Announcement

In case you haven't heard, I'm closing up my solo practice and going to work for the Texas Office of the Attorney General, in the Open Records division. This means you probably won't hear much from me for awhile.

What Was She Thinking?

Perhaps some of you in the San Antonio legal community haven't yet heard about the local attorney busted for marijuana possession as she tried to enter the Bexar County Courthouse. The punchline to this story: She claims she was holding it for a client. (Note that the E-N article calls her a defense attorney, but her State Bar web page lists her primary practice areas as labor law and construction.)

High-profile defense attorney Regina Criswell was arrested Thursday after courthouse officials reported finding a bag of marijuana and a chrome pipe in her purse. Her defense, according to the Sheriff's Office: The items belong to a client.

Criswell, 50, told a security guard that she knew the marijuana and paraphernalia were in her purse and that she was holding it for a client, said Deputy Ino Badillo, a spokesman for the Bexar County Sheriff's Office. Badillo said the items were discovered at a screening station at an entrance of the courthouse.

Walking through a security checkpoint with pot on you isn't too smart, no matter what your profession. But for a lawyer to hold contraband for a client is even more foolish. Local blog Strange in San Antonio also notes the "lack of good judgment, at the very least," while Man O' Law just calls this stunt "pretty stupid."

Criswell, by the way, is the attorney who recently won $175,000 for a UTSA professor whose research notes got trashed when they cleaned out his lab, but the federal judge tossed that verdict. She plans to appeal the judge's decision to overturn that award.

And yes, she's a St. Mary's grad.

Don't Forget

Another San Antonio Young Lawyers Association luncheon coming up this Tuesday at Paesano's at Lincoln Heights (near the Alamo Quarry Market).

This month's CLE speaker is James Ehler of the State Bar of Texas Chief Disciplinary Counsel . He will discuss How to Avoid a Grievance and What to Do When You Get One.

More Trouble for Lawyer in Forgery Case

A Waco attorney charged with practicing law while her attorney's license was suspended and with forging a signature on a court document is under scrutiny for possible document tampering in another case, the Waco Tribune-Herald reports:

The most recent case, from three years ago, probably would have gone undetected had [defendant Deloris] Carroll, 38, not violated the terms of her felony probation for the fraudulent use of identifying information. Files from the district attorney’s office show that an initial plea recommendation from former prosecutor Charissa Sloan was scratched through and changed from serving 12 months in a state jail to 18 months in a state jail but probated for five years.

The original sentence called for no probation.

On a related note, a McLennan County blogger discusses the circumstances of Polk's attempt to turn herself in:

Even though there is supposed to be a jail magistrate setting bonds, Polk was held in jail for 10 hours. Normally, a person who has a bondsman waiting to make their bond waits less than two hours to be processed. The sheriff abused his authority to make an impression on Polk.

Piatt's Discrimination Complaint

It came out a couple of weeks ago, but in case you haven't seen it, Texas Lawyer has a story on Rosanne Piatt's discrimination complaint against St. Mary's university:

A full-time instructor at the San Antonio law school since January 1999, Piatt alleges in a charge of discrimination she filed with the U.S. Equal Employment Opportunity Commission and Texas Workforce Commission Civil Rights Division that St. Mary's University notified her a year ago that her contract would terminate on May 31, the end of the 2008-2009 academic year.

In the charge, which Piatt filed in November 2008, she alleges her belief that St. Mary's law school has discriminated against her because of her age and gender. She is 57 years old.

"If you're an older female at St. Mary's, you're at risk," Piatt alleges in an interview.

There's also this letter to the editor (scroll down) in the Express-News which says the dismissals of Rosanne Piatt and Cheryl George are not because of discrimination, but due to academic politics:

All across the school, faculty and staff members who had any connections to former Dean Bill Piatt are finding themselves without a job. Many of these people have excelled in their jobs and received excellent performance reviews, yet were let go with spurious excuses and little warning.

Finally, here's a question from a member of the academic community on the Legal Writing Prof Blog:

One question that comes to mind is: why is the legal writing community hearing about this for the first time from the TaxProf blog? And what are we doing to help her? Like the Marines, we don't leave our wounded behind. Professor Piatt, if you're reading this and need our help, let us know and we'll spread the word. Semper Fi.

St. Mary's Law School Professor to Senate: Enhanced Interrogation ≠ Torture

In a hearing this week on the Bush Administration's torture memos, Professor Jeffrey F. Addicot, Director of the St. Mary's law school's Center for Terrorism Law, tells the U.S. Senate's Administrative Oversight and the Courts subcommittee that he does not consider "enhanced interrogation" methods such as waterboarding to amount to torture.

The witnesses at the hearing included two other law professors, a former State Department official, and a former FBI agent and interrogator. From NPR's coverage of the hearing:

Of the five witnesses who testified before the panel Wednesday, only one, Jeffrey Addicott of St. Mary's University School of Law's Center for Terrorism Law, defended the methods approved by the Bush White House.

"In my legal opinion, the so-called enhanced interrogation techniques did not constitute torture," Addicott said.

Politics Daily coverage of the hearing quotes the second law prof calling the torture memos an "ethical train wreck," and the third noting that just like with the World War II internment of American citizens of Japanese descent, "Good people, fearful for the safety of their fellow Americans, made bad decisions."

The former State Department official called the enhanced interrogation program a "collective failure." The ex-FBI agent also testified that these tactics were unreliable and ineffective.

The earliest torture memo sets out ten "enhanced interrogation" methods the CIA wanted to use. They include:

1. attention grasp: the interrogator grabs you by the collar and pulls you toward him
2. walling: you're stood against a flexible false wall, yanked forward, then pushed back into the wall
3. facial hold: he puts a hand on each side of your face, holding your head immobile
4. facial slap: what it sounds like
5. cramped confinement: they put you in a dark box and restrict your movement--you can stand or sit in the larger one, where they stick you for 18 hours; you can only sit in the smaller one for up to 2 hours
6. wall standing: you stand 4-5 feet from a wall and lean against it, putting all your weight on your fingertips; you can't reposition your hands or feet
7. stress positions: "designed to produce physical discomfort associated with muscle fatigue"
8. sleep deprivation: keep you awake for up to 72 hours
9. insects placed in a confinement box: just like No. 5 above, but they tell you they're putting a stinging insect in there, too (relax, it's just a caterpillar)
10. waterboarding: they strap you to an inclined board (feet up, head down) and put a water-soaked cloth to your face while pouring water on it for 20 to 40 seconds, creating a "perception of 'suffocation and incipient panic'"

Prof. Addicott elaborates on why "enhanced interrogation" is not torture in an op-ed for Jurist Legal News & Research. He cites the 1978 European Court of Human Rights case Ireland v. United Kingdom, which holds that five interrogation techniques (wall-standing, hooding, subjecting to noise, sleep deprivation, and deprivation of food and drink) used by the British government are "inhuman and degrading," but do not sink to the depths of torture. The professor concludes:

Considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques that were authorized – waterboarding – would not constitute torture (the CIA method is similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival).

Prof. Addicott refers to the Survival, Evasion, Resistance, Escape training, which he has probably received himself. However, one of the torture memos (on page 6) notes a huge difference between waterboarding military trainees and waterboarding prisoners:

Individuals undergoing SERE training are obviously in a very different situation than the detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training.

