go to pay a jury fee because at least you have a chance of shaping the jury, see? You can't shape Judge Farr. He is what he is. But if you don't understand that and you don't go to trial because you're scared of that, give them their money back.

A little of it.

PROF. GEORGE: You're both great trial lawyers. What if the other side has the facts, they have the law, not a good trial lawyer-even maybe the best interest of the child is with the other side, yet you are the lawyer doing the winning number at the courthouse. Any regrets about that, trying your case too well?

MR. NEWMAN: I don't think that's your job as a lawyer. I think you've got to-while it may be personally difficult, you've got to go try the case.

PROF. GEORGE: Do your best.

MR. BROWN: Well, I don't know. There are people I won't represent, you know. If somebody has done something that you know about, if you just-you can't do it. You hate them, they're a Democrat or something.

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MR. NEWMAN: If you take the case, you got to do it.

MR. BROWN: But you may not know it till you're into it. Then what do you do?

MR. NEWMAN: Got to interview better.

MR. BROWN: I knew it was going to be my fault.

MR. NEWMAN: Right.

PROF. GEORGE: Roy looks quizzical. Judge Roy? JUDGE MOORE: It's everything I expected and more.

MR. BROWN: We would have done good with Wendy here.

Anybody have a case with Wendy Burgower?

JUDGE PARKS: I would like to tell you an anecdote about Wendybecause you talk about tailoring a case for a judge.

MR. BROWN: Yeah.

JUDGE PARKS: I was on the bench, and Wendy tried a case to meand I used to use this as an example to my students of a lawyer who really did her research, knowing what was going to push a judge's buttons.

I had a Samoyed dog, which is a white husky. And I loved that dog.

And Wendy knew it, because in this trial, she had-was representing the wife, and she was cross-examining the husband and she kept saying over and over again, "Doesn't your wife have a white dog that you have kicked?" She had me ready to have this guy executed. Knowing exactly what she was doing, she was pushing my buttons. She'd done her research.

And I thought, "Well, now that is a good trial lawyer."

MR. BROWN: A great trial lawyer.

JUDGE PARKS: Anyway, it was just an anecdote I love, and I loved telling it to my students. And when you talked about tailoring to the judge and knowing what the judge's likes and dislikes are, it sounds overwhelming to new lawyers because there's so many judges. But if you

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have the ability to do it, do it. Because you can really offend the judge, too, without knowing what their buttons are.

Which, David, you have done to me many times.

MR. BROWN: It's because you pissed me off. Justice is not blind, guys. You know that wonderful statue out there where she's blind, well every trier of fact and trier of law is different. And you have to go and learn that this judge is different from this judge is different from this judge. And the way you do it is, you talk in the coffee shop with your cronies, go down and watch-I mean, the best game in town is watching somebody try a lawsuit. That's how I learned. I watched Racehorse Haynes trying cases, and Percy, and all those guys. And it's free. Admission is free. Go do it.

Especially somebody good like Bobby. He has one coming up in Schmude's court against Sherry Evans.

MR. NEWMAN: I do.

MR. BROWN: I'm going to sell tickets for that.

MR. NEWMAN: On the judges, knowing the judge, that can backfire on you too. If you're in Judge Farr's court and you're pushing militarymilitary this, military that, the judges are smart. They're going to pick up that you're trying to be a kiss-ass, so you got to be careful on that, too.

MR. BROWN: That's the point I was trying to make. Don't be a smartass. The idea is to make the judge or the jury come to your position in a way that they think it was their original, novel idea. That's when you do it right.

MR. ALLSHOUSE: Surely someone has a question for David Brown that they'd like answered.

UNIDENTIFIED SPEAKER: Will you address the issue of opposing a motion from the other side that you know you're going to lose?

Can I give you an example? Depositions of one of the litigants.

MR. ALLSHOUSE: I'll answer that for them. Neither one of them have ever gone to a motion where they thought they were going to lose.

Go ahead and answer that.

UNIDENTIFIED SPEAKER: How is it ethical?

