Better Call Saul: RICO

SAUL THE SOLICITOR

This episode was classic Slippin' Jimmy.  While the previous two episodes had very little to deal with the law and ethics, RICO was chalk full of ethical dilemmas and legal issues.

Let's play softball first.  I noticed several tweets about Jimmy trespassing and jumping into the garbage bin.  Let's put aside the fact that Jimmy may have been trespassing, ok?  The question is whether Jimmy, or any other person could have gone through that trash?  The answer, YES!  Why? Jimmy did a good job telling you why; you do not have a reasonable expectation of privacy in stuff you put out on your curb.   Read this wikipedia page about the 4th amendment case from the Supreme Court that set this precedent.

The second major issue in this case is whether Jimmy was unethical in soliciting all those senior citizens in an attempt to gather clients to sue the nursing home?  The answer again, YES!  Why? Because his primary motivation was to make money. 

.03 Prohibited Solicitations & Payments

Back to Texas Disciplinary Rules of Professional Conduct

(a) A lawyer shall not by in-person contact, or by regulated telephone or other electronic contact as defined in paragraph (f), seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer's advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. Notwithstanding the provisions of this paragraph, a lawyer for a qualified nonprofit organization may communicate with the organization's members for the purpose of educating the members to understand the law, to recognize legal problems, to make intelligent selection of counsel, or to use legal services. In those situations where in-person or telephone or other electronic contact is permitted by this paragraph, a lawyer shall not have such a contact with a prospective client if:

(1) the communication involves coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment;

(2) the communication contains information prohibited by Rule 7.02(a); or

(3) the communication contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

(b) A lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting prospective clients for, or referring clients or prospective clients to, any lawyer or firm, except that a lawyer may pay reasonable fees for advertising and public relations services rendered in accordance with this Rule and may pay the usual charges of a lawyer referral service that meets the requirements of Occupational Code Title 5, Subtitle B, Chapter 952.

(c) A lawyer, in order to solicit professional employment, shall not pay, give, advance, or offer to pay, give, or advance anything of value, other than actual litigation expenses and other financial assistance as permitted by Rule 1.08(d), to a prospective client or any other person; provided however, this provision does not prohibit the payment of legitimate referral fees as permitted by Rule 1.04(f) or by paragraph (b) of this Rule.

(d) A lawyer shall not enter into an agreement for, charge for, or collect a fee for professional employment obtained in violation of Rule 7.03(a), (b), or (c).

(e) A lawyer shall not participate with or accept referrals from a lawyer referral service unless the lawyer knows or reasonably believes that the lawyer referral service meets the requirements of Occupational Code Title 5, Subtitle B, Chapter 952.

(f) As used in paragraph (a), "regulated telephone or other electronic contact" means any electronic communication initiated by a lawyer or by any person acting on behalf of a lawyer or law firm that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or other electronic means. For purposes of this Rule a website for a lawyer or law firm is not considered a communication initiated by or on behalf of that lawyer or firm.

Comment:

1. In many situations, in-person, telephone, or other prohibited electronic solicitations by lawyers involve well-known opportunities for abuse of prospective clients. Traditionally, the principal concerns presented by such contacts are that they can overbear the prospective client's will, lead to hasty and ill-advised decisions concerning choice of counsel, and be very difficult to police. The approach taken by this Rule may be found in paragraph (f), which prohibits such communications if they are initiated by or on behalf of a lawyer or law firm and will result in the person contacted communicating with any person by telephone or other electronic means. Thus, forms of electronic communications are prohibited that pose comparable dangers to face-to-face solicitations, such as soliciting business in "chat rooms," or transmitting an unsolicited, interactive communication to a prospective client that, when accessed, puts the recipient in direct contact with another person. Those that do not present such opportunities for abuse, such as pre-recorded telephone messages requiring a separate return call to speak to or retain an attorney, or websites that must be accessed by an interested person and that provide relevant and truthful information concerning a lawyer or law firm, are permitted.

