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A Lubbock criminal-defense lawyer held in contempt of court and jailed briefly in June for refusing to answer a prosecutor's questions about a former client is seeking a review of the contempt ruling.
Judge Jim Bob Darnell of the 140th District Court in Lubbock had sheriff's deputies haul Ben Webb out of court in handcuffs on June 11 after Webb refused to testify at former client Donald Johnson's trial.
On July 7, Webb filed a "Request for Immediate Hearing on Trial Court's Erroneous and Egregious Jailing of a Lawyer for Contempt" in State v. Johnson and requested a different judge review the contempt ruling. In a July 9 letter, 9th Administrative Judicial Region Presiding Judge Kelly Moore assigned Senior District Judge Paul Davis of Austin to the case. In his letter, Moore asked Davis to determine whether a hearing is proper with regard to the contempt ruling against Webb and to conduct the hearing if one is needed. [See Webb's request and Moore's letter.]
Webb, an associate with the Hobson Law Firm, declines comment. But Rod Hobson, Webb's boss and his attorney in the request for a hearing, says, "Using a defendant's lawyer against him is a fundamental attack on our justice system."
Josh Reno, the Lubbock County assistant district attorney who prosecuted Donald Johnson, says, "I had my reasons for calling Mr. Webb." Webb had the facts necessary to show that Johnson did not show up for trial in 2008, Reno says.
However, when Reno questioned Webb on June 11 during the punishment phase of Johnson's trial, Webb declined to answer any questions, because Johnson had asserted attorney-client privilege, according to a transcript of the hearing.
Johnson's assertion of the attorney-client privilege was based on Texas Rule of Evidence 503(b)(2), which reads: "In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship."
Steven Goode, a University of Texas School of Law professor who teaches and writes on the Texas Rules of Evidence, says, "The attorney-client privilege protects confidential communications between a lawyer and a client. It does not protect noncommunications."
According to the transcript, Reno asked Webb whether he was Johnson's lawyer, whether Webb had been in court ready for trial on July 7, 2008 and whether Johnson showed up for the trial, among other things.
Goode, a member of the Court of Criminal Appeals Rules Advisory Panel, proposed the deletion of Rule 503(b)(2) from the Rules of Evidence in an Oct. 22, 2007, memorandum to other panel members. The panel's 2008 recommendation that the CCA eliminate the rule drew strong opposition from the Texas Criminal Defense Lawyers Association (TCDLA), and the CCA deferred a decision on the rule, which still remains on the books. [ See "Hue and Cry," Texas Lawyer, June 23, 2008, page 1. ]
Describing Rule 503(b)(2) as a "mischievous provision," Goode says, "It doesn't say what the law is, which is a problem." Goode says the rule creates confusion because what it says is not what courts have interpreted the law to mean.
Hobson says a plain reading of the rule does not limit the attorney-client privilege to communications between the attorney and the client. "To me, any fact means any fact, not any communication," he says.
Stanley Schneider, president of the TCDLA, which is monitoring what happens with regard to the contempt ruling against Webb, says Rule 503(b)(2) covers anything a lawyer may learn in the course of representation. The rule applies even if the lawyer no longer represents the client, says Schneider, a shareholder in Houston's Schneider & McKinney. "It's the client's privilege, not the lawyer's." he says.
Goode says courts have never held that the rule reaches beyond attorney-client communications. In 1989's Manning v. State, Dallas' 5th Court of Appeals concluded that an attorney's testimony regarding the competency of his client during trial did not violate the attorney-client privilege set out in Rule 503(b)(2). In 1996's Austin v. State, the Court of Criminal Appeals held that an attorney's communication to the client of a trial setting was not subject to the attorney-client privilege.
That Rule 503(b)(2) "continues to do mischief" is evidenced by what happened in Lubbock, Goode says.
Webb's request for a hearing on the contempt ruling provides the following allegations: Darnell appointed Webb to represent Johnson in 2007 in connection with an alleged assault on a public servant. But Johnson did not appear for his July 7, 2008, trial.
According to Lubbock solo Donnie Yandell, Johnson's current attorney, a grand jury re-indicted Johnson on two counts of assault on a peace officer, one count of aggravated assault on a peace office and one count of robbery.
As noted in Webb's request for hearing, Johnson was not happy with Webb and requested that Webb withdraw as his attorney, which Webb did. Webb submitted a bill to the county for his representation of Johnson prior to Johnson's failure to appear for trial. Darnell reviewed the bill, cut some hours and ordered the county to pay Webb. Darnell also appointed Yandell to represent Johnson, whose trial began June 8. Reno subpoenaed Webb and a representative of Johnson's bonding company but did not call the bonding company representative. Webb retained Lubbock solo Ted Hogan to represent him, and Hogan filed a motion to quash the subpoena issued for Webb.
