20th Annul Top Gun DWI

20TH ANNUAL

DWI

2022

tcdla

1971

TOP GUN DWI XX SEMINAR INFORMATION Date Location Course Director Total CLE Hours

August 19, 2022 The Whitehall, 1700 Smith Street Houston, Texas Danny Easterling, Grant Scheiner, and Mark Thiessen 8.0 Ethics: 1.0

Friday, August 19, 2022 Time

CLE

8:30 am

Daily CLE Hours: 8.0 Topic

Speaker

Opening Remarks

Danny Easterling, Grant Scheiner, and Mark Thiessen

8:45 am

1.0

Voir Dire

Julio Vela

9:45 am

1.0

Blood Testing/Toxicology

Suzanne Perry

10:45 am

Ethics: 1.0

Break

11:00 am

.34

TED Talk: Gems from TCDLA DWI CLE’s I Use; Pychodrama in Opening Statements; PIA Requests To Impeach Officers

Brian Ayson

11:20 am

.75

Cross of Arresting Officer

Sgt. Don Egdorf & Grant M. Scheiner

12:05 pm

Lunch Line

12:20 pm

.33

Lunch Presentation: TED Talk:

Cailey McLain

12:40 pm

.33

Lunch Presentation: TED Talk: Winning a .19 DWI Case with Gas Chromatography

Sanjay Biswas

1:00 pm

.34

Lunch Presentation: TED Talk: 20 Years of Top Gun DWI

Danny Easterling

1:20 pm

Break

1:45 pm

.75

Cross of the BTO and Qualified Technician

Sgt. Don Egdorf & Mark Thiessen

2:30 pm

.75

Cross of DRE

Sgt. Don Egdorf & Brent Mayr

3:15 pm

Break

3:10 pm

TED Talk: The Golden Thread quick big points on how we have been winning DWI trials which will have an emphasis on how each section of trial is connected to the other. Pulling a thread from beginning to end that the jury can easily follow to a not

.33

Jarrod Smith & Brad Vinson

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

TOP GUN DWI XX SEMINAR INFORMATION Date Location Course Director Total CLE Hours

August 19, 2022 The Whitehall, 1700 Smith Street Houston, Texas Danny Easterling, Grant Scheiner, and Mark Thiessen 8.0 Ethics: 1.0 guilty

3:30 pm

.33

3:50 pm

.75 ETHICS 1.0

4:35 pm 5:35 pm

TED Talk

Kate Ferrell

New Issues in Ethics

Hon. Toria Finch

Storytelling

Tony Buzbee

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

20th Annual Top Gun DWI August 19, 2022

The Whitehall 1700 Smith Street Houston, TX 77002

Topic: Blood Testing/Toxicology Speaker:

Suzanne Perry Salient Analytical Services Canada Vancouver, British Columbia, Canada 442.666.4886 phone scperry@salientanalyticalservices.com Email www.salientanalyticalservices.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

20th Annual Top Gun DWI August 19, 2022

The Whitehall 1700 Smith Street Houston, TX 77002

Topic: Cross of Arresting Officer Speaker:

Grant M. Scheiner 2211 Norfolk St Ste 735 Houston, TX 77098 713.783.8998 Phone 866.798.9854 Fax scheinerlaw@gmail.com Email www.scheinerlaw.com Website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Art and War of DWI Cross-Examination

Grant Scheiner Scheiner Law Group, P.C. 2211 Norfolk, Suite 735 Houston, Texas 77098 www.scheinerlaw.com (713) 783-8998 grant@scheinerlaw.com

Lecture and Materials Prepared for Texas Criminal Defense Lawyers Association’s 20th Annual Top Gun DWI Seminar in Houston, Texas Friday, August 19, 2022

© Scheiner Law Group, P.C.

1

Biography Grant Scheiner served as the 50th President of the Texas Criminal Defense Lawyers Association (TCDLA) in 2020-21. He is Managing Attorney for Scheiner Law Group, P.C. in Houston. Grant practices in state and federal courts. He is Board Certified in Criminal Law and has served on the Board of the Texas Board of Legal Specialization. Grant is a Life Member of the National Association of Criminal Defense Lawyers, Life Fellow of the Texas Bar Foundation, and past Former Chair of the Computer & Technology Section of the State Bar of Texas. He earned his J.D. at the University of Houston Law Center and a B.A. in Communication from Trinity University.

2

Art and War of DWI Cross-Examination © By: Grant M. Scheiner Getting Organized with the “Chapter Method” Your first task in preparing for cross-examination is to get organized. It can be daunting.

Every state witness presents a unique challenge. Most state witnesses (whether you are dealing with an arresting officer, or some non-lay witness) will have at least some expertise in a specific area. Many of the state’s witnesses will have more courtroom experience than you. That is particularly true if you are dealing with a “task force” case in which officers specialize in topics ranging from crimes against children, to DWI, to financial transactions, to narcotics, to violent offenses and more.

It is important for you to be well-prepared, organized, and ready to present your theory of the case in a logical and interesting way. You should view every state witness as an opportunity to prove your theory of the case.

The best way to organize cross-examination material is topically. Think of every topic as a separate “chapter” in a story that you are telling to the jury. For example, if you’re trying a DWI and your theory of the case is the police confused or misinterpreted your client’s innocent behavior with symptoms of intoxication, your goal should be showing how each behavioral symptom was consistent with something other than being intoxicated. (At the end of this paper you will find several examples of how to promote common DWI defenses through cross-examination. The basic tactics can be used in most types of cross-examination.)

You should begin by selecting three to seven chapters for each witness. Avoid “waiving” crossexamination and asking no questions of a state witness unless it is absolutely clear the witness hasn’t helped the state’s case. Minor witnesses (such as those whose sole purpose is to lay a foundation 3

for non-objectional evidence) should be cross examined lightly, unless you have reason to believe the witness might somehow contradict the testimony of an important state witness. You should cross examine the state’s “star” witnesses most aggressively. In many instances you can destroy the state’s case by toppling one or two arresting officers.

Each cross-examination chapter should be listed on a separate page with your questions underneath the heading. It is OK if you can’t fit all of your questions on a single page. Just make sure the last question in any given chapter is the last question on the page. Keeping your chapters separate from one another will keep things organized and allow you to easily add new material during the prosecutor’s direct examination. The last thing you want is to have to draw “insert arrows” or make notes in the margins when you are 30 seconds away from beginning your cross-examination.

Hit each adverse witness with a strong opening chapter. Do not begin by addressing things the prosecutor just covered during direct examination. Your first chapter should be planned, scripted and a sure-fire winner that will capture the jury’s attention.

Finish each cross-examination with a strong chapter, as well. Just as with your first chapter, the final chapter should be planned, scripted and a topic that you know will go over well with the jury. Using a DWI case example, if your theory is that the police never gave your client a fair chance to prove he was innocent, end with how they never told him he had a right to a blood test.

If your theory is that the field sobriety tests were “designed for failure,” end with a hypothetical about how a suspect might perform the tests nearly perfectly, yet still “fail” under the peculiar scoring system of the National Highway and Traffic Safety Administration (NHTSA). You will find an example of this method at the end of the paper.

Whenever you have three or more cross-examination chapters for a witness, select a chapter that you consider strong but do not plan to start or finish with. Label this chapter “the cork.” In fact you should write “cork” at the top of your page so that you will not forget what or where it is. The 4

cork, quite simply, is your go-to chapter. It is the chapter you will use in the event you run into trouble during cross-examination and want to quickly re-establish command over the witness. If you do not get into trouble and end up without needing to use the cork, instead use it as the secondto-last chapter in your planned sequence. Keep in mind that jurors usually remember what they hear first and last. The cork, followed by a strong and scripted final chapter, can make for a very powerful finish.

Deciding which chapters should go first, last or somewhere in the middle will depend upon your theory of the case and how comfortable you are with the material. Some defense lawyers are comfortable with written materials, like scholarly articles or the NHTSA manual in a DWI case. They prefer to start or finish with these. Others like to bury that same material in the middle of their crossexamination sequence, if they use it all. If you view material as potentially risky, your options are to bury it in the middle of your cross-examination (and you can even decide which witness might be the easiest to deal with) or you might introduce it in direct-examination of your own witness. In any event you should pick a logical sequence that flows from one chapter to the next but avoids being chronological. Prosecutors usually direct their witnesses with a chronological recitation of what they claim are the important facts. Do not go chronologically in your cross-examination as it tends to reinforce the state’s version of the case.

Be Polite, Patient and Persistent Try to maintain your composure during cross-examination. Even when the prosecutor is nagging you with groundless objections and the judge appears to be on the state’s side, you should remain polite and professional. The jury will lose your message if you appear to be rattled or, worse, become rude with a state witness.

In addition to maintaining professional decorum, you should be patient and persistent in your 5

cross-examination. If a witness is evasive you will probably get what you want if you follow a few simple tips. First, if the witness refuses to answer your question right away do not go to the judge for help. Try asking the question a second time: Lawyer: Cigarette smoke can cause bloodshot eyes, correct?

Cop: That’s not why your client had bloodshot eyes.

Lawyer (repeating with emphasis): Cigarette smoke can cause bloodshot eyes, correct?

Cop: I suppose.

A witness that fights you on obvious points will soon lose credibility with the jury. If a witness has the audacity to duck your question after you’ve repeated it with emphasis, go ahead and suggest the answer. Nod or shake your head as appropriate. This will make the witness squirm and usually results in a direct response to your question: Lawyer: Cigarette smoke can cause bloodshot eyes, correct?

Cop: That’s not why your client had bloodshot eyes.

Lawyer (repeating with emphasis): Cigarette smoke can cause bloodshot eyes, correct?

Cop: A lot of things can cause bloodshot eyes. Intoxication can cause bloodshot eyes.

Lawyer (repeating with emphasis and nodding head): So your answer is yes. Cigarette smoke can cause bloodshot eyes?

Cop: Yes. Very few witnesses will continue to refuse to answer your question. If a witness repeatedly refuses to answer obvious questions, the court will usually intervene and instruct the witness to answer. Even the most state-oriented judge doesn’t want to sit through a three-week criminal trial.

In some instances a witness may evade your question without trying to do so. Listen carefully to each response. Don’t settle for vague answers such as “uh-huh” or a non-verbal response such as 6

a head nod. Court reporters sometimes sit with their backs to the witnesses and don’t take down nonverbal responses. Even when you get a verbal response, listen carefully to see if you need to follow up. A witness might give you an implausible answer that needs to be explored with a “mirrored” follow-up: Lawyer: Standing on a broken ankle could be painful, wouldn’t you agree?

Cop: I guess.

Lawyer (mirroring the witness’ answer): You guess?

Cop: Well, yes. I suppose that could be painful.

If you are patient and persistent you will usually get the answers you need. Once you have “trained” a witness to give you yes and no answers, you will find it easier and easier to cross examine the witness. In fact you might encounter witnesses who give up early on because they correctly conclude that it is futile to resist you.

Preview Each Topic Always let the jury know when you are changing topics and beginning a new chapter in your cross-examination. There are several ways to do this. One common method is to simply tell the witness and jury where you are headed next: Lawyer: Officer, I’m going to ask you some questions about Mr. Client’s driving. Do you understand?

Cop: Yes. Another method to preview a new topic is to announce it to the witness and follow up with a question. You might say, “OK, let’s move on to something else. You offered Mr. Client a breath test, correct?” Previewing topics will keep your jury awake and (hopefully) interested even during the most methodical portions of your cross-examination.

7

Ask Short Questions (i.e., Make Statements) Jurors absorb information better in small bits. You should ask short questions whenever possible. The shorter your questions, the shorter the witness’ responses will be.

In reality most of your questions will resemble declarative statements rather than questions.

You don’t have to end every, single declarative statement with “correct” or “isn’t that true” in order to ask a leading question. Sprinkle in a few “corrects?” and then slip into a pattern of making declarative statements to which a witness must either agree or disagree. For example: Lawyer: You claim you smelled alcohol on Mr. Client’s breath, correct?

Cop: Yes. Lawyer: The smell of alcohol doesn’t tell you what type of alcohol was consumed?

Cop: No, sir.

Lawyer: The smell of alcohol doesn’t tell you when it was consumed?

Cop: No, sir.

Lawyer: Doesn’t tell you where it was consumed?

Cop: No, sir.

Lawyer: Whether it was mixed with food?

Cop: No, sir.

Lawyer: How much food?

Cop: No, sir.

Lawyer: What kind of food?

Cop: No, sir.

Lawyer: It certainly doesn’t tell you what a person’s tolerance is for alcohol?

8

Cop: No. If the prosecutor objects, tell the court that you are asking questions by setting forth propositions to which the witness may agree or disagree. If the court sustains the objection, add a few more “correct” and “isn’t that true” appendages to your questions and then gradually slip back into the pattern of making declarative statements. The best cross-examinations are essentially arguments to the jury. The witness’ job is to get on board, get out of the way or get run over.

Ask Leading Questions!

The most common mistakes that trial lawyers make include asking too many leading questions during direct examination and too few leading questions during cross-examination. There is no excuse for asking open-ended questions to an adverse witness. Even when you do know the answer to a question, asking it in a non-leading form is likely to generate a lengthy explanation that could hurt your case or derail your momentum.

Get in the habit of asking leading questions on cross-examination so that it becomes second nature to you. As the late Johnnie Cochran might have said, “if you don’t lead, you won’t succeed.”

Following are some specific examples of DWI cross-examination using the concepts discussed above. Feel free to use these in trial and let me hear from you when those acquittals begin tumbling in! If you have a war story or a new “chapter” that relies on the concepts discussed above, please let me know at grant@scheinerlaw.com

DWI Cross-examination Examples

1. One Leg Stand {Visual cross-examination using easel pad or chalkboard to illustrate key points.} 9

Lawyer: I’m going to ask you some questions about the one leg stand test. Do you understand?

Cop: Certainly.

Lawyer: You have a suspect stand on one leg, for 30 seconds, correct?

Cop: That’s correct.

Lawyer: And you look for clues of intoxication?

Cop: Yes. Lawyer: A total of four possible clues?

Cop: Correct.

Lawyer (enumerating with fingers): Swaying?

Cop: Yes. Lawyer: Using arms for balance?

Cop: Yes. Lawyer: Hopping?

Cop: Yes. Lawyer: Dropping foot?

Cop: Yes. Lawyer: When you see one of these things happen, you count that as a clue?

Cop: That’s correct.

Lawyer {very nicely}: And if you notice two or more of these so-called clues, it’s your belief the

10

person is probably intoxicated?

Cop: To me that would indicate he had lost his faculties.

Lawyer: That he had failed the test?

Cop: Yes, sir.

Lawyer: So, if a person drops his foot once during a 30-second test, that’s a clue?

Cop: Yes, that’s correct.

Lawyer: And if a person raises his arms just once during a 30-second test, that’s a clue?

Cop: Yes, sir.

Lawyer: In fact he doesn’t even need to raise his arms all the way. Just six inches away from his body, correct?

Cop: Yes, sir.

Lawyer: That’s a clue?

Cop: Yes, sir.

Lawyer (using easel pad): So, let me see if I understand this correctly ...

Perform

Seconds

Sway

30

30

Drop Foot

29

30

Use Arms for Balance

29

30

Hop

30

30

118

120

Total:

Equals an “F !!

11

Lawyer: According to your scoring, that person would get an “F.” Cop: To me that indicates a loss of faculties.

Lawyer: Officer, where did you go to high school?

Cop: Pasadena High School in Pasadena.

Lawyer: In high school, did you take any tests in which 118 out of 120 was considered a failure?

Cop: Well, no ...

Lawyer: But that’s the scoring system you use in your DWI arrests, correct?

Cop: That’s the way I was trained to score it.

Lawyer (suggesting an answer, after witness is non-responsive): Yes? Cop: Yes. Lawyer: And that’s the scoring system that you used the night Mr. Client was arrested?

Cop: Yes.

12

2. Good Driving {Emphasize client’s good driving in cases where only traffic infraction is speeding, expired inspection sticker or some other “non-drunk” driving.} Lawyer: I’m going to ask you some questions about Mr. Client’s driving. Do you understand?

Cop: Yes. Lawyer: You have been trained to look for certain types of driving that might indicate a person is intoxicated, correct?

Cop: Yes, that’s correct.

Lawyer: These are called driving cues?

Cop: Correct Lawyer: They’re covered in Chapter 5 of your NHTSA Student Manual, entitled, Vehicle in Motion?

Cop: I believe so.

Lawyer: Among other things, you look to see if a vehicle is swerving, drifting or weaving, correct?

Cop: Correct.

Lawyer: Because those are some of the typical cues that a driver might be intoxicated, correct?

Cop: Correct.

Lawyer: Mr. Client wasn’t swerving, was he?

Cop: Not that I noticed.

Lawyer: He wasn’t drifting?

Cop: Not that I noticed.

Lawyer: Wasn’t weaving?

Cop: No, sir.

Lawyer: Wasn’t straddling the center or any lane marker?

13

Cop: {Shakes head}.

Lawyer (following up, after witness gives a non-verbal response): No? Cop: No. Lawyer: Mr. Client didn’t strike or almost strike another vehicle, did he?

Cop: No. Lawyer: He didn’t follow any other vehicle too closely?

Cop: Not that I noticed.

Lawyer: He didn’t brake erratically, as intoxicated drivers sometimes do?

Cop: No. Lawyer: Didn’t drive into opposing traffic?

Cop: No. Lawyer: Didn’t drive with his headlights off?

Cop: No. Lawyer: Because, driving with your headlights off can be considered a cue of intoxication?

Cop: Sometimes.

Lawyer: That’s one of the things you’re trained to look for?

Cop: Yes. Lawyer: But Mr. Client ’s headlights were on and his equipment seemed OK? Cop: As I recall, yes.

Lawyer: And when you put on your overhead flashers, he pulled over as he was supposed to?

Cop: I suppose.

Lawyer: He didn’t try and run from you?

Cop: No, sir.

14

Lawyer: Never attempted to flee?

Cop: No, sir.

3. Symptom Elimination {Explain client’s alleged symptoms of intoxication.} Lawyer: I’m going to ask you some questions about the things that caused you to believe Mr. Client was intoxicated. Do you understand?

Cop: Yes, certainly.

Lawyer: You claim you smelled alcohol on Mr. Client’s breath?

Cop: A strong odor.

Lawyer (“Looping” the witness’ non-responsive answer into next question): Well, the smell of alcohol – regardless of whether you believe it was strong or moderate – doesn’t tell you what type of alcohol was consumed?

Cop: What specific type? No, sir.

Lawyer: The smell of alcohol doesn’t tell you when it was consumed?

Cop: No, sir.

Lawyer: Doesn’t tell you where it was consumed?

Cop: No, sir.

Lawyer: Whether it was mixed with food?

Cop: No, sir.

Lawyer: How much food?

Cop: No, sir.

Lawyer: What kind of food?

Cop: No, sir.

Lawyer: It doesn’t tell you what a person’s tolerance is for alcohol?

Cop: No. 15

Lawyer: It doesn’t even tell you whether a person is intoxicated?

Cop: By itself, no.

Lawyer: All it tells is the person had something to drink.

Cop: That’s correct.

Lawyer: Now, you also claim that Mr. Client had bloodshot eyes?

Cop: Yes. Lawyer: Bloodshot eyes could be caused by things other than intoxication?

Cop: Absolutely.

Lawyer: A person could be tired?

Cop: Yes. Lawyer: Being tired can cause a person to have bloodshot eyes?

Cop: Yes. Lawyer: And I think you mentioned that you pulled Mr. Client over at 2:20 a.m., correct?

Cop: Yes. Lawyer: You would expect some people to be tired at 2:20 a.m., wouldn’t you?

Cop: I suppose.

Lawyer: A person could also have bloodshot eyes because of cigarette smoke, correct?

Cop: Correct.

Lawyer: Bars, clubs and restaurants often have cigarette smoke, don’t they?

Cop: Of course.

Lawyer: And if I am not mistaken, Mr. Client told you that he had just left his house, correct?

Cop: Yes. Lawyer: A lot of things can cause bloodshot eyes, isn’t that true?

16

Cop: Yes, that’s true.

Lawyer: A person living in {name of city or town} could suffer from allergies, correct?

Cop: Correct.

Lawyer: Allergies can cause a person’s eyes to be bloodshot and even watery, correct?

Cop: Correct.

Lawyer: And I think you mentioned that Mr. Client’s eyes were bloodshot as well as glassy, correct?

Cop: That’s correct.

Lawyer (enumerating with fingers): Allergies, cigarette smoke and some of these things we are talking about can all make a person’s eyes bloodshot and watery?

Cop: Correct.

4. Evidence of sobriety (assuming you can prove via police report, video tape, ALR audio tape or ALR transcript).

Lawyer: Officer, I’m going to ask you some questions about Mr. Client ’s appearance and behavior.

Do you understand?

Cop: Sure.

Lawyer: When you pulled Mr. Client over, he stopped on the shoulder of the road, correct?

Cop: Correct.

Lawyer: You got out of your patrol car?

Cop: Yes. Lawyer: You walked over to Mr. Client ’s truck?

Cop: Yes. Lawyer: He kept his hands on the steering wheel?

Cop: Yes. Lawyer: Didn’t make any sudden movements?

17

Cop: No, sir.

Lawyer: And you asked him to roll down his window?

Cop: Yes, sir.

Lawyer: He complied?

Cop: Yes, sir.

Lawyer: He rolled down his window for you?

Cop: Yes, sir.

Lawyer: You asked him for driver’s license and proof of insurance?

Cop: That’s what I usually do.

Lawyer (repeating question when the answer is non-responsive): You asked him for his driver’s license and proof of insurance?

Cop: Yes, sir.

Lawyer: Sometimes an intoxicated driver will have difficulty finding a driver’s license or proof of insurance?

Cop: Sometimes.

Lawyer: Sometimes they’ll fumble with it or drop it?

Cop: That can happen, yes.

Lawyer: But Mr. Client was able to give you those things without any fumbling or difficulty, correct?

Cop: That’s correct.

Lawyer: You asked Mr. Client to step out of his truck?

Cop: Yes. Lawyer: Sometimes an intoxicated driver will stumble getting out his vehicle?

Cop: Sometimes.

Lawyer: But Mr. Client didn’t stumble?

18

Cop: No, sir.

Lawyer: He got out of his truck with absolutely no difficulty?

Cop: I think so.

Lawyer (“mirroring” witness’ non-committal answer): You think so?

Cop: I didn’t notice any difficulty.

Lawyer: Then you asked him to walk to the back of his truck?

Cop: Yes, sir.

Lawyer: And he did it?

Cop: Yes. Lawyer: Without difficulty?

Cop: I didn’t notice any problem.

Lawyer: He didn’t hold onto the side of the truck for balance?

Cop: No, sir.

Lawyer: Intoxicated drivers sometimes hold onto their trucks or cars for balance?

