The Disabled Among Us And Our Prisons

I want the reader to picture an unkind time in their lives – middle and high school.  A time when most of us were struggling to fit in, or to stand out on our own, in our own way.  A time when, to be charitable, we were not always kind to our fellow students, when we said or did cruel things to those who were singled out by the rest of the insecure and frightened for special abuse.  I am talking about how we, in school and today, in our very cruel, real world, treat the “slow kids.”

 

You remember them:  They were the ones in Special Education, or if you are as old as I am, the ones in the “remedial classes.”  They struggled to read, to understand the rules in school, to hold conversations with the rest of us.  They could not do the simplest of math problems, or diagram a sentence.  Perhaps the school system you were in didn’t label those young children “retarded” or the newer, more generous phrase “intellectually disabled.” Perhaps they were just placed in remedial reading or left to languish in the back row. They could not function in the classroom or on the playground without someone looking out for them, and there were never enough people willing to look out for them.  They weren’t bad kids, they were just dramatically different in the ways their minds worked- but too many times we didn’t really understand that difference.

 

The difference was not a helpful one.  The difference made them an easy target for the other insecure youngsters who needed to feel stronger or smarter than someone else, because they were afraid.  For the rare but occasionally truly cruel young person who simply wanted a human fly from which they could pull the wings, they were a source of evil delight, and only once in a while would the teachers or a good-hearted protective student step in to prevent the ugliness.

 

You remember them now, don’t you? You are thinking, in fact, of at least one little face.   You remember the sick feeling in your stomach when you watched but did not step in when someone picked on her, when the teacher rolled her eyes at him and everyone laughed.  You remember how you turned away, felt ashamed, when she waved to you on the playground?  How you felt when he was pushed to the ground or made a laughingstock by one of the inevitable little sociopaths who tried to rule that small penal colony we sometimes called high school?

 

Those disabled boys and girls grew into disabled adults, at least biologically, and unfortunately our adult world has been no kinder to most of them. Sadly, some of them wound up in our criminal justice system, because no one thought of how those hapless young underdeveloped minds would cope when faced with a criminal charge.

 

Picture those kids dealing with a police officer- not kind and understanding Andy Griffith, but a real street cop with little patience and a suspicious and paranoid mind.  Picture how afraid they would be.  We are all afraid when the police pull us over, at least a little.  Imagine the panic in those simpler eyes, just for a moment.

 

As far back as 1966, in a study of prisons and the population, the numbers of the mentally retarded were at ten percent of prison population.  That number was doubtlessly wildly under-reported, since many prison systems did not test for IQ in those days, and other measures of intellectual disability were yet undeveloped. That was before the explosion in our prisons, before the traumas of concussions were realized by our modern medicine and the traumatic brain injuries of those in our multiple wars in the last five decades. So, let me be very clear: the intellectually disabled exist in significant numbers in our jails and our prisons, largely because, just as when we were kids, we stand by or turn away.

 

Picture how one of those kids would have fared in an interrogation room with an experienced, cynical detective.  Picture how they would have done on the witness stand against an experienced, hardened prosecutor whose only job is to eviscerate even skilled, expert witnesses. Picture how those scared kids from your school would do in a jail awaiting trial.  How afraid would you be if you were in an open bay sleeping area with twenty rough men, accused of assaults, robbery, and addled by drug use? Now see in your mind’s eye how desperate would they be to do anything, even take a plea for something they did not do, just to get away from one more night where they were so scared they could not sleep?

 

Most of the struggling kids from our school days would qualify for a guardianship, for someone else to take care of all their adult decisions, including where to live or what to do with their money.  Most of them could qualify for disability from the Social Security Administration. Most used car dealers would hesitate to have them sign a contract for purchase of a car if they spent more than ten minutes with them.  Yet we continue to arrest them and convict them and sentence them with an alarming frequency for minor crimes, which at some point become major crimes, at least as far as the system is concerned.