I have a lot of respect for Prof. Addicott, who taught me Federal Civil Procedure my first semester of law school. He might even be right as far as whether anyone can be prosecuted for any "enhanced interrogation." But leaving aside whether these techniques really are effective (and it doesn't look like they are) and whether the government should prosecute anyone over this, my main fear is that while now these methods are supposedly used only on "the bad guys," unless we put a stop to this immediately, one day we might see our government using them on us.

ADDENDUM: This story by the Washington Independent offers further testimony and additional analysis:

If it were torture, however, the Bush administration officials would be out of luck, Addicott continued. “Those who order, approve or engage in torture must be criminally prosecuted,” he said. “There is no way out of this. We have to prosecute under the torture convention. We can’t say, on the one hand, those people engaged in torture and not do anything. On the other hand, if we say they do not rise to level of torture then we’re not under any international obligation to prosecute.”

Addicott did not mention, however, that the United Nations Convention Against Torture — the same convention cited by Addicott — signed by Ronald Reagan and implemented by U.S. federal law, forbids not only “torture” but “cruel, inhuman and degrading treatment”, which must also be prosecuted under the law. And it was the definition of cruel, inhuman and degrading treatment, in particular, that gave rise to the objections of Zelikow and others.

That’s because, as later OLC memos acknowledged, the cruel, inhumane and degrading treatment, according to the reservations included when the United States signed the anti-torture treaty, is to be interpeted in accordance with the U.S. Constitution. If the actions would be prohibited under the substantive due process clause of the Constitution’s Fifth Amendment, or by the Eighth Amendment’s prohibition on Cruel and Unusual Punishment, then it would be likewise prohibited — and must be prosecuted — under the U.S. anti-torture statute.

Soliciting Plagiarism

I saw this ad on Craigslist from someone in Northwest San Antonio:

I need a two to three page legal opinion letter for a class assignment. I do not have time to do this assignment, so I am willing to pay $40 for a legal assistant, paralegal, or law student to do this assignment for me.

I know it's unethical for students to claim others' work as their own. But what about the ethics of a legal assistant, paralegal, or law student who accepts this work? Seems to me that for a legal assistant or paralegal, as long as they spell out the fact that they're not giving out legal advice and don't commit the unauthorized practice of law, they're (legally, if not morally) in the clear--just like anyone else who took money to perform a class assignment.

Regarding law students, pretty much every law school bans plagiarism and other forms of cheating. For example, Rule 2.02(b) of the St. Mary's law school's Code of Student Conduct (found at page 50 of the Student Handbook) forbids conduct that might give "that student or another an unfair advantage in an academic matter." But does the Code refer just to St. Mary's students, or any student at any institution?

I wonder what sort of class this assignment is for, and what sort of school (high school, community college, or four-year university). And I wonder how many classmates of this Craigslist advertiser--not to mention the instructor--would like to know what this student is up to.

Sponsoring the SAYLA Scramble

If you want to be a sponsor for the 2009 Scramble & Summer Barbecue, presented by the San Antonio Young Lawyers Association, you better act soon. While the golf tournament isn't until June 12, the sponsorship deadline is fast approaching. The event is a fundraiser for the San Antonio Young Lawyers Foundation and Big Brothers Big Sisters of South Texas.

The tournament includes 18 holes of golf at the Silverhorn Golf Club, use of a cart, balls, a chance at prizes, and a barbecue dinner, and costs $100 per golfer. Sponsorship packages include the event title, golf balls, holes, and tee boxes or greens. Organizers note that the entry and sponsorship fees are 20 percent less than last year.

In order for sponsors to get listed in the June issue of the Subpoena newsletter, they must submit their registration and payments by May 20.

Judge Lamberth Says Judicial Nomination System Is Broken

S.A. native Royce C. Lamberth, the chief judge of the U.S. District Court for the District of Columbia, , who spoke to the San Antonio Bar Association in February, returned to the Alamo City this weekend (he and his wife have family here).

The judge spoke at the Bar Association's Law Day luncheon (my thanks again to Burns & Black P.L.L.C. for sponsoring the table where I sat; one of the attorneys there gave James A. Rodriguez some tickets, and he brought me and another classmate).

With the impending retirement of Supreme Court Justice David Souter on lawyers' minds, Judge Lamberth spoke about how the judicial nomination process is broken:

• He said he was disgusted by how some politicians criticized nominees for the U.S. Attorney General's office positions because of clients they had represented.
• The judge noted that his confirmation in 1987 took six months; today there are some judicial nominees who have been waiting two or four years.
• He said these partisan attacks come from both sides of the aisle, and each side needs to acknowledge that the other side has a point about the partisanship.
• The judge said that the appointment of the most qualified candidates should be the goal of all Americans.
• He added that this country needs the best and brightest; judge who will set aside their personal views and apply the law and the Constitution.
• The judge said he's very impressed by President Obama's first three judicial nominations (to the Second, Fourth, and Seventh circuits).
• He acknowledged the tradition of senatorial courtesy in signing off on the president's judicial nominations, but said that tradition is not absolute.
• Judge Lamberth said that during the nomination hearings, special interest groups feed questions to their senators and attend the hearings to make sure the senators stick to the script.
• He noted that the federal judiciary now has more than sixty vacancies--and twenty-two of them are considered judicial emergencies because of the excessive workload placed on their fellow judges.
• He also mentioned one person unsuccessfully nominated to a judgeship during the Bush administration who asked the President not to resubmit her nomination because the process was so demeaning.

All in all, it was an interesting speech, and I hope Judge Lamberth comes back to town soon for another talk.

Prado's (Indirect) Response

Earlier, I mentioned a four-year-old movement to put Fifth Circuit Judge Ed Prado on the Supreme Court.

Today at the San Antonio Bar Association's Law Day luncheon, one of the speakers was Judge Prado, who took the podium to talk about San Antonio lawyer Gus Garcia, one of the litigators in Hernandez v. Texas, a key civil rights case.

As he stepped up to the microphone, the judge pulled out his cell phone. "Hello Mr. President. Yes, Mr. President. It would be an honor." The audience laughed as he ended the "phone call."

Judge Prado then told us that he had a better chance of singing with The Supremes than becoming one of the Supremes.

Prado for Supreme Court Justice?

With lawyers and policy wonks everywhere buzzing about the impending retirement of Supreme Court Justice David Souter, the big question is, who will replace him on the nation's highest court?

Right now, the leading candidates include Second Circuit Court of Appeals Judge Sonia Sotomayor and Michigan Governor Jennifer Granholm--but there are plenty of other names floating around.

However, there's also one local whose name has been discussed before: Fifth Circuit Judge Ed Prado.

Law Professor Orin Kerr notes over at the Volokh Conspiracy that four years ago a liberal group tried to get President Bush to nominate Judge Prado to the Supreme Court:

With the news that Justice Souter is retiring, and with thoughts turning to his possible successor, I'm reminded of the "independent grassroots campaign" -- headed by a group of liberal activists -- that received some attention in 2005 to urge the President to nominate Fifth Circuit Judge Ed Prado for the Supreme Court.

I admit I was dubious about the effort back in 2005. But I've been thinking about it a lot in last 4 years -- or at least in the last 4 minutes, since learning that Souter is going to retire -- and I think it's high time to take that campaign seriously.

