Texas Injury Lawyer & Attorney : Bailey Law Firm : Automobile Accidents, Product Defect, Consumer Right

FOR IMMEDIATE RELEASE
January 22, 2008
Contact: Alex Winslow, 512-381-1111

Supreme Court Justice Paul Green Breaks State Ethics Law
Green Pocketed $16,761 in Improper Mileage Reimbursements;
3rd Texas Supreme Court Justice to Face Ethics Investigation

AUSTIN – A complaint was filed against Texas Supreme Court Justice Paul W. Green with the Texas Ethics Commission today by the citizens group Texas Watch. The complaint alleges that Justice Green used political contributions to illegally pay for travel to and from his home in San Antonio on 272 separate occasions, violating state ethics laws. The complaint against Green comes as two other members of the Court – David Medina and Nathan Hecht – are embroiled in ongoing criminal and ethics investigations.

Texas Watch has also notified the Public Integrity Unit of the Travis County District Attorney’s office of Justice Green’s ethics violation.

“With numerous criminal investigations, ethical lapses, and questions about the Court’s integrity and ability to be impartial, the entire Texas Supreme Court is under a cloud of scandal,” said Alex Winslow, Executive Director of Texas Watch a statewide citizens group that actively monitors the Texas Supreme Court.

According to the Bexar Appraisal District, Justice Green owns a home at 2906 Burnside, San Antonio 78209, and he appears on telephone listings for the address. Since being sworn in as a justice to the Supreme Court in 2005, Green has traveled back forth between Austin and San Antonio several times per week, racking up $16,761.16 in improper travel expenses.

This is a clear violation of the law prohibiting candidates from converting political funds to personal use (Election Code §253.035). Texas Ethics Advisory Opinion No. 133, issued by the Ethics Commission in 1993, states that “A judge may not use political contributions to pay the expenses of commuting between his home city and the city where the court sits.”

“Justice Green’s campaign contributors are paying for his personal travel in clear violation of the law and the Texas Ethics Commission should hold him accountable by vigorously enforcing the law,” said Winslow.

Justice Green is the third member of the Texas Supreme Court to face an ethics lapse in recent months. Justices David Medina and Nathan Hecht have both faced criminal and ethics inquiries:

Justice David Medina has been indicted for his alleged involvement in a house fire that destroyed his Houston-area home last summer. Just one day after the grand jury handed down the indictment, the Harris County District Attorney threw it out, raising questions about political motives on the part of the DA.
Justice Nathan Hecht is still facing a criminal investigation by the Public Integrity Unit for improperly accepting a discount on legal expenses arising out of his appeal of State Judicial Conduct admonishment in 2005. Hecht also faces ethics and judicial conduct complaints in the matter.
Justice Medina has previously received more than $50,000 for mileage in apparent violation of Ethics Opinion No. 133. In his latest campaign finance report, Medina repaid $2,000 to his campaign, leaving questions about the remaining expenditures.
Justice Hecht has numerous in-state airline expenses that are undocumented and unexplained. It is unclear if Justice Hecht was commuting to his home in Carrolton.
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When I first started practicing law in 1973 the black-letter law on Supreme Court jurisdiction in considering fact issues as opposed to legal issues was a 1960 article written by  Justice Robert Calvert. He probably did not realize how prophetical he was being:

"It is theoretically possible, and sometimes not far from actual fact, that five members of the Supreme Court will conclude that the evidence supporting a finding of a vital fact has no probative force, and ...in effect, that the trial judge, who overruled an instructed verdict, the twelve jurors who signed the verdict, the three justices of the court of civil appeals and four dissenting justices of the Supreme Court are not "men of reasonable minds'". No Evidence & Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

Today, the conservative Supreme Court in Austin practices exactly what their conservative backers used to condemn--activist judicial review. Not only does it change the law to meet the desired outcome, it second guesses the factual determinations by the juries and lower courts. Because of this plaintiffs attorneys many times consider it to be tantamount to malpractice to file a case in Texas if it can legitimately be filed in ANY other state. The chances of surviving a Texas Supreme Court appeal with a large jury verdict is at best minimal.

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This week the Associated Press released an article about one of our most pro-insurance justices on the Texas Supreme Court stating in part: “The state's top law firms and their attorneys donated $447,000 to help Texas Supreme Court Justice Nathan Hecht defend himself against charges that he abused his judicial office to promote Harriet Miers, his onetime girlfriend, for a seat on the U.S. Supreme Court.”

In all opinions Hecht signed issued since March, he sided with these large donors to his personal legal defense fund 89% of time. This includes ruling in favor of chemical companies and polluters with an interest in the outcome of In re Allied Chemical Corporation and represented by a law firm that contributed $30,000 to Hecht’s fund.

