The “Texas Lawyer’s Creed” was promulgated by the Supreme Court of Texas and the Texas Court of Criminal Appeals on November 7, 1989. Established to eliminate abusive tactics within the practice of law, it was thought to be a seminal moment in the legal profession; the culmination of months of hard work and spirited debate by an “Advisory Committee on Professionalism” led by Texas Supreme Court Justice Eugene Cook. The creed, according to committee member Judge Lamar McCorkle, “gave voice to the cornerstones and timeless principles of justice and fairness of our profession.”
Unfortunately, the Texas Lawyer’s Creed—a purported “Mandate for Professionalism”—has gone to seed. Indeed, ultimately the Texas Lawyer’s Creed is a lofty legal desire—a honed and honeyed hankering for lawyers to conduct themselves more honorably—idealistic language devoid of real-world meaning, because, in practice, it has no teeth—no consequences for the attorneys who violate it, even in the most serious of legal matters.
And what about the Texas Disciplinary Rules of Professional Conduct, which are supposed to police lawyers—lawyers whose conduct is antithetical to being “an officer of the legal system and a public citizen having special responsibility for the quality of justice?” To borrow from a colorful but apt Texas saying: “They’re as worthless as teats on a bull.”
Can another reasonable conclusion be drawn by the abject failure of any bar counsel, any court, any governmental body, to: take official notice of, hold hearings about, and mete out appropriate discipline to the Texas Department of Criminal Justice’s (TDCJ) attorneys that egregiously violated their ethical obligations—committed in early January of this year—while pursuing the execution of Robert Fratta?
You see: five days before executing Fratta, according to information reported by then-Texas Tribune reporter Jolie McCullough, the prison system received eight new, unexpired doses of pentobarbital—one of which was ultimately used to exterminate Fratta. McCullough informed me: “I knew the new drugs were used [to execute Fratta] because when I request the pentobarbital logs from TDCJ, I also ask for the expiration dates connected to the doses in stock. The logs showed eight new vials had been acquired, but after Fratta’s execution only seven doses remained of the batch with the new expiration date. The other batches matched the same number of vials per expiration date as before Fratta’s execution.”
The problem is this: Virtually up until Fratta’s last breath, as was breathlessly sensationalized in the press, TDCJ was litigating whether it could continue using pentobarbital past its expiration date—without ever informing the court or opposing counsel about the new doses of unexpired pentobarbital in its possession (and which it planned to use).
In so doing, TDCJ attorneys violated rules of professional conduct by: (1) abusing the litigation process by causing unnecessary and unwarranted proceedings in the Texas Court of Criminal Appeals and the Texas Supreme Court, and (2) not correcting factual misimpressions made in litigation about the status—expired or unexpired—of the dose of the pentobarbital with which TDCJ would ultimately execute Fratta.
On January 30, backed up by the opinions of two national legal ethics experts—Bruce A. Green, Louis Stein chair and director of the Louis Stein Center for Law and Ethics at Fordham University School of Law, and Ellen Yaroshefsky, Professor of Legal Ethics and director of the Monroe Freedman Institute for the Study of Legal Ethics at Hofstra University—I accused TDCJ lawyers, in The Texas Observer, of violating their duty of candor to the court, as well as their duty not to unreasonably multiply proceedings (essentially wasting the courts’ and other parties’ resources as a litigation tactic).
Specifically, in “Texas Lawyers Violated Legal Ethics Over Expired Execution Drugs,” I outlined, with expert assistance from Professors Green and Yaroshefsky—as well as Dr. Joel Zivot, a practicing physician in anesthesiology and intensive care medicine at Emory University in Atlanta, Georgia—how TDCJ lawyers violated their professional obligations during litigation about the “beyond-use date” of the dose of pentobarbital with which they planned to, and eventually did, execute Fratta.
“A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings.” The Texas Lawyer’s Creed mandates this, or at least, it claims to. Moreover, according to the Supreme Court of Texas and the Texas Court of Criminal Appeals, “The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness.”
These admonitions—the Creed, and the Rules of Professional Conduct too—were not crafted to be feckless and fanciful words; they were meant to be respected and abided by principles of right and proper professional conduct. But borrowing from great American writer James Baldwin: “The terrible thing is that the reality behind all these words depends on choices one has got to make, for ever and ever and ever, every day.”
Because as even the Texas Supreme Court and Texas Court of Criminal Appeals conceded when announcing the Texas Lawyer’s Creed: “These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts[.]”
In 2013, “reaffirming its commitment that the lawyers and judges in this state adhere to The Texas Lawyer’s Creed—A Mandate for Professionalism,” the Supreme Court of Texas reiterated: “Let us now, as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.”
Ten years later, and prior to the next execution in Texas—that of Jedidiah Murphy, unsettlingly scheduled to occur on October 10, the same day as “World Day Against the Death Penalty”—will the legal system in Texas ensure that attorneys working for the state’s prison system know that they have a duty to conduct themselves ethically in litigation, especially as it concerns the state-sponsored execution of a fellow human being?
If what happened during the litigation over the expiration date of the pentobarbital used to execute Robert Fratta is any indicator—and, more especially, the failure to impose professional discipline upon TDCJ for its multiple and serious violations of legal ethics during that litigation—the answer, for any forward-looking thinker and sober legal observer, has to be: No.
Contacted recently, Professor Yaroshefsky said: “This disturbing unethical conduct cries out for attention to remedy its shocking behavior. Sadly, it remains unaddressed.”
Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He now writes full-time and lives in Woodland Hills, California. You can find him on Twitter/X @SteveCooperEsq.