2. Nonetheless, paragraphs (a) and (f) unconditionally prohibit those activities only when profit for the lawyer is a significant motive and the solicitation concerns matters arising out of a particular occurrence, event, or series of occurrences or events. The reason this outright ban is so limited is that there are circumstances where the dangers of such contacts can be reduced by less restrictive means. As long as the conditions of sub-paragraphs (a)(1) through (a)(3) are not violated by a given contact, a lawyer may engage in in-person, telephone or other electronic solicitations when the solicitation is unrelated to a specific occurrence, event, or series of occurrences or events. Similarly, subject to the same restrictions, in-person, telephone, or other electronic solicitations are permitted where the prospective client either has a family or past or present attorney-client relationship with the lawyer or where the potential client had previously contacted the lawyer about possible employment in the matter.

Lawyer Shopping Advice: You Get What You Pay For

I am absolutely raging right now, but not in the "let's go rage" way that so many of my friends in SoFlo used to say before going out in Ft. Lauerdale.

Nope.

I am mad at you, my potential clients.  I am mad because I care for you.  I care for you before you even give me a dime.  In fact, I am mad because I want what's best for you.

Am I always going to be what's best for you?  No, but I can tell you a story to illustrate why I may be a good choice.

Twice this week, TWICE, I got phone calls from folks who live hundreds of miles away, and the conversation goes something like this:

"My family member is in jail.  He doesn't have any family in the area and few friends.  He's never really been in trouble before, and I am looking for a lawyer.  I got your name from So and So (big time lawyer considered one of the best in the game).  He's been charged with X crime, how much is it?"

"I am so honored to be getting refers for Mr. So and So...tell me what's going on."

"Well .... (details that potential client's family member thinks they know)....How much is it?"

"Thank you for sharing that with me.  I am going to see what I can find on the clerk's website.?

"How much is it?"

"Sir, I understand you are concerned about the price, but I'll tell you what, I want to give you and your loved one a price that is fair to me.  There are so many variables that could determine what a fair price is, and I will only have an idea after I speak with your loved one.  We have been on the phone for 30 minutes, and I'll tell you what, I am going to take time to go visit your loved one in jail and interview him personally if that is ok with you.  But before I do that, I am sure you will talk to other lawyers, and you should probably do that, but just remember you get what you pay for, and I think a lawyer that will give you a price right off the bat without knowing anything probably isn;t going to put in the work necessary needed for your loved one's case.  Also, this is my price range (price range) for the charge.  Do you still want me to take an hour or so to go visit your loved on in jail?"

"Oh yeah, great, I like you already."

 "I will call you as soon as I talk to your loved one in the next 24 hours."

I then go to the nasty, stinky, too cold or too hot jail, after paying to park and I go introduce myself to the potential client.  They are gung ho about hiring me.  I give them a price and they say yah let's do it!  I say great, I'll tell your loved one what you said.

I get to the office and call the person who called me and they either never answer, or tell me they hired a lawyer who the bail bondsman recommended and is charging next to nothing.

So, you see why I'm mad with you, the potential client or his/her family member.  I do everything in my power to help you, and be fair to you, and you don't take my advice. 

This has happened to me 6-10 times in my career so far.  I have yet to see one of these potential clients get bailed out, I have yet to see one of these potential clients go to trial despite proclaiming their innocence.  On the flip side, I have been the second lawyer hired on several cases where the family hired the lawyer the bondsman or some inmate recommends. They are always more happy with me.

I may charge slightly more for my representation than others, but that is so I can keep a low caseload and devote to you the attention you deserve.

Word to the Wise:  You get what you pay for.  If a lawyer is giving you his time and undivided attention before ever being paid, and he wants to be fair to you, there is a good chance you might hire him or her now, instead of hiring the cheap guy, paying him, then hiring the first lawyer you spoke to and paying him too.

P.S. Experience is useless if its bad experience.

 

 

 

 

 

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BETTER CALL SAUL: FIVE-0 A LAWYER'S POINT OF VIEW

LET THE AUDIENCE FINISH THE STORY

I ripped the following quote from a Rolling Stone article.