Unfortunately, the old movement and Prof. Kerr's post both seem more like wishful thinking and trying to score political points than an actual desire to see Judge Prado move to Washington. Still, it would be nice if he ends up in the running.

The Hour Arrives

The February 2009 Bar Exam results are up. Congratulations to all those who passed.

From the February 2009 stats page, here's how St. Mary's grads did:

• First-timers: 28 of 32 passed (87.50%)--St. Mary's came in fourth in the state (behind Baylor, UH, and Tech).
• Repeat takers: 15 of 27 passed (55.56%)--St. Mary's ranked fifth in the state (behind Texas, Baylor, Tech, and Wesleyan).

Overall, 1118 people took the February Bar, and 732 of them passed--a 65.47% pass rate.

Congrats, new lawyers, and good luck finding work.

May Subpoena is Out

You can read the May issue of the Subpoena, the official newsletter of the San Antonio Bar Association, online. Back issues are available here.

The Hour Approaches ...

Candidates who sat for the February Texas Bar exam are bound to be getting a little antsy right now. Although the Texas Board of Law Examiners says it will release the results on Friday, they usually post the names of those who passed the Bar sometime in the afternoon of the day before the scheduled release. That means that all day long, bar takers will be glued to their computers, hitting the web browser's REFRESH button as they stare at the entry page of the BLE website, watching the hit counter increase as they wait for the pass list to show up.

That's what I and my classmates did last November, all morning that Thursday before the results were posted that afternoon. Everyone was updating their Facebook status as the seconds slowed to a crawl.

I was still working in my old law clerk position in the legal department of a local nonprofit corporation. Unfortunately for me, I had a CLE to attend that afternoon--the local chapter of the Association of Corporate Counsel's Ethics Follies--and I expressed my frustration over being out of the loop on Facebook. My friend Ralph Perez sent me a text message, promising to notify me once the results came out. I also asked one of the lawyers with us for the event if I could borrow her iPhone later on (no Internet on the cell phone I had) so I could check the results when they came out.

As I sat in the shadowed balcony of the Empire Theater watching the show, I kept glancing at my phone, but it remained dark. Finally, at 2:43:41 p.m., my phone buzzed with a text message ...

It was from Ralph. It was three words: "You passed buddy!!!"

I clenched my fist in triumph and silently mouthed "Yes!" Then I quietly asked the lawyer for her phone--I didn't want to say anything about this to anyone until I confirmed it for myself. So I called up the BLE website, found the results list for the July 2008 exam, and clicked on the H section. Sure enough, my name was on it!

I quietly told my coworkers--my fellow attorneys--that I passed. I then checked the list for my friends' names, as the congratulatory checks flowed in and out of my phone. At the next break, I called my parents and my girlfriend. I have to confess, the rest of the program kind of washed over me as I basked in the relief of not having to endure the bar exam again.

Later that evening, as my friends and I compared notes and realized that there were several friends whom we didn't see on the list, I felt bad for those who didn't pass. Many of those who weren't on the list took the bar for the second time in February. I also know folks taking the bar for the first time. Either way, I hope they all see their names on that list tomorrow afternoon.

St. Mary's Law Grad Displeased with Changes to His Letter to Editor on professors article

Fellow 2008 St. Mary's law graduate Jason Petty isn't too thrilled with the changes to his letter to the editor that the Express-News ran today. Jason was responding to the E-N's story on St. Mary's law students protesting the dismissal of two law professors. Here's his response when I asked him what happened:

Mack,

Forgive my fantastical ego trip. Below is the original letter I emailed to the Express-News in response to the April 25th report on the student protest:

Dear Editors, I am a very recent St. Mary's Law alumnus. (Disclosure: I passed the bar, got a legal job, and love St. Mary's.) Your decision to frame the article "Students protest 2 St. Mary's law profs [sic] terminations" (Apr. 25, Metro p.3) as an expose on race and sex discrimination at St. Mary's confused me. Why does this paper insist on giving credit to a few students' claims of discrimination when none of the terminated professors/instructors/ administrators are making those claims themselves? There are only two possible outcomes of this publication decision on your part: one, a venerable San Antonio institution has its reputation lowered because it cannot defend itself against the accusations of students who are unable to distinguish correlation and causation; or two, these women, a few of whom I count among good friends, have their professional reputations tarnished because the university is forced to justify its decision to terminate them by making statements like "Not all minorities, even in a national context of pervasive if somewhat unconscious racism and sexism, are qualified.”

Not well done at all, Express-News. St. Mary, pray for us.

Jason C. Petty, J.D., St. Mary's, 2008

Here is what they put on their website:

A hit on St. Mary's

I'm a recent St. Mary's Law School alumnus. I was confused by your decision to frame your April 25 report, “St. Mary's students protest 2 law professor terminations,” as an exposé on race and sex discrimination there.

Why did the newspaper give credence to a few students' claims of discrimination when neither of the terminated professors/instructors/ administrators made such claims themselves?

Two possible reasons:

• A venerable law school has its reputation lowered because it cannot defend itself against accusations by students who are unable to distinguish correlation and causation, or;

• These women, a few of whom I count among good friends, have their professional reputations tarnished because the university is forced to justify its decision to terminate them.

Not well done at all, Express-News. St. Mary, pray for us.

- Jason C. Petty, J.D., Alexandria, La.

My original beef, motivated by my love of the school, is that the article doesn't give any information about credible allegations of sex or gender discrimination by St. Mary's against the professors themselves. All the article gives us is the students' suggestive protest. Yet at most all we have is a throwaway argument of retaliation for defense of other minorities in the EEOC complaint made by the beloved Instructor Piatt. Is Professor George alleging actual discrimination, or just saying that she, personally, felt uncomfortable at St. Mary's? We don't know. That's all the article gives us. In other words, where's the discrimination?

My new, entirely personal beef is that the change in my letter switches "two possible outcomes" of the report to "two possible reasons" for it, which would have me be some sort of crystal-ball wielding apologist for the reporter's insinuations. Are
cause and effect wholly obliterated in our post-metaphysical world? And then they don't change the grammatical construct of the two items they bullet, which would make sense if I were providing hypothetical effects rather than the causes they suggest. That just makes me look dumb and, I believe, undercuts any argument I might have. (Sort of like the comment box below the online version of the article, where one commenter self-identified as a "Steller Law Student.")

I loathed that April 25th report: no one comes out a winner. The school looks bad and the professors look bad.

jcp

I know what Jason means about the online comments to that article. I look at some of the spelling and grammar mistakes from supposedly educated people--not to mention the attitudes of some who posted--and I wince.

Disclosure: Jason and I worked on the St. Mary's Law Journal during our second year of law school.

E-N Story on St. Mary's Shakeup

The Express-News covers student reactions to the ouster of two law professors:

A group of students at St. Mary's University School of Law are protesting the school's decision to terminate contracts for two female professors, one of them black, saying the move is a blow to diversity on a faculty where women and minorities are already underrepresented.

Raul Pelaez-Prada, the student leading the protest, has put up fliers on campus and collected around 150 signatures on a petition supporting Professors Cheryl George and Rosanne Piatt, who are both fighting their terminations.

I'd be happy to post a copy of that petition, if someone will send it to me. The newspaper also posted a letter (page 1 and page 2) from the American Association of University Professors on Rosanne Piatt's de facto tenure claim, which I wrote about earlier this month. The letter states in part:

Because Ms. Piatt has served as a full-time lecturer in the law school for more than eight years, she would therefore be entitled under the above documents to the procedural protections that normally accrue with tenure. ... They include the right to a pre-termination hearing of record in which the administration bears the burden of demonstrating adequacy of cause for dismissal before an elected faculty committee.

