2015.103: Seth Kretzer and James Volberding, Unethical Lawyers

It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal.

Cicero did not take into account the case of Tyler lawyer James Volberding and Houston lawyer Seth Kretzer, whose treatment of their client Raphael Holiday was not merely negligent but malevolent. The idea that lawyers would turn on their own client, trying to speed his execution, was beyond consideration for Cicero.

As it was for me. When Gretchen Sween, the lawyer who was trying to help Holiday get new counsel appointed in the place of Volberding and Kretzer, told me that Kretzer and Volberding “opposed their own client’s motion for a stay of execution before the Fifth Circuit,” I was skeptical, to say the least. I thought that Sween’s description of what happened was probably not entirely objective.

Lawyers representing a death row inmate don’t suffer under the illusion that they can keep their client from dying. They don’t even suffer under the illusion that they can keep him from dying in cold blood at the hands of the state. Occasionally they can, but most often they are buying a few more precious days for their client, and making the state work a little harder to end his life. The client generally isn’t suffering from the illusion that litigation is going to keep him from dying either. Nothing is going to stop him from dying. Nothing is going to stop you or me from dying either, but most of us are doing things to try to set that moment off a little bit longer. We exercise and eat well, or failing that at least we eat, breathe, and don’t step in front of buses.

So the idea of lawyers, even lawyers who had given up and decided that it was time for their client to lose hope, opposing their client’s motion for a stay of execution was preposterous to me.

Until I read this (Scribd link). It is, in my opinion, a smoking gun, with its muzzle pointed directly at the heart of two lawyers’ reputations. Kretzer and Volberding pointed the gun and yanked the trigger. I’m going to describe the path of the bullet.

Download the PDF file .

In this unique document, first of all, Kretzer and Volberding are aligning themselves with “Respondent-Appellee,” who is William Stephens, the Director of the Texas prison system (TDCJ-ID). Stephens is a party because he is the state official detaining Raphael Holiday, who is nominally Kretzer and Volberding’s client.

So Holiday (through Gretchen Sween) filed a motion to stay his execution (Scribd link). Stephens opposed it. Sween replied to Stephens’s opposition. And Kretzer and Volberding respond to this. It’s pleading tennis, and Kretzer and Volberding have joined Stephens on his side of the net, opposite their client who is seeking a stay of execution.The tone is petulant—it’s about Kretzer and Volberding, rather than about their client, Holiday, or his interests. Clearly Kretzer and Volberding were butthurt by Sween trying to get their client competent representation for further representation. Instead of acting out when butthurt, they should have a) manned up and stood up for their client’s interests; or b) kept their stupid unethical mouths shut.Because, in case I have not made my opinion clear, Seth Kretzer and Wes Volberding are unethical lawyers. Their conduct in this case, and in the Robert Roberson case discussed by Mark Graber and Danielle Citron, has been ethically abhorrent. They have demonstrated a pattern of obstructing their clients’ attempts to avoid execution,
Volberding and Kretzer’s “please kill our client now” pleading violates all sorts of ethical rules: 1.02, 1.05, 1.06, and 1.15 come immediately to mind. Alert readers will have noticed the gertruding in the caption and first numbered paragraph: the reference to Rule 3.03. Why, if they were acting ethically, would Kretzer and Volberding feel the need to put the ethical rationalization for their action up front?And it is rationalization, not justification. Rule 3.031 says:

(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;

(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(5) offer or use evidence that the lawyer knows to be false.

(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.

Butthurt or not, there is nothing in this rule or elsewhere requiring or even allowing Kretzer and Volberding to respond, to their client’s detriment, to a pleading filed on their client’s behalf by another lawyer. Their reliance on Rule 3.03 is, like their ignorant and censorious reliance on Rule 4.02, simply wrong. “3.03” is a fabricated excuse to do something harmful to their client because their feelings are hurt. Seth Kretzer and James Volberding must be really hard workers, because they are too stupid to read simple rules, even with their reputations at stake.Some clients think they want unethical lawyers. They think it gives them an edge to have someone who will cheat for them. Those clients are wrong, and Kretzer and Volberding demonstrate why: because unethical lawyers are as likely—probably more likely—to behave unethically in ways that harm their clients as to help them.Ignorant clients may continue hiring Kretzer and Volberding. Uncaring judges may continue appointing them. Their colleagues, though, know what they really are.And so, now, do you.