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MR. NEWMAN: It's not. It's not ethical to take a position that you absolutely know you're going to lose. You have a client that says, "I'm insisting that you go do this." You know, obviously you talk them out of it.

If you can't, I think it's unethical, I think you need to withdraw from the case and say, "I'm not going to take positions"-that doesn't mean that you-on the down side of the case and you're unlikely to win the case, you don't go try that case. That's different. Everybody is entitled to their trials.

And I can't-there's a lot of cases where I was on the down side of the case that I told the client, "There's no way you're going to win this. You're an idiot for trying it." You go try it and you never know what the jury is going to do. Happens all the time.

That's a different situation than taking a position-where legally and statutorily, you can't get the relief that you want. It's not a legal possibility.

That's different. You can't go in and take those positions. I think it's incredibly unethical to charge somebody money to do it. You have to back out of the case.

MR. BROWN: Say you're not going to do it. Say, "And if you make me do it, I'm going to quit. Who should I send your file to?" Bobby or whoever.

The other thing is, where it's factually that you don't think you have a chance, okay? You know, we-make them sign the letter. You know, "David's told me that, you know, if I go in and ask to have my wife's ears cut off that we're not going to win that. I sign and I understand that. I'm asking him to do it anyway." Certainly not that extreme, but that's what those letters are for. It's not to protect yourself when a Ross Sears comes after you. It's to make the client understand that you feel that strongly about it. That's why I do it.

JUDGE MOORE: And judges listen to what the lawyers say. And I can think of a situation where-I agree with Bobby and David that you need to withdraw, but because of time, there may not be time for you to do that. But judges listen to what the lawyers say. And when that lawyer is making their position known-and like we said earlier this morning, I sometimes want to go, "Is that what you're really going to go with today?"

But if a lawyer goes, "I'm zealously advocating for my client. I am following the instructions of my client," we are not so stupid not to know exactly what you're telling us. So take that into account, because there are-you know, because of Harrison now? I mean, judges hate Harrison.

You know, sixty -

PROF. GEORGE: Do you want to explain the Harrison case?

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JUDGE MOORE: Less than sixty days prior to trial, a motion to withdraw is filed. The Court grants it. The young lady goes down and tries the case [pro se, she is a licensed attorney]. It goes-it does not go well.

And two and a half years later-it may have been three years-the Appellate Court comes back and goes, "No. Reverse and remanded."

Because it was an abuse of judicial discretion to let the lawyer out of the case less than sixty days from a custody jury trial.

MR. NEWMAN: I was in that case twice. I was Lawyer six and Lawyer fourteen.

MR. ALLSHOUSE: I was number three and smart enough not to get back in.

MR. BROWN: Let me ask you something. Now, wait a second. If a lawyer-and I know you're not going to answer as a judge. (inaudible). If a lawyer comes and says, "I can't go forward in this case because of this ethical consideration. It is a huge breach," you're telling me that the Court is not going to at least listen to this under the JUDGE MOORE: I think they're going to listen to it, but thenMR. BROWN: And then deny it?

JUDGE MOORE: The Court is obligated to continue the trial. You can put forth on the evidence that says you cannot comply with your ethical duty to represent this client. And usually what happens-because the client goes, "I'm fine."

MR. BROWN: Okay. When you say, "continue trial," you mean go to trial?

JUDGE MOORE: No. MR. BROWN: It was set, or give a continuance.

JUDGE MOORE: No, give a continuance.

MR. BROWN: I'm good with that.

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JUDGE MOORE: But many times, they'll come down on less-they'll come down on the day of trial and say, "I have a motion to withdraw." And there's kids involved. "I can't do that. Is there anything else you're asking for?"

You know, because like several of them-Pamela said this morning, including Judge Farr, "We're not allowed to provide legal advice." And the quandary that we're in is the level of pro se's-the number of pro se's has increased exponentially.