One possible reason for the dismissals? From the E-N article:

Students say the ousting is due in part to the professors' connection to former law school Dean Bill Piatt, who was forced out in 2006 after a rocky tenure. Rosanne Piatt is married to the former dean, and claims she has earned de facto tenure after teaching for 10 years. George was hired by the former dean and has been a staunch supporter.

In addition, the story notes that Bill Piatt tried to bring in four other African-Americans besides Prof. George to teach at the law school.

One was never hired and another worked as a visiting professor for a year. A third taught at St. Mary's for six years before accepting a tenure track position at another university. Reached at her office, the professor did not want to be identified, but said she too felt unwelcome at St. Mary's.

The fourth is Sharon Breckenridge-Thomas, director of the Office of Academic Excellence, whose contract was not renewed this year. Breckenridge-Thomas declined to comment.

I'm more inclined to believe that it's office politics, not racism, that led to this result. However it happened, it sure makes the law school look bad.

St. Mary's students and alumni should take a look at the comments on this article. A few samples:

• This has little to do with racism or sexism. This is an example of the incompetence of Dean Charles Cantu. ...
• The termination of these two professors is just another bad mark on a Law program struggling to regain a positive reputation in this State. ...
• Staffing decisions should not be based on race/gender. Professors who can't teach should be released. End of story. ...
• These comments are embarrassing to those of us who are proud to be students at St. Mary's. ...

Why You Should Pay Your Bar Dues

You might get arrested if you don't.

Waco attorney Tammy T. Polk was arrested Wednesday morning on four charges of “falsely holding oneself out as a lawyer” while her law license reportedly was suspended [for nonpayment of State Bar of Texas dues and the state occupational tax], charges her lawyer called “disgraceful.”

Her attorney wonders why no one else gets arrested for this charge:

“It is disgraceful that they chose to do this knowing full well that there are literally thousands of lawyers who every year fail to timely pay their bar dues,” Soechting said. “My first job this afternoon is to find out how many times they have issued an arrest warrant for them. I am starting to think this looks like more than an impartial investigation.”

This isn't Polk's first time on the other side of the table--in March she was arrested on a charge of "forging the signature of a McLennan County prosecutor on a case dismissal form." In that case, a court worker noticed that the handwriting of the prosecutor's signature appeared different--and the first name was misspelled.

Interestingly, as of today (April 23, 2009), the State Bar website currently shows her as eligible to practice law in Texas. For those of us keeping score, Polk is a graduate of Baylor law school.

Hat tip: This comment thread at Grits for Breakfast.

Justice Dept. Names Interim U.S Attorney

First Assistant U.S. Attorney John E. Murphy will step in temporarily to replace U.S. Attorney Johnny Sutton, who resigned as the top prosecutor in the Western District of Texas. According to the Express-News:

Murphy has spent nearly 34 years in the Western District, 14 of them as the first assistant U.S. attorney. He will hold the job until the Obama administration nominates a U.S. attorney, a process that requires Senate confirmation.

According to Murphy's State Bar of Texas member directory entry, he's a 1972 St. Mary's grad.

April SAYLA Luncheon

It's that time again: This month's San Antonio Young Lawyers Association luncheon will take place Tuesday at the usual venue, Paesano's at Lincoln Heights (near the Alamo Quarry Market).

In addition to the meal, attendees receive a 0.75-hour CLE on the False Claims Act, with Dan Hargrove speaking on this subject.

Piatt Claims De Facto Tenure

Last month I blogged about how three individuals will not be back to teach at St. Mary's law school after this semester. I just received an email from one of the three, Instructor Rosanne Piatt. She said that because she has been a full-time faculty member at St. Mary's for ten years, she has tenure.

Here's her email, in its entirety (links added by yours truly):

St. Mary's Law School is a member of the Association of American Law Schools (AALS). One of the conditions of membership is that member schools agree to adhere to the standards regarding academic freedom and tenure of the American Association of University Professors (AAUP). The AAUP standards describe two categories of full-time teachers: probationary (up to 7 years) and tenured. If a school continues a full-time teacher beyond seven years, that professor is tenured, per the AAUP (and AALS). Twice now the American Association of University Professors has written to St. Mary's, informing St. Mary's that I hold tenure and requesting my reinstatement, or the initiation of formal tenure revocation proceedings, with the burden on the university to show cause. St. Mary's has refused to comply. I will be able to share additional information within a week. Thank you for your interest.

According to the AAUP, de facto tenure exists if, after the probation ends, a faculty member continues teaching or working at the school:

Upon continuance of full-time service beyond the maximum probationary period, faculty members who so serve should be recognized as having an entitlement to the procedural safeguards that accrue with tenure, even in the absence of institutional regulations to that effect or of specific action by a particular college or university.

However, the case law on de facto tenure runs both ways. The AAUP lists a number of federal and state court cases on this subject, including a couple of federal cases from Texas:

• Owens v. Board of Regents of Texas Southern University, 953 F. Supp. 781 (S.D. Tex. 1986): Faculty manual adopted subsequent to plaintiff's appointment explicitly provided that tenure would be granted only upon affirmative action by governing board and would not be granted automatically. Factual question existed as to whether plaintiff had rights under earlier manual that administrator testified provided for tenure by default through length of service. Court denied university's motion for summary judgment.
  
• LaVerne v. University of Texas System, 611 F. Supp. 66 (C.D. Tex. 1985): Under the applicable university regents' rules, there was no tenure by default, de facto, or "common law" tenure. When university published written tenure procedures, "the legitimacy of a claim to tenure acquired outside the procedures is vitiated because there is no basis for mutuality." Because no entitlement to continued employment existed, no property or liberty interest existed.

I will post more on this subject as soon as I hear anything.

Who Will Be the Next U.S. Attorney?

Now that Johnny Sutton, the somewhat controversial U.S. Attorney for the Western District of Texas, has announced his retirement (his last day will be April 19), who will take over his job?

Maybe an attorney from San Antonio--one with a St. Mary's connection. According to news reports, potential replacements include:

• Travis County Attorney (and U.T. grad) David Escamilla
• San Antonio City Attorney (and St. Mary's alumnus) Michael Bernard
• private practice attorney and former federal prosecutor (and former St. Mary's adjunct professor in trial advocacy) Michael McCrum (read about him in his own words here)

I would love to see a San Antonio attorney step into this office, but who knows?

Hat tip: Grits For Breakfast

April Subpoena is Up

The April 2009 issue of the Subpoena, the official newsletter of the San Antonio Bar Association, has been posted online. Back issues of the Subpoena can be found here.

Peacemaker Awards

I attended the Peacemakers Awards Gala on Friday, thanks to San Antonio attorney Michael Black of Burns & Black P.L.L.C.. His firm paid for a table at the event and one of the attorneys there gave my co-blogger James Rodriguez some tickets to the awards banquet, and I tagged along. We shared the table with attorney Ted Lee of the intellectual property firm Gun & Lee P.C., along with some members of the St. Mary's School of Law Student Bar Foundation.

