In the interest of providing a complete record regarding the debate over deleting criminal defense lawyers' "special rule of attorney client privilege," I wanted to give readers access to the memo by UT law professor Stephen Goode which originally suggested the change to a committee of the Texas Court of Criminal Appeals. See Professor Goode's memo, which appears fairly minimalist and less persuasive than Judge Cochran's recent offering.
RELATED: See also the text of the proposed rule change, CCA Judge Cochran's guest post on Grits, TCDLA Treasurer Keith Hampton's guest post defending the rule, blogger reactions from Tyler Appeals and Robert Guest, and a letter from federal public defender Richard Anderson regarding the proposed deletion.
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I am happy to see this debate. It is indeed curious that this particular rule has been singled out for deletion when other, more arcane rules are left in place. Such as the rule that the State must have two witnesses to convict somebody of treason, when we have no state law against treason. Article 1.20 CCP. My favorite may be the article before that, 1.19, "Corruption of Blood, etc." The caption itself sounds positively medieval.
It just seems that every time a rule or a law is changed in this state, the changes are never in favor of defense counsel. As a response to the problems created by underfunded appointed defense counsel, the State has placed more reporting burdens on counties and, ultimately, on defense lawyers. Defense lawyers are now subject to reporting requirements to ensure compliance with the Fair Defense Act, or to ensure that they have timely advised their clients on appeal. See TRAP 48.4. Rather than actually pay quality counsel to do a quality job, policy makers are coming up with new ideas to infantilize the entire defense bar by imposing reporting requirements and unrealistic timelines that create additional stress and administrative burdens for already underpaid appointed counsel and that, in some instances, do interfere with counsel's job.
TRAP 48.4 is a good example. We are required to advise our clients of their right to file a PDR and must produce affirmative proof that we have done so in the form of a certified mail return receipt. However, in at least one instance a court of appeals wrote me a letter asking why I had not complied with this rule after a dismissal for lack of jurisdiction (trial counsel had filed notice of appeal way too late). I wrote back and said I did not think the dismissal was an "opinion" such as to trigger the requirements of 48.4, besides which, the only remedy available to my client was an 11.07 writ.
Why am I having to explain to a court of appeals what I advised my client and why? Incursion on the privilege has been in play for some time now. Maybe the best thing about this effort to tinker with the rules governing the attorney-client privilege is that it is more overt than past efforts, and will therefore serve as a wake-up call to the defense bar that defense lawyers are increasingly being treated like cogs in the machine rather than independent professionals.
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