Cop: Sometimes.

Lawyer: But Mr. Client didn’t do that?

Cop: No, sir.

Lawyer: He just walked to the back of his truck in a normal way?

Cop: Yes.

19

5. Roadside versus Station Video. (Distinguish between a bad roadside video and a good station video).

Lawyer: I’m going to ask you some questions about the conditions where you gave Mr. Client his field sobriety tests. Do you understand?

Cop: Yes. Lawyer: As a general rule, you want your tests to happen under the best, possible conditions?

Cop: Whenever possible.

Lawyer: Good conditions are fairer to the person who has to do the tests?

Cop: I would think so.

Lawyer: And good conditions probably give you the best chance of getting an accurate result?

Cop: I would think so.

Lawyer: In this case there were two sets of field sobriety tests given to Mr. Client, correct?

Cop: Correct.

Lawyer: One set of tests was given on the roadside?

Cop: Correct.

Lawyer: And another set was given at the police station?

Cop: Correct.

Lawyer: Now, if we were looking for a level surface to do these tests, you would be more likely to find it at the police station than on the side of the road, correct?

Cop: In general, yes.

Lawyer: And if we were looking for the most constant lighting, you would be more likely to find it at the police station than on the side of the road?

Cop: Correct.

Lawyer: The temperature would probably be more constant at the police station?

20

Cop: I would think.

Lawyer: And you wouldn’t expect to have any wind [if applicable] or precipitation at the police station?

Cop: No, sir.

Lawyer: You wouldn’t expect there to be any traffic noise at the police station?

Cop: No, sir.

6. “Normal” faculties. (Emphasize that the arresting officer doesn’t know what’s normal for client).

Lawyer: Officer, I’m going to ask you some questions about your belief that Mr. Client had lost his normal mental and physical faculties. Do you understand?

Cop: Yes. Lawyer: As we’ve talked about, you asked Mr. Client to perform certain tasks, correct?

Cop: Correct.

Lawyer: Some of the tasks were mental?

Cop: Yes. Lawyer: Some were physical?

Cop: Yes. Lawyer: Several of the tasks were both mental and physical at the same time?

Cop: Yes. Lawyer: For example, tilting your head back and estimating 30 seconds is both a mental and physical task?

Cop: That’s correct.

Lawyer: There are plenty of innocent reasons why a person might not perform well on a mental or physical task?

Cop: I don’t understand what you mean by “innocent.”

21

Lawyer: Reasons other than being intoxicated.

Cop: I suppose.

Lawyer (mirroring the witness’ evasive answer): You suppose?

Cop: It’s possible.

Lawyer: Well, for example, a person could be nervous?

Cop: He didn’t seem nervous to me.

Lawyer (pinning witness down after a non-responsive answer): A person could be nervous?

Cop: Yes. Lawyer: A person could be clumsy or uncoordinated?

Cop: I suppose.

Lawyer: A person could have poor balance?

Cop: I suppose.

Lawyer: A person could have difficulty understanding instructions?

Cop: Yes. Lawyer: A person could get confused in a stressful situation?

Cop: Yes. Lawyer: Anxious?

Cop: Yes. Lawyer: Might not perform well under pressure?

Cop: Yes. Lawyer: Some people might even have difficulty remembering things when they’re under pressure?

Cop: I suppose.

Lawyer (if applicable): You mentioned that Mr. Client couldn’t remember the name of the 22

restaurant he had been to that evening?

Cop: Yes. Lawyer: Now, you believed Mr. Client had lost his normal faculties, correct?

Cop: Yes. Lawyer: Because of alcohol?

Cop: Yes, sir.

Lawyer: But the truth is, you had never met Mr. Client before the night you arrested him?

Cop: No, I never met him before.

Lawyer: You don’t know what he’s normally like in a physical task?

Cop: No. Lawyer: You don’t know what he’s normally like in a mental task?

Cop: No. Lawyer: You don’t know what he’s normally like at 2:30 a.m.?

Cop: No. Lawyer: And you don’t know what Mr. Client is normally like when he’s stressed out or under pressure?

Cop: No. Lawyer: Getting pulled over by the police can be a stressful situation for some people, can’t it?

Cop: Certainly.

Lawyer (Optional question): And you are aware Mr. Client had never been in that type of situation before?

Cop: No, I wasn’t aware.

Lawyer (Optional question - possibly objectionable): You are aware that Mr. Client has never been arrested before?

23

Resources In addition to my own experience, I borrowed heavily from three (3) resources in putting together this paper and presentation. I found these resources enormously helpful and recommend them to anyone who wishes to master the art and science of criminal cross-examination:

MacCarthy, Terry, “MacCarthy on Cross Examination,” American Bar Association (ABA), 2007. https://www.amazon.com/MacCarthy-Cross-Examination-Terence/dp/1590318862 Pozner, Larry, Dodd, Roger J., “Cross-Examination: Science and Techniques,” LexisNexis, 3rd Ed. https://www.amazon.com/Cross-Examination-Science-TechniquesLarry-Pozner-dp-1632843919/dp/1632843919/ref=dp_ob_image_bk Taylor, Lawrence, Oberman, Steven, “Drunk Driving Defense,” 7th Ed. https://www.amazon.com/Driving-Defense-SeventhLawrence-Taylor/dp/0735592977

Grant M. Scheiner Cell: 713-882-0022 grant@scheinerlaw.com © Scheiner Law Group, P.C. 2022

24

Texas Criminal Defense Lawyers Association

20th Annual Top Gun DWI August 19, 2022

The Whitehall 1700 Smith Street Houston, TX 77002

Topic: Ted Talk: Winning a .19 DWI Case with Gas Chromatography Speaker:

Sanjay Biswas

11720 Duxbury Dr Frisco, TX 75035 972.866.5879 Phone 800.506.6804 Fax Sanjaybiswas41@gmail.com Email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

8/1/2022

How to Win a .19 DWI With Gas Chromatography

Sanjay Biswas, Esq. 1512 East McKinney Street Ste 201 Denton, Texas 76209 972‐866‐5879 sanjaybiswas41@gmail.com ACS‐CHAL Forensic Lawyer Scientist

Gas Chromatography Made Simple Lee N. Polite, MBA, PhD Axion Analytical Labs, Inc. info@axionlabs.com

1

8/1/2022

Coffee Headspace Analysis by GC

Chromatography Fundamentals

Mobile Phase (Carrier Gas) Stationary Phase

Packed Column (old fashion)

Typical Chromatogram

tR

t 0

Retention Time (tR):

Used to identify a sample component (Qualitative Analysis).

Characteristic of a compound, but NOT unique!

Peak Area: Used to measure the quantity of the sample component (Quantitative Analysis).

2

8/1/2022

Headspace GC

Gas-Tight Syringe Heat the sample to vaporize the analytes.

Only the vapor, not the entire matrix (sample), is analyzed.

This is an indirect measurement.

Liquids or solidsblood, urine, dead fish Heat

Dual Column Confirmation

Peaks Plus 2

BAC Plus 1

BAC RT

(min.)

1. Methanol 2. Acetaldehyde 3. Ethanol 4. Isopropanol 5. Acetone 6. 1‐Propanol

RT (min.)

0.801 0.848 1.012 1.238 1.348 1.709

0.741 0.697 0.884 1.006 0.955 1.401

Columns

Rtx®-BAC Plus 1 30 m, 0.32 mm ID, 1.8 µm (cat.# 18004) and Rtx®-BAC Plus 2 30 m, 0.32 mm ID, 0.6 µm (cat.# 18006) using Rxi® guard column 5 m, 0.32 mm ID (cat.# 10039) with Universal “Y” Press-Tight® connector (cat.# 20405-261) Sample BAC resolution control standard n-P (cat.# 36010) Conc.: 50 µL of standard was diluted with 950 µL water in a 20 mL headspace vial.

Injection headspace-loop split (split ratio 50:1) Oven Temp.: 40 °C (hold 3 min) Carrier Gas He, constant flow Linear Velocity:80 cm/sec Detector FID @ 240 °C Instrument Agilent/HP6890 GC

3

8/1/2022

5 Most Common Forensic Data Problems

1. Ethanol (or Drug) in the Blank!!!  Modern instrumentation can easily detect less than 1 ppm (0.0001%) 2. Carry‐Over (Cross Contamination)  Same needle for every sample + Very sensitive instrument =?

3. Standard Operating Procedures (SOP’s)  These are the rules. They wrote them, but did they follow them?

4. Chain of Custody Should Connect the Person to the Results Is it broken?

5. Extra Peaks Could be a Sign of Contamination Contaminants from the surroundings Biological Contamination ‐ “Spoiled” Blood (Candida Albicans, etc.)

SANJAY BISWAS, ESQ. 11720 DUXBURY DRIVE FRISCO, TEXAS 75035 972-866-5879 1-800-506-6804 FAX Sanjaybiswas41@gmail.com

DATE: June 14, 2021 TO:

DPS GARLAND garlandcrimelab@dps.texas.gov

FROM: SANJAY BISWAS, ESQ.

RE:

OPEN RECORDS REQUEST

I am requesting discovery on toxicology report GAR-1911-20208, which is the report on blood tested for alcohol/volatiles and drug content in State of Texas v. , Cause No. .

Specifically, I need the following:

The Following Items Concern General Matters:

1. A copy of any accreditation certificates for the laboratory that were in effect at the time of the analysis.

2. The laboratory’s overall policies as to testing and calibration.

3. The laboratory’s overall protocols as to testing and calibration.

4. The policies that applies to the section of the laboratory where this particular testing or calibration event occurred.

5. The procedures that applies to the section of the laboratory where this particular testing or calibration event occurred.

The Following Items Concern Pre-analytical Matters:

4

8/1/2022

6. Validation studies (both internal and external) that prove the validation of the method and instructions used.

7. The policy that applies to the assay performed in this particular test or calibration event that covers the calibration or the achieving of a calibration curve.

8. The procedure that applies to the assay performed in this particular test or calibration event that covers the calibration or the achieving of a calibration curve.

9. The instructions that apply to the assay performed in this particular test or calibration event that covers the calibration or the achieving of a calibration curve.

10. The calibration curves and all chromatograms generated on the batch on the machine on which the sample in this case was tested.

11. The identification and source of all internal standards, standards, standard mixtures (separation matrix), verifiers, blanks, and controls that were run within the batch in which the sample in this case was run.

12. All records reflecting internal testing or quality control testing of all solutions, reagents, or standard mixtures used as, as part of, or in relation to internal standards, controls, standard mixtures, or standards in the batch in which the sample in this case was run.

13. All refrigeration logs, reports, or other documents in whatever form, for all refrigerated compartments in which this sample, other unknowns within the run, internal standards, controls, standard mixtures, standards, and reagents used in or in relation to the analysis in this case were stored or kept at any time.

14. All proficiency testing results for the section of the laboratory testing the sample in this case as well as for the person who conducted the testing in this case --- since the last date of accreditation inspection preceding the test, and for any such testing since the testing in this case. This specifically includes the summary report of expected results for the proficiency testing (and the manufacturer’s information sheet) against which the proficiency test results are judged.

15. Quarterly balance quality control records on any balance instrument related to the calibration of the EtOH standard solution or the preparation of knowns or unknowns used in the blood alcohol testing of the samples in this case. The records reflecting the calibration of weights on any balance or instrument related to this case as well as the control charts kept.

The Following Items Concern Analytical Matters: 16. The instructions that apply to the assay that was used in this particular testing or calibration event occurred.

17. The employee training record, curriculum vitae, and resume for any person listed on chain of custody documents in this case or who performed the analysis.

18. Identify the make, model, and brand/manufacturer of the instruments and other supporting instruments (i.e. balance, pipette, etc.) used during the analysis and/or preparation of the samples in this case and the variables used in its installation and operation.

19. The policy concerning the sample selection criteria used in this particular case.

20. The procedure concerning the sample selection criteria used in this particular case.

21. The instructions concerning the sample selection criteria used in this particular case.

22. The source and type of all consumables used in collection, preparation, and analysis of the samples run in the batch.

23. If a Gas or Liquid Chromatograph is used, the reporting of t0 time according to the method.

The Following Items Concern Reporting Matters: 24. The particular records for this testing or calibration event.

25. The quality control policy and protocol for the laboratory, the section, and the assay performed.

26. The quality assurance policy and protocol for the laboratory, the section, and the assay performed.

27. The full reporting and the underlying validation of the valuation of the uncertainty measurement (UM) in the ultimate reported result.

28. If a Mass Spectrometer is used, then the following additional materials should be provided: 28.1 If a spectral library is used to examine spectra and elucidate spectra, the source of the library spectra.

28.2 The hit list, and the hit histogram for the testing.

28.3 All ‘‘tune’’ reports ran within one year if a MS detector was used.

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Sample Results Analysis Date & Time : 4/16/2021 4:53:53 PM Instrument Name : GC‐2010 Sample Name : GAR‐2104‐04719‐0001‐01‐01 : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 17

C:\LabSolutions\Batch\2021\ANW04162021\GAR‐2104‐04719‐0001‐01‐01_1‐ 17_4162021_17.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\GAR‐2104‐04719‐0001‐01‐01_1‐ 17_4162021_17.gcd Channel 2

intensity 60000

45000

4.839

2.994

2.269

3.242

intensity 50000

50000

40000 35000

40000

30000 30000

25000 20000

20000

15000

5000

0

2.236

1.952 2.103

1.723 1.906

10000

10000

0 0.0

0.5

Name Methanol Acetaldehyde Ethanol N‐propanol

1.0

1.5

2.0

2.5

3.0

3.5

Conc.

0.0000 0.0000 0.1915 0.0000

Area 758.6440 727.8160 104110.3 130830.0

Ret. Time 1.952 2.103 2.269 3.242

4.0

4.5

5.0

0.0

min

Units g/100mL g/100mL g/100mL g/100mL

0.5

Name Acetaldehyde Ethanol N‐Propanol

1.0

1.5

2.0

Ret. Time 2.236 2.994 4.839

2.5

3.0

3.5

4.0

4.5

5.0

Analysis Date & Time : 4/16/2021 5:00:11 PM Instrument Name : GC‐2010 Sample Name : GAR‐2104‐04719‐0001‐01‐01 : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 18

C:\LabSolutions\Batch\2021\ANW04162021\GAR‐2104‐04719‐0001‐01‐01_1‐ 18_4162021_18.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\GAR‐2104‐04719‐0001‐01‐01_1‐ 18_4162021_18.gcd Channel 2

intensity 60000

2.994

45000

4.840

2.269

3.243

intensity 50000

50000

min

Area 709.6740 105104.7 131662.1

40000 35000

40000

30000 30000

25000 20000

20000

15000

5000

0

2.236

1.951 2.103

1.723 1.907

10000

10000

0 0.0

0.5

Name Methanol Acetaldehyde Ethanol N‐propanol

1.0

1.5

2.0

2.5

3.0

3.5

4.0

4.5

5.0

min

0.0

0.5

Ret. Time 1.951 2.103

Area 875.9080 712.2280

Conc.

0.0000 0.0000

Units g/100mL g/100mL

Name Acetaldehyde Ethanol

2.269 3.243

107245.5 135112.2

0.1910 0.0000

g/100mL g/100mL

N‐Propanol

1.0

1.5

2.0

2.5

Ret. Time 2.236 2.994

Area 707.6120 108136.0

4.840

135816.3

3.0

3.5

4.0

4.5

5.0

min

5

8/1/2022

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Batch List - Quality Control Sample Name

Vial 1 Calibrator 2 - Cerilliant 0.05 2 Calibrator 3 - Cerilliant 0.10 3 Calibrator 4 - Cerilliant 0.30 4 Calibrator 5 - Cerilliant 0.50 5 Calibrator 1 - Cerilliant 0.01

Conc.

0.0099 0.0500 0.1002 0.3002 0.5026

Area Ratio 0.0395118 0.203612 0.411822 1.24036 2.09267

Lot Number FN08031803 FN05211804 FN02271802 FN07311804 FN08031602

Expiration Date 9/30/2023 7/31/2023 4/30/2023 8/31/2023 9/30/2021

Calibration Curve

2.00

Area Ratio

1.50

1.00

0.50

y = 4.16887x + (‐.00282899)

0.00 0.00

0.20

0.10

0.30

0.40

0.50

Concentration

BAC1 : r^2 = 0.9999552

Sample Name Blank Mix

Vial Conc.

0.0000 6 0.1004 7

Lot Number

8 9 10

0.5002 0.0991 0.0103

FN08031602 FN02271802 FN08031803

31 52 73 74 75

1.1250 % 0.0791 FN04171701 5/31/2022 2.2500 % 0.0782 FN04171701 5/31/2022 0.0000 0.0782 FN04171701 Internal Standard Preparation Date:5/31/2022 03/31/2021 SG 2.2500 % 0.8000 % 0.1488 FN02271803 4/30/2023

Cal Check - Cerilliant 0.50 Cal Check - Cerilliant 0.10 Cal Check - Cerilliant 0.01 Control - Cerilliant 0.08 Control - Cerilliant 0.08 Blank Control - Cerilliant 0.08 Control - Cerilliant 0.15

Expiration Date

Agreement

Results Pass

Mix Preparation Date: 11/11/2020 ANW 0.0400 % 0.9000 % 0.0003 g/100mL

9/30/2021 4/30/2023 9/30/2023

Pass Pass Pass Pass Pass Pass Pass Pass

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Batch List - Samples Batch Preparation Date:

Pipette: ML600FH9118

4/16/2021

Sample Name GAR-2103-04708-0001-01-01 GAR-2103-04709-0001-01-01 GAR-2104-04717-0001-01-01 GAR-2104-04719-0001-01-01 GAR-2104-04721-0001-01-01 GAR-2104-04722-0001-01-01 GAR-2104-04724-0001-01-01 GAR-2104-04725-0001-01-01 GAR-2104-04726-0001-01-01 GAR-2104-04727-0001-01-01 GAR-2104-04728-0001-01-01 GAR-2104-04729-0001-01-01 GAR-2104-04730-0001-01-01 GAR-2104-04731-0001-01-01 GAR-2104-04732-0001-01-01 GAR-2104-04733-0001-01-01 GAR-2104-04734-0001-01-01 GAR-2104-04752-0001-01-01 GAR-2104-04755-0001-01-01 GAR-2104-04756-0001-01-01 GAR-2104-04757-0001-01-01 GAR-2104-04758-0001-01-01 GAR-2104-04759-0001-01-01 GAR-2104-04760-0001-01-01 GAR-2104-04763-0001-01-01 GAR-2104-04773-0001-01-01 GAR-2104-04778-0001-01-01 GAR-2104-04779-0001-01-01 GAR-2104-04780-0001-01-01 GAR-2104-04784-0001-01-01

Vial 11 13 15 17 19 21 23 25 27 29 32 34 36 38 40 42 44 46 48 50 53 55 57 59 61 63 65 67 69 71

Run 1 Conc.

0.3295 0.1105 0.2095 0.1915 0.0905 0.1481 0.0834 0.2093 0.2490 0.0000 0.1172 0.0000 0.0395 0.3389 0.0595 0.0000 0.3156 0.0000 0.0948 0.1920 0.0064 0.0000 0.1759 0.0989 0.2493 0.0000 0.3388 0.0085 0.1051 0.3128

Vial 12 14 16 18 20 22 24 26 28 30 33 35 37 39 41 43 45 47 49 51 54 56 58 60 62 64 66 68 70 72

Instrument: GC-2010

Run 2 Conc.

0.3278 0.1102 0.2095 0.1910 0.0908 0.1484 0.0837 0.2083 0.2497 0.0000 0.1182 0.0000 0.0392 0.3356 0.0597 0.0000 0.3141 0.0000 0.0954 0.1915 0.0064 0.0000 0.1766 0.0982 0.2475 0.0000 0.3355 0.0080 0.1045 0.3126

Average 0.328 0.110 0.209 0.191 0.090 0.148 0.083 0.208 0.249 0.000 0.117 0.000 0.039 0.337 0.059 0.000 0.314 0.000 0.095 0.191 0.006 0.000 0.176 0.098 0.248 0.000 0.337 0.008 0.104 0.312

Agreement 0.5173 % 0.2719 % 0.0000 % 0.2614 % 0.3309 % 0.2024 % 0.3591 % 0.4789 % 0.2807 % 0.0000 g/100mL 0.8496 % 0.0000 g/100mL 0.0003 g/100mL 0.9785 % 0.0002 g/100mL 0.0000 g/100mL 0.4764 % 0.0000 g/100mL 0.6309 % 0.2608 % 0.0000 g/100mL 0.0000 g/100mL 0.3972 % 0.7103 % 0.7246 % 0.0000 g/100mL 0.9788 % 0.0005 g/100mL 0.5725 % 0.0640 %

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Quality Control Analysis Date & Time : 4/16/2021 3:07:30 PM Instrument Name : GC‐2010 Sample Name : Calibrator 1 ‐ 0.01 : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 1

C:\LabSolutions\Batch\2021\ANW04162021\Calibrator 1 ‐ 0.01_1‐01_4162021_1.gcd C:\LabSolutions\Batch\2021\ANW04162021\Calibrator 1 ‐ 0.01_1‐01_4162021_1.gcd Channel 1 Channel 2

50000

4.839

intensity 45000 3.242

intensity 60000

40000 35000

40000

30000 25000

30000 20000 20000

15000

1.721

2.271

5000

0

2.997

10000 10000

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

2.0

Ret. Time 2.271 3.242

2.5

3.0

3.5

4.0

Conc.

0.0099 0.0000

Area 5253.436 132958.6

4.5

5.0

0.0

min

0.5

Name Ethanol N‐Propanol

Units g/100mL g/100mL

Analysis Date & Time : 4/16/2021 3:13:49 PM Instrument Name : GC‐2010 Sample Name : Calibrator 2 ‐ 0.05 : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

1.0

2.0

1.5

Ret. Time 2.997 4.839

2.5

3.0

3.5

4.0

4.5

5.0

min

Area 5249.048 134132.0

Vial # : 2

C:\LabSolutions\Batch\2021\ANW04162021\Calibrator 2 ‐ 0.05_1‐02_4162021_2.gcd C:\LabSolutions\Batch\2021\ANW04162021\Calibrator 2 ‐ 0.05_1‐02_4162021_2.gcd Channel 1 Channel 2

50000

4.839

intensity 45000 3.242

intensity 60000

40000 35000 30000

40000

25000 30000 2.995

20000 15000

2.270

20000

10000 1.722

10000 5000 0

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

Ret. Time 2.270 3.242

2.0

2.5

Area 27151.89 133351.4

3.0

3.5

Conc.

