Paper: HOUSTON CHRONICLE
Date: WED 02/05/1997
Section: A
Page: 19
Edition: 3 STAR
 

Back in business/Lawyers again can get addresses to solicit suspects by mail

By JOHN MAKEIG
Staff

A federal judge has ordered Harris County's state felony court judges not to enforce a 1989 ruling aimed at keeping defendants' addresses away from lawyers who solicit business by mail.

U.S. District Judge Ken Hoyt's order, entered Monday, said state District Judge Charles Hearn's action "obstructs the administration of justice." Hearn had ordered clerks not to enter new defendants' addresses on official documents.

Allowing attorneys to solicit in such cases, Hoyt said, serves a twofold purpose. If defendants hire the lawyers, it saves the county the cost of appointing attorneys to represent the poor. In addition, he said, it "potentially expedites the resolution of the case."

Attorney Ray Speece, who represents the 22 felony judges, said it was uncertain Tuesday if his clients will ask Texas Attorney General Dan Morales to appeal Hoyt's order.

The case dates to a time when a typical defendant entering the criminal justice system would find his mailbox crammed with a half-dozen or more letters from lawyers offering to represent him. The addresses could be obtained easily from the district clerk's office.

Hearn, the administrative judge at the time and now a visiting judge, persuaded other judges to agree to order sheriff's deputies and deputy district clerks to delete addresses and phone numbers from court documents.

The order specified that no addresses would be available for defendants who did not have their own lawyers or who had not made at least one court appearance.

About 500 lawyers represent Harris County criminal defendants on a full-time basis. An estimated 10 percent to 15 percent of them use mail to generate business.

In response to Hearn's order, news organizations were unhappy to be deprived of key facts about new defendants and defense attorneys who solicit clients in the mail were outraged.

Defense lawyer Lee Scham, who said 99.9 percent of his clientele was recruited by sending out letters, said he experienced a quick 75 percent drop in his income.

He joined attorney J. Charles Whitfield in suing the judges in federal court, saying their constitutional rights had been violated. Their counsel, Randall Kallinen, contended the judges had no authority to take such a step.

The judges responded in federal court that they had authority under the Texas Government Code, which they said "authorizes district and statutory court judges in each county to adopt local rules of administration by majority vote."

Hoyt, however, said Hearn's order failed to fulfill "any administrative need peculiar to the courts." He called Hearn's position on the Texas Government Code "strained" and "wholly untenable."

"The protection and preservation of a criminal defendant's privacy interests, while a legitimate concern, does not directly or indirectly further the administrative concerns contemplated by the Legislature," Hoyt wrote.

Hoyt's decision was immediately criticized by judges and by defense attorneys who do not solicit business by mail.

"I was the first one to call the district clerk and get them to mark off the addresses and phone numbers of defendants in my court," state District Judge Mike McSpadden said. "I'll continue to do the same to protect confidentiality of the defendant."

McSpadden called attorney letters "tasteless solicitation," adding: "I've seen classier solicitations from people wanting to mow your lawn."

Defense lawyer David Mitcham, who does not solicit clients by mail, said he supported the judge's 1989 decision. He said solicitations come from attorneys who get their new clients to the courthouse "and plead them guilty at the first opportunity."

Scham and his backers, on the other hand, were elated.

Saying Hoyt's decision made him feel "big and bad," Scham said he was at work Tuesday on 23 letters to be aimed at new felony defendants whose addresses he had just obtained from the district clerk's office.

"We do a good job," Scham said. "A court-appointed lawyer's not going to fight like a hired lawyer. The court-appointed lawyer gets paid by the judge, and he's beholden to the judge if he wants more appointments."

Defense lawyer Carl Haggard, who said a third of his clientele list was generated by postal mailings, called Scham a legal miracle worker.

"Lee Scham is my new hero. He's a modern-day gladiator," Haggard said. "He took on the system and won."

State District Judge Doug Shaver, the administrative judge overseeing the felony courts, said he hopes the Legislature, and perhaps the Houston and Texas bar associations, find ways to eliminate postal solicitations.

"Letting attorneys advertise has been the most embarrassing thing to me and my profession in the 30 years I've been practicing law," Shaver said. "I've never known a lawyer who had the respect of a majority of his peers who got their clients with solicitation letters."