The event, of course, benefits the San Antonio Bar Foundation, and this 2009 its 25th year of existence. The point of the evening (other than eating, drinking, and socializing) was to announce the 2009 Flight of Peace Peacemaker Awards:

• Peacemaker Award: San Antonio Food Bank
  
• Carolyn Thurmond Community Service Award: Thomas J. Smith
  
• Business Community Service Award: Richard H. "Rick" Cavender
  
• Outstanding School Peer Mediation Program Award: Encino Park Elementary School

There were several judges in attendance, and I saw a bunch of people I knew from the San Antonio Young Lawyers Association, the Bexar County Women's Bar Association, , a few classmates I graduated with and some of my professors, along with some other local lawyers , including Nancy Shivers of Shivers & Shivers and mediator Dan Naranjo. All in all, it was a fun evening.

Statesman Article on George Trip

The Austin American-Statesman interviewed St. Mary's law school Assistant Professor Cheryl George and her 10-year-old son Gabriel about their trip to Washington, D.C. to promote awareness of sickle cell disease. From the Statesman article:

Last week, Gabriel, his mother and sickle cell advocates visited President Barack Obama in the Oval Office to discuss the disease.

"He was very nice and he was funny," Gabriel said of Obama. "He joked about things. He gave me a postcard and he signed it."

Professor George Goes to Washington

St. Mary's law school Assistant Professor Cheryl George and her son Gabriel recently traveled to Washington, D.C., to spread awareness about sickle cell disease--and they met the President of the United States while they were in town.

Prof. George emails that not only did they visit the offices of U.S. Rep. Sheila Jackson Lee of Houston, Rep. Barbara Lee of California, and members of Congress from Illinois and from the Virgin Islands:

But we met with President Obama for 10-15 minutes in the Oval Office. He joked with Gabriel about the gifts we gave he and his family. He was INCREDIBLY kind and took his time talking to Gabriel.

The proud mom also said the Austin American-Statesman interviewed them about the trip; we should see an article in the paper this Sunday. She said in her email about the meeting:

It was a HUGE blessing!!!

God is incredibly GOOD!!! :)

George has wanted to meet Barack Obama for more than a year, since the 10-year-old predicted Obama's election victory back in February 2008. Congrats to the George family!

Can I Get a Witness? (URGENT)

Just got this email from SAYLA president Sam Houston (minor editing and some linkage by yours truly):

The Texas Young Lawyers Association and the American College of Trial Lawyers are proud to host the 34th Annual National Trial Competition, which will be held in the great city of San Antonio, Texas. The competition is the preeminent mock trial competition in the country.

We need additional WITNESSES especially for tomorrow, Thursday, March 25, 2009. (Witnesses need not be licensed attorneys.) The witnesses in the competition are assigned a particular role as either a plaintiff or defense witness for the trial.

If you are interested in serving as a WITNESS in one or more of the championship rounds, please click on the following links. (Note the earlier starting time for witness preparation):

• Round 1: 8:00 a.m. to 12:00 p.m. on Thursday, March 26 - Click Here
• Round 2: 1:00 p.m. to 5:00 p.m. on Thursday, March 26 - Click Here
• Round 3: 8:00 a.m. to 12:00 p.m. on Friday, March 27 - Click Here
• Round 4: 1:00 p.m. to 5:00 p.m. on Friday, March 27 - Click Here

If you need more information about being a witness, please contact Alyssa Long (alyssajanelong**AT**yahoo**DOT**com) or Alfonso Cabanas (licabanas**AT**hotmail**DOT**com).

Sincerely,
Texas Young Lawyers Association
San Antonio Young Lawyers Association

The competition takes place tomorrow and Friday at the Bexar County Courthouse and Bexar County Justice Center. While there are enough attorneys to serve as judges, organizers still need volunteers (lawyers or nonlawyers) to act as witnesses during the various mock trial rounds. I served as a witness in a mock trial competition in law school, and it is a lot of fun, especially if you enjoy acting. If you're interested in helping out, follow the instructions above.

ADDENDUM: It looks like the afternoon slots for both days are filled up, so c'mon, all you morning people!

ADDENDUM II: I'm not a morning person, but I signed up as a witness for the Thursday morning round. See y'all there at 8 a.m.

Judge Keller Responds

Texas Criminal Court of Appeals Presiding Judge Sharon Keller responds to the charges filed against her by the State Commission on Judicial Conduct. Of particular interest, her response contains additional facts she claims were omitted in the commission's Notice of Formal Proceedings, including:

• Details of the executed man's crime from an Texas Attorney General media advisory.
• An assertion that the defendant "was not seeking on September 25, 2007, 'to avoid execution.' ... He merely wanted Texas not to 'include chemicals that are unnecessary to the effectuation of his death.'"
• The fact that the defendant "insisted on a trial but did not testify."
• A claim that the motion to stay the execution based on a new Supreme Court decision "was a simple document" that could have been filed as a four-sentence handwritten paragraph.
• The statement that "Judge Keller did not have a duty to do anything other than what she did, which was to answer a question about whether the clerk's office closes at 5 p.m."

Something else I found interesting: The judge says she is being denied her right to counsel because the Commission on Judicial Conduct won't pay her legal bills and the Texas Ethics Commission won't rule on whether she could get free or reduced-fee legal services from the hotshot lawyer who's defending her--especially when the CJC is paying an outside law firm $1 to prosecute her case.

(Note that another high ranking judge got in trouble for not reporting discounted legal services as campaign contributions.)

This puts Judge Keller between a rock and a hard place: "either defend herself pro se or risk a financially ruinous legal bill to defend against these charges which are without merit."

Shakeups at St. Mary's (2nd update)

While attending the SAYLA Counselors & Cocktails fundraiser Thursday night, I heard about some recent personnel changes at St. Mary's University School of Law, including some professors that might not be teaching next semester.

I haven't been able to confirm all the names mentioned, but after making some inquiries, I verfied the following:

• Sharon Breckenridge-Thomas, director of the Office of Academic Excellence and professor, said that she still has not yet heard whether her contract will be renewed. However, I found that the law school does have a nationwide advertisement seeking candidates for a very similar postion.
• On the staff side, Annette R. Wilson is no longer director of the law school's Career Services department. In her place, the office website lists Faye Bracey as the interim director.

There are two other individuals who may not be back to teach at St. Mary's; once I get them confirmed, I will update this post.

UPDATE: I spoke with one of the other individuals I heard about:

• Assistant Professor Cheryl George, who teaches educational law and criminal law, is under consideration by the law school's faculty senate tenure committee, but she told me that she doesn't think she is at liberty to talk about her situation. She said she will let me know what happens.

SECOND UPDATE: I talked to the final individual I had been trying to reach:

• Roseanne Piatt, an instructor at St. Mary's for 10 years, also did not have her contract renewed. This comes as no surprise; she is the wife of former law school dean Bill Piatt, who had his share of controversy and later was ousted as dean (unjustifiably, in my opinion, since St. Mary's bar passage rate increased while he was dean). Bill Piatt remains on the St. Mary's faculty, since he has tenure.

Roseanne Piatt told me she received high evaluations from law students who took her classes, and students held a rally on her behalf recently. She said she will do what she can to convince administrators to change their minds. Meanwhile, she plans to stay in San Antonio.

DISCLOSURE: While a law student at St. Mary's, I took classes from all three of the professors/instructors I mentioned above.