0.0500 0.0000

4.0

4.5

Units g/100mL g/100mL

5.0

min

0.0

0.5

Name Ethanol N‐Propanol

1.0

1.5

Ret. Time 2.995 4.839

2.0

2.5

3.0

3.5

4.0

4.5

5.0

min

Area 27153.12 134848.5

6

8/1/2022

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Quality Control Analysis Date & Time : 4/16/2021 3:20:05 PM Instrument Name : GC‐2010 Sample Name : Calibrator 3 ‐ 0.10 : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 3

C:\LabSolutions\Batch\2021\ANW04162021\Calibrator 3 ‐ 0.10_1‐03_4162021_3.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\Calibrator 3 ‐ 0.10_1‐03_4162021_3.gcd Channel 2

intensity 60000

4.839

3.242

intensity 45000

50000

40000 35000 30000 25000

2.269

30000

2.994

40000

20000

20000

15000 10000 1.722

10000 5000 0

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

2.0

Ret. Time 2.269 3.242

2.5

3.0

3.5

Area 55474.47 134705.1

4.0

Conc.

0.1002 0.0000

5.0

4.5

0.0

min

Units g/100mL g/100mL

0.5

Name Ethanol N‐Propanol

1.0

1.5

2.0

Ret. Time 2.994 4.839

3.0

2.5

3.5

4.0

4.5

5.0

min

Area 55865.44 135398.3

Analysis Date & Time : 4/16/2021 3:26:23 PM Instrument Name : GC‐2010 Sample Name : Calibrator 4 ‐ 0.30 : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 4

C:\LabSolutions\Batch\2021\ANW04162021\Calibrator 4 ‐ 0.30_1‐04_4162021_4.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\Calibrator 4 ‐ 0.30_1‐04_4162021_4.gcd Channel 2 intensity 80000

2.268

2.993

intensity 100000

80000

3.242

4.839

60000 60000

40000

40000 20000 1.721

20000

0

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

2.0

Ret. Time 2.268 3.242

2.5

3.0

3.5

Area 166828.0 134500.1

4.0

Conc.

0.3002 0.0000

4.5

5.0

0.0

min

Units g/100mL g/100mL

0.5

Name Ethanol N‐Propanol

1.0

1.5

2.0

Ret. Time 2.993 4.839

2.5

3.0

3.5

4.0

4.5

5.0

min

Area 168276.7 135439.0

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Quality Control Analysis Date & Time : 4/16/2021 3:32:43 PM Instrument Name : GC‐2010 Sample Name : Calibrator 5 ‐ 0.50 Method Name : C:\LabSolutions\Batch\BACLUBMULTIB.gcm

Vial # : 5

C:\LabSolutions\Batch\2021\ANW04162021\Calibrator 5 ‐ 0.50_1‐05_4162021_5.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\Calibrator 5 ‐ 0.50_1‐05_4162021_5.gcd Channel 2

2.269

140000

2.993

intensity 140000

intensity 160000

120000

120000

100000

100000 80000 80000 4.839

60000

3.243

60000

40000

40000

0

1.722

20000

20000

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

2.0

Ret. Time 2.269 3.243

2.5

3.0

3.5

Area 286099.3 136715.1

4.0

Conc.

0.5026 0.0000

4.5

5.0

0.0

min

Units g/100mL g/100mL

0.5

Name Ethanol N‐Propanol

1.0

1.5

2.0

Ret. Time 2.993 4.839

3.0

2.5

3.5

4.0

4.5

5.0

Analysis Date & Time : 4/16/2021 3:39:02 PM Instrument Name : GC‐2010 Sample Name : Blank : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 6

C:\LabSolutions\Batch\2021\ANW04162021\Blank_1‐06_4162021_6.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\Blank_1‐06_4162021_6.gcd Channel 2 4.840

intensity 45000 3.243

intensity 60000

min

Area 289037.4 137432.5

40000

50000 35000 40000

30000 25000

30000 20000 20000

15000 10000 1.722

10000 5000 0

0 0.0

0.5

Name N‐propanol

1.0

1.5

2.0

Ret. Time 3.243

2.5

3.0

3.5

Area 136985.8

4.0

Conc.

0.0000

5.0

4.5

0.0

min

Units g/100mL

0.5

Name N‐Propanol

1.0

1.5

2.0

Ret. Time 4.840

3.0

2.5

3.5

4.0

4.5

5.0

min

Area 138311.3

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Quality Control Analysis Date & Time : 4/16/2021 3:45:17 PM Instrument Name : GC‐2010 Sample Name : Mix : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 7

C:\LabSolutions\Batch\2021\ANW04162021\Mix_1‐07_4162021_7.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\Mix_1‐07_4162021_7.gcd Channel 2

2.614

50000

4.839

50000

3.056 3.242

60000

3.245 3.365

intensity 60000

intensity 70000

20000

2.235

30000

2.456

2.850

1.940 2.102 2.269

30000

2.994

2.718

40000 40000

20000

10000 1.722

10000 0

0 0.0

0.5

Name Methanol Acetaldehyde Ethanol Isopropanol Formaldehyde Acetone N‐propanol

1.0

1.5

2.0

Ret. Time 1.940 2.102 2.269 2.614 2.850 3.056 3.242

2.5

3.0

Area 50278.88 39998.51 55315.30 138008.2 70328.10 120569.6 133050.9

3.5

4.0

Conc.

0.0000 0.0000 0.1004 0.0000 0.0000 0.0000 0.0000

4.5

5.0

min

Units g/100m L g/100mL g/100mL g/100mL g/100mL g/100mL g/100mL

0.0

0.5

Name Acetaldehyde Methanol Formaldehyde Ethanol Acetone Isopropanol N‐Propanol

1.0

1.5

2.0

Ret. Time 2.235 2.456 2.718 2.994 3.245 3.365 4.839

2.5

3.0

3.5

4.0

4.5

5.0

Analysis Date & Time : 4/16/2021 3:57:10 PM Instrument Name : GC‐2010 Sample Name : 0.50 Cal Check : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 8

C:\LabSolutions\Batch\2021\ANW04162021\0.50 Cal Check_1‐08_4162021_8.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\0.50 Cal Check_1‐08_4162021_8.gcd Channel 2

120000

100000

100000

80000

80000 3.242

120000

60000

40000

4.839

60000

2.993

intensity 140000

2.268

intensity 140000

min

Area 40739.00 50862.73 71564.07 55781.22 122906.1 140051.5 133800.9

40000 20000

0

1.722

20000

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

Ret. Time 2.268 3.242

2.0

2.5

Area 265090.7 127279.8

3.0

3.5

Conc.

0.5002 0.0000

4.0

4.5

Units g/100mL g/100mL

5.0

min

0.0

0.5

Name Ethanol N‐Propanol

1.0

1.5

Ret. Time 2.993 4.839

2.0

2.5

3.0

3.5

4.0

4.5

5.0

min

Area 267683.6 127908.6

7

8/1/2022

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Quality Control Analysis Date & Time : 4/16/2021 4:03:26 PM Instrument Name : GC‐2010 Sample Name : 0.10 Cal Check : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 9

C:\LabSolutions\Batch\2021\ANW04162021\0.10 Cal Check_1‐09_4162021_9.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\0.10 Cal Check_1‐09_4162021_9.gcd Channel 2 4.839

intensity 45000

3.243

intensity 60000

40000

50000 35000 30000 25000

2.270

30000

2.995

40000

20000

20000

15000 10000 1.722

10000 5000 0

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

2.0

Ret. Time 2.270 3.243

2.5

3.0

3.5

Area 57376.57 139700.9

4.0

Conc.

0.0991 0.0000

5.0

4.5

0.0

min

Units g/100mL g/100mL

0.5

Name Ethanol N‐Propanol

1.0

1.5

2.0

Ret. Time 2.995 4.839

2.5

3.0

3.5

4.0

4.5

5.0

min

Area 58042.79 140718.4

Analysis Date & Time : 4/16/2021 4:09:44 PM Instrument Name : GC‐2010 Sample Name : 0.01 Cal Check : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 10

C:\LabSolutions\Batch\2021\ANW04162021\0.01 Cal Check_1‐10_4162021_10.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\0.01 Cal Check_1‐10_4162021_10.gcd Channel 2 4.840

intensity 45000

3.243

intensity 60000

40000

50000 35000 40000

30000 25000

30000 20000 20000

15000

1.722

2.272

5000

0

2.998

10000 10000

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

2.0

Ret. Time 2.272 3.243

2.5

3.0

3.5

Area 5591.688 138615.7

4.0

Conc.

0.0103 0.0000

5.0

4.5

0.0

min

Units g/100mL g/100mL

0.5

Name Ethanol N‐Propanol

1.0

1.5

2.0

Ret. Time 2.998 4.840

2.5

3.0

3.5

4.0

4.5

5.0

min

Area 5469.602 139820.1

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Quality Control Analysis Date & Time : 4/16/2021 6:22:11 PM Instrument Name : GC‐2010 Sample Name : 0.08 Control Method Name : C:\LabSolutions\Batch\BACLUBMULTIB.gcm

Vial # : 31

C:\LabSolutions\Batch\2021\ANW04162021\0.08 Control_1‐31_4162021_31.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\0.08 Control_1‐31_4162021_31.gcd Channel 2

50000

4.840

intensity 45000 3.243

intensity 60000

40000 35000

40000

30000 25000 2.995

30000 2.270

20000

20000

15000 10000 1.722

10000 5000 0

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

2.0

Ret. Time 2.270 3.243

2.5

3.0

3.5

Area 43711.40 133554.1

4.0

Conc.

0.0791 0.0000

5.0

4.5

0.0

min

Units g/100mL g/100mL

0.5

Name Ethanol N‐Propanol

1.0

1.5

2.0

Ret. Time 2.995 4.840

2.5

3.0

3.5

4.0

4.5

5.0

Analysis Date & Time : 4/16/2021 8:40:18 PM Instrument Name : GC‐2010 Sample Name : 0.08 Control : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 52

C:\LabSolutions\Batch\2021\ANW04162021\0.08 Control_2‐20_4162021_52.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\0.08 Control_2‐20_4162021_52.gcd Channel 2 4.842

intensity 45000 3.244

intensity 60000

min

Area 43740.07 134413.9

40000

50000 35000 40000

30000

2.996

25000 30000 2.271

20000

20000

15000 10000 1.722

10000 5000 0

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

2.0

Ret. Time 2.271 3.244

2.5

3.0

3.5

Area 44685.44 138104.7

4.0

Conc.

0.0782 0.0000

5.0

4.5

0.0

min

Units g/100mL g/100mL

0.5

Name Ethanol N‐Propanol

1.0

1.5

2.0

Ret. Time 2.996 4.842

2.5

3.0

3.5

4.0

4.5

5.0

min

Area 44891.35 138959.5

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Quality Control Analysis Date & Time : 4/16/2021 10:58:32 PM Instrument Name : GC‐2010 Sample Name : Blank : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 73

C:\LabSolutions\Batch\2021\ANW04162021\Blank_3‐09_4162021_73.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\Blank_3‐09_4162021_73.gcd Channel 2

50000

4.842

intensity 45000 3.244

intensity 60000

40000 35000

40000

30000 25000

30000 20000 20000

15000 10000 1.723

10000 5000 0

0 0.0

0.5

Name N‐propanol

1.0

1.5

2.0

Ret. Time 3.244

2.5

3.0

3.5

Area 129302.0

4.0

Conc.

0.0000

4.5

5.0

0.0

min

Units g/100mL

0.5

Name N‐Propanol

1.0

1.5

2.0

Ret. Time 4.842

2.5

3.0

3.5

4.0

4.5

5.0

Analysis Date & Time : 4/16/2021 11:04:49 PM Instrument Name : GC‐2010 Sample Name : 0.08 Control : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 74

C:\LabSolutions\Batch\2021\ANW04162021\0.08 Control_3‐10_4162021_74.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\0.08 Control_3‐10_4162021_74.gcd Channel 2

50000

4.842

intensity 45000 3.245

intensity 60000

min

Area 130356.0

40000 35000 30000

40000

25000 2.997

30000 2.271

20000

20000

15000 10000 1.723

10000 5000 0

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

Ret. Time 2.271 3.245

2.0

2.5

Area 43596.37 134880.2

3.0

3.5

Conc.

0.0782 0.0000

4.0

4.5

Units g/100mL g/100mL

5.0

min

0.0

0.5

Name Ethanol N‐Propanol

1.0

1.5

Ret. Time 2.997 4.842

2.0

2.5

3.0

3.5

4.0

4.5

5.0

min

Area 44059.57 136008.7

Page 24 of 12

8

8/1/2022

Texas Department of Public Safety Crime Laboratory - Lubbock Analyst: AW Analysis Start Date: 4/16/2021

Quality Control Analysis Date & Time : 4/16/2021 11:11:11 PM Instrument Name : GC‐2010 Sample Name : 0.15 Control : C:\LabSolutions\Batch\BACLUBMULTIB.gcm Method Name

Vial # : 75

C:\LabSolutions\Batch\2021\ANW04162021\0.15 Control_3‐11_4162021_75.gcd Channel 1

C:\LabSolutions\Batch\2021\ANW04162021\0.15 Control_3‐11_4162021_75.gcd Channel 2

intensity 60000

2.996

40000 35000

2.270

40000

4.842

3.244

intensity 45000

50000

30000 25000

30000 20000 20000

15000 10000 1.723

10000 5000 0

0 0.0

0.5

Name Ethanol N‐propanol

1.0

1.5

Ret. Time 2.270 3.244

2.0

2.5

Area 83900.14 135816.1

3.0

3.5

Conc.

0.1488 0.0000

4.0

5.0

4.5

Units g/100mL g/100mL

min

0.0

0.5

1.0

Name Ethanol N‐Propanol

1.5

Ret. Time 2.996 4.842

2.0

2.5

3.0

3.5

4.0

4.5

5.0

min

Area 84707.73 136870.5

Page 25 of 12

Thank You! Info@AxionLabs.com

9

Texas Criminal Defense Lawyers Association

20th Annual Top Gun DWI August 19, 2022

The Whitehall 1700 Smith Street Houston, TX 77002

Topic: Ted Talk: 20 Years of Top Gun DWI Speaker:

Danny Easterling

1004 Prairie St Ste 200 Houston, TX 77002 713.228.4441Phone 713.770.6028 Fax eaepc@swbell.net Email www.easterlinglawfirm.com Website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

8/1/2022

20 YEARS OF TOP GUN DWI

1

8/1/2022

2

8/1/2022

3

8/1/2022

4

8/1/2022

5

8/1/2022

6

8/1/2022

7

8/1/2022

8

8/1/2022

9

8/1/2022

10

8/1/2022

11

8/1/2022

12

8/1/2022

13

Texas Criminal Defense Lawyers Association

20th Annual Top Gun DWI August 19, 2022

The Whitehall 1700 Smith Street Houston, TX 77002

Topic: Drug Recognition Evaluation: Defeating DRE with Scientific Studies and Common Sense Speaker:

Brent Mayr

Author:

Doug Murphy

5300 Memorial Dr Ste 750 Houston, TX 77007 713.808.9613 Phone 713. 808.9991 Fax bmayr@mayr-law.com Email www.mayr-law.com Website

Doug Murphy Law Firm, P.C. 902 Heights Blvd.

Houston, TX 77008 713.229.8333 phone doug@dougmurphylaw.com email https://www.dougmurphylaw.com/ website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Drug Recognition Evaluation:

Defeating DRE with Scientific Studies and Common Sense

by

Doug Murphy Doug Murphy Law Firm, P.C. 902 Heights Houston, Texas (713) 229-8333 doug@dougmurphylaw.com

DRUG RECOGNITION EVALUATION I.

Introduction

Every day a large percentage of our population lawfully ingests prescription or over-the-counter medication. These citizens are in danger of being wrongly arrested and convicted for DUI/DWI even though they are not drug impaired. Their danger of being wrongly arrested for DUI/DWI is because of so called “drug recognition experts” (“DRE”). DRE are ordinary police officers who simply who received some limited amount of training on drugs and their effects and are being sold to the public as drug “experts”. DREs are not real drug experts and they, in reality, do not have the training or qualifications to make the medical conclusions on drug impairment that they do. Just because someone ingested medication does not automatically equate to being under the influence of that drug, or worse, impaired by that drug.

Throughout history there have been drug experts, some have been based in science, while others have not. False experts with catchy names also made their mark on history, e.g. wizards and the medicine man. The historical lessen to be learned is that having a catchy title or flashy costume does not really mean the person is an expert—even if they or a government bureaucracy says so. It is within this framework of looking at things as they really are, instead of what they say they are, that we turn our focus on the police “drug recognition expert,” the “DRE” Mere contemplation of the phrase “drug recognition expert” brings to mind the following questions that must be studied to determine the truth. Why was the DRE created? What is a DRE? For what purpose or need? By whom? Is DRE really an expert or is the name to market, sell or mask a non-expert witness with a false cloak of credibility?

II.

Why was the DRE Created?

The DRE program was created to help overcome a credibility problem officers have with juries to obtain convictions in cases where suspects do not perform well on standardized balance and coordination exercises, but their breath alcohol test concentrations are below the legal per se limit. In the mindset of most police officers is the following question: If it wasn’t alcohol that caused the loss of normal mental and/or physical faculties, then what drug is causing it?

The possibility of poor balance and coordination are excluded. It’s absolute blind faith in field sobriety testing. The focus becomes medication/drugs consumed.

In this regard, it is must be acknowledged in the DRE student manual that, like other police tools (SFSTs), “[t]he drug influence evaluation isn’t an exact science,”1 and that “DREs are not infallible, and neither are laboratories.”2

It is this credibility problem that caused the program creators to include the word “expert” in the officer’s title “drug recognition expert” even though they are only evaluators. Despite this self-proclamation, the DRE student manual correctly acknowledges that it is the court—and the court alone—who will decide whether the witness is actually an expert under evidence rule 702.3 Regrettably, some courts have abdicated their qualification role and have simply acquiesced to NHTSA’s expert self-proclamation. Defense practitioners need to be prepared to file a motion precluding the state and their witnesses from calling DREs experts, but rather calling them evaluators, or examiners.4 III.

The Genesis of the DRE

The Drug Recognition Evaluation (DRE) program was created by two Los Angeles Police Department Sergeants after concluding that medical doctors “typically receive little or no training in the recognition of specific signs of drug impairment, particularly at street level doses; therefore, they often were unable or reluctant to offer a judgment about a suspect’s condition.”5 Further, DRE program was created to overcome the limitations of blood and urine testing “because it isn’t possible to relate concentration to ‘impairment’ with any degree of reliability.”6 Blood and urine testing can only prove the presence of a drug, but neither can provide a quantified level that proves actual drug influence and impairment. Further, there is no standardized quantified level of any drug, except for alcohol, that has been scientifically determined to cause impairment in all individuals.

To the police, the DRE program bridges the gap when they could not provide a reasonable and articulate suspicion that a person was under the influence of drugs where the subject passed a breath test. In a way, the DRE program is a cover up for the lack of reliability of the standardized field sobriety tests (SFSTS). On one hand, the officer relied on the SFSTS and believed impairment was observed, but then the breath test eliminated alcohol as the cause. Accordingly, two equally probable possibilities arise: SFSTS are not scientifically reliable or valid as an indicator of intoxication, versus the person is impaired on something other than alcohol. The DRE program focuses solely on the second possibility and ignores the commonsense realities and shortcomings of SFSTS. In doing so, the DRE program blinds itself to the unreliability and unfairness associated with the SFSTS. Many defense lawyers, prosecutors, judges and jurors, erroneously accept the purported observations and the canned impaired statements of a DRE. Defense lawyers who represent allegedly drug impaired defendants must be prepared to challenge these purported “expert” witnesses so that prosecutors, judges—and most importantly, jurors—understand both the limitations and falsities of DRE evidence. This article cites, evaluates and analyzes the DRE manual by giving a brief overview directly out of the manual of the 12 step drug influence evaluation process; the seven categories of drugs involved, how these

drugs affect and react with the human body; teaching notes to assist those in assessing whether the drug influence evaluation was conducted properly; and, what evidential weight, if any, the DRE evaluation should be given.

IV.

What it takes to become a DRE

Before an officer can be a DRE, the officer must be certified to administer SFST and attend a 2 day DRE preliminary training course. At this course, officers are instructed how to administer a vital signs examination, i.e. checking blood pressure, pulse rate and temperature. The course also covers SFST administration, provides an overview of DRE procedures, and the effects of the drugs.

Having completed the preliminary course, the officer is eligible to take the actual 7 day DRE course. The course covers the seven categories of drugs and the 12 step DRE procedures contained in the student manual. At the conclusion of the DRE School and 12 completed DRE evaluations, a written examination is given, where a minimum passing score of 80% required to receive a DRE certificate. Interestingly, the program allows the certified officer to apply his new training with an accepted 20% margin of error, yet suspects must perform at a level that allows almost no margin of error. Any error by a suspect will be accepted as impairment caused by drugs/alcohol.

DREs are required to maintain a rolling log of every evaluation conducted, which also includes the toxicology results.7 The log is critical to both establishing the DRE's being recognized as an expert in court, and for documenting DRE experience required for recertification. DRE are further required to maintain an updated resume which lists all training, readings which the DRE relies upon to base an opinion, formal education, any publications, and other relevant experiences. Of course, the main purpose of the resume is to enhance the credibility and consistency of DREs when testifying in court.8 Lastly, all DREs must biannually attend a minimum of eight hours of continuing education training in order to maintain certification. They must also conduct at least four drug influence evaluations within the two year period, with at least one evaluation directly supervised by a DRE instructor.

V.

Overview of Drug Recognition Expert Procedures

In order for a DRE to reach an opinion that the individual is under the influence of a specific category of drugs, a 12 step chronological systematic and standardized process must be performed. The program instructs the DRE to never voice a conclusion based on any one element until the entire evaluation is completed. The 12 steps are: 1.

the breath alcohol test

2.

3.

4.

5.

interview of the arresting officer preliminary examination and first pulse eye examinations divided attention tests: a. rhomberg balance b. walk and turn c. one leg stand – once on each leg d. finger to nose 6. vital signs, and second pulse 7. darkroom examinations of pupil size, and nasal and oral cavities examination 8. muscle tone 9. examination of injection sites, and third pulse 10. statements, interrogation and other observations 11. opinion of evaluator 12. toxicology examination A more detailed description of each step is discussed below: 1.

The Breath Alcohol Test

A breath test is conducted to determine whether alcohol is a contributing factor to the observed impairment. If alcohol is a contributing factor, the breath test determines whether the concentration of alcohol is sufficient enough to be the sole cause of the impairment. If the BAC score is above the legal limit, generally speaking, a DRE is not required because there is enough intoxication evidence to prosecute. If the BAC score is below the legal limit, a DRE is requested to conduct an evaluation to see if drugs are the cause of the impairment.

