Ethics and the Law: Silence Is Golden . . . Sometimes - By Robert Pelton

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Saturday, October 10th, 2015

Keep your mouth shut. Don’t tell anyone else about it. It is part of an old proverb: “Speech is silver and silence is golden. Often the best choice is to say nothing.”

When your clients are the subject of criminal investigations, ethically you should warn them to keep their mouths shut and remain silent.

Your client needs to communicate with you, so it is better not to be silent with you. It is much better if you are not silent with your client. Silence may get you a grievance and a difficult client. All communications between the accused citizen and the lawyer are privileged communications. Many times the client will bring his wife, family members, or friends when the lawyer and client are communicating. Always advise the client of the privilege. Warn the client of the potential danger of his best friend or wife or husband or any other person suddenly becoming his enemy. If the client insists, write a simple note for the client to sign.

I, [client], waive the attorney/client privilege and permit my lawyer to communicate with my [spouse, cousin, friend, etc.]. My lawyer, [Robert Pelton], has advised me that there is a danger in doing this.

                                                                                                                     [Client]  

Always tell your client not to discuss their case with anyone. If your client understands and signs this waiver, then you can discuss the status or answer questions. The client may not be able to fully explain what is going on, and family or friends may be able to help.

The hotline has received several calls from lawyers and or family members or friends, employees, seeking facts or the status of the case. Mothers worry about their children. When a crying mother, whose son has a lawyer, calls or comes to your office asking for your advice and wanting to know why the other lawyer won’t talk to her, explain the attorney/client privilege. We recommend you call the lawyer and advise the current lawyer of this event. The rules permit this. The lawyer may have good reason to hide information from that certain person. If there is no valid reason, then a simple explanation to the lawyer that he needs to get a waiver from his client so the lawyer can tell the crying mother or father what is happening on the case may help. A lawyer who is serious will not mind that.

Clients in jail get lonely and scared because many of them do not have many people who really care about them. Try to see the client who is locked up, and encourage people to visit the client. Send a letter to just check in if you cannot go to the jail.

You are bound by the Texas Code of Ethics. Talking in hallways or elevators can be disastrous. It has been reported that in at least one courthouse in Texas recording devices have been discovered in hallways and elevators. A police officer out of uniform was in the hallway in a Houston courtroom listening to the defendant talk with a friend about his case. Of course the officer told the prosecutor of the conversation, and it was very unfavorable to the client.

At minimum, when you have a trustworthy person worried about their loved one, get a waiver from the client to give information about what is going on with case and court settings.

Many clients do not take their cases seriously. They may think it is no big deal. Do not make promises you cannot keep. If the client is totally unreasonable, then the best option is to decline the case.

What will the outcome be? You cannot and should not talk about the case results until you have all the facts covered. Investigate the case. Go to the scene of the alleged offense. Talk to all the witnesses. Even after getting discovery, you will generally find more witnesses that law enforcement did not talk to. Law enforcement people want to close the case. In a recent capital murder case where our client was a gang member, the deputy talked about all the tattoos and what they meant. He was very familiar with our client’s life, but when asked about the shooters, he had no information. When he was asked why there was not an investigation on the two shooters, he said, “No prosecutor asked us to find out about them.”

You are ethically bound to investigate law and facts. Most times it is best to have an investigator talk to the witnesses first. Tape-record and memorialize in writing—then you can talk to the witnesses. You will end up being a witness if the individual who was interviewed claims you lied or misled them.

Sometimes the truth hurts. It hurts more if you have not done everything ethically to find facts that may help your client. Reach out to a fellow lawyer if you need advice as a second opinion.

Bobby Mims is now working very diligently and ethically to find facts that will help him in a capital murder case. Without doing what Lawyer Mims is doing, his client will suffer and his case will make bad law which others will have to deal with.