And as judges, we do want to move our docket. And-but I also-I have a big problem with this, is that I don't think the litigant should be punished due to the lack of action of the lawyer. And some of my brethren, I'm told, in other countries, if you haven't crossed a "T" a certain way, they dismiss your case. And then the litigant-which at no fault of the litigant, they got to go pay usually another lawyer, but more importantly, another filing fee, and that's that-that fine line you have to try to walk. Because we have on average 30-50 pro se litigants a week now.

MR. BROWN: You know why?

JUDGE MOORE: Why? MR. BROWN: They Google that stuff that supposedly tells them exactly what to do, except it may not be in Texas.

UNIDENTIFIED SPEAKER: (inaudible) Would you speak to the issue of turning down a case rather than taking it on, knowing that it's going to either be a headache or you are not competent to take on that particular type of litigation?

MR. NEWMAN: Absolutely. The problem with that is thatespecially when you're a young lawyer coming out of law school, you say, "Oh, wow. I want to take it-I need to pay the electricity bill." So-but if there's any advice I could give any of the lawyers is, don't take a case that's not going to be financially lucrative to you. Even when you're starting out, a $2500 case that's going to be an absolute nightmare ends being a big negative that you are less able to afford than a more-than a seasoned lawyer that's got a more effective practice.

So I mean, I think that-that turning down cases-knowing what cases not to take is as important as knowing what cases to take, frankly.

MR. BROWN: One of the hardest things is the non-rich spouse comes to you, and he or she wants to hire you. And you know you're going to have

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to go try to get attorneys' fees from daddy or momma to fund your side of the case. Well, courts are pretty good these days about seeing that and bringing about equality of the fees, but there are some judges I know very well who say, "You know, if I fund a war, there will be one. And I'm just not going to go through with it." And it's a hard thing to do.

MR. ALLSHOUSE: I think your question is a good one, but the fact of the matter is, is most trial lawyers have enough confidence and perhaps large enough egos that most cases, even when they're very difficult, you think you're able to handle that client.

And I made that mistake a lot. I said, "Yeah, this person's had two or three lawyers. They're difficult clients. The other side's difficult. And I think I have the ability to maybe control the client or settle them down."

And sometimes I do. A lot of times, I don't.

And you sit there and you're caught forty days before trial, they hired you at forty-five days before trial to try a lawsuit, and you say, "Why in the world did I do this?"

UNIDENTIFIED SPEAKER: Bobby, you've indicated that you carry a whole lot of cases. When do you make the decision that your docket is too full?

MR. NEWMAN: It's not really that I-I don't have a-I do carry probably a large number of cases compared to, I think, most family lawyers.

But really, it's not-the reason I'm working so much is not for volume or the number of cases I have, it's the size of the cases that I have. And I-I find myself fortunate enough to be dealing in very, very big cases. Andand it just-it's hard, a hard decision to make because, I mean, I love working. I love what I do. I'd do this for free if I wasn't paid for it, truly.

And I absolute love it.

I mean, I don't love answering discovery and all the B.S. that you have to do as a lawyer; but the reality of it is, I love it. I can't imagine doing something else.

MR. ALLSHOUSE: If someone would-if someone would transcribe that, please? Next time he has a motion for interim fees.

UNIDENTIFIED SPEAKER: And Bucky, in full disclosure, that was texted to me by Bobby's staff, the overworked staff.

MR. ALLSHOUSE: Who's back-who's back there working as we speak. There's not very much I'll complain about, Bobby, but it is annoying

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when you said I can't meet with you. Well, you say, "Well, I'll meet with you. How about five o'clock on a Friday morning?"

"No, I've got little something to do Friday."

"How about Sunday afternoon?"

"I don't have a deposition scheduled Christmas Day." MR. BROWN: What we do is wonderful. Every case we have is a brand-new hand that's dealt to us. And you go in and you look at it and you look at your facts and you look at your witnesses and you figure out how to lay it out. It's Texas Hold 'Em. Every time, it's different. You go down, you play the game. You do the best you can...

JUDGE MOORE: Questions? We're getting near the end, so this is your chance.

