Wednesday, March 18, 2009

The tail wagging the dog

In most courts the prosecutor negotiates pleas with defense attorneys and unrepresented citizens. The City of Houston Municipal Court is not most courts, however. Behind the walls of their fortress (designed in that lovely Soviet-era government building style), the city prosecutors turn over a good deal of the negotiating to the officers who wrote the tickets.

It's one thing to consult with a complaining witness in a case to find out whether he or she is comfortable with a given outcome, it is quite another to hand the negotiating power over to a person with a personal stake in the outcome of the case. Wouldn't that constitute the unauthorized practice of law, a Class A misdemeanor in the State of Texas?

Let's see, the prosecutor's job is to represent the city against citizens accused of committing traffic offenses. A criminal defense attorney's job is to represent the citizen against the oppressive power of the state. It is verboten for a non-attorney to represent any citizen in court. Allowing that to happen would be condoning the unauthorized practice of law. But the courts allow police officers to negotiate on behalf of the city with defense attorneys in the courtroom -- in front of the judge. How is this practice any different from a non-attorney representing a citizen? 

In fact, Rule 5.05 the Texas Disciplinary Rules of Professional Conduct states that a "lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." The rule does not, however, define unauthorized practice of law. An attorney does not violate the rule by delegating duties to a paraprofessional as long as the attorney supervises the delegated work and maintains responsibility for it. Is handing over the reins the same as delegating? I think not.

So why is this allowed to happen at the fortress on Lubbock Street? Could it be that the municipal court is a cash machine for the City of Houston? Could it be that municipal court judges hold their benches as long as the revenue pours in? Could it be because the prosecutors are made up of timid attorneys afraid of their own shadows and "volunteers" from the Big Law firms downtown? Could it be because everyone is afraid that the police will issue fewer citations if their precious ATM (overtime) is affected?

Here comes word that the police department is reviewing overtime records of "several officers." Predictably enough, the police union is up in arms that someone is looking into their little operation.

This is from a database in The Houston Chronicle listing the salaries of all Harris County public employees for 2007. It is Exhibit A in my diatribe:

Car Allowance$0
Total Pay$120,039

Officer M.L. Davis, as anyone who has every practiced in the municipal courts knows, is the single biggest beneficiary of overtime among police officers who issue traffic tickets. I'm not certain, but I think if I looked up his residence I would find out that he calls 1400 Lubbock Street home.

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