Practice Pointer: From a defense perspective, your client’s cooperation should be noted that he/she cooperated fully because he/she had nothing to hide, i.e. no guilty mind. It is not uncommon for an inexperienced DRE officer to provide the breath test passing suspect with a Notice of Suspension/Temporary Driving Permit (DIC-25) despite the fact that there is no administrative license suspension for passing a breath test, even if the second specimen results are positive for the presence of drugs and/or alcohol.

From a jury argument perspective, if an officer really had a belief that a person is impaired on drugs, only a blood specimen should have been requested. A blood test result has the greatest potential of producing some evidence to determine at the same time the blood alcohol concentration amount and whether a drug is present in a person’s blood stream, although a blood sample still cannot answer the question of drug impairment.

A major problem with DWI/DUI enforcement is that poor balance is wrongly perceived as evidence of alcohol/drug impairment. The biggest fallacy among persons suspected of being impaired is that if the pass the breath test, they will be free to be on their way. That belief quickly dissipates when officers continue to investigate and use the DRE process as an excuse for their previous miscues. As the DRE manual readily acknowledges, “It is always possible that a person suspected of being under the influence of drugs other than alcohol may actually have consumed only alcohol.”9 2.

Interview of Arresting Officer

If the arresting officer is not a DRE, then the arresting officer is to request a DRE officer. The arresting officer is to share his observations of the suspect, any admissions or statements by the suspect, the circumstances of the arrest, and any drugs found in suspect’s possession, etc. “A few minutes spent in a careful discussion with the arresting officer can alert the drug recognition expert to the most promising areas of investigation to be explored with the suspect.”10 3.

Preliminary Examination and First Pulse

The purpose of this step is to determine that it is in fact a drug—not an injury or medical condition—that is causing the observed impairment. This is the most crucial step in order to distinguish between drug induced impairment versus medical problems mimicking drug impairment. Determining whether medical conditions are the cause of impairment is critical, because there are many medical conditions, such as stroke, head trauma, shock, conjunctivitis, epilepsy, multiple sclerosis, diabetes, and others that produce effects that mimic drug impairment.11 “Some other medical conditions that may cause signs and symptoms similar to drug impairment include: carbon monoxide poisoning, seizures, endocrine disorders, neurological conditions, psychiatric conditions, and infections. There are also normal conditions which can affect vital signs, e.g., exercise, excitement, fear, anxiety and depression.”12 DREs are to make general observations and note the suspect’s face appearing flush, pale or perspiring, and breathing patterns. DRE also looks for ptosis, which medically means droopy eyelids. The manner in which the suspect speaks could also provide some evidence of the possible presence of certain types of drugs.

If a medical or injury problem is determined, the DRE should not proceed with the DRE evaluation, but obtain medical attention for the suspect. Once medical and injury problems are ruled out, the DRE then assesses the suspect’s appearance and behavior for possible drug influence and takes the first pulse measurement. “The pulse rate can also be affected by anxiety, and it is common for an arrestee to experience anxiety while being examined by a police officer.”

The pulse rate is measured three times, at the beginning, the middle and the end

of the investigation to allow the suspect’s anxiety to “settle down” before the last measurement.13 Practice Pointer: Medical doctors agree that no DRE, without formal medical or pharmaceutical training, is actually qualified enough to make this type of determination. Further, not all suspects in an intimidating police environment will settle down. The stress and anxiety of an arrest can, and most likely will, cause a suspect’s pulse rate, blood pressure, and temperature to rise or fall outside their normal levels.

Keep in mind, there is generally a valid documented medical condition as the reason for taking the prescription medication, or over-the-counter medication.

Officers usually gloss over the medical questions and fail to ask the appropriate in-depth questions that would provide the answers demonstrating the subject is not a candidate for proceeding forward with SFSTs or the DRE examination. The laundry list of medical conditions that mimic drug impairment is wide and should be thoroughly examined by the defense practitioner to determine if your client is even a candidate for DRE. Lastly, only 1 ½ pages of the DRE manual cover normal medical conditions that can mimic drug impairment. How in the world can that be sufficient training to allow a DRE to distinguish between medical and drug impairment?

4.

Eye examinations: HGV, VGN, Lack of Convergence

The DRE performs three separate eye movement examinations: (1) horizontal gaze nystagmus (HGN); (2) vertical gaze nystagmus (VGN); and, (3) to look for lack of eye convergence.

The HGN and VGN are performed in the same manner as set forth in the National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Testing Student Manual (SFSTS).

To check for lack of convergence, the DRE holds the stimulus out 12-15 inches from the suspect’s face. The stimulus is then moved in a circle in front of the suspect’s eyes, to verify that the suspect is tracking the stimulus. The tip of the stimulus is then slowly pushed on the bridge of the suspect’s nose for approximately one second to observe the eyes. The stimulus is then removed from the suspect’s face. If one eye drifts away to the side instead of converging (or crossing) toward the bridge of the nose, lack of convergence is considered to be present. DREs are taught that the inability to converge (or cross) the eyes can be an indicator of possible presence of certain categories of drugs such as

CNS Depressants, Inhalants, PCP, and Cannabis, however, “[i]t should be noted that there are many individuals whose eyes are unable to converge normally.” 14 Practice Pointer: “Keep in mind that neither nystagmus nor any other elements of the drug recognition examination are intended to substitute for chemical testing.”15 Here, file a pre-trial motion to suppress the state and their witnesses from correlating any HGN/VGN, or angle of onset, results to a blood alcohol concentration or a high dosage of drugs.16 5.

Divided Attention Testing

This step repeats the roadside balance and coordination exercises performed before the arrest. These exercises are now repeated in a controlled environment as a part of the DRE evaluation.

The DRE administers tests in the following order: Rhomberg Balance, Walk and Turn, One-Leg Stand (once on the left leg, and once on the right leg), and Finger-to-Nose.

Practice Pointer: It is interesting that these “field tests” are now performed in a “controlled environment” to prevent outside sources from causing something less than normal on these balance and coordination exercises.

6.

Vital Signs Examination

The DRE checks the suspect’s blood pressure; temperature and pulse rate. This is the second time pulse rate is checked. Certain categories of drugs will elevate, depress or have no effect on vital signs.

Pulse rate is checked for 30 seconds, with the number of pulse surges felt multiplied by two, which equals the pulse rate for one minute. Blood pressure is checked with a sphygmomanometer and a stethoscope.

Practice Pointer: There are also normal conditions which can affect vital signs such as: exercise, excitement, fear, anxiety and depression.17 Just about everyone arrested will experience excitement, fear and anxiety going through the process. Some people who exercise regularly have normally lower pulse rates, whereas people who do not exercise much at all have normally higher pulse rates. Vitals signs, like cholesterol, can also be dictated by genetics.

7.

Darkroom Examination

The dark room examination is to check the pupils, nasal and mouth cavities. Pupils are checked to see any dilation or constriction of the pupil. The

DRE uses a pupillometer card with different size dots measured in millimeters, which is placed next to the suspect’s eyes to estimate size of pupil.

A. Estimation of pupil size in room light: The DRE has the suspect stare at an object other than a light source. The DRE then places the pupillometer up to each eye to get an estimation of each pupil size.

After checking both eyes, the lights are turned off and the DRE is to wait 90 seconds to allow the DRE and suspects eyes to adapt to the dark. Then the DRE proceeds to the next phase. DREs are trained that average is approximately 4.0 mm with an average range from 2.5 mm to 5.0 mm.

B. Estimation of pupil size under near total-darkness: The DRE is to cover the tip of a pen light completely so that only the red glow emerges through the skin of the finger and no white light shines out.

The pen light is moved up to the face so that the pupillometer is used to estimate the size of the pupils. The left eye is always to be checked first, then the right eye.

DREs are trained that average is approximately 6.5 mm with an average of normal pupil sizes ranging from 5.0 mm to 8.5 mm C. Estimation of pupil size under direct light: The pen light is the uncovered and shined directly in the suspect’s eyes for 15 seconds where the beam of light fills up the entire eye socket. The pupillomter is to be held alongside each eye to estimate the size. DREs are trained that average is approximately 3.0 mm with an average range of normal pupil sizes ranging from 2.0 mm to 4.5 mm D. Reaction to light: The DRE manual states that if a person is not under the influence of any drug, his or her pupils should constrict within one second when the pen lights beam strikes the eye directly.

After the pupils are examined, the suspect’s nostrils are examined by shining a light directly into the nostrils looking for traces of drugs, redness, scarring or abrasions that might indicate repeated “snorting” of certain drugs.

The mouth is then examined to look for unusual coloring such as green or reddish coloring; residual quantities of drugs; and any evidence of ingestion.

Practice Pointer: The old DRE student manual states the normal range of pupil size was 3.0 to 6.5 mm, however, “there are various studies that have used normal subjects which suggest that the DEC program range of pupil sizes of 3.0 to 6.5 mm maybe too narrow. Loewenfeld and Lowenstein found many subjects had pupil sizes in near-total darkness significantly greater than 6.5 mm.

Birren et al. also reported mean pupil sizes greater than 6.5 mm in dark room conditions following 90 seconds of dark adaptation. Using infrared pupillometry, Borgmann measured the pupil diameter in darkness and found mean values for the pupil size to be greater than 6.5 mm. Loewenfeld, in a study of more than 1,200 subjects, replicated earlier work, and further reported a mean pupil size

value larger than 6.5-mm in darkness.”18 This study, and many others, caused the DEC to amend their pupil size range in 2006.

This is a study that is of great importance to show that how unreliable the information that DREs are relying on to render an “expert” opinion. This study undermines this step, and can be used to undermine the whole DRE 12 step process.

“BEAR IN MIND that there is a great deal of difference among individual human beings and their individual reactions to drugs. The chart lists what we can expect to find when we examine suspects. But no one can guarantee that we will always find precisely these responses.”19 Other than drugs, there are other reasons that pupils will enlarge such as in response to darkness, fear and excitement. Pupils also constrict in response to bright light.

8.

Muscle Tone

A DRE checks the muscle tone by firmly grasping the left upper arm and slowly moving down. The muscle will either appear flaccid, normal or rigid. The right arm is checked in the same manner.

Practice Pointer: Muscle appearing either flaccid, normal or rigid describes 100% of the non-impaired population. None of these descriptions are indicative of impairment. Rigidity can be caused by the stress, excitement and anxiety of being arrested, examined and prodded by a police officer.

9.

Injection Sites Examinations

A DRE will look for injection sites by running their fingers along the neck, forearms, wrists, etc. The suspect’s pulse is checked for the third time.

Practice Pointer: It is important to note that the injection site is only an indication of recent drug use, not drug influence. This statement is also universally true of admissions of recent drug consumption.

10.

Suspects Statements, Interview

The DRE should have at least an articulable reasonable suspicion about the category, or categories, of drugs that may be present. The DRE then proceeds “in full conformance with the suspect’s Constitutional rights, to attempt to interview the suspect concerning the drug or drugs involved.”20 The DRE manual also notes that “[t]he DRE should be aware that often times during the evaluation process, suspects may make numerous spontaneous incriminating statements. These statements should be documented. DREs should check to make sure that the suspect has been appropriately advised of their rights.” 21

Practice Pointer: The tenth step is the most rampant area of abuse requiring suppression of evidence obtained through the drug influence evaluation process – post arrest questioning of a suspect without being provided Miranda22 warnings. In Texas, a suspect is under arrest the majority of the time when a DRE is being conducted. In fact, the suspect had to be legally under arrest for DWI/DUI before he/she could be lawfully requested to submit a breath specimen.

Because passing the breath test is the first step in the DRE evaluation, any postarrest questioning of the suspect requires Miranda warnings prior to and are to be audio and video recorded per TEX.CODE CRIM.PROC. 38.22. Any and all evidence obtained in violation is to be excluded as evidence under TEX.CODE CRIM.PROC. 38.23.

11.

Opinion

The DRE then forms an opinion as to drug influence, and the category(s) of drug(s) causing the impairment based upon the totality of the evaluation.

Practice Pointer: Keep in mind that the Drug Recognition Expert PreSchool Student Manual reminds officers: “It is also very important that your opinions refer to drug categories, and not to specific drugs.” …. “Do not go beyond the bounds of your expertise.”23 Look for officers that state the specific drug causing impairment in their report based upon a suspect’s admission. This is a clear sign that the officer is relying almost solely on the suspect’s statement—rather than their purported observations—as the basis for their conclusion.

12.

Toxicology: Specimen and Subsequent Analysis

During this step, the DRE obtains a urine and/or blood specimen from the suspect, which is then analyzed for the presence of certain drugs by a toxicological laboratory. In a drug influence case, the laboratory's role is usually not to determine if the individual was impaired, but is to determine use of a specific substance. “Fundamentally, then, toxicology’s role in this [DRE] program is corroborative.”24 Practice Pointer: In Texas, a suspect is not required, nor are there any administrative license revocation consequences to refuse to provide a second specimen if the suspect already provided one specimen that an officer requested.

This is a ripe area for suppression of the chemical test (or chemical test “refusal”) due to lack of warnings provided to the suspect who did not know he/she was not obligated to provide a second specimen because he/she is still operating under the previously provided implied consent consequences of refusing to provide a specimen with no instruction that implied consent is no longer applicable.

Another area in suppressing the chemical test is due to lack of relevance and scientific reliability. First, there is no per se level of drugs that has been

determined to be illegal. Thus, the presence of drugs in blood or urine is not illegal, nor does presence provide proof of impairment. “When a drug is metabolized in a non-linear fashion, it is generally not possible to extrapolate backwards from some known drug concentration to some earlier time and concentration. This is true for the majority of drugs, including cocaine, methamphetamine or THC.”25 VI.

The 7 Drug Categories

The DRE program divided the “primary drugs of abuse” into seven categories. Each drug category is based on a pattern of known signs and symptoms that each drug in a category will produce. A "sign" is observable.

Signs can include bloodshot glassy eyes, body tremors, horizontal gaze nystagmus, high or low pulse rate, poor coordination, poor mental retention, etc.

A "symptom" is what is experienced by the suspect, but it may not always be observed. Examples of unseen symptoms include high or low pulse, body temperature, high or low blood pressure, etc. Subjective symptoms can be observed such as hallucinations.

The idea behind the seven categories is that the “overall pattern of effects” within each drug category is the same. The effects vary from drug to drug, but the overall pattern of effects is similar within the drug category.

The seven DRE drug categories are: (1) (2) (3) (4) (5) (6) (7)

Central Nervous System (CNS) Depressants (includes alcohol); Inhalants; Dissociative anesthetics (formerly PCP); Cannabis; CNS Stimulants; Hallucinogens; and Narcotic Analgesics.

This Drug Symptom Matrix chart out of the DRE Student Manual includes a summary of the signs and symptoms expected to be seen for each drug classification.

VII.

Drug Combinations are referred to as Poly Drug Use: Four Concepts

The DRE training teaches that poly-drug use means that the drug user is using more than one category of drugs. When this happens, what typically occurs is that a mixture of signs and symptoms is displayed, such as dilated pupils with depressed vitals is an example poly-drug use. This is the fall back position for DREs for explaining why they may not be seeing the signs and symptoms they would expect to see based upon one certain drug category.

DREs use four concepts to interpret poly-drug signs and symptoms: additive, antagonistic, overlapping, and null.

Additive effects occur when a combination of drugs produce a total effect that is equal to the sum of the individual effects. For example, CNS stimulants and cannabis independently elevate pulse rate. Taken together, the person’s pulse will be elevated, greater than either drug would separately. Each drug is reinforcing the effect of the other.

Antagonistic effects occur when the effect of one drug is lessened due to the presence of another drug. Cocaine dilates the pupils, while heroin constricts them. When taken together, the user's pupils may be dilated, may be constricted, or may be within the purported normal range (3.0 mm to 6.5 mm diameter). The effects displayed are dependent on the dose of each of the drugs, the user's tolerance to each of the drugs, and the point in time that the user is evaluated by the DRE. An overlapping effect refers to the case in which one of the drugs produces the effect, but the other drug is neither additive, nor antagonistic to it.

As an example, alcohol produces horizontal gaze nystagmus. If alcohol is taken with cocaine, a drug that does not cause horizontal gaze nystagmus, the user will display nystagmus due to the alcohol.

Null effect refers to a combination of drugs in which neither of the drugs used produces the effect.

Practice Pointer: The DRE manual does not specifically refer to a “synergistic effect.” A synergistic effect occurs when a combination of drugs produce a total effect that is greater than the sum of the individual effects. This synergistic effect is one that DREs commonly try to opine when there is multiple drug use, or alcohol combined with medication. Use the DRE Student Manual to impeach the DRE when such an opinion is expressed because it is not specifically referred to in the manual.

VIII.

Scientific Challenges to the Admissibility of DRE Evidence

DREs simply do not possess the scientific or technical training and knowledge required to demonstrate that the DRE program is relevant and reliable

in order to be admissible as an “expert” opinion under rule of evidence 702. Few states, like Texas, have case law or statutes that concerning the admissibility of DRE evidence.

Case Law from Other States On March 5, 2012, a circuit court judge in the State of Maryland v.

Brightman, et al., held an extensive hearing into the admissibility of DRE under the Frye standard. The court heard from 6 witnesses for the state, and 3 experts from the defense, Dr. Francis Gengo, Dr. Neal Adams, and Dr. Jeffrey Janofsky.

After hearing the testimony of these witnesses over the course of 10 days, the court made the following findings of fact: The DRE Protocol fails to produce an accurate and reliable determination of whether a suspect is impaired by drugs and by what specific drug he is impaired.

The DRE training police officers receive does not enable DRE’s to accurately observe the signs and symptoms of drug impairment, therefore, police officers are not able to reach accurate and reliable conclusions regarding what drug may be causing impairment.

Dr. Janofsky testified in the hearing that the Heishman, Shinar and Shectman studies conclusively show that the DRE, when tested and looked at appropriately, is not an accurate predictor of the presence of drugs and the four studies conclusively show that police officer’s prediction are either no better than chance or may be slightly better than chance or worse than chance.

The court’s order is attached and it is a must read for further educating yourself on the unreliability and inaccuracy of the DRE Protocol and Program.

Other states have also come to similar legal conclusions. In State v.

Klawitter, 518 N.W.2d 577 (Minn. 1994) a Minnesota court found that DRE is not scientific and DREs should not be called experts. A Florida court, in Williams v.

State, 710 So. 2d 24 (Fla. Dist. Ct. App. 3d Dist. 1998), also found that DRE evidence was not scientific. An Oregon court of appeals, in State v. Sampson, 167 Or App 489 (2000), barred the state from referring to the DRE officer as an expert, reasoning that to do so "would be a comment on the evidence and would lend undue weight to one person's testimony and credibility.” DRE was admissible, but state must make a foundational showing "that the officer who administered the test was properly qualified, the test was administered properly, and the test results were recorded accurately." Later, that same court in Oregon v. Aman, 194 Or. App. 463 (2004) noted that while it previously ruled the 12- step DRE protocol is “valid scientific evidence” the court cautioned that “without the corroborating evidence of the urinalysis called for in the twelfth step, the DRE protocol cannot be considered complete.” Id. at 247. The Court ruled that “an

incompletely administered DRE protocol is not, itself, admissible as scientific evidence.” Id. at 249. Lastly, In State v. Baity, 140 Wash.2d 1, 991 P.2d 1151, a DRE opinion of category of drug believed to be impaired under is admissible only in situations where all 12-steps of the DRE protocol have been undertaken.

Texas Case Law In Texas, there is no present case that specifically allows the admissibility of the DRE protocol or a DRE opinion. There are several Texas cases, however, that deal specifically with admission of drug opinion testimony. The leading case is Layton v. State, 280 S.W.3d 235 (Tex.Crim.App., 2009). In the Layton case, there was no evidence as to the dosage taken by defendant, the exact times of ingestion, or the half-life of the drug in the human body. Considering the length of time between the ingestion of the medication and the time of arrest, a lay juror was not in a position to determine whether Xanax and Valium, taken more than 12 hours before arrest, would have any effect on defendant's intoxication. There was no testimony indicating that the officer had any medical knowledge regarding the uses of Xanax and Valium, or about the effect of combining the medications with alcohol. The Court of Criminal Appeals held that the trial court erred in allowing the evidence of defendant's use of Xanax and Valium to be introduced to the jury without the State first showing that the evidence was relevant to defendant's intoxication. The Court further went on to hold that “without expert testimony to provide the foundation required to admit scientific evidence, the testimony regarding defendant's use of prescription medications was not relevant under Tex. R. Evid. 401.”

The Layton case was recently followed in Delane v. State, 2012 Tex. App. LEXIS 905 (Tex. App. Houston 1st Dist. Feb. 2, 2012). In the Delane case it was reversible error to the arresting officer to testify regarding his opinion on defendant's prescription medications in conjunction with his ultimate opinion on defendant's intoxication because the officer's testimony was neither relevant nor reliable and the officer was not qualified to offer such detailed testimony as required by Tex. R. Evid. 702. The officer conceded that he was not certified by the police department as a drug-recognition expert, he did not conduct the standard 12-step examination that would have been conducted by a drugrecognition expert, he did not contact such an expert after defendant refused a breath test, and the officer's testimony did not reveal that he had expert knowledge about the medications that defendant had taken or their effects.

DeLarue v. State, 102 S.W.3d 388 (Tex. App.—Houston [14th Dist.]

2003)(pet.denied.), specifically discussed the admissibility of expert testimony in the wake of Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kelly v. State, 824 S.W.2d 569 (Tex. Crim. App. 1992). The DeLarue Court also considered an attack on the admissibility of scientific evidence under a Rule 403 theory that with a lack of evidence of reliability of scientific testing, admission of such evidence is more prejudicial than probative

because the state could not extrapolate the life of the drug, and under a 403 analysis without such cannot be relevant, and would be more prejudicial than probative. Thus, there was no expert testimony extrapolating or connecting the drugs to intoxication.

Detection of intoxication caused by controlled substances differs from detection of intoxication caused by alcohol. See Smithhart v. State, 503 S.W.2d 283, 286 (Tex. Crim. App. 1973) (citing Inness v. State, 106 S.W.2d. 821 (1926)).

Jurors are not commonly acquainted with the “consequences and effects” of controlled substances. Manning v. State, 84 S.W.3d 15, 22 (Tex. App.-Texarkana 2002), overruled on other grounds, 114 S.W.3d 922 (Tex. Crim. App. 2003). Consequently, “failure to extrapolate the presence of a controlled substance back to the time of an accident--because such failure can render the evidence insufficient under a Rule 403 analysis [can render such evidence inadmissible].” DeLarue, 102 S.W.3d at 401.

A qualified expert witness must testify regarding any scientific or specialized evidence being offered to assist the trier of fact’s understanding of the evidence. TEX. R. EVID. 702. A court’s decision not to “hold a `gatekeeper’ hearing under Rule 702 to determine if the evidence has been properly obtained and is reliable, however, can render such evidence inadmissible.” DeLarue, 102 S.W.3d at 401 (citing Beard v. State, 2002 Tex.Crim.App. LEXIS 183, No. 0282-00 at*6 (opinion later withdrawn and appeal abated)).

