Ethics and the Law: Keep Your Hand on the Throttle and Your Eye on the Rail - By Robert Pelton

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Thursday, May 5th, 2016

“Life Is Like a Mountain Railway”

Life is like a mountain railway
With an engineer that’s brave
We must make this run successful
From the cradle to the grave.

Heed the curves and watch the tunnels
Never falter, never fail
Keep your hands upon the throttle
And your eye upon the rail.

Keep your hand on the throttle, your eye on the rail, and your attention on the realities surrounding probation so you can best serve your client. By doing this, you are able to ethically follow your oath and keep a happy client. Additionally, you can avoid a writ, a grievance, and/or a lawsuit.

In order to ethically represent a client, a lawyer must keep up with all the changes in the law and in court procedures. One new program to be aware of is the Texas Risk Assessment System. This new tool, copied after the Ohio system, is used by probation departments to allegedly screen people who are getting probation. It supposedly determines what level of supervision each individual requires to be a successful probationer. This 17-page questionnaire influences whether your client gets daily, weekly, or monthly supervision, making it a very important document for defense lawyers to understand.

In case some of us missed the memo about the Texas Risk Assessment System, the questionnaire will be posted on TCDLA online. Be sure to look over the kinds of questions on the questionnaire so you can gauge the level of supervision this assessment is likely to suggest for your probation-seeking client. This will better equip you to advise your client. Remember to always advise your client of the difficulties and pitfalls of being on some type of supervised release. May times clients are better served by short sentences of incarceration rather than chains around their necks on supervised release.

Greg Velasquez, a member of the Ethics Committee, highlighted the Attorney General’s opinion JM 194 as another reality that probation lawyers need be aware of. The opinion comments on ex parte communications that go on between judges, probation officers, and prosecutors and the impact these conversation have on the client’s due process during pending and impending proceedings. This will also be posted on the TCDLA website. These ex parte conversations are unethical—and most undoubtedly detrimental to your client in probation revocation and adjudication hearings.