Lessons Learned- Diana Minella and Taking Responsibility: Part 1

The heat surrounding the recent "scamming" of several hundred traffic ticket clients by attorney Diana Minella seems to have died down recently with lots of questions left hanging in the wind. The natural question - "How could this have happened?" - expresses only a small portion of the outrage felt by clients and attorneys alike, but does it also indicate a need to rethink the attorney-client relationship? Should clients, much as patients are now being urged to do with their doctors, take more "ownership" over their legal problems? 

As an attorney, I am left conflicted regarding these basic questions. You see, I was there in the Municipal Courts for two days in January, struggling to undo what had been done, trying to repair the damage done to our profession by volunteering my time and efforts toward helping Minella's clients fix what really couldn't be fixed. Was I a knight in shining armor - a champion of truth, justice and the American way - coming to the rescue of these veritable damsels in distress, righting their wrongs with the silver sword of a legal professional? Or was I just another suit, shucking and jiving to distract these poor people from an inherent problem in attorney-client relationships? As with most of our work, the real answer probably lies somewhere in the middle.

(To Be Continued)

Traffic Ticket CLE

It's not high-profile, but plenty of attorneys take on cases involving traffic citations. And in wake of the lawyer who left her clients in the lurch because she ignored their traffic tickets, the City of San Antonio is conducting a free one-hour CLE on "Municipal Court Rules Regarding Attorney Representation of Clients with Traffic Violations." The CLE takes place at 1 p.m. in the central jury room at the Cadena-Reeves Justice Center; see the SABA website for RSVP instructions.

Counselors & Cocktails

Don't forget, Thursday is SAYLA's Counselors & Cocktails. The event will take place at The Bushnell and benefits Special Olympics Texas and the San Antonio Young Lawyers Foundation.

March 2009 Events

(UPDATED 3-16)

First, Happy Texas Independence Day! (And here's hoping that the state will soon allow the sale of fireworks to commemorate this event.)

We've got a lot going on this month on the legal scene, including some low-cost CLEs, a golf tournament, and more:

MARCH 6: The San Antonio Bar Association's Litigation Section will conduct a two-hour CLE on "Changes that Could Affect Your Practice" at the Palm Restaurant downtown. Price: just $10. That's right: just ten bucks--the section will pick up the rest of the tab.

MARCH 17: The San Antonio Young Lawyers Association's monthly luncheon will take place at the usual spot, Paesano's Lincoln Heights near the Quarry.

MARCH 19: Also courtesy of SAYLA, Counselors & Cocktails, a benefit for Special Olympics and the San Antonio Young Lawyers Foundation, at The Bushnell in Monte Vista. The event includes hors d'ouevres, open bar and silent auction.

MARCH 20: The City of San Antonio will offer a free one-hour CLE regarding "New City of San Antonio Municipal Court Rules Regarding Attorney Representation of Clients with Traffic Violations" at the Cadena-Reeves Justice Center. One of the presenters is San Antonio's presiding municipal judge and the other is the city's lead prosecutor. I wonder if this CLE was spurred by the Diana Minella ticket fiasco?

MARCH 21: The Student Bar Association at St. Mary's School of Law is hosting the Law Open golf tournament at the Republic Golf Club. Donations and sponsorships are tax dedictible, and proceeds go to the SBA and the St. Mary's Law Fund. Entry fees and other information are listed on this brochure.

MARCH 24: The Fourth Court of Appeals will hold oral arguments in Kerr County and conduct a lunchtime CLE at the Inn of the Hills Resort and Conference Center. Lunch is $12; no charge for the CLE.

MARCH 26-27: The finals of the National Trial Competition for law students will take place at the Bexar County courthouse.

MARCH 27: The St. Mary's School of Law will hold its annual Homecoming CLE and Reunion, free to all law school alumni and friends. This event will offer CLEs on several subjects--some interesting titles include Terrorism, Crime & Business, Internet Legal Research, and Rising Epidemic of Childhood Obesity as a Form of Child Abuse--as well as lunch and a reception.

MARCH 27: The San Antonio Bar Association's monthly luncheon will take place at the Plaza Club. U.S. District Judge Xavier Rodriguez will be the guest speaker.

MARCH 27: The San Antonio Bar Foundation will hold its annual Peacemakers Awards Gala. The award winners have been picked, and they will receive recognition at this event. This year it will take place at the Grand Hyatt San Antonio on the Riverwalk. Click here for details on the Gala and ticket prices and availability.

If I missed anything, for this month, please let me know.

Help Needed at Mock Trial Finals

Law students from across the country will take part in the National Trial Competition finals next week at the Bexar County Courthouse, and the organizers still need volunteers to serve as witnesses and/or judges (judges must be licensed attorneys). The event will take place Thursday, March 26, and Friday, March 27; volunteers will be there for a half-day.

Attorneys who serve as judges become eligible for up to five CLE credit hours. To sign up as a judge or witness, click here and scroll down.

The competition is hosted by the Texas Young Lawyers Association and the American College of Trial Lawyers.

Busy Week in SAYLA

Tuesday is SAYLA's March luncheon, at Paesano's as usual.

On Thursday, don't forget SAYLA's Counselors & Cocktails, at The Bushnell.

Possible Criminal Charges in Traffic Ticket Fiasco

San Antonio police recommend charging the suspended lawyer in the traffic ticket mess. The Express-News quotes an assistant district attorney as saying detectives "brought a case of fiduciary misapplication" against Diana Minella, who clients say took their money and ignored their traffic tickets. Before taking her to court, however, the DA's office must follow up on the police investigation.

In the Texas Penal Code, Section 32.45 Misapplication of Fiduciary Duty definse this offense as "intentionally, knowingly, or recklessly misappl[ying] property [held] as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held." In Sabel v. State, an unpublished opinion from 2001, the Fourth Court of Appeals held that "In common parlance, one acts in a fiduciary capacity when the money or property that he handles is not his own or for his own benefit, but is for the benefit of another person."

According to the E-N story, the investigation mentions a loss of $20,000, meaning the crime is a state jail felony. The statute makes this crime a third-degree felony if the loss is between $20,000 and $100,000; a second-degree felony for loss from $100,000 to $200,000; and a first-degree felony if the loss totals $200,000 or more.

Hat tip: Man 'o Law.

On a related note, the City of San Antonio will offer a free continuing legal education course on representing clients with traffic tickets on March 20.

Changes on the Way

I attended the CLE on "Changes that Could Affect Your Practice" on Friday. I saw several former classmates of mine, a number of local county, district and appeals judges, and many local attorneys. It was great to get out and see some familiar faces and meet a few new people. The CLE itself was also worthwhile, addressing a possible revamp of the state's court structure.

The Lone Star State's court system can confuse even lawyers, with constitutional county courts, statutory county courts (county courts at law), justice of the peace courts, and district courts--with all sorts of overlapping jurisdiction. The details are laid out in a lengthy report by the Court Administration Task Force, which suggests several revisions to Texas courts.

Sen. Jeff Wentworth, one of the panelists, discussed Senate Bill 992, which would enact most of the report's recommendations. The 130-page legislation would, among other things, eliminate the patchwork court jurisdiction that gets added to each year by the legislature and create uniform jurisdiction for all courts, allowing local districts to decide whether to create special courts (the Senator noted that because the special district courts were added by the Lege in a piecemeal fashion, the bill has to go back in and change each court specifically--that's what gives the legislation its heft). The bill would also limit district courts to cases involving $10,000 or more, and put a cap of $200,000 on county court cases.