 

We on the defense side of things are lucky.  We can, every once in a while, be that kid in school who stood up to the bullies who were hurting the kids who were different.  We can, if we take the time and make the effort, find a way to show that our clients are actually disabled under the law, and that makes a universe of difference once we get there.  Once we can show someone is truly not competent legally due to intellectual disability, we have just changed the world for this one client.  Instead of rotting in jail or prison, they could go home.  Instead of being convicted, they might go free, or they might be placed on community supervision with a diagnosis that could enable them to get the help they need.

 

You readers on the jury side of things are lucky too, at least once in a great while.  When you are called to serve on a jury, and someone provides you evidence of disability, you can take it into account on your verdict.  You can do whatever you want on those verdicts – acquit someone, find them incompetent, convict only of a lesser offense, be merciful in a sentence, or recommend probation.  I envy you that.

 

We do not do this enough on the defense side.  We do not recognize the signs of disability, such as time in special education classes, having a history of having someone else intercede when issues pop up, needing help in writing or reading even as adults, and leaving school at a young age.  We do not ask the follow-up on questions enough.  We do not ask the right questions.

 

I do not do this enough. I wish I did.  I wish I had gotten more testing done by a mental health professional whenever I have had a question about capacity of a client. I wish I had listened to a family more closely when they expressed a concern.  I wish I had fought harder for a client whose disability was masked from me because sometimes people do not ever want to be called or labeled slow or stupid.

 

Most of all, I wish I had done more for those kids back in school.  Maybe today I can. Maybe we all could.

Lessons After Dying

Allison contacted me and asked me if I would consider writing a PSA for this blog.  At the time,  I was 18 days post-incident and I asked her to give me two weeks to submit something. Without procrastinating any further, I sat down today hoping it was a soft deadline. (Editrix’s note:  fear not, gentle Rand and Dear Reader, all deadlines for the blog are soft, as is your darling Allison).

 

For those of you who do not know, I suffered a heart attack at mile 15 of the 2017 Houston Marathon and died.  Compensating for any bad luck or fortune I have ever had in my life, I found myself surrounded by half a dozen people who knew CPR and fell within yards of a geriatric facility that had a defibrillator and four staff people that ran it out to me. The odds of someone similarly situated to me surviving that scenario outside of a medical facility is low single digits. As you can imagine, I am thankful for those people on the ground with me who saved my life as well as every new day.

 

Upon arrival at the hospital, I learned that not only had I suffered a heart attack but I had suffered a prior incident.  The heart attack du jour was because I was 99 percent blocked on the right side and my prior incident had completely obstructed blood flow; however, secondary routes had formed and that, among other things, was responsible for my survival. A stint was put in and once I am recovered, I should be good for decades.

 

I have been running for thirty nine years and very cognizant about what I ate for most of that time so you can imagine that no one was more surprised than me that I suffered such an incident. At an early age I realized that there was heart disease aplenty on both the maternal and paternal sides of my family and I needed to take responsibility for my own health.

 

I won’t go through all of it here, but there were a lot of classic warning signs that I missed.  I was beyond overworked in November and December.  During that time I had been plagued with heartburn and what I thought to be pain in my ears. The pain in my ears was actually jaw pain.  I believed these maladies to be caused by stress and playing music too loudly in my car. It would have never occurred to me that these were warning signs of a cardiac incident. Additionally, I ran a marathon one month before and really struggled to complete it even though I’d had great shorter distance races earlier in the season.  Despite oppressive conditions, I reasoned that my age was finally catching up with me and perhaps my long distance days were over. Again, it never occurred to me that my body was not getting enough blood or oxygen.

 

What else can I share with you? Over two years ago my general practitioner saw something he did not like on my EKG. He sent me directly to a cardiologist.  Two weeks later the cardiologist performed a nuclear stress test and an echocardiogram.  It was never mentioned to me by the cardiologist or my general practitioner that I had a prior incident. I question whether the cardiologist ever sent his findings to my GP. The cardiologist never told me I needed to follow up with him.

 

I clearly lost the genetic lottery.  I also overlooked warning signs of an impending cardiac incident. Prior to this I took what I believed to be responsibility for my health by exercising and eating what I believed to be the optimal diet for heart health. I have been told that I benefitted from these positive steps. However, it appears that taking responsibility for your own health includes reviewing your own records and personally supervising the transfer of information between health care providers. Perhaps a stint could have been put in during a planned procedure instead of following such a traumatic event.

