David Dow - The Autobiography of an Execution

I hear there are solo practitioners. But for me, the practice of law has always been a collaborative enterprise. Andrea Keilen is the supremely talented executive director of the Texas Defender Service. I thank her and the actual TDS lawyers with whom I work every day, including on all the cases described in this book: Kate Black, Frances Bourliot, Matt Byrne, Kathryn Kase, Alma Lagarda, John Niland, Katherine Scardino, Jared Tyler, and Greg Wiercioch. (Gloria Flores, Nick Mensch, Melissa Waters, Rindy Fox, Ariell Hardy, Neil Hartley, Kelly Josh, Susanna Trevino, and Jessica Lindley, while nonlawyers, help keep the place running.) Steve Hall and Laura Burstein are also routinely helpful, and George Kendall’s advice is routinely indispensable. The TDS interns are passionate and tireless.

Then there are the past (or almost) TDS lawyers who also worked on the cases described here, including: Melissa Azadeh, Sandra Babcock, Bryce Benjet, Dick Burr, Nicole Casarez, Mike Charlton, Phyllis Crocker, Karen Dennison, Mia de Saint Victor, Mike Gross, Andrew Hammel, Keith Hampton, Eden Harrington, Scott Howe, Cassandra Jeu, Lynn Lamberty, Maurie Levin, Jim Marcus, Joe Margulies, Robert McGlasson, Morris Moon, Brent Newton, Rob Owen, Jeff Pokorak, Danalynn Recer, Meredith Rountree, Raoul Schoneman, Naomi Terr, Jean Terranova, Mandy Welch, and Phil Wischkaemper. I’ve also been privileged to work with Tony Amsterdam, John Blume, Steve Bright, John Holdridge, Lee Kovarski, Greg Kuykendall, Paul Mansur, Nina Morrison, Barry Scheck, Jordan Steiker, Clive Stafford-Smith, Brian Stull, and Christina Swarns. I’m sure I’ve forgotten several people. I hope they’ll forgive me.

I am grateful to Eric Holz, the surgeon who saved my eye. I owe an enormous debt as well to my friends Bowes Hamill and Charles Katz, gifted physicians who never asked me to stop calling or e-mailing, even though I called or e-mailed so often that I almost caused myself embarrassment.

Dean Ray Nimmer, Associate Dean Richard Alderman, and former dean Nancy Rapoport have supported my work at every step of the way, no matter how strong the headwinds—and they can indeed be strong. My students, both at the University of Houston Law Center and Rice University, have been indispensable and inspirational.

For reading the manuscript or discussing sensitive issues about it with me, I am grateful to many people, including: my brother Mark Dow, the best reader and writer I know; Marcilynn Burke, Seth Chandler, Meredith Duncan, Michael Olivas, and Ron Turner, extraordinary colleagues and even better friends; my friend David Jones, whose convoluted analyses are usually worth untangling; Simon Lipskar, my dedicated agent, whose advice and judgment are invariably spot-on; also at Writers House, Maja Nikolic, Angharad Kowal, and Jennifer Kelaher, who tirelessly promoted this book, and Josh Getzler, who exhibited immense patience in dealing with me; Jonathan Karp, the remarkable editor and publisher who intuitively understood exactly what I wanted to do with this book and who turned a manuscript I liked into a book I like much more, and his terrific assistant, Colin Shepherd, who was calming and resourceful; and finally, my dear friend Jon Liebman, whose faithfulness, wisdom, and friendship I’ve been benefiting from for longer than I care to say.

Katya and Lincoln held veto power over the book. That I’ve written it reflects that they said I could. They’ve allowed me to steal, shape, and share our stories. They’ve also allowed me to steal my way into their lives. I’m a lucky guy.

Publisher’s Note:In light of recent controversies regarding the authenticity of memoirs, we asked a professor of law specializing in legal ethics to explain the rules that constrain a lawyer’s freedom to disclose privileged and confidential information. Her essay follows. While recognizing that some readers prefer documented sources in a work of nonfiction, David R. Dow made the decision to disguise identities of some characters to comply with ethical rules mandated by his profession.

Lawyers are ethically obligated to keep their clients’ secrets, often forever. This obligation, which places serious limitations on an attorney’s ability to write about his experiences, stems from two different bodies of law—evidence law, which defines the attorney-client privilege, and the legal ethics rules, which provide the contours of a lawyer’s duty of confidentiality. [1] See MODEL RULES OF PROF’L CONDUCT R. 1.6 (2008) cmt. [3] (explaining distinction between attorney-client privilege and duty of confidentiality). Throughout this piece, I will often refer to the American Bar Association’s MODEL RULES OF PROFESSIONAL CONDUCT. Although ethical standards vary from jurisdiction to jurisdiction, the MODEL RULES have been quite influential, having been adopted in large part by the majority of jurisdictions.

The evidentiary attorney-client privilege protects communication between an attorney and the client from being revealed in court or other official proceeding. [2] The attorney-client privilege is one of the oldest privileges recognized in common law. In its classic form, it provides that confidential communication between an attorney and client is protected from disclosure forever unless waived. See 8 J. WIGMORE, EVIDENCE, § 2292 (McNaughton rev. 1961). Based on this classic formulation, all modern jurisdictions recognize the attorney-client privilege. See, e.g., FED. R. EVID. 501 (providing that attorney-client privilege “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience”); CAL. EVID. CODE § 954 (2003) (providing that “the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer”); TEX. R. EVID. 503 (providing that a “client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client”). When a client communicates with a lawyer seeking legal advice, that communication is protected by the evidentiary privilege. Consequently, the lawyer cannot be compelled to reveal that communication unless the client consents (or another limited exception applies). [3] Commonly recognized exceptions to the attorney-client privilege are usually limited to the crime-fraud exception (when the client consults with the attorney for the purpose of committing a future crime or fraud) and the testamentary exception (where a testator’s communication with counsel in drafting a will is revealed in order to establish testamentary intent). See Swidler & Berlin v. United States , 524 U.S. 399, 409–10 (1998) (discussing these limited exceptions to the attorney-client privilege).

A lawyer’s ethical duty of confidentiality is much broader than the evidentiary privilege. [4] See MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (2008) (providing that a “lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent”). This legal norm prohibits lawyers from discussing their clients’ affairs. This duty of confidentiality protects all information relating to the representation of the client, regardless of its source. [5] See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [3] (2008) (“The confidentiality rule… applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source”). It prohibits an attorney from revealing any information about a client, in or outside of a courtroom, whether known to others or not, and regardless of whether the lawyer learned the information from the client or someone else. This ethical obligation means that a lawyer may not reveal information relating to a client’s matter to others unless the client agrees to its disclosure (or one of a few limited exceptions applies). [6] See MODEL RULES OF PROF’L CONDUCT R. 1.6(b) (2008) (setting forth exceptions to the duty of confidentiality, which include preventing reasonably certain death or substantial bodily harm or preventing client from committing a financial crime or fraud). It is primarily his duty of confidentiality that is at stake when a lawyer decides to pen a memoir.