In DeLarue, the court held the failure to hold a Daubert-Kelly hearing resulted in error when the trial court admitted the evidence regarding the “reliability of the State’s marijuana evidence as it related to [the] appellant’s intoxication and resultant behavior.” Id. In DeLarue, the State elicited testimony that showed the presence of marijuana in the appellant’s bloodstream. The State failed to “quantify the presence,” show the time the marijuana entered the defendant’s system, show he was “under the influence” of the drug at the time the accident occurred, and “no attempt was made to show causation between the appellant’s behavior and the presence of marijuana in his system.” Id. IX.

Summary

DREs simply do not possess the scientific or technical training and knowledge required to demonstrate that the DRE program is relevant and reliable in order to be admissible as an “expert” opinion under rule of evidence 702. Most states, like Texas, do not have any case law or statutes that specifically allow DRE evidence to be admitted. The states that have accepted DRE have done so with limitations, and the government is required to show that all required 12 steps were properly performed in order to be admitted. If not all 12 steps are performed, then DRE is not admissible.26

Drug Evaluation and Classification Training. “The Drug Recognition Expert School,” Student Manual, 2002 Edition, P. IV-22.

2 P. IV-25.

3 P. XXIII-1.

4 See State v. Sampson, 167 Or App 489 (2000). The court barred the state from referring to the DRE officer as an expert, reasoning that to do so "would be a comment on the evidence and would lend undue weight to one person's testimony and credibility.” DRE was admissible, but state must make a foundational showing "that the officer who administered the test was properly qualified, the test was administered properly, and the test results were recorded accurately."

5 P. III-1.

6 P. IV-22.

7 P. XXX-15.

8 P. XXIII-1.

9 P. IV-3.

10 P. IV-3.

11 P. VI-13.

12 P. VI-13.

13 P. IV-11.

14 P. IV-13.

15 P. III-7.

16 Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994).

17 P. VI-13.

18 Richman JE, McAndrew KG, Decker D, et al. An evaluation of pupil size standards used by police officers for detecting drug impairment. Optometry, Vol. 75, No. 3, March 2004.

19 P. V-1.

20 P. IV-5.

21 P. IV-19.

22 Miranda v. Arizona, 384 U.S. 436 (1966).

23 Drug Evaluation and Classification Training. “The Drug Recognition Expert Pre-School,” Student Manual, 2002 Edition, P. II-9.

24 P. IV-23.

25 Kerrigan, Sarah, Ph.D., Drug Toxicology for Prosecutors: Targeting Hardcore Impaired Drivers, American Prosecutors Research Institute, Special Topics Series, October, 2004, P.16.

26 See Baity, Id. 1

Texas Criminal Defense Lawyers Association

20th Annual Top Gun DWI August 19, 2022

The Whitehall 1700 Smith Street Houston, TX 77002

Topic: New Issues in Ethics Speaker:

Honorable Toria Finch

1201 Franklin St. 10th Floor Houston, TX 77002 832.927.3300 Phone 832.927.3320 Fax toria.j.finch@gmail.com Email http:// tfinchlawfirm.com/ Website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Conference Materials for: “What’s New in the Legal World of Professional Ethics?”

Written and Presented by: Hon. Toria J. Finch

In Preparation for: 20th Annual Top Gun DWI Houston, Texas August 19th, 2022

Conference Hosted by: Texas Criminal Defense Lawyers Association

The intent of this paper is to provide a brief overview of the most recent changes concerning the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure. The primary topics discussed include: (1) the procedural changes to the process of amending the Texas Disciplinary Rules of Professional Conduct; (2) the most recent ethical rule changes having an effective date of January 31st, 2022i; and (3) the opinions rendered by the Committee on Professional Ethics from January 2020 until the date of this conference. The reader is encouraged to read and conduct additional research on the matters contained in this paper.

Before delving into what’s new in the legal world of professional ethics, we will first take a step back to review its historical background.

Historical Background Founded in 1878, the American Bar Association was established to advance the rule of law across the United States and beyond by providing practical resources for legal professionals, law school accreditation, model ethics codes and more.ii Their mission is to serve equally its members, the legal profession and the public by defending liberty and delivering justice as the national representative of the legal profession.iii The American Bar Association Model Rules of professional conduct was adopted by the ABA House Delegates on August 2, 1983.iv They served as models for the ethics rules of most states, to include Texas.v Before the adoption of the Model Rules, the ABA model was the 1969 Model Code of Professional Responsibility. vi Preceding the Model Code were the 1908 Canons of Professional Ethics (last amended in 1963).vii In 1987 the 70th Texas Legislative Session enacted the Texas Government Code Chapter 81 which establishes the role and responsibilities of the Texas State Bar. Subchapter B, of Chapter 81 of the Government Code provides their general powers, purpose, and much more. Most relevant to this paper, Section 81.024, titled, “Rules”, provided that the Texas Supreme Court shall promulgate the rules governing the state bar. Moreover, subsection (b)(2) of the same title specifically clarifies that the Texas Supreme Court in accordance with Subchapter E-1, adopt rules, including the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure, for the discipline of state bar members.viii The state bar members are composed of those persons licensed to practice law in this state. ix The bar members are subject to the rules of Chapter 81 which includes, Subchapter E-1, the Texas Disciplinary Rules of Professional Conduct, and the Texas Rules of Disciplinary Procedure.x Initially modeled after the ABA Model Rules, the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure have been amended and have evolved overtime to keep up to date with an ever-changing society. Not only have specific rules been added and modified overtime, but most recently the entire procedure relating to how rules are changed has also changed.

I.

Procedural Changes to Rule Changing Process

In 2017, the Texas Legislature in Senate Bill 302 amended Chapter 81 of the Government Code to create the Committee on Disciplinary Rules and Referenda (CDRR). Presently, sections 81.0871 thru 81.08794 of the Texas Government Code are devoted to the establishment of the Page 1 of 37

CDRR; the make-up of the committee; the terms of its members; committee duties; and the process of approving proposed rule changes to the Texas Disciplinary Rules of Professional Conduct. The creation of the CDRR had the effect of overhauling the disciplinary rule proposal process.

The CDRR consists of nine members, including seven attorney members and two nonattorney public members.xi The duties of the Committee states that they shall: (1) regularly review the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure; (2) at least annually issue to the Supreme Court and the Board of Directors a report on the adequacy of the rules; and (3) oversee the initial process for proposing a disciplinary rule. xii Under the new process, a proposed rule must be approved by the CDRR, the State Bar Board of Directors (“Board”), State Bar membership, and the Supreme Court of Texas. The Committee shall initiate the rule proposal process based upon a proper request. Pursuant to Texas Government Code Section 81.0875, a request to initiate the process for proposing a disciplinary rule may be made by: (1) a resolution of the State Bar Board of Directors; (2) a request of the Supreme Court; (3) a request of the Commission for Lawyer Discipline; (4) a petition signed by at least 10 percent of the registered members of the State Bar; (5) a concurrent resolution of the legislature; or (6) a petition signed by at least 20,000 people, of which at least 51 percent, or 10,200 or more, must be residents of this state. Within 60 days of receiving a request to initiate the rule proposal process, the Committee will notify the requestor and determine whether to initiate or decline to initiate the rule proposal process.xiii If the Committee declines to initiate the rule proposal process, the Committee must issue a written decision as to its reason for declining and notify the requestor.xiv A flowchart of the rule proposal process; the Committee Operating Rules and Procedures; and the rule drafting guidelines can be found on Star Bar of Texas website.xv During the rule proposal process, the Committee shall: (1) study the issue to be addressed by a proposed rule; (2) draft a rule, which can only address one subject; (3) publish the rule and solicit comments statewide from the public and members of the State Bar of Texas; (4) hold a public hearing on a proposed rule at the Committee’s discretion or when requested under Rule 3.02; (5) vote on a proposed rule; and (6) submit a recommended proposed rule to the State Bar of Texas Board of Directors.xvi New rules have been successfully proposed and approved through the previously stated procedure.

II.

Recent Ethical Rule Changes – Effective January 31st, 2022

Most recently, the Board approved eight rule proposals recommended by the CDRR. The CDRR previously published each proposal for public comment and held public hearings on the proposals. On September 25, 2020, the Board voted to petition the Supreme Court for a rules vote.xvii The Supreme Court ordered a rules vote on September 29, 2020. Voting began on February 2, 2021, and ended on March 4, 2021.xviii The proposed rule changes were approved and have been published in the January 2022 issue of the Texas Bar Journal.xix The eight (8) amendments to the Texas Disciplinary Rules of Professional Conduct that became effective on January 31st, 2022 relate to the following subjects: A.

Scope and Objectives of Representation; Clients with Diminished Capacity

Page 2 of 37

B. Confidentiality of Information - Exception to Permit Disclosure to Secure Legal Ethics Advice C. Confidentiality of Information - Exception to Permit Disclosure to Prevent Client Death by Suicide D.

Conflict of Interest Exceptions for Nonprofit and Limited Pro Bono Legal Services

E.

Information About Legal Services (Lawyer Advertising and Solicitation)

F. Reporting Professional Misconduct and Reciprocal Discipline for Federal Court or Federal Agency Discipline G.

Assignment of Judges in Disciplinary Complaints and Related Provisions

H. Voluntary Appointment of Custodian Attorney for Cessation of Practice

A. SCOPE AND OBJECTIVES DIMINISHED CAPACITY

OF

REPRESENTATION;

CLIENTS

WITH

The proposal deletes Rule 1.02(g) of the Texas Disciplinary Rules of Professional Conduct and adds Proposed Rule 1.16 of the Texas Disciplinary Rules of Professional Conduct. Proposed Rule 1.16 is intended to provide improved guidance when a lawyer represents a client with diminished capacity. Among its provisions, Proposed Rule 1.16 permits a lawyer to take reasonably necessary protective action when the lawyer reasonably believes that a client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest. Proposed Rule 1.16 provides a nonexhaustive list of actions a lawyer may be authorized to take, including informal consultations that may be prohibited under the current Rules.

B. CONFIDENTIALITY OF INFORMATION - EXCEPTION TO PERMIT DISCLOSURE TO SECURE LEGAL ETHICS ADVICE Proposed Rule 1.05(c)(9) of the Texas Disciplinary Rules of Professional Conduct specifically clarifies that a lawyer is permitted to disclose confidential information to secure legal advice about the lawyer’s compliance with the Texas Disciplinary Rules of Professional Conduct.

C. CONFIDENTIALITY OF INFORMATION - EXCEPTION TO PERMIT DISCLOSURE TO PREVENT CLIENT DEATH BY SUICIDE Proposed Rule 1.05(c)(10) of the Texas Disciplinary Rules of Professional Conduct permits a lawyer to disclose confidential information when the lawyer has reason to believe it is necessary to do so in order to prevent a client from dying by suicide.

Page 3 of 37

D. CONFLICT OF INTEREST EXCEPTIONS FOR NONPROFIT AND LIMITED PRO BONO LEGAL SERVICES In order to facilitate the provision of pro bono legal services, Proposed Rule 6.05 of the Texas Disciplinary Rules of Professional Conduct creates narrow exceptions to certain conflict of interest rules when a lawyer provides limited advice and brief assistance on a pro bono basis. For purposes of Proposed Rule 6.05, “‘limited pro bono legal services’ means legal services that are: (1) provided through a pro bono or assisted pro se program sponsored by a court, bar association, accredited law school, or nonprofit legal services program; (2) short-term services such as legal advice or other brief assistance with pro se documents or transactions, provided either in person or by phone, hotline, internet, or video conferencing; and (3) provided without any expectation of extended representation of the limited assistance client or of receiving any legal fees in that matter.” This provision, in various forms, has previously been adopted by 48 other states and the District of Columbia.

E. INFORMATION ABOUT LEGAL SERVICES (LAWYER ADVERTISING AND SOLICITATION) This comprehensive proposal amends Part VII of the Texas Disciplinary Rules of Professional Conduct by simplifying and modernizing lawyer advertising and solicitation rules. The proposal reduces Part VII from seven rules to six rules (numbered 7.01 to 7.06). Among other changes, the proposal: 1) permits a lawyer to practice law under a trade name that is not false or misleading; 2) defines “advertisement” and “solicitation communication”; 3) simplifies disclaimer and filing requirements; 4) adds exemptions to certain solicitation restrictions for communications directed to lawyers, persons with whom the lawyer has a close personal or prior business or professional relationship, and persons known by the lawyer to be experienced users of the type of legal services involved for business matters; 5) expands exemptions to filing requirements; and 6) expressly addresses social media communications. The proposal maintains the prohibition on false or misleading communications about the qualifications or services of a lawyer or law firm.

The below stated are answers provided by the State Bar of Texas concerning rule amendment E: Q: In general, how do the proposed advertising rules differ from the current advertising rules? xx A: The proposal is intended to significantly simplify, modernize, and clarify the rules governing lawyer advertising, solicitation, and other communications about legal services. The proposed rules are intended to make compliance easier for lawyers, while continuing to focus on the prevention of false or misleading communications, as well as overreaching in solicitations. The proposal reduces Part VII of the Texas Disciplinary Rules of Professional Conduct from seven rules to six rules (numbered 7.01 through 7.06). Proposed Rule 7.01(a) maintains the central provision that “[a] lawyer shall not make or sponsor a false or misleading communication about the qualifications or services of a lawyer or law firm.”

Q: Does the proposal allow a lawyer to practice law under a trade name?

Page 4 of 37

A: The proposal allows a lawyer to practice law under a trade name that is not false or misleading.

This is a change from the current blanket prohibition on the use of trade names by lawyers in private practice. The proposed allowance for trade names that are not false or misleading is in line with the rules of the vast majority of other states. Further, the current prohibition on trade names is subject to constitutional challenge, given developments in First Amendment jurisprudence.

(Under the proposal, an advertisement of legal services still must include the name of a lawyer who is responsible for its content.)

Q: Does the proposal define “advertisement” and “solicitation communication”?

A: Yes, the proposal adds definitions for these terms. This is significant, as certain provisions of the proposal, such as the filing requirements, only apply if the communication constitutes an “advertisement” or a “solicitation communication.” (However, other provisions, such as the prohibition on false or misleading communications about a lawyer’s qualifications or services, apply to a communication regardless of whether it meets one of these definitions.)

Q: How does the proposal address a lawyer advertising that he or she is a certified specialist?

A: The proposal continues to allow a lawyer to advertise that he or she is a certified specialist in a field of law only if such certification is awarded by the Texas Board of Legal Specialization (TBLS) or an organization accredited by TBLS. Q: Does the proposal treat communications directed to certain professionals differently than the current rules?

A: The proposal provides new exemptions to the ban on in-person or live/interactive solicitation for communications directed to another lawyer or to a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters. Solicitation communications directed to these categories of professionals are also exempt from filing requirements and from the requirement to include an “ADVERTISEMENT” designation.

Q: Does the proposal expand the categories of communications exempt from filing requirements?

A: Yes. Proposed Rule 7.05 provides a list of the categories of communications that are expressly exempt from the filing requirements, which is an expansion from the current exemptions. Of particular note, Proposed Rule 7.05(a) exempts “any communication of a bona fide nonprofit legal aid organization that is used to educate members of the public about the law or to promote the availability of free or reduced-fee legal services,” and Proposed Rule 7.05(g) exempts “a communication in social media or other media, which does not expressly offer legal services, and that: (1) is primarily informational, educational, political, or artistic in nature, or made for entertainment purposes; or (2) consists primarily of the type of information commonly found on the professional resumes of lawyers.”

F. REPORTING PROFESSIONAL MISCONDUCT AND RECIPROCAL DISCIPLINE FOR FEDERAL COURT OR FEDERAL AGENCY DISCIPLINE Page 5 of 37

The proposal amends Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct and Rules 1.06 and 9.01 of the Texas Rules of Disciplinary Procedure by extending existing self-reporting and reciprocal-discipline provisions to cover certain professional discipline by a federal court or federal agency. The proposal specifically limits “‘discipline’ by a federal court or federal agency” to mean a public reprimand, suspension, or disbarment. The proposal clarifies that the term does not include a letter of “warning” or “admonishment” or a similar advisory by a federal court or federal agency. The provisions also do not apply to mere procedural disqualification in a particular case.

The below stated are answers provided by the State Bar of Texas concerning rule amendment F: Q: How does the proposal amend current self-reporting and reciprocal-discipline provisions?

A: Currently, Rule 8.03(f) of the Texas Disciplinary Rules of Professional Conduct requires “[a] lawyer who has been disciplined by the attorney-regulatory agency of another jurisdiction” to provide the chief disciplinary counsel with a copy of the order or judgment within 30 days. If the conduct constitutes professional misconduct in Texas, Part IX of the Texas Rules of Disciplinary Procedure sets out the procedures under which reciprocal discipline could be imposed in Texas.

To better protect the public, the proposal extends the current self-reporting and reciprocal discipline provisions to expressly cover professional discipline by a federal court or federal agency. The proposal specifically states that, for purposes of these provisions, “‘discipline’ by a federal court or federal agency means a public reprimand, suspension, or disbarment; the term does not include a letter of ‘warning’ or ‘admonishment’ or a similar advisory by a federal court or federal agency.”

Q: Do the provisions apply to the failure to pay dues or fees, or to procedural disqualification?

A: No, the provisions do not apply to purely administrative matters, such as failure to pay dues or fees required to practice before a court or agency, or to procedural disqualification in a particular case.

Q: Under the proposal, will a lawyer automatically be disciplined in Texas based upon the reporting of discipline by a federal court or federal agency?

A: No. As with current provisions applicable to discipline imposed by the attorney-regulatory agency of another state or the District of Columbia, the self-reporting of discipline by a federal court or federal agency would not automatically result in discipline in Texas under the proposal.

If the conduct constitutes professional misconduct in Texas, Part IX of the Texas Rules of Disciplinary Procedure (TRDP) sets out the procedures under which reciprocal discipline could be imposed in Texas. Rule 9.01, TRDP, provides that “[a] certified copy of the order or judgment is prima facie evidence of the matters contained therein, and a final adjudication in another jurisdiction that an attorney licensed to practice law in Texas has committed Professional Misconduct is conclusive for the purposes of a Disciplinary Action under this Part, subject to the defenses set forth in Rule 9.04 below.” Under Part IX, discipline would only take place upon a judgment from the Board of Disciplinary Appeals.

Page 6 of 37

G. ASSIGNMENT OF JUDGES IN DISCIPLINARY COMPLAINTS AND RELATED PROVISIONS These proposed rule changes simplify the assignment of judges, as well as address inconsistencies between current Rule 3.02 of the Texas Rules of Disciplinary Procedure and other statutes and rules already in place, whenever a respondent attorney in a disciplinary case chooses to have the matter heard by a district court. The proposal amends Rules 3.01, 3.02, and 3.03 of the Texas Rules of Disciplinary Procedure by: 1) transferring judicial assignment duties from the Supreme Court of Texas to the Presiding Judges of the Administrative Judicial Regions when a respondent in a disciplinary complaint elects to proceed in district court; 2) relaxing geographic restrictions on judicial assignments in disciplinary complaints; and 3) clarifying and updating various procedures involved in the assignment of judges in disciplinary complaints.

H. VOLUNTARY APPOINTMENT CESSATION OF PRACTICE

OF

CUSTODIAN

ATTORNEY

FOR

Proposed Rule 13.04 of the Texas Rules of Disciplinary Procedure authorizes a lawyer to voluntarily designate a custodian attorney to assist with the designating attorney’s cessation of practice and provides limited liability protection for the custodian attorney.

III.

Recent Ethics Opinions – January 2020 Until the Present Date

OPINION 685 – JANUARY 2020 QUESTION PRESENTED Under the Texas Disciplinary Rules of Professional Conduct, may lawyers encourage current and former clients to post positive reviews or comments and favorable “star” ratings of the lawyer through a search engine’s or social media platform’s review feature?

STATEMENT OF FACTS An online search engine includes a feature that allows users to post reviews of business organizations and professionals, such as law firms and lawyers. The lawyer has no control over the search engine, which allows users to post a “star” rating of the lawyer and make comments that can be seen by other users of the search engine. An aggregate star rating of the lawyer appears on the search engine when a user searches the name of the lawyer. Star ratings and comments left by individual users can also be seen by users of the search engine.

The lawyer desires a favorable star rating on the search engine and user comments that cast the lawyer in a positive light. To achieve this, the lawyer asks current and former clients to leave positive comments and favorable star ratings. The lawyer does not pay or provide anything of value in exchange for these favorable reviews.

Page 7 of 37

DISCUSSION This opinion addresses whether lawyers may encourage current and former clients to leave positive reviews or star ratings online. This opinion does not address the broader implications of social media on the practice of law, nor does it address whether vendors, employees, or the lawyer’s friends and family may be encouraged to post reviews or favorable star ratings.

Lawyers, their websites, and their social media sites have long been subject to lawyer advertising and solicitation rules. See State Bar of Texas Advertising Review Committee Interpretive Comment 17 (March 1996, rev. May 2003, rev. 2010) (applying advertising rules “to information disseminated digitally via the Internet”). The practice of encouraging online reviews from clients on third-party websites is a newer development.

Although the Texas Disciplinary Rules of Professional Conduct do not expressly prohibit a lawyer from requesting search engine or social media reviews, a lawyer has a duty not to make or sponsor any communications that are “false or misleading.” Rule 7.02(a). Comment 2 to Rule 7.02 states that the Rule “governs all communications about a lawyer's services, including advertisements regulated by Rule 7.04 and solicitation communications regulated by Rules 7.03 and 7.05.” Comment 2 further notes: “Whatever means are used to make known a lawyer’s services, statements about them must be truthful and nondeceptive.” Furthermore, Rule 8.04(a)(3) provides that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

This Committee has not previously addressed whether a lawyer may encourage current and former clients to post positive reviews. The Committee has examined a lawyer’s publishing a response to a former client’s negative review on the internet, finding that a lawyer “may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the Texas Disciplinary Rules of Professional Conduct.” Professional Ethics Committee Opinion 662 (August 2016).

While this Committee has not previously addressed whether a lawyer may encourage current and former clients to post positive reviews, ethics committees in other jurisdictions have. For example, Connecticut lawyers may seek positive reviews from clients and direct them to websites. However, they cannot suggest that clients submit reviews that “contain any information that would be ‘false or misleading’” and lawyers must not give something of value to the client in exchange for submitting a review. Connecticut Informal Opinion 2012-03 (2012). The District of Columbia Bar Legal Ethics Committee has opined that information contained on a lawyer’s social media pages must be truthful and not misleading, especially when the lawyer controls the medium, such as a firm website or a social media profile. District of Columbia Bar Ethics Opinion 370 (Nov. 2016). The opinion further concluded that a lawyer has no affirmative duty to monitor sites where the attorney does not have editorial control over the postings but noted that, “under certain circumstances, it may be appropriate for the attorney to request that the poster remove the content, to request that the social networking site remove the content, or for the attorney to post a curative response.” Id.