  1. Not this Rule 303

22 Comments

      1. Surely Kretzer and Volberding are serving their disciplinary time now, right? They’re sincerely apologetic for their misconduct and are providing pro bono services for all applicants for the next year, no?

      1. Mid-July now (7.5 months later)…has anyone heard anything from the State Bar on the ethics complaint on these two unethical lawyers?

      2. Over a year later, no word. No report. Yet these two unethical lawyers have yet to be reprimanded.
        It’s bad enough that Prosecutors act unethically, but when the Defense Attorneys conspire with them, what chance does John Q. Public stand?

  1. I don’t know. The standards for ethics and competent representation generally seem to vary somewhat, and this was in Texas after all. Home of Burdine v. State, 901 S.W.2d 456 (Tx. Crim. App. 1995). The standards there are, ahem, interesting.

    Not that we do a whole lot better in reviewing these cases, but at least we try to put on a better front here.

      1. I don’t know whether a court in Texas would be obliged to replace Kretzer and Volberding because they filed papers a sensible person would deem harmful to their client’s interests, against the wishes of their client. In some states, sure, but like I said Burdine.

        And no, I cannot express great pride in our courts here, either. We have too many silly decisions, including “knife mark” identification and “dog smell” identification, for anyone to be both informed and smug.

        For ethics, our courts generally put on a good front in disciplinary hearings. Even judicial discipline is generally reasonable. If it gets there. But ask: why are the judges who were formerly the attys for BofA, or are stock-holders of BofA, ruling on BofA foreclosures?

        And is anyone surprised at how judges beholden to the banks rule? The ethics bodies are blind to such things, but the working attys are left to explain to the clients that most court actions are less stinkingly unreliable. These clients who are visibly defrauded by the courts now are the same people who, in 10 or 20 years, may be asked to settle their dispute in court rather than out back with pointed sticks. Part of our job as attys will be to dissuade them from following the path of the pointed sticks.

        The next guy facing capital punishment in Texas may, from our example here, do well to look around and say “I hear the whistle, but where are the tracks?” And our answer could well be “You’re sitting on them.”

        The profession is supposed to be somewhat self-policing. Part of it is the naming and shaming of attys such as the ones discussed here. Because if we count on the formal mechanisms intended to encourage ethics, we are sure to be disappointed.

        And having said too much, I come back around. I’m glad my name is neither Kretzer nor Volberding. Good crew members on the Capital City Railroad, sure, but unimpressive specimens to have nominally on your side.

  2. I couldn’t agree with you more Mark. It’s even worse when we have uneducated corrupt police officers defining crime. Or even worse than that letting a lawyer protecting his penis define free speech. Take for example Precinct 6 and Attorney Rogelio Garcia. Here we have a Hitleresque example of a racist libeling a Jew. However the courts in Texas and the police in Texas seem to only recognize harms against the Hispanic ego V. the destruction of another human being. His fellow attorney’s seem to have empathy despite the knowledge that the psycho belongs in jail. The First Amendment only seems to apply to those in Texas that can afford legal counsel. The Attorney’s in Texas sure seem to wish to keep it that way.

  3. Mariann Bacharach worries, as I do, about police officers defining crime. I understand the necessity for police officers to decide whether a crime has likely been committed when it comes to making arrests, but I wonder what you have to say, Mark, about civil asset forfeiture — which apparently allows police officers to decide that the cash on a person is drug money (and thus forfeited and partially given to the police budget) without bothering to arrest that person and present the prosecutor with evidence — the police thus acting as police, prosecutor, judge, and jury.. I have read that in 2014 $5 billion in cash and assets was seized under the federal asset sharing program, without necessarily any arrests and convictions.

    1. Not a peep. I guess CDLs are just as prone to “short term memory relief” as prosecutors. Forgive and forget makes less work for everyone. As long as John Q. Public isn’t reminded of the unethical actions, they must not have occurred at all. No lessons learned, no preventions taken. History will repeat.

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