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Whether it’s politics as usual or a legitimate issue, the controversy surrounding allegedly fraudulent documents that raised questions about President George W. Bush’s military service has cropped up in a Texas Supreme Court race on the Nov. 2 ballot. In a Sept. 27 news release, Republican Party of Texas Chairwoman Tina Benkisser criticized San Antonio lawyer David Van Os, the Democrat challenging Republican Supreme Court Justice Scott Brister, for getting involved in the document debacle. Van Os represented Bill Burkett, a retired Texas National Guard officer who gave the documents to CBS News. CBS News featured the documents in a story aired during the Sept. 8 edition of “60 Minutes.” Dan Rather, the CBS anchor who reported the story, announced on Sept. 20 that the network cannot authenticate the documents — purportedly memos in which Texas Air National Guard Lt. Col. Jerry B. Killiam, now deceased, indicated he was being pressured to “sugarcoat” Bush’s performance. “This shows a clear lack of judgment in getting involved,” Benkisser, a Houston solo, says in an interview about Van Os and his representation of Burkett. Van Os, principal in David Van Os & Associates, calls Benkisser’s statements “outrageous” and says he believes Brister is behind the party’s actions. “The Texas Republican Party, in essence, is saying that Bill Burkett is not entitled to a lawyer,” Van Os says. Brister, who is seeking election to the post he has held since Texas Gov. Rick Perry appointed him to the state Supreme Court last year, denies any involvement with the party’s criticism of Van Os. “I haven’t seen what the party has done and would have no comment on it,” Brister says, referring to the GOP news release. Brister also declines comment when asked if he thinks the party should criticize Van Os for representing Burkett in the dealings with CBS. “The CBS document scandal is above my pay grade,” Brister says. “I’m not involved in that.” Van Os says the Republican Party is trying to make it look like Burkett contacted him about the documents because he is a Democrat running for the Supreme Court. “I’ve been Bill Burkett’s lawyer since 1999,” he says. Burkett, who runs a ranch near Baird, did not return two telephone calls seeking comment before press time. Van Os says that Burkett, who retired from the National Guard in 1998 after contracting a crippling disease while serving in Panama, sought his representation in obtaining Social Security and military disability benefits and in suing National Guard officers in 2000. Judge Scott Jenkins, of Austin’s 53rd District Court, dismissed the suit, Bill L. Burkett v. William W. Goodwin, et al., on a jurisdictional issue in April 2001. Benkisser says Van Os has steadfastly refused to answer questions about his alleged role in supplying the documents to CBS or in communicating with Democrat John Kerry’s campaign about the documents. “I didn’t have anything to do with Bill Burkett’s decision to give the documents [to CBS],” Van Os says. The Republicans are trying to implicate the Democratic Party in Burkett’s decision to turn over the documents, Van Os says. “Nothing could be further from the truth,” he adds. Van Os says Burkett told him in late August of this year that CBS wanted the documents, which Burkett claims were provided to him anonymously by someone he subsequently identified as “Lucy Ramirez.” Burkett did not contact CBS about the documents; the network came to him, say Van Os and Gabe Quintanilla, a San Antonio solo who says he was Burkett’s lawyer for six days after Van Os ended his representation. Van Os says his assignment in the documents matter was to negotiate a legally valid agreement with CBS to protect Burkett’s interests. Burkett specifically wanted CBS to authenticate the documents and to protect his identity but turned over the documents before the negotiations started, Van Os says. Another issue, Van Os says, involved Burkett’s belief that CBS was interested in using him as a consultant on National Guard and military matters. Van Os alleges that while CBS producer Mary Mapes initially told him she would discuss the possibility of a consulting contract with the network’s lawyers, she subsequently said CBS was not interested in further discussions about a contract. Mapes did not return a phone call. CBS spokeswoman Kelli Edwards says Mapes will not comment on anything to do with Burkett or the documents at this time. CBS announced on Sept. 22 that former U.S. Attorney General Dick Thornburgh, who served in the Ronald Reagan administration, and retired Associated Press president Louis Boccardi will investigate circumstances surrounding the documents and their use by the network. The Republican Party’s news release also criticizes Van Os for “suddenly” finding he had a conflict of interest in representing Burkett. Van Os says he withdrew as Burkett’s attorney because he is a potential fact witness if Burkett sues CBS for defamation. Van Os says he was present when Rather interviewed Burkett about the documents on Sept. 18 and withdrew shortly thereafter. Quintanilla says health problems prevented him from continuing to represent Burkett and he doesn’t know who currently represents his former client. Van Os’ explanations of his representation of Burkett don’t satisfy the GOP official. Benkisser says judges must be able to put partisan politics aside and contends that Van Os, while the Democratic candidate for a Supreme Court seat, showed his “partisan nature” by agreeing to represent Burkett in providing the documents to CBS despite the fact that media reports have described Burkett as being “hostile” to Bush. “For someone running for the Supreme Court, the red flags should have gone up,” Benkisser says. A law professor says it has been the rule that a lawyer’s representation of a client doesn’t mean the lawyer endorses what the client does. John Dzienkowski, who teaches legal ethics at the University of Texas School of Law, says American Bar Association Model Rule 1.2(b) recognizes that a lawyer’s representation of a client does not constitute approval of the client’s views or activities. Dzienkowski says the ABA rule is not included in the Texas Disciplinary Rules of Professional Conduct because it does not set a standard for disciplining lawyers. “But there is no doubt the same concept exists in lawyering in Texas,” Dzienkowski says. “No one ever claims that a serial killer’s lawyer is responsible for the murders. Clients need legal representation, and their choices and moral decisions are not attributed to their lawyers.”

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