Page 8 of 37

Similarly, the Committee concludes that, under the Rules, a Texas lawyer may ask current and former clients to post favorable star ratings and online reviews about the lawyer. The lawyer must not, however, encourage anyone to make false or misleading statements or statements that the person has no factual basis for making.

The Committee does not decide the issue of whether a lawyer has an affirmative duty to monitor websites, social media platforms, or similar sites for false, misleading, or unfounded statements.

But, if a lawyer becomes aware that a client made a favorable false or misleading statement or a statement that the client has no factual basis for making, the lawyer should take reasonable steps to see that such statements are corrected or removed in order to avoid violating Rules 7.02(a) and 8.04(a)(3). If the lawyer controls the content of the website or platform where the false, misleading, or unfounded statement resides, the lawyer has an affirmative obligation either to encourage the author to correct the false, misleading, or unfounded statements or to remove the statements entirely. If the lawyer does not control the website or platform and cannot remove the false, misleading, or unfounded statements, the lawyer should address the matter with the author of the review or consider addressing the concern with the administrator of that platform to see if the review can be removed or revised. Alternatively, the lawyer should consider making a curative comment on the website or social media platform. If the lawyer communicates with the platform’s administrator or makes a curative statement, the lawyer must be careful not to breach the lawyer’s duty under Rule 1.05 to maintain the confidentiality of client information. See Opinion 662.

CONCLUSION The Texas Disciplinary Rules of Professional Conduct do not prohibit a lawyer from encouraging current and former clients to leave positive reviews or ratings online, provided that the lawyer does not encourage the clients to make statements that are false, misleading, or unfounded. If a lawyer becomes aware that a client posted a favorable review that is false, misleading, or unfounded, the lawyer should take reasonable steps to see that the statement is corrected or removed.

OPINION 686 – JANUARY 2020 QUESTION PRESENTED May a Texas lawyer practice law as an associate or other non-partner firm lawyer—and the only lawyer in the Texas office—of a law firm whose partners are only licensed to practice law outside of Texas?

STATEMENT OF FACTS Smith Jones P.C. is a law firm organized as a professional corporation in California (the “Firm”).

The Firm has multiple offices in California but does not yet have an office in Texas. None of the Page 9 of 37

Firm’s lawyers are licensed to practice law in Texas. All of the Firm’s partners, including named partners Smith and Jones, are licensed in California alone.

The Firm intends to open an office in Texas to serve existing clients in California and Texas.

The Firm has offered a position to a Texas lawyer to serve as an associate attorney in its soon-tobe-opened Texas office. At least initially, the Texas associate will be the only lawyer in that office and will be responsible for any legal services rendered under Texas law.

DISCUSSION The Committee has previously addressed similar questions about whether out-of-state law firms may open offices in Texas. See, e.g., Professional Ethics Committee Opinion 400 (July 1981) (applying former rules to question of whether out-of-state law firm may use same firm name in Texas); Opinion 319 (October 1966) (same). In these opinions, the Committee determined that an out-of-state law firm may operate a Texas office under the name it uses in another state provided that: (1) the firm has a resident partner licensed in Texas, and (2) all representations of the firm made to the public identify the states in which the members of the firm are licensed to practice. See id.

The question here is whether the result is the same under the current Texas Disciplinary Rules of Professional Conduct where the law firm’s only lawyer resident in Texas is not a partner, but, rather, is an associate or other non-partner firm lawyer. The Committee concludes the answer is yes and that the Firm may open an office in Texas under the circumstances described above. For purposes of this opinion, the term “partner” is broader than the definition of partner in the Terminology section of the Rules and includes not only a partner or shareholder but also a lawyer who is a member of a PLLC or a principal in a firm, or who holds another similar position in the firm.

Rule 7.01(b) provides that “[a] firm with offices in more than one jurisdiction may use the same name in each jurisdiction,” so long as the jurisdictional limitations of its lawyers are noted in public representations. Comment 2 to Rule 7.01 notes that “[t]he practice of law firms having offices in more than one state is commonplace.” Rule 7.01(b) says nothing about the required organizational structure of an out-of-state firm’s office in Texas. Cf. Opinion 618 (June 2012) (“The Texas Disciplinary Rules of Professional Conduct do not prescribe specific forms of organization for law firms.”). Thus, the Rules do not expressly prohibit an out-of-state firm from operating in Texas when the only resident lawyer is an associate.

To the extent the Committee’s earlier opinions appeared to require a resident partner in Texas, the Committee believes that such language arose from the fact patterns presented; the opinions did not address whether the result would have been different if the resident lawyer had been an associate. Indeed, Opinion 319 speaks in more lenient terms, concluding at one point that the firm need only have a “resident Texas licensed lawyer” (emphasis added). Furthermore, the predecessors to Rule 7.01(b) directly addressed the “formation of partnerships for the practice of law,” which may also explain the use of the term “resident partner” in the earlier opinions. See Opinion 400 (interpreting former DR 2-102(D)); Opinion 319 (interpreting former Canon 30).

Page 10 of 37

Rule 7.01(b) says nothing about the formation of “partnerships.” Instead, Rule 7.01(b) speaks only in terms of what is required for a “firm with offices in more than one jurisdiction.”

Given these distinctions, the Committee finds that the underlying rationale of its earlier opinions can be satisfied even if the only resident Texas lawyer is an associate or other non-partner firm lawyer. See Opinion 577 (March 2007) (providing factors for determining when a lawyer is a “firm lawyer” reasonably considered to be “in” a law firm).

The primary concern in Opinions 319 and 400 was to ensure that an out-of-state firm operating in Texas would respect and uphold the ethical rules that govern Texas attorneys. The Committee thus concluded that the out-of-state firm should maintain a resident agent for service of process and have a resident partner in Texas to “insure the same degree of commitment and obligation to the citizens of Texas . . . that is demanded of resident practitioners” and to create “an accountability to the general public by such firms.” Opinion 400.

The Committee concludes that it is unnecessary for the resident Texas lawyer to be a partner in order to create this kind of accountability, provided, however, that the associate or other nonpartner lawyer: (1) qualifies as a “firm lawyer” reasonably considered to be “in” the law firm under the factors discussed in Opinion 577; and (2) is given the responsibility and authority to make decisions about the firm’s practice of law in Texas. These requirements, along with the designation of a resident agent for service of process, will ensure that there is a Texas-licensed lawyer on whom the public, clients, and judicial authorities may rely for compliance with the ethical standards governing the practice of law in Texas.

This conclusion is consistent with guidance from other jurisdictions. See, e.g., Arizona Ethics Opinion 96-08 (Sept. 1996) (Arizona lawyer may be hired as an associate to operate Arizona office of out-of-state firm if associate is “fully responsible for the Arizona practice” and will therefore be “accountable to the public, disciplinary, judicial and licensing authorities”); Rhode Island Ethics Opinion 90-20 (May 1990) (Rhode Island lawyer may staff Rhode Island office of out-of-state firm if lawyer is either a partner or associate of the firm); see also New Jersey Ethics Opinion 550 (January 1985) (concluding that New Jersey rules “set forth no requirements that the New Jersey attorney, through whom an out-of-state firm opens a New Jersey office, must have the status of partner in the out-of-state firm”).

This conclusion is also consistent with comment 5 to Rule 5.05, which states: “In furtherance of the public interest, lawyers should discourage regulations that unreasonably impose territorial limitations upon the right of a lawyer to handle the legal affairs of a client or upon the opportunity of a client to obtain the services of a lawyer of his or her choice.” The Committee believes the requirements discussed above strike the appropriate balance in this regard.

CONCLUSION A Texas lawyer may practice law as an associate or other non-partner firm lawyer—and the only lawyer in the Texas office—of an out-of-state law firm, provided that the associate or other nonpartner lawyer: (1) qualifies as a “firm lawyer” reasonably considered to be “in” the law firm under the factors discussed in Opinion 577; and (2) is given the responsibility and authority to Page 11 of 37

make decisions about the firm’s practice of law in Texas. The out-of-state law firm should also have a resident agent for service of process in Texas.

OPINION 687 – APRIL 2020 QUESTIONS PRESENTED 1. Under the Texas Disciplinary Rules of Professional Conduct, must a staff lawyer employed by an insurance company to defend its insureds comply with the company’s guidelines regarding the defense of such cases?

2. What are a lawyer’s obligations if an insurance company cuts a staff lawyer’s support staff?

STATEMENT OF FACTS An insurance company employs staff lawyers and support staff to defend its insureds in personal injury cases. The insurance company requires staff lawyers to follow the company’s guidelines in defending lawsuits against its insureds. One guideline requires that staff lawyers obtain permission before retaining expert witnesses and notifies staff lawyers that the company requires 30 days to decide whether to approve the hiring of experts. The staff lawyers are concerned because, for example, when plaintiffs’ counsel file medical billing affidavits, the expenses identified in those affidavits are deemed reasonable and necessary unless a defendant files a controverting affidavit within a certain period of time, usually 30 days. This means the staff lawyers must find, retain, provide medical records to, and obtain controverting affidavits from an expert within 30 days after a billing affidavit is filed. If staff lawyers must wait up to 30 days to obtain permission to hire an expert to contest the billing affidavit, the deadline for filing a controverting affidavit may have already passed.

In addition, the insurance company cut support staff to reduce costs. The staff lawyers believe the existing support staff cannot keep up with the lawyers’ workload. This will require the lawyers to spend considerably more time performing administrative tasks, which will take time away from performing lawyer-specific tasks.

DISCUSSION In Professional Ethics Committee Opinion 533 (September 2000), this Committee addressed the question of an outside lawyer’s compliance with an insurance company’s litigation/billing guidelines, which placed certain restrictions on how the lawyer should conduct the defense of the insured. The Committee concluded that a lawyer may not agree to restrictions that interfere with the lawyer’s exercise of independent professional judgment in rendering legal services to the insured client. This conclusion applies equally in this situation involving staff counsel employed by an insurance company to represent the company’s insureds.

The Texas Supreme Court has held that an insurer may use staff lawyers to defend a claim against an insured if the insurer’s interest and the insured’s interest are congruent, provided that the staff lawyer’s affiliation with the insurer is fully disclosed. Unauthorized Practice of Law Page 12 of 37

Comm. v. American Home Assur. Co., 261 S.W.3d 24, 26-27 (Tex. 2008). The Court further held that “their interests are congruent when they are aligned in defeating the claim and there is no conflict of interest between the insurer and the insured.” Id. at 27.

The Supreme Court noted that insurance policies obligating the insurer to defend claims against the insured typically give the insurer “complete and exclusive control” of that defense. Id. The Court then identified three types of lawyers typically hired by insurers: (1) lawyers in private practice, (2) “captive” firms of lawyers, who are not the insurer’s employees but have no other clients, and (3) staff lawyers employed as “salaried corporate staff to represent insureds.” Id. The Court held that, in each instance, the insured’s lawyer “owes the insured the same type of unqualified loyalty as if he had been originally employed by the insured” and “must at all times protect the interests of the insured if those interests would be compromised by the insurer’s instructions.” Id. quoting Employers Cas. Co. v. Tilley, 496 S.W.2d 552, 558 (Tex. 1973) and State Farm Mut. Auto. Ins. Co., v. Traver, 980 S.W.2d 625, 628 (Tex. 1998). “Whether defense counsel also represents the insurer is a matter of contract between them.” American Home, 261 S.W.3d at 42.

The Supreme Court warned that using staff attorneys comes with risks: “If an insurer's interest conflicts with an insured's, or the insurer acquires confidential information that it cannot be permitted to use against the insured, or an insurer attempts to compromise a staff attorney's independent, professional judgment, or in some other way the insurer's and insured's interests do not have the congruence they have in the many cases in which they are united in simple opposition to the claim, then the insurer cannot use a staff attorney to defend the claim without engaging in the practice of law. But there are a great many cases that can be defended by staff attorneys without conflict and to the benefit of mutual interests. The use of staff attorneys in those cases does not constitute the unauthorized practice of law.” Id. at 4243.

Litigation guidelines imposed by an insurance company employing staff lawyers implicate several Rules. First, Texas Disciplinary Rule of Professional Conduct 1.08(e) provides: “A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.05.”

In addition, Rule 5.04(c) prohibits a lawyer from “permit[ting] a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”

Comment 5 to Rule 5.04 explains that a lawyer should constantly guard against the erosion of the lawyer’s professional judgment by third parties who pay the lawyer: Page 13 of 37

“Because a lawyer must always be free to exercise professional judgment without regard to the interests or motives of a third person, the lawyer who is employed or paid by one to represent another should guard constantly against erosion of the lawyer’s professional judgment. The lawyer should recognize that a person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of the lawyer. The lawyer should be watchful that such persons or organizations are not seeking to further their own economic, political, or social goals without regard to the lawyer’s responsibility to the client.”

Finally, Rule 1.06(b)(2) provides that “a lawyer shall not represent a person if the representation of that person . . . reasonably appears to be or become adversely limited by the lawyer’s or law firm’s responsibilities to another client or to a third person or by the lawyer’s or law firm’s own interests.”

Opinion 533 clarified that lawyers cannot follow an insurance company’s litigation guidelines or directives that interfere with the lawyer's exercise of independent professional judgment. Id. (“Litigation/billing guidelines which interfere with the lawyer’s professional judgment not only violate the above mentioned Rules [Rules 1.06, 2.01, 5.04, and 1.08] but also violate Rule 1.01(b) which prohibits a lawyer from frequently failing to ‘carry out completely the obligations that the lawyer owes to a client or clients’”). Accord, ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 01-421 (2001)(“Ethical Obligations of a Lawyer Working under Insurance Company Guidelines and Other Restrictions”). The ABA Committee observed that material impairment would likely occur only in “rare instances” and that in the “vast majority of cases,” litigation management guidelines do not raise ethics concerns.

Under section 134(2) of the Restatement (Third) of the Law Governing Lawyers (2000), lawyers may comply with insurers’ instructions if the direction does not interfere with the lawyer's independence of professional judgment, the direction is “reasonable in scope and character,” and the client gives informed consent. Comment d to section 134 explains that directions are reasonable in scope and character if, for example, “the third party will pay any judgment rendered against the client and makes a decision that defense costs beyond those designated by the third party would not significantly change the likely outcome.” The third party's directions must allow for effective representation. Id. In one illustration, the Restatement states that an insurer may limit the number of depositions taken in defense of the insured if the insurance contract authorizes the insurer to make decisions about the expense of defense and the lawyer reasonably believes that additional depositions can be forgone without violating the duty of competent representation. Id. § 134, cmt. f, illus. 5.

In sum, a lawyer may not blindly comply with an insurance company's litigation guidelines.

Instead, a lawyer must determine in each case and in each applicable situation whether a given directive is reasonable and consistent with the client's interests. As applied to the facts presented here, a staff lawyer should not allow the 30-day approval deadline for experts to materially compromise the insured client’s position. A lawyer who believes that a particular guideline interferes with her independent professional judgment in a case should try to persuade the insurer Page 14 of 37

to withdraw or modify the limitation in that case. See ABA Formal Op. 01-421 (“A lawyer must not permit compliance with ‘guidelines’ and other directives of an insurer relating to the lawyer's services to impair materially the lawyer's independent professional judgment in representing an insured.”). If the conflict becomes irreconcilable, the lawyer must withdraw. Id.

The analysis is the same for the insurance company’s decision to cut support staff to save costs.

Although the staff lawyers believe the existing support staff cannot keep up with the lawyers’ workload and will require the lawyers to spend considerably more time performing administrative tasks, the ultimate issue is whether the lawyers’ ability to adequately represent the insureds will be materially compromised. If the answer is no, then the staffing decision creates no conflict between the insurance company and the insureds. Although the lawyers may not enjoy performing administrative tasks, the restriction on support staff often will not rise to the level of a conflict prohibiting continued representation of the insured. If, on the other hand, the limited support staff is impinging on competent representation of the insureds, the staff lawyer should try to persuade the insurer to remove the limitation by providing more staffing. If this is unsuccessful, and the staff lawyer cannot adequately discharge the duties owed to the insured clients, then the lawyer must withdraw from the representation.

CONCLUSION Under the Texas Disciplinary Rules of Professional Conduct, a staff lawyer employed by an insurance company to defend its insureds may comply with the insurer’s guidelines only if the staff lawyer’s affiliation with the insurance company is fully disclosed to the client, the guideline does not interfere with the lawyer's independent professional judgment, and the guideline is reasonable in scope and character and consistent with the client’s interests. A lawyer who believes that a particular guideline as applied in a specific situation interferes with her ability to discharge duties to the represented client should try to persuade the insurer to withdraw or modify the limitation. If the conflict cannot be cured, the lawyer must withdraw from the representation.

The insurance company’s decision regarding support staffing raises issues under the Texas Disciplinary Rules of Professional Conduct only if it materially compromises a staff lawyer’s ability to adequately discharge the lawyer’s duties to the insured clients. If a lawyer believes that inadequate staffing is materially compromising the lawyer’s ability to adequately represent the insured clients, then the lawyer should try to persuade the insurer to increase staffing. If the conflict cannot be cured, the lawyer must withdraw.

OPINION 688 – MAY 2020 QUESTIONS PRESENTED 1. When a lawyer retained under a contingent fee agreement withdraws from the representation due to a non-consentable conflict of interest discovered shortly after he filed plaintiff’s lawsuit, Page 15 of 37

is it a violation of the Texas Disciplinary Rules of Professional Conduct for the withdrawing lawyer to refer his client to a lawyer in another law firm and arrange for a division of fees between the withdrawing lawyer and the lawyer to whom the matter is referred?

2. Is it a violation of the Rules for the withdrawing lawyer to reach an agreement with his former client that provides for the withdrawing lawyer to be reimbursed for costs and compensated for attorneys’ fees incurred before the lawyer realized he had a non-consentable conflict?

STATEMENT OF FACTS A lawyer signed a contingent fee agreement with a plaintiff who sustained serious injuries in a car accident. Soon thereafter, the lawyer filed a lawsuit for the plaintiff against the defendant driver. The defendant filed an answer and a third-party action against a third-party defendant, who was a long-time client of the plaintiff’s lawyer.

The lawyer determined that to protect the plaintiff’s interests he would need to amend the petition to assert a claim against the third-party defendant and aggressively prosecute that claim.

As a result, the lawyer concluded he had a conflict of interest under Rule 1.06(b)(2), in that his representation of the plaintiff appeared to be adversely limited by both his responsibilities to his long-time client and by his own interests in continuing a harmonious attorney-client relationship with that long-time client. Additionally, because the lawyer believed that his representation of the plaintiff would in fact be materially affected by his relationship with the third-party defendant, the lawyer concluded the conflict of interest was “non-consentable,” that is, he could not continue the representation even if he obtained the informed consent of the affected clients.

See Rule 1.06(c)(1). Thus, he decided he was obligated to withdraw from representation of plaintiff.

Before the conflict was identified, the withdrawing lawyer had prepared, filed, and served the original petition. He had spent less than ten hours on the case, and the only costs he had incurred were filing fees and fees related to service of process.

Although he was withdrawing from the representation due to a conflict, the withdrawing lawyer wanted to retain a significant fee interest in the case and proposed a division of fees with the successor lawyer. Specifically, the withdrawing lawyer proposed that he receive 75% of the fees on the first $1 million of any recovery and that the successor lawyer receive 25% of the fees, and he proposed that he and the successor lawyer divide the fees on any recovery above $1 million on a 50-50 basis.

Alternatively, the withdrawing lawyer wanted to recoup case expenses and the reasonable value of the legal services performed before the conflict was discovered.

The lawyer sought guidance as to whether he could refer the case to another lawyer and agree to the proposed division of fees provided for by a contingent fee agreement or, alternatively, whether he could be reimbursed for his expenses and the reasonable value of the services he had provided as of the date the conflict was discovered.

Page 16 of 37

DISCUSSION Rule 1.04(f) of the Texas Disciplinary Rules of Professional Conduct addresses the division of fees between lawyers who are not in the same firm. Rule 1.04(f)(1) provides that a division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if the division is “(i) in proportion to the professional services performed by each lawyer; or (ii) made between lawyers who assume joint responsibility for the representation. . .” Thus, “fee divisions between lawyers not in the same firm must be made either in proportion to the professional services performed by each lawyer or based on the lawyers' assumption of joint responsibility for the representation.” Professional Ethics Opinion 568 (April 2006). Any such agreements must comply with the requirements of Rule 1.04(f)(2), which include the requirement of written client consent prior to the proposed association or referral.

The adoption of Rule 1.04(f) abolished the pure referral fee—a fee paid to a referring lawyer simply because he referred the case and not because the referring lawyer performed work on or assumed any joint responsibility for the matter. Opinion 568.

Division of Fees “In Proportion to the Professional Services Performed.” The Rules allow for a division of fees “in proportion to the professional services performed by each lawyer.” Rule 1.04(f)(1)(i). “A division of a fee based on the proportion of services rendered by two or more lawyers contemplates that each lawyer is performing substantial legal services on behalf of the client with respect to the matter” and requires that “each lawyer who participates in the fee have performed services beyond those involved in initially seeking to acquire and being engaged by the client.” Comment 12 of Rule 1.04.

Thus, if a referring lawyer does not perform substantial legal services before withdrawing from the representation, the referring lawyer may not agree to a division of fees in proportion to the professional services performed. In the present case, one could argue that the lawyer did not perform substantial legal services because (1) the lawyer spent fewer than ten hours on the case before identifying the conflict, and (2) the case involves serious personal injuries and will probably require much more work before it is resolved. But whether a lawyer has performed “substantial legal services” is a question of fact that depends on all the circumstances of the particular representation. In some instances, a qualitative assessment of “substantial legal services” may be more appropriate than a purely quantitative assessment. Based on the limited facts presented, the Committee cannot conclude that the lawyer did (or did not) provide substantial legal services before deciding to withdraw.

The Committee nevertheless concludes that the fee division proposed by the referring lawyer cannot reasonably be considered a division “in proportion to the professional services performed.” The proposed fee division is a predetermined formula whereby the referring lawyer is to receive 75% of the fees earned on the first $1 million of recovery and 50% thereafter. In order to divide fees in proportion to the professional services performed under Rule 1.04(f)(1)(i), “[t]here must be a reasonable correlation between the amount or value of service rendered and responsibility assumed, and the share of the fee to be received.” Comment 12 of Rule 1.04. In the opinion of the Committee, there is no “reasonable correlation” between the amount or value Page 17 of 37

of services rendered in merely filing a petition and a predetermined 75% or 50% share of all fees earned from future recovery in a serious personal injury case.