I haven't read the entire bill, but I have skimmed through most of the Court Administration Task Force Report, and it has some good suggestions. I want to blog about this in greater detail soon.

Meanwhile, there are more sweeping changes on the table, such as a change in rules for jurors and for justices of the peace, which I also plan to address at a later date.

Fourth Court Hits the Road

The Fourth Court of Appeals takes its show on the road, hearing oral arguments in Kerrville on March 24--one case in the morning and two more that afternoon, at the Kerr County Courthouse.

For those in the Hill Country, or those in San Antonio interested in making the drive, the Kerr County Bar Association will host a CLE with the justices from the Fourth Court during the court's lunch break. the one-hour presentation starts at noon in the Bluebonnet Room at the Inn of the Hills Resort and Conference Center located in Kerrville.

Get there at 11:30 to eat and sign in; the CLE starts at noon. Cost is $12 for lunch; the CLE is free. Anyone interested in attending should RSVP to Brett Ferguson, the Kerr County Bar Association secretary, at bferg[at]ktc[dot]com.

"Changes" CLE

Don't forget, on Friday the Litigation Section of the San Antonio Bar Association will present a two-hour CLE on "Changes That Could Affect Your Practice" from noon to 2 p.m. at the Palm Restaurant. From the SABA website (with links added by yours truly):

This seminar will provide a forum for attorneys to learn about and discuss what changes are being proposed by the Legislature and State Bar Litigation Section, and how such proposed changes will affect attorneys or their clients. [San Antonio state] Senator [Jeff] Wentworth has agreed to participate, subject to the Legislature’s schedule that day. Martha Dickie of Austin, Judge Ken Wise and Alistair Dawson of Houston are going to participate as speakers, while Lamont Jefferson will be the moderator, all of whom are members of the Court Administration Task Force and the State Bar Litigation Section. The charge is $10 for the CLE and lunch for members and non-members, with the Section paying the balance. All Bexar County Judges are invited free of charge.

New U.S. Attorney Candidates

Over at Grits for Breakfast, Scott Henson solicits rumors on who the Obama administration will pick for the top federal prosecutor slots in Texas.

He points to a Dallas Morning News article mentioning five candidates for the Northern District spot, but here in the Western District, there's just one name being floated: Travis County Attorney David Escamilla. He would replace current U.S. Attorney Johhny Sutton.

No mention of possible picks for the Eastern or Southern districts.

American Gateways Gathering

Earlier on Thursday, I attended a get-together for American Gateways, a nonprofit that provides free and low-cost services for immigrants. The organization operates out of Austin, with a growing San Antonio presence working out of the St. Mary's Center for Legal and Social Justice, and it recently changed its name from the Political Asylum Project of Austin.

Props to International Bank of Commerce, which hosted the event at its downtown location and provides teleconferencing facilities for the Austin and San Antonio branches. I met a lot of nice folks who work in the immigration field at this function, and I hope to hear more from this group in the future.

Law Journal Editor Named

Speaking of St. Mary's, I heard the St. Mary's Law Journal named their editorial board for the next school year. I don't have it confirmed yet, so I won't post a link or mention any names, but congratulations to the new editors.

Congrats, Bar Takers!

To everyone who endured the February Texas Bar Exam, congratulations on getting through that three-day exercise in masochism.

Some folks from SAYLA and from St. Mary's law school showed up Thursday night at the Silo on Austin Highway to socialize, and later on in the evening a few bar takers showed up. Interestingly, one person who took the exam at Alzafar Shrine here in San Antonio said that candidates were sweating because it was so hot. Of course, when we took the test last July, we were shivering because the air conditioning was so cold.

Anyway, I was able to buy beers for a couple of bar candidates, who have the hard part behind them--except for that three-month wait for results. Again, way to go, folks.

"Slaps on the Wrist"

Yesterday the Express-News published a letter from San Antonio attorney Edgar W. Bridges (scroll down to the second from the bottom) mentioning a February 12 article on the Diana Minella ticket mess, and calling for the State Bar of Texas to do more than administer "slaps on the wrist" to attorneys who violate the state's rules of professional conduct for lawyers:

The lack of rigorous enforcement by the State Bar results in the public painting the honest attorneys with the same brush as the dishonest ones — we're all guilty.

Does the State Bar go easy on its own when it comes to discipline? Every month, the Texas Bar Journal publishes the sanctions that lawyers receive for rules violations. Are the sanctions too light, or too harsh, or do they fit the crime?

Extreme Family Law Makeover

The Family Law Section of the San Antonio Bar Association is holding the seventh annual Extreme Family Law Makeover: Going through the Big D (and we don't mean Dallas) on Friday at The Bright Shawl near downtown.

The event will provide continuing legal education credits for talks on case law updates, ethics, temporary orders, adoption, real estate, child support, mediation, and more.

I just spoke with the paralegal for one of the organizers, and she told me there are still a few spaces left--probably less than 15 by now. She recommended that those interested in attending hand deliver their check and registration form, or fax the form and include their credit card info. Contact information is on the first page of this fax.

SAYLA and Bar Takers

Having so recently been through the experience themselves, members of the San Antonio Young Lawyers Association will be on hand Thursday evening to comiserate with those candidates who just finished taking the February Texas Bar Exam.

The Meeting and Greeting will take place at the Silo Restaurant and Bar on Austin Highway from 6:30 to 9:30 p.m. Thursday.

For SAYLA members, the Meeting and Greeting will serve as a forum to network and reminisce. For bar takers, it's a chance to unwind after a three-day exam and maybe have a sympathetic listener buy you a drink.

See you there!

Busy Times in Criminal Court

Things are about to get hectic in Bexar County district criminal courts as judges try to resolve thousands of pending felony cases, the Express-News reports:

Beginning March 2, and for the following three weeks, nearly 3,000 felony cases ranging from allegations of welfare fraud to capital murder will be called into their courts of origin, and defendants will be given a final chance to plead or otherwise reach a resolution.

The remaining cases will go to trial in any given court at some point between March 23 and April 17 — a four-week period in which all district courts will suspend their regular trial dockets and work to purge the most stubborn cases. Inspired by a similar effort in Tarrant County, Judge Raymond Angelini of the 187th Judicial District Court said he's cautiously optimistic.

Why all the rush? The folks at the courthouse want to start using a new system to manage felony cases, but they have to take care of the current backlog first.

Judge Lamberth's Speech to the San Antonio Bar

I received an email noting that many of District of Columbia Chief Judge Royce Lamberth's friends in Washington are interested in what he had to say to the San Antonio Bar Association at Thursday's luncheon.