 

Finally, I have two more things to share.  First of all, take four hours of your life and learn CPR. If it was not for the timely and proper administration of CPR, I would not be here physically and mentally intact. I am working with the Honorable Paula Goodheart to have a class at the CJC for everyone to attend. Since my incident, Mark Metzger saved the life of a woman with his CPR training. Any one of you can possess the skill to save someone’s life. You do not need to be a health care professional or look like Superman as in Mark’s case.

 

Secondly, the love, affection, offers of help, and actual assistance that washed over me from the CJC touched me beyond words. As George Bailey stated in It’s A Wonderful Life, “No man is a failure who has friends.”

 

 

 

 

 

“I Had To Call The Police”

 

I was at a birthday party last weekend in the Heights. As the party dwindled down, conversation grew more relaxed and an intimate group was left sharing life with each other. One guest said, “So, I had to call the police the other day…”

 

The story unfolded: as she was driving up to her house she saw a parked car she did not recognize in front. She noticed “two white suspicious looking men sitting in a Cadillac”, and one of them had a glove on. She pulled in, went in her house, and the men eventually drove away. But, she kept a look out. She saw the same car drive back and forth a couple of times about a block away on the cross street to hers. So, she called the police and reported these suspicious men. Officers came very quickly, and she told of how nice and helpful they were. They found the men, asked them what they were doing, and reported back to the caller. Everything ended well. She felt safe, and now had a cocktail party story to tell of her lovely experience with police.

 

What were the men doing? They had answered: playing Pokémon Go.

 

And this is the accepted and normalized system we live in today…one built around and justified by fear. A couple people are playing a harmless game, and cops are called. No disturbance occurred, no weapons were seen, no illegal activity of any kind was observed, but cops were called.

 

What if my friend had simply walked up to the car and asked what they were doing?

 

Why not? Fear.

 

She could have knocked on a neighbor’s door and asked them to approach these men with her.

 

Why not? Fear.

 

Her call to police was her immediate response to this fear, and most people at the party completely agreed. Not one person questioned the need for this call. So, what’s the problem? The problem is a lack of consideration of real, tangible consequences of this candid call to police. These two men having a fun day were subjected to questioning by people who, if they dislike anything, could and likely would put chains on them, lock them in a cage, and attach a label on their life forever. A light question in my friend’s mind could have easily led to an enormous amount of trauma and taxpayer dollars. She’s a good accountant, but the cost-benefit analysis when fear enters the equation is not considered.

 

The problem is what if these police officers were young and thirsty, and had a call about two suspicious white men? They could stop, search, question, and arrest almost anyone in a car in that neighborhood. They could then write an offense report giving their link to the call and whoever they arrested, and our system would begin turning its chains against that person. A conviction almost certain, and redemption almost impossible.

 

Now, what if my friend or the men in the car were less educated? What if her mind allowed a rampage of fear to call and demand justice against these men for scaring her in her front yard? What if these men did not know how to respectfully and calmly respond to the officers? What if they had seen police officers beat and abuse friends, colleagues, and neighbors? What if they didn’t have the resources to be playing a well-known game? What if they had made up a game? Would the police officers believe them? What if the officers didn’t believe they were playing Pokémon Go?

 

All of these questions never enter the minds of people like my friend. The consequences of slight alterations to the story never entered the mind of my friend. She just felt she had to call the police. And everyone and everything in the culture around her validates that mindset.

 

To me, it seems unconscionable to allow the potential for such harm to these two men, and to society, to honestly believe that calling the police was a justified response. But, I’m not allowed to speak against it in public. If someone were to say something completely irrational in any other context – like if she described how a dish came out of her washer dirty, so she threw the whole dishwasher away – people would immediately speak against outlandish ideas. But in the context of fear and police and criminal justice, we’re not allowed to question her rationale. Me? I murmured something to my wife, she shushed me, and the party went on. I wish I felt comfortable enough to question her actions. But the result would have likely been a more forceful shushing, hurt feelings, distance created, others’ encouragement of fear, and ultimately, love being lost.