"You know what happened," Mike says to his daughter-in-law at the end of the episode. "The question is, can you live with it?" He then turns and faces toward the camera, as if asking the audience too. It's a haunting question, since we know what the answer is.
Read more: http://www.rollingstone.com/tv/recaps/better-call-saul-recap-officer-down-20150309#ixzz3U057p3vX Follow us: @rollingstone on Twitter | RollingStone on Facebook

We already loved Mike, we knew he was a former cop, but we never knew what motivated him.  We found out in grand fashion last night exactly why Mike is Who He Is.  There are so many great articles on the web that delve deeply into the creation of the Mike.  All I want to do is point out what the story tellers did.

As Mike is speaking to his daughter-in-law, he asks her a rhetorical question.  She knows the answer, but she doesn't say it. Mile then turns to us, and I don't know about you, but I answered "yes."

The directors got it spot on.  As a trial lawyer and story teller, we want to leave our audience on the edge of their seats.  One storytelling tactic is to let not overstate it: don't ask the one question to many, don't hammer the final nail in the coffin. Empower the jury to take the nail out of your hands, and use their hammer to shut down the State's case.

P.S., I watch Matlock on YouTube sometimes, but not for his fashion sense.

SHAKING MY HEAD AT THE HARRIS COUNTY COURTHOUSE

IF THE PROSECUTORS DON'T WORK...

Why should my client be dragged to court?  I have a case in Harris County that dates back to September.  For me, this is an interesting case that I would love to take to trial.  However, this case has enough bad characters that the case should be dismissed.

My client was the victim of barratry.  You see, lawyers aren't allowed to walk up to you in the courthouse and ask if you need a lawyer.  Needless to say, this lawyer charged my client very little money.  Word to the wise, you get what you pay for.  This lawyer, of course, did no work on the case for four months.

I get hired, and get to work hard and fast for my client.  I do some digging and find out that the complainant and all the witnesses have several convictions for crimes of dishonesty.  Add this to the fact that the weapon was not found, and you should have a dismissal.

I do what I sometimes do, and tell the prosecutor that her case is bad and what she needs to look into. Of course, the prosecutor who wrote those notes on the file was not the prosecutor handling the case, and she didn't write the note where notes are always written.  

So my client and I slog through the horrible weather and traffic to court.  I ask the prosecutor if she is ready to dismiss, because if not, I am setting this case for trial.  She tell me she hasn't yet evaluated the case.  JIMMINY CRICKET!!! The case is SIX MONTHS OLD!!!!  You haven't LOOKED AT THE CASE??!?!?!?!  You have me and my client coming to court for 6 months for no darn reason at all?!?!?

I approached the judge to set the case for trial.  This court requires a disposition hearing before the case can be set for trial.  The judge insinuated that because I have only been on the case for 2 months that we need more settings.  I might appreciate that sentiment in some cases, but I AM NOT THE ONE ASKING FOR TIME!

This is what happens in the Harris County Courthouse.  This is what the Harris County District Attorney does.   I don't blame the prosecutor that is assigned to my case.  She is sweet and will hopefully dismiss the case.  She has no power or authority.  I blame the elected DA.  

IT'S A GOSH DAMN WAR OF ATTRITION!!!  

IT'S LIKE BEING POKED 1,000 TIMES IN THE SAME SPOT!!!

IT'S A WASTE OF EVERYONE'S TIME AND MONEY!!!

Cory Roth, Signing Off.

713.864.3400

www.facebook.com/coryrothlawoffice

The Hat Trick: Three DISMISSALS in ONE Week!

THREE MARIJUANA CASES

THREE DISMISSALS 

ONE WEEK

I had a pretty good week or so.  

Last week I had a possession of marijauna case dismissed against my client who was a passenger in a truck with three buddies who all had weed on them.  There was also weed underneath my client's seat.

On Wednesday, I won a Motion to Suppress after picking a jury. Case Dismissed.

