This is the Guy that Texas Prosecutors Have Teaching them Ethics.
From this thread on the TDCAA forums (for which the hat tip goes to Dallas criminal-defense lawyer Robert Guest. Robert is having computer problems, so he gave me the lead):
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Ethics genius John Bradley thinks that anything not forbidden by the Constitution is authorized by law.
Civil lawyers, that means that you can talk to adverse parties who are represented by counsel (since the Constitution doesn’t forbid it, it must be authorized). Criminal defense lawyers, that means that you can talk to codefendants who are represented by counsel. Prosecutors, you too can talk to represented defendants. Any lawyer can send a non-lawyer to talk to any represented people. After all, in John’s world, if it isn’t explicitly forbidden, it’s authorized by law (I’m relieved, actually – I had suspected John of holding the view that anything not explicitly authorized is forbidden.). Rule 4.02(a) is a nullity.
Right?
Wrong. The Supreme Court doesn’t authorize the police to talk to represented people. It just doesn’t forbid it. If that doesn’t convince, Rule 4.02(a) says that a lawyer shall not encourage another to communicate about the subject of the representation with a person the lawyer knows to be represented, unless the lawyer is authorized by law to do so. (I’ll have to write soon about lawyers’ tendency to treat legal ethics as some kind of folkloric oral tradition, rather than than a set of published rules that they can read and understand themselves.) Even if the cops were now “authorized by law” to talk to represented people, prosecutors still aren’t “authorized by law” to encourage them to do so.
Prosecutors, John’s advice is worth less than you’ve paid for it. Read the opinion in Montejo v. Louisiana and read the rule for yourself.
If you advise a cop to talk to a defendant about a subject on which the defendant is represented by counsel, plan on getting a certified-mail letter from the State Bar of Texas, and plan on it not being friendly.
About The Author
This is why you always plead the Texas Constitution, CCP, or TPC. State laws/rules can always be more restrictive than federal ones, and the US Constitution, unfortunately, just establishes a floor beneath which people may not go.
It was no surprise that prosecutors would quickly try to skirt Texas laws that were more restrictive than SCOTUS interpretation of the Constitution. Same goes for Gant, where TDCAA morons had essentially the same discussion on their boards.
Thank you so much for raising the issue of disbarment. It needs to become a clear and present threat, and this will only when prominent attorneys like yourself present the possibility when ethics are violated. I salute you.