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Austin Outpost Baron & Budd announced on Dec. 3 the opening of a two-lawyer office in Austin. In addition to the Austin office, the firm now has a pair of lawyers in Beverly Hills, Calif., one in Baton Rouge, La., and 46 in Dallas. Patrick O’Connell, former chief of the Texas Office of the Attorney General’s Civil Medicaid Fraud Section, left the state agency in mid-October to join the firm. He heads Baron & Budd’s Austin office. Associate Thomas Sims, previously with the firm’s Dallas office, will join him. O’Connell says he doesn’t have any definitive plans to expand beyond two lawyers for now but may in the future. “It all depends how much work we generate,” O’Connell says. He says he plans to launch the firm’s qui tam litigation practice, which will be dedicated to recovering money stolen from public funds by corporate fraud. The firm previously has represented corporate whistle-blowers, O’Connell says, but not necessarily in cases related to public funds. The firm also has strong relationships with cities and states, representing such entities in groundwater contamination litigation, O’Connell says. Those are the types of clients that eventually may pursue public fraud-related cases, O’Connell says. Overall, Baron & Budd, which settled a contentious legal battle with founding shareholder Fred Baron earlier this year, (has seen lawyer numbers fall since the beginning of the decade. In 2000, the firm reported to Texas Lawyer that it had 88 lawyers in Texas alone; today it has 51 lawyers firmwide, 48 of those in Texas. [ See "Lateral Hiring at Texas Firms,"Texas Lawyer , May 28, 2001, page 52.] When Does Right Attach? The U.S. Supreme Court must enjoy settling disputes in Texas, even in cases not about the death penalty. The latest evidence of this is Rothgery v. Gillespie County, Texas, a �1983 civil rights action in which the high court granted certiorari on Dec. 3. The case involves an important question regarding the point in a criminal proceeding at which the Sixth Amendment right to counsel attaches. Andrea Marsh of the Texas Fair Defense Project, one of Walter Allen Rothgery’s co-counsel, alleges the following: In July 2002, Rothgery was arrested in Gillespie County for the alleged unlawful possession of a firearm by a felon. Police brought him before a magistrate, who informed him of the charge and found the case against him was supported by probable cause. Rothgery did make bond and did make repeated requests for an attorney. Gillespie County appointed him an attorney after his indictment � six months after his arrest. Once appointed, the attorney got the case dismissed, because Rothgery was not a felon, says Marsh. Too little, too late for Rothgery, who spent three weeks behind bars after his indictment before the dismissal and after a judge raised his bond. Rothgery sued the county, alleging he was unconstitutionally denied his right to counsel. In 2006, he lost at the trial level before U.S. District Judge Lee Yeakel of the Western District of Texas. In June, he lost again, this time before the 5th U.S. Circuit Court of Appeals. Both sides agree that a defendant has the right to an attorney when adversarial judicial proceedings have been initiated; they just don’t agree when that occurs in Texas. Marsh maintains that the right to counsel attaches once the defendant appears before a magistrate. “We take the position that all the federal appeals courts except the 5th Circuit agree with us that the right to counsel attaches once the defendant is magistrated,” she says. But San Antonio attorney Charles Frigerio, who represents Gillespie County, disagrees. The right to counsel does not attach in Texas to a magistrate hearing if “prosecutors were not involved in the arrest or court appearance,” say Frigerio of the Law Offices of Charles Frigerio. “The defendant only needs an attorney when he has to first meet the forces of the state.” If prosecutors are not involved, the right to counsel only attaches after a grand jury returns an indictment, he adds. Yeakel and the 5th Circuit agreed with this position. The issue before the U.S. Supreme Court is quite specific, Frigerio says: “Whether the Sixth Amendment right to counsel attaches to a defendant brought before a magistrate and jailed, pending posting of bond if prosecutors were not involved in the arrest or court appearance.” But the high court “is looking for a bright-line rule it can apply regarding when the right attaches in all criminal proceedings,” he says. Marsh anticipates the court will hear oral arguments in the case in March.

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