Today, Friday, I showed up to court for our pretrial conference setting on a marijauna case.  It was supposed to go to trial mid-march. I showed up to court this morning and my client's name wasn't called at docket.  The court coordinator seemed to mumble that the case was dismissed when I said his name wasn't called.  I approach the coordinator, and she goes to the clerk and pulls out a yellow sheet saying case dismissed.  This client found me on Avvo. He was pulled over for driving with his headlights off at night.  His friend was in the passenger seat with just about two ounces of weed in Tupperware at his feet.  

This case was purely about possession, which means the government had to prove my client had actual or constructive care, control, or management over the pot.

Either the ADA doesn't want to take weed cases to trial, this was truly a tough case to make, or they are growing scared after my win this week (probably not...really...maybe...hopefully).

If you hire me on a weed case be prepared to go to court many times over the course of many months because good things happen when you set cases for trial.

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Or contact me the old-fashioned way: 

Cory Roth

Cory Roth Law Office

4306 Montrose Boulevard, Suite 240

Houston, Texas 77006

T. 713.864.3400

F. 713.864.3413

C. 832.419.9973

B. 24088337

CoryRothJD@gmail.com

Client Centered | Trial Ready

Motion to Suppress Win! Case Dismissed! Still Undefeated!

MOTION TO SUPPRESS GRANTED!

CASE DISMISSED! 

THIS CASE IS ABOUT A POLICE OFFICER INVADING A CITIZEN'S RIGHT TO PRIVACY.

THE EVIDENCE WILL SHOW THAT ON THE AFTERNOON OF AUGUST 6, 2014, A MEMBER OF OUR COMMUNITY WAS ENJOYING THE WARM BREEZE PASSING THROUGH HIS CAR AS HE WAS PARKED IN HIS NEIGHBORHOOD PARK PLAYING BUBBLE WITCH 2, WHEN A POLICE OFFICER DECIDED TO HIM.  

THE OFFICER DIDN'T SEE JOHN DOE BREAK ANY LAWS.

JOHN DOE DIDN'T NEED ANY HELP.  

JOHN DOE WAS SIMPLY MINDING -- HIS -- OWN -- BUSINESS.  

THE ONLY REASON THE COP BOTHERED JOHN DOE WAS BECAUSE JOHN DOE HAD A NICE CAR IN A POOR NEIGHBORHOOD.  

I HAVE THE HONOR AND PRIVILEGE OF REPRESENTING JOHN DOE...

Unfortunately, although selfishly, I never got to give this opening statement that I worked for hours to prepare.  Not only did I prepare it, mind you this is just the introduction, but I practiced it probably ten times, making audio recordings of most my attempts.

The sad thing is that I even had to prepare for this trial.  From the moment I spoke to my client about this case, I had a feeling it was a bullshit racially motivated stop/seizure/search.  After reading the offense report, I was near certain that something fishy took place.  After researching and reading the law, I knew for certain the search and seizure were unlawful under the Constitution. 

The baby lawyers over at the district attorney's office barely have a chance to catch their breath they move between courts so often.  The first prosecutor on this case offered my client time served. That means he pleas guilty, gets credit for his two days in jail and he doesn't have to do any more time or pay a fine.  It is pretty much a standard offer.  A time served is ALSO A GUILTY PLEA, and most defendants don't comprehend that. It also means that your license will be suspended.  This particular client was a professional limo driver.  He had no chance but to Take That Shit To Trial.

I only met the second  prosecutor the Friday before trial.  He was a very nice guy and great to work with.  The first thing he said to me is that he doesn't think he can make his case.  We approach the Harris County Judge, who kind of urges the state to dismiss the case.  The prosecutor doesn't have that authority, and had to get the approval of his chief (boss).  The judge then urges the prosecutor to cal the cop, which he does.  The cop then changes his story up just enough to make the case tryable in the state's eyes. Remember, The Eyes of Texas Are Upon You. 