 

How has society gotten to this point? How has this accusatory system of fear grown to be so monumentally accepted?

 

Fear is winning.

 

Our societal response to fear of any kind is to rely on police officers, who job description is to issue out fear to all accused. I imagine and hope and pray for a world that relies on love in response to fear, not police officers. I am thankful for police officers who recognize this and miraculously operate with love. We need more who can put a love response in front of their job descriptions, training, and guns. We need to demand that love as a society and from ourselves.

 

And I won’t finish without addressing the even more obvious question in the story. The question that leaves my stomach dropped… What if the two men in her story were black?

 

Is our system racist? People can get by with nodding to messages of fear and simultaneously rejecting racism. But the realities in the difference of this story if those men were black sings a different tune. The mentalities and reliance and justifications of fear from this story are how each person in a system can deny racism, but the system itself operates with widespread racial discrimination.

 

Being a criminal defense attorney, my ears always perk to police comments for many reasons, but primarily because I think a lot about the role of police in our society and why and how they have affected our culture. I hope we all consider real consequences a bit more in stories that we think, “I had to call the police.”

Report from the Trenches

I’m an Orthodox Jew, and I spend a 25 hour period from Friday night to Saturday night, the Jewish Sabbath, in a tech lockdown. No TV, no phone, definitely no social media. When I checked my phone five minutes after the Sabbath ended that Saturday night, January 28th,  I was shocked at what I saw. I had heard something about the executive order before entering my electronic isolation, but I had no idea that while I was in my synagogue praying for peace in the world, the whole country was melting down over another Trump action. This time, I knew I had to do something. I was inspired to go and volunteer like the dedicated attorneys I saw fighting in JFK, and I dedicated my next free day to going to IAH to do what I could.

 

Oddly enough, the day started out at Hobby; I was picking up someone from the airport. She was an older, religious woman from out of town, and I knew right away what the rest of the car ride was going to be like when she asked me who I had voted for. We spent the next half hour going back and forth about Muslim Americans, America’s responsibility to refugees, security threat posed by terrorist organizations abroad, and the general fear that Americans have towards Islam and Muslims. It was something that was definitely on my mind already.

I got to IAH that evening not knowing what to expect. I had seen pictures with thousands of protestors, and I was afraid of what kind of chaos I would encounter. The scenes when I got there couldn’t have been further from the madhouse of the weekend. There were no protestors, just families waiting for their loved ones, chauffeurs milling about and chatting, and some tables by the Starbucks with a big sign saying free legal services. I walked over and introduced myself to an assortment of lawyers, none of whom worked immigration. There were PI attorneys, litigators, and a kid who managed his family’s IHOP that was helping with Arabic translation. We had no real instructions, just some general ideas of what we could do and what worked over the past 48 hours. We talked for 30 minutes about our practices and our politics, and about what was happening at other airports.

The first person that came over for help ended up having the same story as everyone we helped that day. Her husband was an Iranian and a legal permanent resident who had decided to fly home sooner rather than later after the ban had come into effect. She knew that he had been detained in secondary screening, which is meant for people on visas, but had no communication with him since. He spoke perfect English, had a masters degree, and a career here. His wife was calm, but obviously afraid. She said that he was actually supposed to be naturalized in two weeks.

We talked with her, told her the current status of the EO. We told her that it shouldn’t apply to her husband because he has a green card, and that he knew not to sign away his residency (as other border patrol agents had done across the country). We told her that we could fill out a form to be her representative to Customs and Border Patrol to see where he is, but that they probably would not tell us anything. Last, we told her that while we would do anything we could to help her and her husband, we were facing a situation where the law might not help. An immigration lawyer that came to help put it best: we weren’t practicing immigration law anymore, we’re practicing Trump law.

Thankfully, everyone that asked us for help eventually saw their loved ones come through the sliding glass doors in the international arrival section. When I left, there were still over a dozen people, all legal permanent residents, sitting and waiting to be released. They weren’t being asked questions about their supposed “increased security risk,” they were just made to sit and wait. An exercise in power to make them feel insecure about their legal rights because they were Muslim.