The Committee does not reach the question of whether a lawyer may ever enter into a fee division “in proportion to the professional services performed” if the lawyer will not be representing the client at all after entering into a fee division agreement. Compare Rule 1.04(f)(i), which does not specifically require continuing representation by both lawyers who agree to divide fees based on the proportion of services provided, with comment 12 to Rule 1.04, which provides that a proportional services fee division agreement “contemplates that each lawyer is performing substantial legal services on behalf of the client with respect to the matter.” (emphasis added). See also ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 487 (2019) (“Fee Division with Client’s Prior Counsel”) (addressing division of a contingent fee by client’s prior counsel and successor counsel when prior counsel was terminated without cause and observing that ABA Model Rule 1.5(e), which is similar to Texas’ Rule 1.04(f), “is limited to situations where two or more lawyers are working on a case simultaneously—not sequentially”).

Division of Fees Based on Assumption of Joint Responsibility. The Rules also allow for a division of fees between lawyers who assume joint responsibility for the representation. Rule 1.04(f)(1)(ii). Joint responsibility entails ethical responsibility for the representation, including making efforts to assure the adequacy of the representation by a lawyer whom the referring lawyer believes is competent to handle the matter. See Comment 13 of Rule 1.04. It also requires that the referring lawyer “monitor the matter throughout the representation and ensure that the client is informed of those matters that come to the lawyer’s attention and that a reasonable lawyer would believe the client should be aware.” Id. While the monitoring requirement does not mean that the lawyer must attend every proceeding or review every document, it does require that the “referring lawyer be reasonably informed of the matter, respond to client questions, and assist the handling lawyer when necessary.” Id. It is impossible for a lawyer who withdraws from an ongoing representation due to a conflict of interest to exercise joint responsibility for the representation after the withdrawal. The very conflict that prevents the lawyer from continuing the initial representation of the plaintiff also prevents the lawyer from meeting the joint responsibility requirements outlined in Comment 13 to Rule 1.04. See, e.g., New York State Bar Association Committee on Professional Ethics, Opinion No. 745 (July 18, 2001) (concluding that “where a lawyer is unable to assume sole responsibility for a matter due to a conflict of interest, that lawyer is also disqualified from assuming joint responsibility”). Accordingly, a lawyer who withdraws from an ongoing representation due to a conflict of interest may not enter into an agreement to divide fees based on the acceptance of joint responsibility for the representation with client’s new lawyer.

Pure Referral Fee. As mentioned above, a pure referral fee is no longer allowed under the Rules.

Determination of whether a proposed fee division agreement calls for a pure referral fee depends on the facts and circumstances, including the intent of the parties. A fee division agreement may be characterized as an impermissible pure referral fee agreement even though the lawyer provided some services before withdrawing from the representation due to a non-consentable Page 18 of 37

conflict. Here, given the relatively limited services provided before the discovery of the nonconsentable conflict, it is possible that the withdrawing lawyer’s proposed division of fees is based entirely on the referral of the case. If so, any agreement to divide the fees between the two lawyers is impermissible, whether or not the agreement otherwise appears to be in compliance with Rule 1.04(f).

Quantum Meruit. The lawyer also asks whether a lawyer who withdraws due to a conflict of interest violates the Rules by seeking recovery in quantum meruit for services provided before the conflict was discovered.

Texas common law often does allow a lawyer to recover in quantum meruit after the representation terminates prematurely, but ordinarily does not allow a lawyer to recover in quantum meruit if the lawyer terminated the representation without “just cause.” Augustson v.

Linea Aerea Nacional-Chile S.A. (LAN-Chile), 76 F.3d 658, 662 (5th Cir. 1996). Whether Texas law allows a lawyer to recover in quantum meruit on the facts described in this Opinion is a question of law beyond the authority of this Committee.

Nevertheless, assuming there is no common law prohibition, the Committee concludes that a lawyer who withdraws due to a conflict of interest does not violate the Disciplinary Rules merely by seeking quantum meruit relief regarding the services provided before the conflict was discovered. Further, in such a circumstance, a lawyer may also attempt to reach an agreement with the client pertaining to compensation for the reasonable value of legal services provided to the client before withdrawal and the reasonable and necessary expenses actually incurred on behalf of the client.

A lawyer should be mindful that courts “scrutinize with jealousy” all modifications to a client fee agreement during the representation. Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1964).

“There is a presumption of unfairness or invalidity attaching to the contract, and the burden of showing its fairness and reasonableness is on the attorney.” Id. See also Opinion 679 (September 2018) (renegotiating fee during representation) and ABA Formal Opinion 11-458 (2011) (“Changing Fee Arrangements During Representation”).

CONCLUSION Under the Texas Disciplinary Rules of Professional Conduct, lawyers who are not in the same firm may divide fees either on the basis of the proportion of services they render or if the lawyers assume joint responsibility for the representation. But, a lawyer who withdraws from the representation based upon a non-consentable conflict of interest may not enter into an arrangement to divide fees based on joint responsibility. Further, a lawyer may not enter into an agreement to divide fees based on the proportion of services when the lawyer has not performed substantial legal services on behalf of the client, or when there is no reasonable correlation between the amount or value of service rendered and responsibility assumed and the share of the fee to be received. Finally, regardless of how the fee division is characterized, a lawyer may not enter an agreement for a pure referral fee. The Rules do not prohibit a lawyer from recovering or Page 19 of 37

seeking to recover the reasonable value of services provided to the client and the reasonable expenses actually paid by the lawyer before the representation ended, assuming such recovery is permissible under Texas common law.

OPINION 689 – SEPTEMBER 2020 QUESTION PRESENTED Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer use a non-lawyer employee to attract prospective clients to a booth in a public place operated by that non-lawyer employee?

STATEMENT OF FACTS Immediately after several hail storms, a lawyer sets up a booth at a public venue. The booth is staffed by a non-lawyer employee of the lawyer’s law firm. Signs at the booth advertise the firm’s services in representing property owners/policyholders in first-party claims against insurance companies in property damage disputes. The booth displays photos of damaged property; the name, address, and telephone number of the law firm; and phrases such as “AFFECTED BY HAIL?” The non-lawyer employee only speaks to individuals who approach the booth. Thus, none of these efforts consist of live, person-to-person contact initiated by the lawyer or non-lawyer employee.

When an individual approaches the booth, the employee distributes brochures that (1) communicate the same information as the booth’s signs and (2) invite recipients to contact the law firm for more information about the law firm’s services in representing policyholders/property owners in disputes with their insurance companies. The employee converses with visitors to the booth only upon request and orally communicates the same information as the brochures and signs.

These efforts are directed to the general public who can walk past the booth without taking a brochure or talking to the non-lawyer employee. Visitors to be booth are free to disregard the information they receive or to consider the information at a later time. Any cases resulting from such advertising efforts are handled on a contingent fee basis.

DISCUSSION Although a non-lawyer employee of a law firm is not subject to the Texas Disciplinary Rules of Professional Conduct, Rule 5.03(a) provides that “a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer[.]” Rule 5.03(b) also provides that: “a lawyer shall be subject to discipline for the conduct of such a person that would be a violation of these rules if engaged in by a lawyer if: Page 20 of 37

(1) the lawyer orders, encourages, or permits the conduct involved; or (2) the lawyer: (i) is a partner in the law firm in which the person is employed, retained by, or associated with . . . or has direct supervisory authority over such a person; and

(ii) with knowledge of such misconduct by the non-lawyer knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of that person’s misconduct.”

Accordingly, if the lawyer orders, encourages, or permits conduct at the booth that would violate the Rules if engaged in by the lawyer, then the lawyer would be subject to discipline for violation of Rule 5.03(b).

Rule 7.03 addresses “Prohibited Solicitations and Payments.” One concern addressed by Rule 7.03 is that in-person contacts “can overbear the prospective client’s will, lead to hasty and illadvised decisions concerning choice of counsel, and be very difficult to police.” Comment 1 to Rule 7.03.

Rule 7.03(a) prohibits a lawyer from engaging in in-person solicitation of a prospective client or non-client regarding a matter arising out of a particular occurrence or event or series of occurrences or events. The Rule states, in pertinent part: “A lawyer shall not by in-person contact, or by regulated telephone or other electronic contact . . . seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or non-client who has not sought the lawyer’s advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”

Although “solicitation” is not defined in the Rules, the Committee approves of the definition in Rule 7.3(a) of the American Bar Association’s Model Rules of Professional Conduct, which states: “‘Solicitation’ or 'solicit’ denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.”

In previous opinions, this Committee has addressed the ethical implications of accepting referrals from third parties. See e.g. Professional Ethics Committee Opinion 573 (July 2006), Opinion 537 (May 2001), and Opinion 524 (May 1998). Here, however, the issue is that the lawyer through a non-lawyer employee is engaging prospective clients for employment, albeit only upon request.

The Committee concludes that the lawyer’s plan to provide free information, or to use the nonlawyer staff to do so, does not violate Rule 7.03. A lawyer may also advertise the firm’s services Page 21 of 37

in representing property owners/policyholders in first-party claims against insurance companies and may do so through booth signs and brochures inviting the public to contact the law firm for more information about the firm’s services. The lawyer or the non-lawyer employee may also orally communicate the same information to visitors to the firm’s booth if the lawyer or nonlawyer do not initiate the conversation with prospective clients or non-clients but, instead, respond only if additional information is requested by prospective clients or non-clients.

Attendees at the public event may pass up the booth entirely, disregard the information provided, or consider the information at a later time.

If the non-lawyer employee distributes information to members of the public only upon request, there is no violation of Rule 7.03. For example, providing telephone numbers or other contact information for government agency consumer helplines or agencies furnishing disaster relief to members of the public would not be prohibited. As the Committee has previously observed, a lawyer does not violate the Rules by offering and giving such free information. See Opinion 654 (March 2016) (concluding that lawyers may provide free information about bail bonds and arrest warrants).But, a lawyer may not direct non-lawyer employees to solicit prospective clients or non-clients by initiating in-person contact.

In addition to Rules 5.03 and 7.03(a), the non-lawyer employee’s conduct also implicates Rule 7.03(b), which states: “A lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting prospective clients for, or referring clients or prospective clients to, any lawyer or firm, except that a lawyer may pay reasonable fees for advertising and public relations services rendered in accordance with this Rule and may pay the usual charges of a lawyer referral service . . . .”

Thus, the non-lawyer employee, whether paid by salary, hourly wage, or flat fee, may not be offered or paid any enhanced compensation or bonus tied to the number of new clients that the law firm enlists as a result of the employee’s efforts.

Moreover, Rule 7.06(a) prohibits lawyers from accepting or continuing employment procured in a prohibited manner: “A lawyer shall not accept or continue employment in a matter when that employment was procured by conduct prohibited by any of Rules 7.01 through 7.05, 8.04(a)(2), or 8.04(a)(9), engaged in by that lawyer personally or by any other person whom the lawyer ordered, encouraged, or knowingly permitted to engage in such conduct.”

Finally, Rule 5.05(b) provides that a lawyer shall not “assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.” The supervising lawyer should therefore ensure that the non-lawyer employee is not providing legal advice to those seeking information at the booth.

CONCLUSION

Page 22 of 37

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may direct a non-lawyer employee to staff a booth at a public venue and provide information to prospective clients or non-clients regarding professional employment to handle claims or lawsuits against insurance companies over property damage caused by severe weather events, provided neither the lawyer nor the non-lawyer initiates the contact by calling visitors to the booth or by talking about professional services with the visitor unless the visitor commences the conversation. The lawyer must also make reasonable efforts to ensure that the non-lawyer employee’s conduct complies with the lawyer’s professional obligations as required by the Rules. The lawyer may not pay the non-lawyer staff any bonus or additional compensation for enlisting one or more clients as a result of the non-lawyer’s work at the booth. Finally, the non-lawyer employee should not provide legal advice to those seeking information at the booth.

OPINION 690 – OCTOBER 2020 QUESTION PRESENTED Does a lawyer who represents a defendant in a criminal matter violate the Texas Disciplinary Rules of Professional Conduct if, after receiving tangible evidence from the lawyer’s client, the lawyer does not reveal the existence of the evidence until trial and refuses to allow the prosecuting attorney to inspect the evidence until the court orders the lawyer to do so?

STATEMENT OF FACTS A lawyer represents a client who is in jail awaiting trial in a felony domestic violence case.

While in jail, the defendant receives several letters from a victim in the case that contain relevant information. The defendant gives those letters to the lawyer, who takes the letters to his office for safekeeping. The lawyer does not reveal the existence of the letters until trial. The prosecuting attorney informally asks to inspect the letters, but the lawyer refuses. The lawyer continues to refuse to allow inspection of the letters until ordered to do so by the court after a hearing.

DISCUSSION “Unlawful” obstruction or concealment in general. Rule 3.04(a) of the Texas Disciplinary Rules of Professional Conduct prohibits the unlawful obstruction, concealment, alteration or destruction of evidence. Rule 3.04(a) provides: “A lawyer shall not . . . unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.”

To constitute a violation of Rule 3.04(a), the obstruction or concealment must be done “unlawfully.” The term “unlawfully” is not defined in the Rules. Nevertheless, as discussed below, the term “unlawfully” is generally understood to refer to conduct that violates a statute, court order, or other mandatory disclosure obligation.

Page 23 of 37

Any obstruction or concealment that violates criminal law would clearly be “unlawful” and therefore would violate Rule 3.04(a). Criminal conduct related to obstruction or concealment could also likely violate subsections (2), (3), (4), or (12) of Rule 8.04(a): “A lawyer shall not: • • •

commit a serious crime or commit any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; engage in conduct involving dishonesty, fraud, deceit or misrepresentation; engage in conduct constituting obstruction of justice; . . . [or]

(12) violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”

Whether particular conduct violates a criminal obstruction statute is a question of substantive law that is outside the Committee’s purview. The Committee is not aware of any authority holding that it is a crime for a lawyer to accept and retain ordinary tangible evidence from a client accused of a crime.

Obstruction or concealment of evidence is also “unlawful” if it violates a court order. For example, a lawyer in possession of tangible evidence may violate Rule 3.04(a) by knowingly failing to obey a court order requiring production of the evidence. Such conduct could also violate Rule 3.04(d), which provides: “A lawyer shall not . . . knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client’s willingness to accept any sanctions arising from such disobedience.”

Finally, a lawyer acts “unlawfully” for purposes of Rule 3.04(a) if the lawyer knowingly fails to provide evidence when disclosure is mandated by the rules of the tribunal, a subpoena, a discovery obligation, a cooperation agreement, or the like (hereafter, a “Mandatory Disclosure Obligation”). It is not unlawful, however, for an attorney to withhold ordinary tangible evidence pending a ruling on a good faith, legally available objection, motion for protection, or other procedurally legitimate challenge to a Mandatory Disclosure Obligation.

Mandatory Disclosure Obligations of criminal defense counsel. There is no traditional discovery process in Texas that allows the State to obtain evidence from a criminal defendant. Absent a court order, therefore, a lawyer who receives ordinary tangible evidence from a client generally does not have an obligation to turn over the evidence to the prosecuting authority. In such a situation, the lawyer does not act unlawfully, and consequently does not violate Rule 3.04(a), merely by maintaining non-destructive custody of such evidence.

Special Criminal Evidence. It is generally accepted that a lawyer has a self-executing obligation to turn over some special types of tangible evidence. This opinion will refer to such evidence as “Special Criminal Evidence,” as opposed to “ordinary evidence.” The definition of Special Criminal Evidence varies by jurisdiction, but generally includes contraband, the instrumentalities Page 24 of 37

of a crime, or the fruits of a crime. Common examples are illegal narcotics, a murder weapon, and stolen jewelry. Depending on the jurisdiction, the definition of Special Criminal Evidence may also include documents and records directly involved in the perpetration of a crime, such as book-making receipts or falsified records, as well as other direct evidence of the client’s involvement in the crime (such as a bloody glove). The rationales offered to support the obligation to turn over Special Criminal Evidence are that (1) possession of such evidence—by anyone—is usually illegal, (2) preparing the client’s defense does not require counsel to possess the evidence, and (3) any evanescent evidence (such as fingerprints) could degrade while in the lawyer’s possession.

Most United States courts that have considered the issue have held that a lawyer who comes into possession of Special Criminal Evidence—however defined in that jurisdiction—has a selfexecuting obligation to turn over the evidence to police or other law enforcement authorities.

See Rubin v. State, 602 A.2d 677, 686 (Md. 1992) (collecting cases); see also Hitch v. Pima County Superior Court, 708 P.2d 72, 75 (Ariz. 1985); In re Ryder, 381 F.2d 713, 714 (4th Cir. 1967) (“It is an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime”); see generally Restatement (Third) of the Law Governing Lawyers § 119 (2000) (lawyer must notify prosecuting authorities or turn over the evidence after reasonable time for non-destructive testing); Gregory C. Sisk, The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster’s Computer and Bloody Knives under the Stairs; 89 Wash. L. Rev. 819 (2014); Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 Stan. L. Rev. 813 (2011).

It appears to be the general rule that, before turning over Special Criminal Evidence to law enforcement authorities, a lawyer may be allowed to examine the evidence and subject it to tests that do not alter or destroy material characteristics of the evidence. Restatement (Third) of the Law Governing Lawyers § 119 (2000). It also appears to be the general rule that if a lawyer turns over Special Criminal Evidence acquired from a client, the trial court should not allow the jury to learn the source of the evidence. See Rubin v. State, 602 A.2d at 688 (collecting cases); see also Henderson v. State, 962 S.W.2d 544, 556 (Tex. Crim. App. 1997) (holding that trial court properly compelled lawyer to turn over maps received from client when kidnapping victim was possibly still alive, but noting that neither the client’s communications to the attorney nor the attorney’s communications to law enforcement could be admitted at trial); Sanford v. State, 21 S.W.3d 337, 344 (Tex. App.—El Paso 2000, no pet.), abrogated on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (“[b]y allowing the State to recover the evidence, the public interest is served, and by refusing the State an opportunity to disclose the source of the evidence, the attorney-client privilege is preserved”). At least one jurisdiction has endorsed a procedure designed to avoid disclosing the source of the evidence to the prosecution.

See District of Columbia Rules of Professional Conduct, Rule 3.4, Comment 5 (D.C. Office of Bar Counsel may accept evidence and turn it over to proper authorities without revealing its source, thereby preserving the defense lawyer’s obligation of confidentiality).

Page 25 of 37

At present, the scope of a lawyer’s self-executing obligation to turn over Special Criminal Evidence has not been well-defined in reported Texas law. E.g., Sanford v. State, 21 S.W.3d at 344, n. 6 (declining to decide question of whether attorney had an obligation to reveal to law enforcement the location of an instrumentality of the crime, which the lawyer had learned from client); Henderson v. State, 962 S.W.2d at 556 (referring to “cases in other states that require an attorney to release physical evidence in his possession to the authorities but prevent the government from disclosing to a trier of fact that the evidence came from the defendant’s attorney”). For purposes of this opinion it is sufficient to note that a Texas court might recognize a self-executing obligation to produce Special Criminal Evidence. If so, a violation of that obligation would be “unlawful” for purposes of Rule 3.04.

Application to assumed facts. The Committee now turns to the specific statement of facts presented at the start of this opinion. The assumed facts involve an incarcerated client who, during a jailhouse visit, gives tangible evidence (letters) to his lawyer. At the time of receipt, the lawyer is not subject to any order or agreement that mandates producing the evidence to the State. The lawyer declines to produce the letters in response to an informal request from the prosecuting attorney but produces the letters when ordered to do so by the trial court.

The lawyer is not subject to a self-executing obligation of production by virtue of the special character of the evidence. A letter from a victim does not qualify as Special Criminal Evidence, even if the letter might be incriminating or exculpatory. Specifically, such a letter is “ordinary evidence”—it is not contraband, a fruit or instrumentality of the alleged crime, a document directly involved in the perpetration of a crime, or other direct evidence of the client’s involvement in the crime (such as a bloody glove). A Texas criminal defense attorney has no obligation to turn over ordinary tangible evidence to the prosecuting attorney. That the lawyer receives the ordinary tangible evidence from an incarcerated client does not change the result, assuming the lawyer does not violate the law in the process.

No obligation to accept custody of evidence tendered by client accused of a crime. The Committee also notes that a lawyer is under no obligation to accept or act as custodian of tangible evidence tendered by a client accused of a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and assuming the lawyer counsels the client as to the applicable laws regarding evidence preservation, the most prudent course is often to decline a client’s request to accept custody of evidence related to an alleged crime. See generally "What Do I Do with the Porn on My Computer”: How a Lawyer Should Counsel Clients About Physical Evidence, 54 Am. Crim. L. Rev. 751 (2017) (comprehensive discussion of advice that lawyers should give clients if lawyer declines to take possession of tangible evidence).

Unaddressed issues. This opinion does not address (a) the destruction or alteration of evidence, (b) a lawyer’s obligation with respect to mere information received from a client related to tangible evidence (e.g., the location of a corpse or murder weapon), (c) a lawyer’s obligation with respect to tangible evidence independently discovered by the lawyer or the lawyer’s agents, (d) evidence that is not provided directly to the lawyer by the client, or (e) evidence that might exonerate a co-defendant or third-party. The Committee also cautions that it offers no opinion Page 26 of 37

regarding the application of criminal obstruction statutes and that prosecuting authorities may take a broad view on what conduct constitutes criminal obstruction or concealment.

CONCLUSION A lawyer who elects to take possession of tangible evidence from a client in a criminal matter may not conceal that evidence from a prosecuting attorney or obstruct access to that evidence if doing so would be “unlawful.” A lawyer’s conduct with regard to potentially relevant evidence is unlawful if it is prohibited by statute, court order, or Mandatory Disclosure Obligation, as defined above. In general, however, a Texas lawyer is not required to disclose ordinary tangible evidence in a criminal matter in the absence of a court order or agreement.

The common law may impose a self-executing obligation of disclosure if a lawyer takes possession of Special Criminal Evidence, such as contraband, instrumentalities of a crime, or fruits of a crime. The precise scope of such an obligation is a question of substantive Texas law to be addressed by the courts. The failure to comply with a judicially recognized obligation of disclosure would be considered “unlawful” and would violate Rule 3.04(a).

Under the facts stated in this opinion, a lawyer who obtains ordinary tangible evidence from an incarcerated client does not violate the Texas Disciplinary Rules of Professional Conduct by refusing to produce the evidence to the prosecuting attorney until ordered to do so.

A lawyer is under no obligation to accept tangible evidence from a client charged with a crime.

Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and counsels the client regarding evidence preservation, the most prudent course may be to decline a client’s request to accept custody of evidence related to an alleged crime.

OPINION 691 – JUNE 2021 QUESTION PRESENTED Under the Texas Disciplinary Rules of Professional Conduct, when may a lawyer represent a client adverse to a former prospective client of the lawyer or another lawyer in the lawyer’s firm?