We are exposed to hundreds of millions of dollars in advertising by corporate and insurance interests about “frivolous lawsuits” which poison the jury pools of our nation but little is said about the blatant buying of our Texas Supreme Court by corporate and insurance interests or the law firms that represent them.

It is time that we seek the truth and not just propaganda. http://www.bailey-law.com/lawyer-attorney-1215835.html

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Ethics and Amended Federal Rule 26

The new federal rule 26(a)(1)(B), effective Dec.1, 2006, requires parties to provide, without discovery request, “a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession custody, and control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.”

The commentary indicates that “The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.” FRCP, Comments to Amended Rule 26, subdivision (b)(2).

Although such automatic disclosure isn’t required in state courts, it is reasonable to assume that the various jurisdictions will rule that this type of discovery is appropriate if requested. It is important to put the other side of litigation under a discovery request, or at least written notice, before the electronic data disappears.

The first and foremost issue before us is whether those seeking discovery are doing a complete and adequate job representing our clients. Lazy omission in preparing for litigation can be as wrong as an intentional ethical violation, and much more prevalent. Electronic information has been the 800 pound Gorilla in the living room that most litigators have ignored. It is a different world than the one we learned while in law school or in early years of practice. Even recent graduates receive little training to match the challenges of the digital age.

Let me first confess that I am one of those attorneys who did not have the technical background to face the new challenges of today’s discovery efforts. This puts me in a unique position to write to others playing catch-up. Much of the technical information I will be departing to you is basic. Additionally I must give credit to Craig Ball, a Texas Trial Lawyer from Austin, Texas

The problem the requesting attorney will most assuredly encounter is the opposing counsel asking his non-tech company rep, “We have any electronic information?” To which he will receive and pass on to you a negative response. Your reaction should be: “Oh really?”

Did you make a reasonable search for emails? Did you conduct a good faith search in
1. Each employee’s computers, both desk top and lap top
2. The department and company server
3. The mirror server
4. Backup for the server
5. Computers of the recipients of the emails
6. Emails residing in active files
7. Emails stored with local providers
8. Network repositories
9. Remote servers
10. Copies to third-party systems
11. Removable media
12. Achieved email
13. Email stored in other formats?

The list goes on. One of the ethical questions is: When have you spent more time and money than could reasonably yield results searching each possible pocket of information? This is an especially sensitive question when is working on a contingent or fixed rate fee. An expert can save a great deal of time and money with suggestions of format and search capabilities.

Think of other electronically stored data and where it might be stored:
1. PowerPoint presentations
2. Cell phones
3. Blackberries
4. Voice mail
5. Instant messaging
6. Databases
7. Word processing documents
8. Digital cameras
9. CD
10. DVD or other video storage
11. PDF files
12. Spread sheets
The list is endless.

Once this information has been gathered, then the issue becomes: Is there data about the data being produced? The DNA of the electronic information is “metadata”. Depending upon how careful the opposing party has been to keep its electronically stored data purged of metadata and the expertise of you or your forensic data expert, there can be much more relevant information in what does not appear on the printed hard copy. For instance, a document sent back and forth among several employees of a firm could receive many edits and comments which are accepted or excluded from the final draft. The electronic version may well still have the information as to all excluded sections, amendments or comments and the identity of the authors of each. Imagine the possible ramifications.

A keystone to the electronic discovery practice is the Preservation Demand letter to the opponent. Although, in federal court, the discovery is automatic, a letter should be sent to put the parties under an obligation to not purge hidden information even before the discovery is served. This kills that twilight time when the potential party could argue that it was merely instigating a new company policy of purging its electronic files and was not on notice of a lawsuit or the need to preserve metadata. The letter should carefully list the type of electronically stored data and the data systems or archives you will be seeking to review and demand that the company guard against deletion by any of its employees or agents. In this regard, demand that routine destruction should also be stopped. Your letter should specifically refer to preservation of metadata. List specifically the categories of information and dates of inquiry you will be seeking. Imagine you are the judge at a later date trying to determine if the demand was reasonable and clear.

Please understand that this description of a preservation letter is not an inclusive check list and I recommend that you talk to an expert to develop a form letter that you can alter as you refine your discovery process and discover ways some will try to get around their obligation to respond in good faith to your notice.

There are many ethical questions that arise from this technological advance. For instance, what if a client wants his file back? He owns the file and has the absolute right to all of its contents. However, since many offices are creating virtual e-files, is he entitled to the electronic version with all its metadata? What about the emails among staff or attorneys about the client that are not part of the litigation file? If an attorney receives the e-files and discovers metadata, can it be purged after discovery has begun or after a notice letter has been sent prior to litigation? What if an attorney receiving e-discovery realizes privileged information exists in the metadata? The list of thorny questions is never-ending.

see: http://dcbalpm.wordpress.com/2007/05/21/e-discovery-rule-26a1b-preservation-letters/

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