Listen, I understand that there’s a novelty to an Orthodox Jew fighting for Muslims to be able to freely enter the country, free from persecution. There’s a million reasons I could give why it shouldn’t be an amazing sight to see a man in a yarmulke working alongside a woman in a hijab to fight for an Iranian. I could say that so many in my community are the descendants of refugees from Czarist Russia, post-Holocaust Europe, or even from the waves of anti-Semitism that caused the Jewish population of the Middle East to flee from Arab nations after the creation of the State of Israel. I could say that I pray side-by-side with men who fled Soviet Russia and still bear the scars of Siberia. I could say that my wife’s family is only here by the grace of G-d that they were able to flee the Inquisition and pogroms.

The reality is that those experiences, the fact that my people have been refugees for over 2000 years plays only a part in why I helped and why the image of men and women torn away from their families strikes me to my core. My faith, my beliefs about humanity, center around the core tenet that we are all created in G-d’s image, and that I need to love every person out there as much as I love their Creator. Its something that I believe is the foundation of our democracy and our legal system, that everyone has inalienable rights because they are all equally valuable creations.

Its only shocking to see me working alongside Muslims for Muslims because so much of the world still doesn’t get that idea, that necessary belief that my Muslim friend is as much loved by G-d as my Christian friend, my atheist friend, my white friend, my black friend, and as much as me. That’s the message I think that we send as attorneys when we work together to help those targeted by these executive orders. The image of a diverse group of attorneys, working pro bono, against the odds sends an important message to the kind of thinking and thinkers that led to that divisive policy.

We were doing more than just filling out paperwork, talking with police, or even just counseling our clients; we were advocating for the core principals of a just society ruled by law, and no one could stop us.

 

Don’t Act Ugly

Over the past 10 years, many Houston lawyers have become friends with people who hang around outside the courthouse.  One beloved gentleman, Rick, recently fell ill and died, and the legal community came together to help Rick during his battle with cancer. Rick always had a positive attitude and was upbeat and would tell all the accused citizens standing in line to get in the building, “Don’t Worry-Be Happy,” or “I Love You” to all the women, lawyers, and citizens.  He was like a street preacher trying to spread some cheer around a depressing building.

 

Saundra is a homeless person who stays around the courthouse, and many lawyers help her.  There were some dirty politics in several elections in Harris County, which resulted in a new district attorney, sheriff, and several judges.  Saundra would hear all the gossip, and when I would see her and spend a few minutes talking with her, she would say “God does not like it when people act ugly.”  She was talking about what she was hearing from families and lawyers alike about other lawyers who were hiding evidence, lying, and slinging mud – in general, acting ugly.

 

Acting ugly was resulting in accusations that lawyers were giving special deals to rich people while the poor people were pleading guilty just to get out of jail because they had no money to get out on bond.  Acting ugly was hiding evidence from defense lawyers.

Local defense attorney Randy Schaffer and a few other lawyers got new trials for people who had been convicted.  Some of these cases showed that prosecutors lied, withheld exculpatory evidence or evidence that might have resulted in a not guilty verdict. Lawyers are bound by their oath and the rules of ethics by the state bar.  The ethics hotline has received many calls from lawyers and citizens about the conduct of prosecutors and of their own lawyers.  When a lawyer sees some other lawyer acting ugly there are bar rules that advise us on what to do:  Rule 8.03, 8.04 and Rule 1.05 f.

 

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

 

Rule 8.03 Reporting Professional Misconduct

(a) A lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

(b) A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

(c) This rule does not require disclosure of knowledge or information otherwise protected by Rule 1.05.

 

 

 

(d) This rule does not require disclosure of knowledge or information otherwise protected as confidential information:

  1. by Rule 1.05 or
  2. by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program.