"It's clearly prejudicial to be putting a man's own lawyer to testify against him, even if it's his former lawyer." Hogan says.
Matt Powell, Lubbock County's criminal district attorney, says his office is not in the habit of calling a defendant's lawyer to the stand. "To my knowledge, it's been done very rarely," Powell says.
Powell and Reno say Hogan and Webb initially were agreeable to having Webb testify. Reno says he made a general presentation to Hogan of the questions he planned to ask Webb late on the afternoon of June 10.
Hogan says it was his understanding that Reno would appear at a hearing the following morning to submit the list of actual questions Reno planned to ask Webb to Darnell for review. But the situation changed before the June 11 hearing.
Yandell says he advised Webb that he was invoking the attorney-client privilege on Johnson's behalf. Having a lawyer testify against his former client has a "chilling effect" on the attorney-client relationship, he says.
If lawyers "have the risk of being called as a witness, even for something small, it's going to have a major effect on how some of these people [clients] view us," Yandell says.
According to the request for a hearing on the contempt ruling, Webb sought advice from Everett Seymore, a partner in Lubbock's Seymore & Cook, about whether to testify.
In an interview, Seymore says he saw the potential for an ethical problem. Johnson could file a grievance with the State Bar of Texas if Webb testified against him, Seymore says.
"Ben had a real dilemma," Seymore says. "I do not think he took it lightly." The fact that a judge ordered Webb to testify would not get Webb out of the ethical dilemma, he says.
Schneider says a contempt ruling also can result in a grievance against a lawyer. "He's in a no-win situation," Schneider says of Webb.
Attorney Maureen Ray, spokeswoman for the State Bar's Office of Chief Disciplinary Counsel, declines comment about the potential for a grievance against Webb.
"We don't give advisory opinions or comment publicly about a potential or pending disciplinary matter until it is in district court or there is a public sanction in the matter," Ray writes in an e-mail responding to Texas Lawyer 'srequest for an interview.
According to Webb's request for a hearing on the contempt ruling, after Webb took the witness stand and refused to answer any questions, Darnell ordered him to jail until he was willing to answer the questions or until the trial was over. Webb alleges Darnell also ordered him to return all the money that the county paid him for representing Johnson.
Webb alleges in the request for a hearing that he was taken to jail in handcuffs, strip-searched and put in jail clothes, but another district judge ordered him released on a personal bond.
Yandell says Johnson, whom the jury already had convicted of one count of assault on a peace officer and robbery, subsequently received a 25-year sentence. Yandell says the jury acquitted Johnson on one count of assault on a peace officer and that the prosecution earlier had dismissed the aggravated assault charge.
According to the Lubbock County District Clerk's Office, the judgment of conviction in Johnson had not been filed by July 16.
In a June 19 order, Darnell recused himself from any further action against Webb. As noted in the order, Darnell had ordered Webb's release from jail on the same day of the contempt ruling, but 364th District Judge Bradley S. Underwood, acting on a request by Webb's lawyer, already had released Webb on a personal recognizance bond.
"The Court does not intend to take any further action against Mr. Webb regarding the contempt issue," Darnell wrote in the order. Darnell did not return two telephone calls seeking comment before presstime July 16.
Seymore and Yandell say prosecutors could have called another prosecutor, the bondsman, the court bailiff or Darnell to testify about Johnson's failure to appear for the 2008 trial. After Darnell held Webb in contempt, Eddie Wharff, the Lubbock County assistant district attorney who was prosecuting Johnson in 2008, testified, Yandell says. Wharff did not return a telephone call seeking comment.
Hobson says the prosecution did not demonstrate a compelling need for Webb to testify in Johnson, as required by the CCA's 2004 decision in Flores v. State, a case in which the prosecution called the defendant's trial counsel to the witness stand to testify.Under the compelling-need test the CCA adopted in Flores, the prosecution must show that there is no feasible alternative to presenting the information to the jury except through defense counsel's testimony and that the testimony is not only essential but also relevant to the state's case. The state failed to meet either element in Johnson , Hobson contends.
Seymore and Hobson disagree about whether Webb is entitled to a hearing on the contempt ruling.
"I think it's moot," Seymore says. "The bottom line is he [Webb] was released. Now that the trial is over, there is not going to be any hearing on whether he's held in contempt or not."
Hobson says that if Davis denies Webb's request for a hearing, Webb will file an application for a writ of habeas corpus in a state district court or with the Court of Criminal Appeals. Referring to the contempt ruling against Webb, Hobson says, "He's been found guilty of something I don't think he's guilty of."