UNIDENTIFIED SPEAKER: Thank you, Judge. With regard to the way that, obviously, attorneys communicate with one another, the comradery we talked about, the rapport that attorneys have with one another, the way that you get to know one another through the entire practice of law, with the-some of the silly stuff, the trash-talking and things like that, how do you reconcile that with the way that you communicate with your own client about opposing counsel? I mean, surely you don't go to your client and say, "Bucky Allshouse is a fat guy." How do you balance your own obligations of ethics and(Simultaneous speaking) MR. BROWN: "Bucky Allshouse and I are both fat guys." It's upsetting that he has surpassed me. I have tried to (inaudible) more imposing of the two.

You know, don't trash-talk a brother or sister lawyer in front of your client. That doesn't happen. Okay?

MR. NEWMAN: It happens. It shouldn't.

MR. BROWN: I don't do it. Do you?

MR. NEWMAN: I agree you don't do it.

MR. BROWN: Well, yeah, it shouldn't, but, you know, they ask meclients ask me, "Well, you know, you say Bobby Newman, you say Bucky Allshouse is a dear friend of yours. I mean, how are you going to represent me?"

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I say, "Well, have you ever had a poker night over at your house?

People come there and you deal the cards. You think just because you're my friend, I'm going to let you win? Hell, no. That makes me a better lawyer for you, because someone who I respect-and want to beat-is on the other side." There's going to be that competition kick up. That's the way I see it.

MR. NEWMAN: I think you're better off-I think it's better for the litigants if the lawyers get along. You don't have to hate the other lawyer.

MR. BROWN: Because that's going to cost money.

MR. ALLSHOUSE: But as Bobby said, there are lawyers that will trash-talk or belittle a lawyer. And usually, the reason we know about it is because a client will say, "My husband told me that he talked to his lawyer and he said ABC." Or, you know, you'll find out when you're interviewing a client and they'll say, "You know, let me just be honest with you. I went and saw Suzie Smith and she said, well, yes, you're too busy to handle these cases."

And you'll hear these things. And that's just something that you shouldn't do...

MR. NEWMAN: True story. Two people that are really close to me.

One was Bucky and one was a young lawyer and someone interviewed me on a big case and they said, "Well, do you have any references?"

I said, "Call Bucky Allshouse and call Lawyer X." So I never hear from the client again-and until about a year later, they came back and I ended up getting the case. And I said, "Well, why did you hire somebody else? Did you call Bucky?"

"Yeah, I called Bucky. He said you were a great young lawyer, be great for my case."

And did you call Lawyer X?" "Yeah, I called Lawyer X. He said you were young and inexperienced and you should"-"I should hire him, and that's what I did."

MR. BROWN: Well, karma being what it is, client comes in, and you say-somebody's on the other side, "Oh, he's an idiot. Guy can't carry his own briefcase. I'll whip his ass." And you do that kind of trash-talk, and they hire you. You know what that means?

That means the jury's going to come back against you. That's what karma does in our profession, I promise you.

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JUDGE MOORE: And remember this: These lawyers would never do it, but when I was a young lawyer, a lot of the older guard would always say-because growing up, my nickname was "Rookie." And they all called me that.

And one of these older lawyers goes, you know, "Rookie, you know you're a three-year lawyer. I hate to say this, but I'm just going to whip your ass."

Instead of getting all worked up about it-because if any of you know my father, getting yelled at has no effect on me. And I remember vividly my response was, "Well, Mr. So-and-so, it's going to be a pleasure to see an expert at work."

And I worked harder on that case than any case ever. And none of my blood was on the floor in the end. So the whole purpose of it is, think about what you say before you say it. Because from that day forward, any time I had a case against that lawyer, I'd put in the extra effort, because every time I wanted to give him the atomic elbow one more time.

UNIDENTIFIED SPEAKER: I have a question. What's the biggest piece of advice you could give to incoming trial attorneys?

MR. BROWN: Go to trial and watch.