I did not take notes during the speech, but here (paraphrased) are a few things I recall Judge Lamberth mentioning:

• On the morning of Sept. 11, 2001, he was in the middle of a trial, but had recessed that morning for a dental appointment. He was on the freeway next to the Pentagon when the plane hit, and smoke from the crash blocked the road.
• The U.S. Marshals could not get to him to escort him to his chambers, so he granted several warrants over his cell phone while in his car. The FBI finally reached him to escort him to his destination.
• After the terrorist attacks, he did not get another good night's sleep until March, when the U.S. captured al Qaida's No. 3 man.
• He disagrees with the idea that the Foreign Intelligence Surveillance Court was a "rubber stamp" for the government. He said while he was on the court, he took care to make sure that people's rights were protected.
• After the Foreign Intelligence Suveillance Court ruled against the Bush Administration in 2002, the case was appealed to the Foreign Intelligence Suveillance Court of Review--the first appeal in the more than two decades of the surveillance court's existence--which struck down the ruling. Judge Lambreth said the review court concluded that the surveillance court and previous attorneys general had been doing it wrong for all those years.
• During the Robert Hanssen spy case, the judge met regularly with Attorney General Janet Reno and FBI director Louis Freeh. There were some 300 agents working the case, and the judge, AG, and director were the only three people connected with the investigation who did not take weekly polygraph tests.
• In the first months of the Clinton administration, he found that because Hillary Clinton was not a federal employee, her health care task force meetings should be made public. The D.C. circuit overturned him, holding that she was the "functional equivalent" of a federal employee, but the judge told us he thinks "you either are a federal employee or you're not."
• During that controversy, he attended a function for federal judges at the White House. When he introduced himself to Bill Clinton, the president replied, "Oh, I know who you are."

I will try to add to this later. If anyone remembers something I left out, please feel free to post in the comments below.

Commission on Judicial Conduct Begins Proceedings on Keller

It looks like the State Commission on Judicial Conduct has issued a notice of formal proceedings against Criminal Court of Appeals Presiding Judge Sharon Keller for disregarding execution day procedures in the Michael Richard case. Keller is already the target of an impeachment effort by a Texas House Democrat.

EDIT: The Notice of Formal Proceedings is available online here and here.

The notice contains five charges, including "willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as Presiding Judge" [Charge I and Charge III]; "that casts public discredit on the judiciary" [Charge II and Charge IV]; and "incompetence in the performance of duties of office" [Charge V].

The charges mention violation of the standards set forth in Article 1, Section 13 of the Texas Constitution; Article 5, Section 1-a(6)A of the Texas Constitution; Canon 2A of the Texas Code of Judicial Conduct; and Canon 3B(8) of the Texas Code of Judicial Conduct.

Via commenter and public document uploader Scott Cobb in this comments thread on Grits for Breakfast.

ADDENDUM: The Austin American-Statesman coverage mentions that Keller's lawyer is Chip Babcock of Dallas. I wonder if he's this Chip Babcock--named one of Texas' "Top-Notch Lawyers" and Oprah's attorney.

Also, the Associated Press coverage quotes Texas Civil Rights Project director Jim Harrington: "I'm impressed that the people on this commission took it serious enough, they decided even if you're the presiding judge of the highest criminal court in the state that you're still subjected to justice."

So how will this get handled? Again, from the AP, noting that it could take 18 months:

Seana Willing, executive director of the judicial conduct commission, said the Texas Supreme Court will appoint a special master — a sitting or retired district or appeals judge — to hear the matter, which will be conducted like a trial. Keller has the right to a lawyer, to confront her accusser, introduce evidence and cross-examine witnesses.

After the proceedings, the commission may adopt, change or reject the special master's findings. The panel could decide to clear Keller of the charges, issue a public censure or recommend she be removed from the bench.

The action to remove Keller would be up to a special tribunal appointed by the Supreme Court. If ordered to leave the bench, Keller could appeal to the Supreme Court.

People's Law School

The People's Law School will take place this Saturday at St. Mary's University School of Law. The San Antonio Bar Foundation has been teaming up with the law school to hold a free one-day seminar on general-interest legal topics. Local attorneys will discuss legal issues such as living wills, Social Security Disability, guardinship, immigration, and bankruptcy.

This event is open to the public. Registration begins at 8 a.m. at the law school, and classes run from 9 a.m. to 1 p.m.

What Lawyers Do

Colleague and co-blogger Ralph Perez notes over at his website that:

I recently had a client say, “there’s a reason the bar exam is so hard, you guys are expensive.” Her statement reminds me that clients often aren’t sure exactly what I do. They understand that they are receiving some sort of value for what they pay me but because legal services are generally intangible, it is sometimes hard for them to put a dollar value on what I do. I thought I’d explain exactly what lawyers do.

Ralph goes on to answer the question, "What do lawyers do?"

Law Journal Symposium

The St. Mary's Law Journal will host the 2009 Symposium on Legal Malpractice and Professional Responsibility this Friday at the Plaza Club.

There are nine speakers scheduled for the event, including keynote speaker Thomas D. Morgan, a professor at George Washington University Law School.

SABA Luncheon

The San Antonio Bar Association's February luncheon will take place Thursday at the Plaza Club (in Frost Bank Tower).

U.S. District Judge Royce C. Lamberth, a San Antonio native, will speak at the gathering. It should be interesting.

Among other things, the District of Columbia judge presided over Cobell v. Kempthorne, a class action case in which Native American plaintiffs sued the government for mismanaging an indian trust. His various opinions in that case lambasted the government, as this Mother Jones article from 2005 points out.

He also found that Iran was to blame for the 1983 Marine barracks bombing in Lebanon, ordering the nation to pay the Marines' families billions in damages.

Should be an interesting talk.

Welcome, New Bloggers!

S.A. Law is proud to announce two additions to the blogging team. Joining me in writing about the San Antonio legal community are my friends, former classmates at St. Mary's University School of Law and fellow attorneys Ralph Perez and James A. Rodriguez.

Welcome, gentlemen, and I look forward to reading your contributions.

Sounds Like a Law School Exam Question

A man on trial for the murder of his father blames inept medical care--not the son's gunshots--for the man's death. The defense attorney for Alex Crank Jr. tells jurors the bullets were "non-fatal" and that a "second medical emergency" was what killed the victim. This sounds like a fact pattern for a criminal law class exam.

When the victim died 10 days after getting shot, the DA's office upgraded the charges from attempted murder to murder. I know that in tort law, ineffective medical treatment is a foreseeable consequence of the tortious conduct, and I'm pretty sure it's the same in criminal law.

Also, an interesting angle to the punishment phase of the trial: As the Express-News and KSAT point out in their stories, the defendant is ineligible for community supervision, thanks to a recent change in state law that forbids probation for defendants convicted of murder, even if it is their first felony.

Hat tip: Man O' Law, who tells the defense attorney nice try, but "Your client will be convicted, he will lose his appeal and then you will [be wrongly] blamed for rendering ineffective assistance of counsel in a post-conviction writ."

Impeachment Bill Filed Against CCA Judge

A San Antonio state lawmaker has signed onto a bill creating an impeachment committee to address the actions of Presiding Court of Criminal Appeals Judge Sharon Keller, who drew criticism in 2007 for closing the courthouse at 5 p.m. when attorneys were trying to file a last-minute death penalty appeal.

Grits for Breakfast drew my attention to Fort Worth Rep. Lon Burnam's bill that would get the ball rolling on impeachment. The Grits post doesn't mention it, but the co-author of the bill is former San Antonio City Council member Rep. Roland Gutierrez, who now represents parts of San Antonio, Converse, and Schertz in the Texas House. According to the state Legislature website, he signed on to the bill today.

The legislation directs the House to "consider the impeachment of Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, for gross neglect of duty and conducting her official duties with willful disregard for human life."

No telling if this bill will see the light of day, it still has to get past a lot of hurdles before the House can vote on it, and even if legislators do consider impeachment, no telling if they will actually convict.