You see, the arresting officer claimed he made a welfare check on my client.  A welfare check is also known as the community caretaking function.  The Community Caretaking Function is an exception to the warrant requirement of the Fourth Amendment if the US Constitution.  Remember, all warrantless searches are preemptively invalid.  If the defendant files a Motion to Suppress, the government has the burden of proving that the search was legal (not unlawful).   So that's exactly what I did in this case.  Based on the advice of experienced and successful lawyers, I filed a motion to suppress on the day of trial, with a more detailed brief in support. 

Because the cop was not at court on time, we went ahead and picked the jury.  If the cop was on time, we would have done the motion to suppress  and not picked jury.  So my good friend, Armen Merjanian helped me out.  He did half of jury selection (voir dire) and I did the other half.  He was excellent. 

We had a great jury pool and ended up with a great all female jury.  One of the jurors apparently recognized me from law school.  She went to optometry school there. Go Nova!

After selecting the jury, I called the officer as my first witness.  He was a nice guy.  I kept him in check with short leading questions that required only yes, no, correct, or true answers.  Once I got him in a groove, it was pretty much smooth sailing.  Now this judge is known to be very conservative and as one who doesn't grant motions to suppress all that often, but she followed the law.  

In order for a welfare check to be valid, there is a two part test: First, the court has to determine whether the officer was primarily motivated by a community caretaking purpose; and second, whether the officer’s belief that the individual needs help was reasonable.  Gonzales v. State, 369 S.W.3d 851, 854, (Tex. Crim. App. 2012) (Emphasis added).   

The community caretaking function is only properly invoked when the officer's intentions are completely divorced from detection, investigation and gathering evidence. Here, the offense report said it all: "Fifth ward and Brewster Park are known for high amounts of drug trafficking and prostitution.  I decided to make a welfare check. BULLSHIT!

So, in order to determine whether an officer's belief that an individual (suspect in this case) needs help, the court is supposed to look at four factors, while giving the most weight to the 1st and 4th element.                              

                                   i.     The nature and level of distress exhibited by the individual;

                                                           ii.     The location of the individual;

                                   iii.     Whether the individual was alone and/or has access to assistance independent of that offered by the officer; and

                                                          iv.     To what extent the individual—if not assisted—presented a danger to himself or others. Id. (citing Wright v. State, 7 S.W.3d 148, 150 (Tex. Crim. App. 1999).

 And you know what I JUST realized, 1 plus 4 equals 5.  This arrest occurred in the 5th Ward... it was written in the stars!!!    So all I did (not easy or fast) was form my questions based on the elements. I nailed the cop.  Of course he changed his story when the prosecutor got to ask him questions, but I cleaned it up.       

My client then testified, because he really wanted to tell his story.  It was kind of horrible, but we still won, and in the end my client went home happy and I went home with this...

I know my streak will end some time, but STILL UNDEFEATED.

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Visit my webistes:  Drugs, Assault, Marijuana

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______________________________

Cory Roth

Cory Roth Law Office

4306 Montrose Boulevard, Suite 240

Houston, Texas 77006

T. 713.864.3400

F. 713.864.3413

C. 832.419.9973

B. 24088337

CoryRothJD@gmail.com

Client Centered | Trial Ready

Better Call Saul: Need a Will? Hire McGill!

BETTER CALL SAUL

First, a note on storytelling.  This episode was an episode of redemption, humanity, and humility.

How appropriately timed?!  Just as I prepare to present a Motion to Suppress in a BS racial profiling "welfare check" marijuana case, the cops on Better Call Saul come through big time with an illegal and unlawful search and seizure.

I guess Hollywood, or Albuquerque isn't all that different from real life.  

It's no wonder that years down the line (the inspection sticker indicates this is all going down in 2002) Walter White was able to get away with murder, and cooking the purest meth in the west, when the brow-beating-beat-cops are worried about stolen news papers. That type of "glass windows" policing is a waste of time, so let's get straight to it, and I will put it in Motion Form:  

The issue in this case is whether the police violated Mr. McGill's rights under the Fourth Amendment of the United States Constitution, by barging into his house without a search or arrest warrant.  