MR. NEWMAN: And don't be scared to lose a case. A lawyer that says, "I'll win all my cases" is no trial lawyer.

(Simultaneous speaking) MR. NEWMAN: A good lawyer-if you don't-if you don't lose a case every now and then, you're not pushing the envelope hard enough.

MR. BROWN: Go down the street to the ticket clinic, David Sprecher's place, okay? Work there for ninety days trying Class C misdemeanors. You'll pick at least a jury a day, sometimes two juries a day.

That is the best way to get your hands on it and learn how to interact and build the inner self you have, basically, because you get it done. If you just do one, two, three, four, five a year, it doesn't help you. But if you go through that type deal-and they'll hire you in a minute.

MR. NEWMAN: I almost disagree with that a little.

MR. BROWN: Really?

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MR. NEWMAN: Yeah, and the reason is because I think that you're trying that case as an inconsequential case is-you know, I think it's just you try that case a lot differently than you would try a case when a child's at stake.

MR. BROWN: Absolutely. But you'll never be afraid to stand in front of a jury again or stand in front of a judge again or call on a witness again.

MR. ALLSHOUSE: And my advice is a little different. And my advice is, the most important thing is to be prepared. And the second most important thing is we all have abilities and we all have efficiencies. And if you're going to try a lawsuit, you got to be yourself. Because juries will see it phony, and lawyers-well, you might, you know-I used to love, when I was in the Court of Appeals as a briefing attorney, I'd go watch trial lawyers. I couldn't be Joe Jamail. Not my personality the way it was, you know. And I couldn't be David Brown. I've got to do-do with my limitations the best I can do. And I think that that's a mistake to go look and say, "Oh, I want to be Joe Smith." You have to be yourself and use theuse the God-given tools you have to be successful.

MR. BROWN: You will pick up game from everybody you see. Okay.

And then you will utilize that. There's a wonderful guy that's gone now, Andrew Jefferson. Best trial lawyer I've ever seen. I was one of his guys, and at least 40% of my shtick is Andy's okay? But I can't be Andy.

The other thing is, go to the courts, ask the judges to hook you up with somebody that's going to try a case. And you come to Bobby and say, "I want to sit second, third, fourth, fifth chair with you" just to get in a trial and see it. There's not a senior lawyer around that won't do that for you.

UNIDENTIFIED SPEAKER: Okay. Got a question with regard to your ethical considerations of doing all you can to get information for an interim attorney fee when you represent the non-moneyed spouse. What do you guys do to make sure you've done everything you can do to provide the Court with information it needs to award fees?

MR. NEWMAN: Let me-just make sure you get the discovery that you need to show what assets exist.

MR. BROWN: Money leaves a trail.

UNIDENTIFIED SPEAKER: Well, with regards to-if you're doing a temporary order hearing and you're asking for interim attorney fees, if you

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haven't had enough time to-to get that documentation to show the Court that this other spouse actually has money to pay your attorney's feeMR. NEWMAN: You reset your hearing or you subpoena the other side to bring it to the hearing or you reset your hearing. Because you can really hurt your client by having an interim fee hearing if you can't establish what you have in assets and funds. It's really not that hard. It's what the needs-what the real needs are and where's the source of funds.

It's that simple.

MR. BROWN: Money leaves a trail unless, you know, you got a bookie or dope dealer or something. Money leaves a trail, and the best place to look at to find a trail is the tax returns.

MR. NEWMAN: But it's better to wait two or three weeks to have the hearing than have a hearing where you can't establish what you need to establish.

MR. BROWN: Yeah.

JUDGE MOORE: Any others before Professor George is going to give us some closing remarks?

Last chance. Okay.

PROF. GEORGE: Thank you so much, Judge.

Thank you so much, Bucky, Bobby, David. This has been just a great panel, and I so thank you for your time this afternoon.

Again, I want to thank the South Texas Law Review, the editorial board, all the student assistants, and the audience. Today has been a great success. I think everybody's happy, and I know you, as I, enjoyed the entire day.

Have a good weekend!