Comment – Rule 8.03

  1. Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigations when they have knowledge not protected by Rule 1.05that a violation of these rules has occurred. Lawyers have a similar obligation with respect to judicial misconduct. Frequently, the existence of a violation cannot be established with certainty until a disciplinary investigation has been undertaken. Similarly, an apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Consequently, a lawyer should not fail to report an apparent disciplinary violation merely because he cannot determine its existence or scope with absolute certainty. Reporting a violation is especially important where the victim is unlikely to discover the offense.
  2. It should be noted that this Rule describes only those disciplinary violations that must be revealed by the disclosing lawyer in order to avoid violating these rules himself. It is not intended to, nor does it, limit those actual or suspected violations that a lawyer may report. However, if a lawyer were obliged to report every violation of these rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial ” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. The term “fitness ” has the meanings ascribed to it in the Terminology provisions of these Rules.
  3. A report of professional misconduct by a lawyer should be made and processed in accordance with Article X of the State Bar Rules. A lawyer need not report misconduct where the report would involve a violation of Rule 1.05. However, a lawyer should encourage a client to consent to disclosure where prosecution of the violation would not substantially prejudice the client’s interests. Likewise, the duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship.

Rule 8.04 Misconduct

(a) A lawyer shall not:

(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship;

(2) commit a serious crime, or commit any other criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects;

(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(4) engage in conduct constituting obstruction of justice;

(5) state or imply an ability to influence improperly a government agency or official;

(6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;

(7) violate any disciplinary or disability order or judgment;

(8) engage in conduct that constitutes barratry as defined by the law of this state;

(9) fail to comply with Article X, section 32 of the State Bar Rules;

(10) engage in the practice of law when the lawyer’s right to practice has been suspended or terminated;

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

 

(b) As used in subsection (a)(2) of this Rule, “serious crime” means any felony involving moral turpitude, any misdemeanor involving theft, embezzlement, or fraudulent misappropriation of money or other property, or any attempt, conspiracy, or solicitation of another to commit any of the foregoing.

 

Joseph Connors, Ethics Committee member, has helped me write and research for this article as has Michael Mowla.  This is an example of what has happened in other places:

Beginning in the late 1980s, attorneys have been required to report the misconduct of other lawyers that he is aware of. Failure to do so is considered to be misconduct in itself and can result in serious disciplinary measures. A 1989 Illinois Supreme Court ruling, In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790, found that attorneys have a duty to report other lawyers’ misconduct even when a client has instructed them not to do so. The Illinois Supreme Court suspended James H. Himmel from the practice of law for one year after he failed to report a misappropriation of client funds by another lawyer, a violation of rule 1-103(a) of the Illinois Code of Professional Responsibility. Himmel’s failure to report, the court found, had allowed the offending attorney to bilk other clients as well. The attorney guilty of misappropriating funds was disbarred.

 

Lawyers have also been found guilty of misconduct for falsely advertising their services.  It is legal and ethical for attorneys to advertise, but if that advertising is false, deceptive, or misleading, makes unsubstantiated comparisons to another lawyer’s services, or proposes means contrary to rules of professional conduct, the attorney can be charged with misconduct. For example, an attorney was disbarred in Maryland for publishing misleading advertisements soliciting customers for “quickie” foreign divorces and misrepresenting his competence and knowledge of the law (Attorney Grievance Committee v. McCloskey, 306 Md. 677, 511 A.2d 56 [198]

 

Jim Skelton has read the rules and offered the following as an aid in understanding the rules:

 

I read Rules 1.05, 8.03, and 8.04 and think that Rule 8.03 is pretty clear – a lawyer has the obligation to report another lawyer to the State Bar who commits a 8.04 violation that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer. There are two exceptions: (1) if the lawyer had an addiction problem, the reporting lawyer has the option of reporting this to an approved peer assistance program as opposed to reporting it to the State Bar; and (2) if the lawyer learns the information from an attorney client agreement so long as the information does not involve an ongoing crime or a future crime. 

 

The hook in the rule is determining what is a “substantial question?” My guess is that there is no specific standard, that it is resolved on a case-by-case basis. The best rule of thumb is the advice Christine has been giving out all along: don’t act ugly, and if you see someone else acting ugly, think about your obligation to report it.

 

 

 

By Robert Pelton

Special thanks to:

Joseph Connors

Michael Mowla

Chuck Lanehart

Jim Skelton