Here in the United States of American, the greatest country of all time, we have this little thing called the Fourth Amendment.  The Fourth Amendment protects citizens and non-citizens alike from unreasonable searches and seizures.  All warrantless searches are PRESUMED unconstitutional. That is great, right?  Well, unfortunately we don't quite enjoy as much liberty (i.e., freedom from the government) as we like to think we do because over the last 50 years or so, more exceptions to the 4th amendment have been created than there are holes in your average block of Swiss cheese.  The irony is that the guys on Fox News clamor about liberty, but they are also the ones pushing the laws that erode it, and there is no denying that.

This chart demonstrates the different standards of proof, and what the government can get away with under each standard.

For example, a cop can "stop-and-frisk" a person if he has a reasonable suspicion that a person may be armed, and the cop is doing it for his own safety.  This is such a law standard that millions of minorities have been the victims of terry frisks in NYC merely because they were a minority, or wearing baggy pants, or just alive. 

The next level of proof is probable cause. You can be pulled over or arrested based on probable cause, which is more than a mere hunch. Probable cause is a belief that a crime occurred, is occurring, or is going to imminently occur based on specific articulate facts.

However, a search of a home, such as in episode 5 of Better Call Saul, requires a search warrant. Now, a search warrant is issued based on probable cause, however, the warrants requirement acts as a buffer between law enforcement and our liberties.  John Hancock and crew knew just as well as Jimmy and Chuck that we can't trust the police.

In order for a search warrant to be issued, a cop must present a sworn search warrant affidavit to a neutral and detached judge.  If the judge finds probable cause to arrest a person or to search and seize specific evidence, then the judge may sign the search or arrest warrant particularly describing the person to be arrested or the place to be searched and things to be seized.  The the police must then go out and execute the search warrant within a reasonable time.

So let's say, as in this episode, the police show up without a warrant, armed only with an accusation that a petty crime was committed. The cops suspect that the suspect is off his rocker.  The cops do a little peeking and see something they believe would lead them to believe the suspect is cooking meth...what a foreshadowing scene. 

First, can the cops peak into a back window?  Probably not, especially if they had to go through the back yard to get to the back window, because the back door, as curtilage, has a reasonable expectation of privacy.  "But what about the plain view doctrine?" some of you nerds may be saying!

Well, the plain view doctrine states that if evidence of a crime is in plain view, it may be seized. Here, however, I would argue that my client had a reasonable expectation of privacy in his home, especially the back door, and the police entered onto his property without a warrant to peak into the back door. By peaking into the back door, the police developed probable cause to break in the front door.  If Because the evidence was found without a warrant, it is fruit of the poisonous tree and thus cant be used against my client and I will fight TOOTH AND NAIL to suppress it.

A few quick notes:

---- Sovereign citizens really exist.  I do not have personal experience with one, but I have heard some stories about the ridiculous stunts they pull in court, such as denying that the courts have jurisdiction to hear cases about them.

---- Elder law really is the future with all the baby boomers getting to Depends age.  Writing wills and trusts is not necessarily elder law, and you should consider having a lawyer write a will for you while you are young, because you never know what may happen.

---- Finally, Howard Hamlin.  When he came power walking through the hospital corridors, that mean one thing and one thing only (okay maybe two).  It meant that whatever Howard was about to say was based on self-preservation.  Whatever came out of his mouth was the exact opposite of what should have been done.  Lots of times a prosecutor will fight for something, win, and then not use what they won.  This means they realized it was bad for them, which means maybe you should use what you wanted to keep out.  Just a thought.

----  For all you youngins out there.  Jimmy was taking notes on the dress and presumably the oratory skills of the great Perry Mason, the best television lawyer of all time.  Perry Mason portrayed criminal defense and plaintiff's lawyers as heroes, which is what we (they) really are.  We need more Perry Masons on TV instead of the CSIs and SVUs that portray criminal defense lawyers as the scum of the earth.

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