A Cleburne criminal-defense attorney has won an emergency stay against U.S. District Judge John McBryde of Fort Worth, after alleging that the jurist is interfering with the attorney/client privilege by appointing another lawyer to speak with his client.
The 5th U.S. Circuit Court of Appeals granted the stay Feb. 27, the day after Ricardo De Los Santos filed a petition seeking both the stay and an emergency writ of mandamus, which remains pending.
The background to In Re: Ricardo De Los Santos v. Hon. John H. McBryde is as follows, according to the writ petition filed Feb. 26. De Los Santos practices criminal law with his son and law partner Rey De Los Santos in the Fort Worth Division of the Northern District of Texas.
In September, Ricardo was appointed to represent Wayne Anthony Turner in a criminal case in McBryde’s court. Ricardo consulted with his son about sentencing in Turner’s case because the court indicated that it intended to depart upwards from the U.S. Sentencing Guidelines. Ricardo "erred" in believing at the time that Rey had been appointed in the case. Ricardo told Rey to prepare for the sentencing issue and appear at a Feb. 15, 2013, sentencing hearing on Turner’s case. Rey appeared at the hearing, the writ petition continues.
Later on Feb. 15 after business hours, Ricardo received a telephone call from McBryde, who began inquiring of Ricardo "why I did not show up at sentencing," according to the writ petition. Ricardo initially believed the case was assigned to Rey, but when McBryde corrected him, Ricardo apologized for the mistake.
On Feb. 20, Ricardo received a letter from McBryde in which the judge noted that Ricardo had made an appearance on behalf of Turner on Oct. 19, 2012, and that Ricardo had signed several documents in the case. McBryde also noted that Rey appeared at the sentencing hearing and signed a document that showed Ricardo "as the attorney for Turner."
"Needless to say, I am puzzled why your son would sign a form that shows your name under the signature line as if you were the actual signatory on the form," McBryde wrote. "This is a serious enough matter that I think I should request of you an explanation in writing of why you personally did not appear to represent Mr. Turner at his sentencing hearing, and why your son was signing in a place provided for your signature. . . ." The letter asked Ricardo to provide McBryde a full explanation.
"Said allegation was extremely distressing to both myself and my law partner especially in light of this Honorable Court’s recently dismissed criminal accusation against other members of the Bar," Ricardo wrote in the writ.
Ricardo attached the 5th Circuit’s April 4, 2011, decision in In re Joseph Cleveland Jr. et al., a ruling that vacated McBryde’s decision to discipline and sanction two lawyers and their client after McBryde alleged that the client made "false accusations" against McBryde and that the "lawyers sponsored the false testimony." The 5th Circuit vacated McBryde’s orders and assigned another judge to hear the case on remand. On Aug. 29, 2011, Senior U.S. District Judge David Hittner of Houston dismissed with prejudice the disciplinary and sanctions proceedings against the lawyers and the client [See "Federal Judge Dismisses Disciplinary and Sanctions Proceeding," Texas Lawyer, Sept. 5, 2011, page 1.]
Ricardo responded to McBryde’s letter in writing, "clarifying my error and that my law partner’s signature, even though was above my typed name, was in fact his true signature and was in no manner intended to deceive the Court as being mine," the writ states.
At 10:20 a.m. on Feb. 22, Ricardo delivered his written response to McBryde’s chambers and filed a notice of appeal in Turner’s case. At 4:25 p.m., after the notice of appeal was filed, the writ petition continues,Ricardo says he was notified electronically that McBryde had appointed another lawyer "to discuss my past and current and ongoing representation with my client Anthony Wayne Turner. . . ."
In the Feb. 22 order, McBryde writes that, "The court is limited in the action it can take in this case by virtue of a notice of appeal filed by Ricardo De Los Santos on behalf of defendant on the date of the signing of this order. However, the court has concluded that a separate attorney should be appointed for the limited purpose of fully informing defendant of the facts related in this order and of consulting with him concerning any actions he should or might wish to take because of the circumstances described in this order."
McBryde appointed Fort Worth solo Danny Burns to handle the assignments in the order, ordering him to file a report with the court by Feb. 28.
Ricardo alleges in his writ that McBryde’s order requires a fellow counsel to "blatantly" violate Texas Disciplinary Rule of Professional Conduct 4.02. That rule states, "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."
On Feb. 27, the 5th Circuit temporarily stayed McBryde’s Feb. 22 order until further notice and ordered Ricardo to file a motion for stay with the district court by March 1 "to raise all arguments he has concerning the propriety of the February 22, 2013 order in such motion."
"We express no opinion on the ultimate merits of the mandamus petition, which remains pending; our action here is solely to allow time for the petitioner to seek, and the district court to act upon, the motion to stay," the 5th Circuit wrote in a per curiam opinion issued by Judges Edith Jones, James Dennis and Catharina Haynes.
Jones dissented in the opinion, noting that the "procedural rules for mandamus were not followed here" and that Ricardo "utterly failed to move for a stay in the district court while having time to do so."
McBryde declines comment. Ricardo De Los Santos did not return a call for comment, and Rey De Los Santos declines comment. Burns also did not return a call for comment.