STATEMENT OF FACTS Husband and Wife are married. Five years ago, Wife approached Lawyer A to discuss the possibility of retaining Lawyer A to bring a divorce action against Husband. Wife met with Lawyer A for approximately 45 minutes. Lawyer A presented Wife with an engagement letter, but Wife declined to retain Lawyer A. Wife took no further action to divorce Husband.

Lawyer B has been Lawyer A’s partner for many years. Recently, Husband asked Lawyer B to represent him in divorcing Wife. Before entering into a client-lawyer relationship with Husband, Lawyer B learned that Wife had previously met with Lawyer A to discuss potential divorce representation.

Page 27 of 37

Lawyer A retained no notes or other documents from his meeting with Wife and claims to have no recollection of any information shared by Wife during the meeting. Wife is unwilling to consent to Lawyer B’s representation of Husband in the divorce or otherwise waive any conflict of interest arising from her prior consultation with Lawyer A. Lawyer B asks whether the Texas Disciplinary Rules of Professional Conduct prohibit him from accepting representation of Husband in the divorce.

DISCUSSION Lawyers owe a duty of confidentiality to prospective clients. In the following discussion, a “prospective client” is a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter but who does not enter into a client-lawyer relationship with the lawyer. For purposes of this discussion: A person who sends information to a lawyer unilaterally and without the lawyer’s express or implied invitation is not necessarily a “prospective client.” Cf. Professional Ethics Committee Opinion 651 (November 2015) (discussing duties owed to persons who submit information to a lawyer via links on the lawyer’s website); and A person who consults with a lawyer for the purpose of disqualifying the lawyer is not a “prospective client.” See generally ABA Model Rule 1.18, comment 2.

There is no Texas Rule devoted to defining a lawyer’s duties with regard to prospective clients.

Nevertheless, the Preamble to the Rules indicates that such duties exist and may include the duty of confidentiality. Paragraph 12 of the Preamble (“Scope”) provides: Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. For purposes of determining the lawyer's authority and responsibility, individual circumstances and principles of substantive law external to these rules determine whether a client-lawyer relationship may be found to exist. But there are some duties, such as of that of confidentiality, that may attach before a client-lawyer relationship has been established.

Rule 1.05 addresses a lawyer’s duties with respect to confidential client information. Rule 1.05(a) provides, in relevant part: “Confidential information” includes both “privileged information” and “unprivileged client information.” “Privileged information” refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates.

The Committee concludes that Rule 1.05’s internal reference to Texas Rule of Evidence 503 means that a lawyer’s duty of confidentiality under Rule 1.05 extends to information provided by prospective clients. Texas Rule of Evidence 503(a)(1)(B) provides that a “client” includes a person who “consults a lawyer with a view to obtaining professional legal services from the lawyer.” This is consistent with comment 1 to Rule 1.05, which states that “[t]he ethical Page 28 of 37

obligation of the lawyer to protect the confidential information of the client not only facilitates the proper representation of the client but also encourages potential clients to seek early legal assistance.” See also Opinion 651 (November 2015) (absent an effective warning to the contrary, the duty of confidentiality may apply to information submitted by a prospective client in response to an invitation to submit such information via links on the lawyer’s website).

Subject to the exceptions in Rule 1.05, therefore, a lawyer’s unauthorized use or disclosure of confidential information provided by a prospective client violates Rule 1.05 and subjects the lawyer to possible disciplinary sanction. Accordingly, Lawyer A has a duty to maintain the confidentiality of any information disclosed by Wife in their meeting to discuss possible divorce representation.

The next question is whether Lawyer A’s duty of confidentiality creates a conflict of interest that prevents Lawyer A from representing Husband in divorcing Wife and, if so, whether Lawyer A’s conflict is imputed to his partner, Lawyer B. The potentially applicable Rules relating to conflicts of interest are Rules 1.09 and 1.06.

Consultation with a prospective client does not create a “former client” conflict under Rule 1.09.

Rule 1.09(a) addresses whether a lawyer may represent a person in a matter adverse to a former client: Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: • • •

in which such other person questions the validity of the lawyer’s services or work product for the former client; if the representation in reasonable probability will involve a violation of Rule 1.05; or if it is the same or a substantially related matter.

Because Rule 1.09 only applies when a lawyer has formerly “represented” a client, a conflict in violation of Rule 1.09 does not arise when a lawyer represents a person adverse to a former prospective client.

Consultation with a prospective client does not create an opposing party representation conflict under Rule 1.06(a). Rule 1.06(a) prohibits a lawyer from representing opposing parties in the same litigation. Because Rule 1.06(a) applies only if the lawyer represents both opposing parties, it does not apply to a representation adverse to a prospective client.

Consultation with a prospective client may create an adverse limitation conflict under Rule 1.06(b)(2). Rule 1.06(b) provides: In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: •

involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm; or Page 29 of 37

•

reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or law firm's own interests.

Rule 1.06(b)(1) is expressly limited to representations adverse to the interests of “another client.”

Unlike Rule 1.05, Rule 1.06 does not refer to clients as defined in Texas Rule of Evidence 503.

In the opinion of the Committee, (a) the word “client” in Rule 1.06 means a person in a duly formed client-lawyer relationship with the lawyer or the lawyer’s firm, and (b) Rule 1.06(b)(1) does not apply to representations adverse to the interests of a prospective client.

Rule 1.06(b)(2), on the other hand, is not limited to conflicts relating to “another client.” Among other things, Rule 1.06(b)(2) prohibits representations that reasonably appear to be “adversely limited by the lawyer's or law firm's responsibilities to . . . a third person.” A lawyer’s duty of confidentiality to a prospective client is the type of responsibility to a third person that may result in an adverse limitation under Rule 1.06(b)(2).

Whether a lawyer’s duty of confidentiality to a prospective client reasonably appears to adversely limit the lawyer’s representation of a client is ordinarily a question of fact. As a general rule, a lawyer should not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. In evaluating whether a conflict is caused by consultation with a prospective client, the lawyer should consider circumstances including: (a) the nature of the representation sought by the prospective client; (b) the nature of the matter adverse to the prospective client; (c) the length of discussion with the prospective client; (d) the matters actually discussed; and (e) the contents of any documents given or shown to the lawyer.

The fact that the lawyer claims to be unable to remember all or some of the information disclosed by the prospective client is not determinative of whether a conflict exists under Rule 1.06(b)(2).

In the opinion of the Committee, based on the limited facts presented, Lawyer A’s previous consultation with Wife creates a conflict of interest that would prevent Lawyer A from representing Husband in divorcing Wife. Given that Lawyer A’s consultation with Wife lasted 45 minutes and related to the same matter as the proposed representation of Husband, the Committee believes a reasonable lawyer would conclude that Wife likely shared confidential information during the consultation that could be significantly harmful if revealed or used against her in a divorce from Husband. Accordingly, the Committee concludes that Lawyer A’s duty of confidentiality to Wife reasonably appears to adversely limit his ability to represent Husband in divorcing Wife and that Rule 1.06(b)(2) therefore prohibits that representation.

Vicarious disqualification. Rule 1.06(f) provides: “If a lawyer would be prohibited by this Rule [1.06] from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.”

Page 30 of 37

As noted, Rule 1.06(b)(2) prohibits Lawyer A from representing Husband in divorcing Wife.

Rule 1.06(f) automatically extends that prohibition to Lawyer B and any other lawyer presently in Lawyer A’s firm. The firm-wide imputation of conflicts arising from relatively brief prospective client interviews may in some cases lead to harsh results, but the language of Rule 1.06(f) currently allows for no exception. Compare Rule 1.06(f) with ABA Model Rule 1.18 (limiting imputation of prohibition arising from consultation with prospective client, subject to certain conditions). The Committee notes that as of the date of this opinion the Committee on Disciplinary Rules and Referenda has proposed the addition of a new Texas Rule modeled on ABA Model Rule 1.18, but the proposed Texas Rule has not yet been adopted. See 83 Texas Bar Journal 618 (September 2020).

Effective consent. In the fact scenario assumed in this opinion, Wife is unwilling to consent to Lawyer A’s or Lawyer B’s representation of Husband. The Committee notes, however, that a lawyer may be able to proceed with a representation prohibited under Rule 1.06(b)(2) if the lawyer can obtain effective consent of both the former prospective client and the proposed client whose representation would otherwise be prohibited. Effective consent under Rule 1.06(c) requires two elements: (c) A lawyer may represent a client in the circumstances described in (b) if: •

the lawyer reasonably believes the representation of each client will not be materially affected; and each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.

Rule 1.06(c) does not expressly address the need to obtain consent from non-clients when the potential conflict is based on the adverse limitation due to the interests of a third party.

Nevertheless, the Committee believes that when representation is prohibited based on a consultation with a former prospective client, effective consent requires the informed consent of both the former prospective client and the currently proposed client, as well as the lawyer’s reasonable belief that the representation can proceed without violation of the duty of confidentiality owed to the former prospective client.

A former prospective client may place limitations on its consent under Rule 1.06(c). For example, the former prospective client might condition consent on the adoption of an agreed screening arrangement whereby the individual lawyer(s) who consulted with that prospective client would be prohibited from participating in the proposed adverse representation or disclosing the prospective client’s confidences to any other person. Assuming the former prospective client, the lawyer, the law firm, and the law firm’s proposed client all agree, such a screening arrangement would allow other lawyers in the law firm to undertake the representation adverse to the interests of the former prospective client, notwithstanding imputation of the conflict under Rule 1.06(f). The Committee notes that screening will not avoid a Rule 1.06(b)(2) conflict based on a consultation with a former prospective client unless all parties consent to the arrangement in accordance with Rule 1.06(c).

CONCLUSION: Page 31 of 37

A lawyer who consults with a person about the possibility of forming a client-lawyer relationship with respect to a matter owes that person a duty of confidentiality under Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct and may not use or reveal information communicated by the prospective client except in accordance with that Rule.

A lawyer’s consultation with a prospective client may result in a disqualifying adverse limitation under Rule 1.06(b)(2). Whether a lawyer’s representation of a client reasonably appears to be adversely limited by the lawyer’s duty of confidentiality to a former prospective client is ordinarily a factual inquiry. As a general rule, a lawyer should not represent a client with interests materially adverse to those of a former prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.

If Rule 1.06(b)(2) prohibits a lawyer from undertaking a representation adverse to a former prospective client, then no other lawyer while a member or associated with that lawyer's firm may accept the representation. Screening will not avoid the imputation of a Rule 1.06(b)(2) conflict based on a consultation with a former prospective client unless all parties consent to the screening arrangement in accordance with Rule 1.06(c).

Under the fact scenario presented in this Opinion, Lawyer A owes a duty of confidentiality to Wife and may not use or reveal information communicated by Wife except in accordance with Rule 1.05. Rule 1.06(b)(2) prohibits Lawyer A from representing Husband in his divorce because Lawyer A previously had a substantive consultation with Wife about possible divorce representation. Lawyer A’s disqualifying conflict is imputed to Lawyer B and all other lawyers in the Lawyer A’s law firm.

OPINION 693 – FEBRUARY 2022 QUESTIONS PRESENTED May a lawyer who practices in a private law firm that regularly represents a public entity accept a position with a hiring law firm that is routinely adverse to the public entity, without creating a conflict for all lawyers in the hiring firm?

Given that the public entity client is governed by open meetings and open records laws, and aspects of the firm’s representation of the public entity are disclosed publicly or are available under law, does the “generally known” exception to a lawyer’s obligations of confidentiality allow the hiring firm to avoid the migrating lawyer’s conflicts?

Does Rule 1.10 of the Texas Disciplinary Rules of Professional Conduct, which allows ethical screening for government lawyers who move to a private law firm, apply to a lawyer who previously represented public entities at a private law firm?

STATEMENT OF FACTS Firm A regularly, if not exclusively, represents public entities, such as school districts or municipalities. A lawyer at Firm A (the “migrating lawyer”) plans to leave Firm A and join Firm B. The migrating lawyer does not intend to bring any clients to Firm B. Page 32 of 37

Firm B routinely represents clients adverse to the same public entities that Firm A regularly represents, including in pending litigation. Firm B is concerned that if it hires the migrating lawyer it can no longer represent clients adverse to Firm A’s clients.

Firm A provides a wide range of legal services to its public entity clients, including legal advice and representations regarding transactions, administrative proceedings, and litigation. Much of the subject matter of the public entity’s legal representation is discussed in public sessions of the entity or may be accessible through governmental open records requests by the public. Firm B asks whether the migrating lawyer’s potential conflicts might be alleviated by the “generally known” exception to Rule 1.05’s restriction on the use of client confidential information.

Finally, Firm B asks whether it can effectively screen the migrating lawyer under Rule 1.10, given that the migrating lawyer previously represented only governmental entities.

DISCUSSION The first question presented is whether the migrating lawyer and Firm B will be conflicted out of representations adverse to the clients of Firm A. The answer to this question is generally governed by Rule 1.09 (“Conflict of Interest: Former Client”): (a) Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: (1) in which such other person questions the validity of the lawyer's services or work product for the former client; (2) if the representation in reasonable probability will involve a violation of Rule 1.05; or (3) if it is the same or a substantially related matter. (b) Except to the extent authorized by Rule 1.10, when lawyers are or have become members of or associated with a firm, none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so by paragraph (a). (c) When the association of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyer shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a)(1) or if the representation in reasonable probability will involve a violation of Rule 1.05.

In summary, Rule 1.09 prohibits the migrating lawyer from representing any client if (i) the matter is adverse to a client that the migrating lawyer “personally has formerly represented,” and (ii) any of the three circumstances of Rule 1.09(a) apply. Further, if the migrating lawyer is personally conflicted out of a representation under Rule 1.09, all lawyers in the hiring law firm will share the same conflict while the migrating lawyer remains in the firm.

Personal representation under Rule 1.09. Rule 1.09 does not define when a lawyer “personally” represents a client, but in the opinion of the Committee the phrase requires only that a lawyer provided some representation to the client, albeit minimal. For example, “personal representation” does not require that the lawyer appear formally as an attorney of record in Page 33 of 37

litigation or provide a significant quantity of legal services to the client. The term might include providing limited advice to another lawyer in the firm about the client’s representation, working on an isolated legal research project for the client, or merely organizing or reviewing the client’s documents. Further, “personal representation” does not require that the lawyer bill or charge the client for the representation. In other words, a lawyer may be considered to have “personally represented” a client under relatively modest circumstances. See, e.g., Henderson v. Floyd, 891 S.W.2d 252 (Tex. 1995); In re ProEducation Int’l, Inc., 587 F.3d 296 (5th Cir. 2009).

A lawyer who migrates to another law firm leaves behind any conflicts arising solely due to imputation, because purely imputed conflicts are not based on the lawyer’s personal representation of a client. Although Rule 1.06(f) imputes the conflicts of each lawyer at Law Firm A to every other lawyer still associated with that firm, such purely imputed conflicts do not apply to a lawyer who leaves Law Firm A. Under Rule 1.09, therefore, neither the migrating lawyer nor Law Firm B are subject to conflicts related to a client that the migrating lawyer did not personally represent. See Professional Ethics Committee Opinion 527 (April 1999) (discussing Texas disqualification law); see also Opinion 578 (July 2007) (discussing conflicts in lawyers representing municipalities against each other) and Comment 7 to Rule 1.09.

In some circumstances, a migrating lawyer may have a personal conflict of interest even though the lawyer did not “personally represent” the party in question. See Rule 1.06(b)(2) (prohibiting representation that “reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or law firm's own interests”); Opinion 691 (June 2021) (discussing conflicts arising from exposure to confidential information of former prospective client that never retained the lawyer). This Opinion, however, addresses only former client conflicts under Rule 1.09, which require previous personal representation by the migrating lawyer.

Avoiding conflicts from a migrating lawyer. Before hiring a lawyer, the hiring firm should attempt to detect and analyze potential conflicts of interest created by the lawyer’s previous personal representations. In particular, the hiring firm should ask for a list of clients personally represented by the migrating lawyer and then determine whether the hiring firm is handling any matters adverse to the listed clients. If so, the next step is to determine whether the representations adverse to the listed clients are prohibited because they fall within one of the three categories set out in Rule 1.09(a). Detection and evaluation of potential conflicts may require the limited sharing of client confidential information by the migrating lawyer with the hiring firm, as permitted under the conditions set out in Opinion 607 (July 2011).

A hiring firm’s failure to analyze a migrating lawyer’s conflicts carefully may result in harm to the hiring firm and its existing clients. Once the migrating lawyer is associated with the hiring firm, any conflicts arising from the migrating lawyer’s personal representation will be imputed to all lawyers in the hiring firm under Rule 1.09(b). Accordingly, the hiring firm should attempt to detect and analyze the migrating lawyer’s personal representation conflicts before the migrating lawyer is hired.

Page 34 of 37

The Committee has not been provided with enough information to evaluate whether hiring the migrating lawyer in this case would result in violation of Rule 1.09 based on the migrating lawyer’s personal representation of a former client. If it would, Firm B should not hire the lawyer without the prior informed consent of the affected clients. See Rule 1.09, Comment 10 (“A waiver is effective only if there is consent after disclosure of the relevant circumstances, including the lawyer’s past or intended role on behalf of each client, as appropriate.”). The Committee notes that constitutional or statutory limits on the authority of governmental officers may render it difficult or impossible to obtain effective informed consent from a governmental entity. See, e.g., Opinion 615 (April 2012) (questioning whether it would even be possible for a district attorney to obtain a valid conflict waiver from the State); Opinion 539, n.2 (April 2002) (same).

Client confidential information and the “generally known” exception to Rule 1.05. Rule 1.05 defines a client’s “confidential information” in exceptionally broad terms. That definition includes both “privileged information” and “unprivileged client information.” The latter refers to “all information relating to a client or furnished by a client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.” Rule 1.05 generally prohibits the revelation or use of client confidential information for purposes other than the representation, subject to numerous exceptions. The “generally known” exception appears in Rule 1.05(b)(3): Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly: (3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.” (emphasis added).

The Committee previously considered the meaning of “generally known” in Opinion 595 (February 2010). The Committee concluded that “generally known” refers to “information that is actually known to some members of the general public and is not merely available to be known if members of the general public choose to look where the information is to be found.”

In the Committee’s opinion, the fact that a public entity may engage with or discuss pending legal matters or advice with its lawyers in an open session of its governing body or that certain records pertaining to the public entity’s representation by its lawyers may be available through an open records request of that public entity does not make all the public entity’s client confidential information “generally known.” Some of the client confidential information in this public entity context may be “generally known” due to some members of the public attending these open sessions or from media accounts of the meetings; however, that fact does not make the entire body of client confidential information relating to the lawyer’s representation of the public entity “generally known.”

Law Firm B’s suggestion that the “generally known” exception to the Rule 1.05 protections encompasses the migrating lawyer’s representation of a public entity is dubious, given that the lawyer may communicate with the entity and its representatives in closed executive sessions of Page 35 of 37

the governing body, by privileged correspondence to the entity’s representatives, or by acquiring unprivileged client information in myriad ways during and by reason of the representation.

Regarding specific litigation handled by Law Firm A for the public entity to which Law Firm B is adverse, this narrow “generally known” exception to client confidential information does not likely have any material effect on whether Rule 1.09 prohibits the second firm or the migrating lawyer from becoming or continuing to be adverse to that public entity.

Rule 1.10: Screening of former government lawyers. Rule 1.10, entitled “Successive Government and Private Employment,” concerns the transition of a lawyer from public employment to private practice. Paragraphs (a) and (b) of Rule 1.10 provide: (a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. (b) No lawyer in a firm with which a lawyer subject to paragraph (a) is associated may knowingly undertake or continue representation in such a matter unless: (1) The lawyer subject to paragraph (a) is screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is given with reasonable promptness to the appropriate government agency.

Rule 1.10 applies only to lawyers who were public officers or employees and who have moved to private practice. Examples of lawyers migrating from public practice to private practice under Rule 1.10 include elected or appointed prosecutors who join or form criminal defense law firms as well as other governmental agency lawyers who join private law firms that practice in front of or adversely to those agencies.

Rule 1.10 does not apply to a lawyer who moves from one private law firm to another merely because the lawyer represents public entities or public officials. Such a lawyer is not a former “public officer or employee” and therefore is not eligible for ethical screening under Rule 1.10.

Except with the informed consent of the affected parties or as permitted by Rules 1.10 or 1.11, ethical screening for lawyers is not permitted by the Texas conflict of interest rules, including Rule 1.09. To the extent the migrating lawyer has a conflict of interest arising from the lawyer’s personal representation of a client at Law Firm A, that conflict will follow the migrating lawyer to Law Firm B and will be imputed to all Law Firm B lawyers.

CONCLUSION Without prior consent, a lawyer may not represent a person adverse to a client of the lawyer’s former firm if the lawyer “personally represented” the client while at the former firm and if the adverse representation falls within any of the three categories set out in Rule 1.09(a). Any conflict of interest based on the lawyer’s former personal representation of a client will be imputed to all other lawyers at the lawyer’s current law firm. Ethical screening of the lawyer will be ineffective to avoid the conflict unless Rule 1.10 or 1.11 applies or the affected clients provide informed consent to the screen.

Page 36 of 37

The “generally known” exception to a lawyer’s obligations of confidentiality does not eliminate conflicts of interest arising from the representation of a public entity client merely because the client may discuss some legal matters in public session or some records related to the legal representation may be available through an open records request.

Rule 1.10 relates to lawyers who are public officers or employees and who transition to private practice. Rule 1.10 is inapplicable to lawyers moving from one private law firm to another private law firm, even if the lawyer represents public entities. Accordingly, the ethical screen allowed by Rule 1.10 is not available to the migrating lawyer in the above fact scenario. i

https://www.texasbar.com/AM/Template.cfm?Section=Home&ContentID=27271&Template=/CM/ContentDisplay. cfm ii https://www.americanbar.org/about_the_aba/ iii Id. iv

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_con duct/model_rules_of_professional_conduct_preface/ v Id. vi Id. vii Id. viii Tex. Gov. Code section 81. ix Tex. Gov. Code section 81.051 x Id. xi Tex. Gov. Code section 81.0872(a). xii Tex. Gov. Code section 81.0873(c). xiii Tex. Gov. Code section 81.0875(b). xiv https://www.texasbar.com/AM/Template.cfm?Section=cdrr&Template=/cdrr/vendor/proposal.cfm xv https://www.texasbar.com/Content/NavigationMenu/CDRR/Documents1/RuleProposalProcessChart.pdf xvi Id. xvii https://www.txcourts.gov/media/1452266/219061.pdf xviii Id. xix https://www.texasbar.com/AM/Template.cfm?Section=rulesvote&Template=/rulesvote/home.cfm xx https://www.texasbar.com/Content/NavigationMenu/RulesVote/FAQ3/ProposedRulesFAQ.pdf

Page 37 of 37