2015.99: A Little Texas Ethics Law for Volberding and Kretzer

I do not like lawyers making censorious threats.

I do not like lawyers failing to understand the ethical rules.

I especially do not like lawyers making censorious threats based on their failure to understand the ethical rules.

So when I saw that Wes Volberding (Baylor, clerkship) and Seth Kretzer’s (UT Law Review, clerkship) in their letter to Gretchen Sween, who was trying to help Raphael Holiday get new appointed lawyers, who would be both competent and willing to keep fighting for him, wrote:

We also direct that you cease communication with our client. It appears you have been corresponding with him, and probably have been to see him without our consent or permission. While Rule 4.02 of the Disciplinary Rules allows you to respond to his letters, if you have gone to see him and acquired confidential information, and used that information to intervene in his case, then you have stretched Rule 4.02 beyond any reasonable interpretation. We respectfully urge you to go no farther.

—my blood pressure spiked.

Rule 4.02 says:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Those first four words are important, but it seems that Mr. Volberding and Mr. Kretzer do not understand them. Rule 4.02 only applies to a lawyer representing a client talking to some other represented person about the subject of the representation. If I represent Fred, and you represent Fred, you don’t need my permission to talk with Fred.

If Sween doesn’t represent anybody, Sween doesn’t need Mr. Volberding’s or Mr. Kretzer’s consent to talk to Mr. Holiday. If Sween represents Holiday, Sween doesn’t need Mr. Volberding’s or Mr. Kretzer’s consent to talk to Mr. Holiday. And obviously Mr. Holiday doesn’t need Mr. Volberding’s or Mr. Kretzer’s permission to talk to Sween or whoever else he wanted to talk to.

Sween can respond to Holiday’s letters, meet with him, acquire confidential information, correspond with people on his behalf, even have a copy of his file (“their file on him”) if Holiday wants her to. And there’s fuck-all that Mr. Volberding and Mr. Kretzer can do about it.

Messrs. Volberding and Kretzer filed egotistic and testosterone-drenched pleadings that deprived their client of hope, and probably shortened his life. I’m still processing their letters and pleadings, and the fact that they decided not to file a clemency petition on their client’s behalf because “A clemency petition just gives an inmate false hope.” I may return to this story once I’ve made sense of that moral, ethical, and legal mess.

3 Comments

  1. As a lawyer with 42 years at the Ontario bar, I’m glad that you have put your finger on what appears to be an increasingly common problem for lawyers. That is, the inability to read a statute (or a court decision) with any accuracy. Instead they seem to read for what they want to see instead of what is actually there. I don’t know if Volberding and Kretzer are young lawyers (who seem to suffer greatly from this problem) or more senior counsel who should know better, but it is an epidemic. With regard to the “false hope” of a clemency petition, all I can say is WTF?

    1. A British/Australian term is “bugger-all.” I am surprised and disheartened by this turn of events. Lawyers are supposed to be self-policing, but the Courts have a duty to recognize bad lawyering that violates the rights of defendants, and act on it.

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