From Victim to Advocate

A life education in zealous yet compassionate representation.

Written by Belinda May Arambula

I know that if we live long enough, we will all face tragedy in some form, but for me that tragedy came during my summer clerkship after my 2L year. My goals were targeted: (1) get the job offer and (2) save money in case I don’t get that job offer. I was clerking in my hometown of El Paso and living with my parents for the first time in years. My dad had set some big goals of his own: We were going to use our summer together to train for his first marathon, which was set to take place on September 24, 2006. It was no coincidence that was also supposed to be his 52nd birthday. Every morning, before shadowing some of El Paso’s finest lawyers, I had the luxury of running with my dad. These were glorious runs along the arroyos and riverbank in El Paso, through the pecan orchards and onion fields of southern New Mexico. We ran in blazing sun or pouring rain. And the smells, they are as vivid as the days we experienced them. Anyone who grew up in the desert can attest that there is no sweeter smell than desert air after a rainstorm.

A rainstorm was in front of us, but we did not see it coming. My dad woke me from my childhood bed at 4 a.m. on Saturday, July 29, 2006, and asked me to join him on an 18-mile run through the westside of El Paso into Santa Teresa, New Mexico, and back. This was a route we liked. We knew the roads, the shoulders, and the residents who would let us drink from their water hoses. We also knew we would see the lawyers I clerked for along Westside Drive, as they usually ventured out on their 30-mile bike rides: looking at you Steve Hughes, Raymond Benavides, and Bruce Koehler. But on the morning of July 29, I told my dad I could not join him. I would be going to a clerk event to hike with those lawyers we frequently saw biking.

My dad went on his run alone. I can still imagine it, pounding down from our neighborhood near the mountains down to the flat valley. He took the scenic route that included one of the most prestigious neighborhoods in El Paso: Country Club Road. My dad never got to complete that 18-mile run or compete in the marathon on his birthday. Sometime before 5:45 a.m., a driver left the road, traveling near the embankment of the Rio Grande River, struck my dad, fled the scene, and left him to die.

As everyone says, you are never prepared for sudden death, but what I was also unprepared for was what it would be like to get the job I wanted desperately and have to work alongside the lawyers who represented the driver in the criminal and civil suits. I quickly learned was that I did not like the way they acted, and I vowed that once I had my own docket, I would be different. I would show grace to opposing parties—I would uphold the tenants of the Texas Disciplinary Rules of Professional Conduct, or TDRPC (I am not saying these lawyers committed misconduct, but they didn’t extend compassion for a young lawyer who was struggling with the cards she had been dealt.).

I attended every criminal hearing that I could. After years of delay, my family and I attended the criminal trial from the lobby, as the Exclusionary Rule (Texas Rules of Evidence Rule 614) had been invoked. At the time, being excluded felt like the attorneys were adding insult to injury—but knowing this was the prosecution’s choice, I like to believe they did it to protect us. And while we felt like the victims, and, therefore, excluded by the rule, Texas precedent instructs that the exception for victims does not extend to family members like parents, children, or spouses. Nevertheless, as we waited daily in silent support of my dad, not once did defense counsel reach out to acknowledge me as a young member of the bar who he had seen at prior hearings.

Likewise, in the civil suit, defense counsel never acknowledged me as a colleague of a relatively small insurance defense bar. He never acknowledged that his client had caused my family pain. I am not suggesting a lawyer should imply fault or concede liability. But here, when liability was not disputed, a gesture of kindness would have been appreciated.

I am not critical of the trial judge in the criminal matter. In fact, I understood, then and now, that the separation between the judge and my family was critical. As a newbie lawyer, I recognized that lawyers are prohibited from communicating with judges concerning pending matters other than as permitted by law. Texas caselaw explains that the “purpose behind prohibiting ex parte communications is to preserve judicial impartiality and ensure that all legally interested parties are given their full right to be heard under the law.” Ex parte communications are so disfavored that, in some instances, an ex parte communication with a tribunal may even amount to a criminal offense. In our case, the last thing my family would have wanted to do is have an ex parte communication that could have jeopardized the trial.

Now as I try cases, often similarly to the civil defense lawyer, I make an effort to show some grace and empathy toward the opposing party. I believe we can do this—we can humanize our adversaries—without conceding our client’s position. In fact, I think it’s consistent with the disciplinary rules to do so. For example, pushing cases toward finality can be the best form of advocacy for your client and prevent unnecessary prolonged delays for the opposing side. Rule 3.02 specifically prohibits unnecessary delays: “In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter.” I believe there were about six delays of the criminal case, and with each delay, my family experienced a rollercoaster of emotions. When I hear colleagues lament that the other side is trying to bleed them dry, I recognize that may be a strategy, but it is not consistent with our disciplinary rules.

Keep in mind, I am not suggesting that either the criminal or civil defense attorneys should have reached out to me individually about the cases. In fact, to suggest that an attorney do so could result in a violation of TDRPC Rule 4.02, which is instructive on a lawyer’s communications with someone who is represented by counsel. In the civil matter, it would have violated Rule 4.02 for the civil defense counsel to have communicated or caused or encouraged another to communicate about the case with me, as my family and I were represented. Rather, in our profession we have the opportunity and even responsibility to be decent and kind to an opposing party. And maybe when that opposing party is a new member of the bar, a smile or simple “I am sorry for your loss” can go a long way.

The preamble to the disciplinary rules impresses upon us immense responsibility. As lawyers, we have a “special responsibility for the quality of justice,” and are described “guardians of the law” playing “a vital role in the preservation of society.” The preamble provides guidance to navigate the interactions between myself and the lawyers who represented the man who killed my dad: a “lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” The silence and lack of acknowledgment from one lawyer to another felt like an absence of respect at the time and still does.

Because of these experiences, I have reached out, in the presence of the opposing counsel, to extend my condolences to the widow who sued my client, knowing she was in pain. My compassion for her did not change my zealous advocacy. When I have prevailed in traumatic and catastrophic cases, I have apologized to the plaintiffs for their experiences, and I have tried to treat them and their family with the dignity they deserve—that does not change my zealous advocacy. I believe these small efforts are what I was searching for in my first years of practice when I was in the company of the criminal and civil defense lawyers.

Paragraph nine of the preamble provides: “Each lawyer’s own conscience is the touchstone against which to test the extent to which his actions may rise above the disciplinary standards prescribed by these rules. The desire for the respect and confidence of the members of the profession and of the society which it serves provides the lawyer the incentive to attain the highest possible degree of ethical conduct.” While these two lawyers often left me searching for some empathy, I found through the mentorship of lawyers like Kurt Paxson and David Brenner that great lawyers continue to strive toward building respect and confidence in the bar through their individual actions.

If it has been months or years since you have reviewed the TDRPC, I encourage you to pick them up. The younger lawyers in the bar have inevitability read the disciplinary rules more recently and are looking to us to act in accordance with them. And if you haven’t reviewed the Texas Lawyer’s Creed: A Mandate for Professionalism recently, I recommend that you do so. The preamble states:

“I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.”

RIP John Denis May Sr.TBJ

Headshot Belinda May ArambulaBELINDA MAY ARAMBULA is a partner in Terrazas, where she has a diverse civil litigation practice ranging from construction defect to business litigation and personal injury. She also serves on the boards of a number of state and local bar organizations, including the Texas Rules of Evidence Committee, Austin Bar Foundation, Hispanic Bar Association of Austin (former president) and community organization Avance-Austin.

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