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E-Filing Snafu Leads to PR Nightmare, Misconduct Allegations by Attorneys

Michael Wynne, a partner in Hughes Arrell Kinchen in Houston

Houston-based prosecutors have claimed that white-collar criminal and civil defense attorney Michael Wynne committed misconduct by failing to supervise an assistant who created confusion with e-filing snafus, which through a series of unfortunate events, ended as a nightmare for all involved.

It's a pretty complicated comedy of errors, but here's a spoiler: The e-filing mistakes might have been what caused a judge inadvertently to sign a proposed findings and recommendations to release a convicted murderer on bond pending the finalization of his requested post-conviction habeas relief.

The error alarmed both prosecutors and Wynne, who all quickly moved to have the judge strike the accidentally signed order.

But next, an outside PR firm working for the defendant's family relied on the mistaken judge's order and the state's motion to strike it, to write a false press release, republished across the nation, that said Harris County District Attorney Kim Ogg was responsible for keeping an innocent man in prison for 20 years.

That's when prosecutors alleged Wynne committed misconduct.

'Absurd and Infuriating'

“If you look at it, at the time we filed it, it was very compelling,” said Harris County Assistant District Attorneys Josh Reiss. “The situation required a rapid, on-the-record response, given the seriousness of what was going on, and we don’t regret the filing for a second.”

But Wynne, a former assistant U.S. attorney and now partner in Hughes Arrell Kinchen in Houston, said all the misconduct allegations are unfounded, and that he faced the nightmare moment of his 26-year legal career because the prosecutors failed to conduct a good-faith investigation of facts before making their claims, and then backpedaled to the failure-to-supervise claim when the full story emerged.

“It’s absolutely absurd and infuriating and an abuse of prosecutorial powers,” said Wynne.

The story is different depending on who you ask, so to recount what happened, it’s best to start at the beginning and use court filings in the case Ex Parte Lamar Burks, pending before Harris County’s 208th District Court.

Wynne represents Lamar Burks, a man convicted of murder in 2000, who has a pending application for writ of habeas corpus with Harris County’s 208th District Court.

A couple of days after Burks filed his writ application, he filed a document titled, “agreed proposed findings of fact and conclusions of law,” which stated, among other things, that the district attorney’s office agreed to release Burks on bond pending a higher court ruling on his requested habeas relief.

The state had not agreed on the proposal, and Reiss asked Wynne’s office to strike it from the record, which he did in early November 2018.

Months later, on Feb. 5, 2019, 208th District Judge Greg Glass mistakenly signed the proposed findings, which recommended granting relief and releasing Burks on bond. The state filed a motion to strike the erroneous order, and the next day, Wynne went to docket call and approached the bench to explain the error to the judge and secure his signature to strike the document.

But the situation grew more complicated in March, when a legal public relations firm in New York called Goldman McCormick issued a press release about the Burks case. That press release said that the judge had issued an order recommending granting the writ and releasing Burks, but that the Harris County District Attorney Kim Ogg, had filed a motion to refuse to agree with the judge’s order. The press release included a quote by Wynne. At least 30 news organizations ran articles based on the press release with the headline, “Is Harris County District Attorney Kim Ogg Responsible For Keeping A Wrongly Convicted Man in Prison for 20 Years?”

It was the last straw for prosecutors.

Ethics allegations

The state alleged in a motion on March 14 that Wynne had broken attorney disciplinary rules by being uncandid with a tribunal, engaging in pre-trial publicity and failing to supervise his non-lawyer legal assistant. The motion said that Wynne’s office had never filed a motion to strike the “agreed” proposed findings, which the judge later signed by accident. It also said the state believed it was Wynne who hired the PR firm.

But a week later, Goldman McCormick, the legal PR firm that issued the false press release, released a statement saying it severed ties with the Burks family because its client, Don Burks, who is Lamar Burks’ cousin, had provided inaccurate information to the firm, including an untrue statement that Wynne approved the press release.

“It is important to state that Mr. Wynne did not play a role in drafting, supervising or approving” the press release, the PR firm's cofounder Ryan McCormick said in the statement.

McCormick said in an interview that he is surprised Wynne didn't know that Don Burks was working with the PR firm, and also surprised it took more than a week for Wynne to call the firm after the press release came out. Yet he noted that when he learned Wynne disapproved of the release and was facing repercussions, he contacted the district attorney’s office to set the record straight. The PR firm also counseled Wynne on dealing with media interviews after things blew up.

“This is the first time anything like this has ever happened, in anything we’ve worked on,” he said.

Next, Wynne filed a motion to withdraw from representing Burks. He wrote that he never intended to suggest the district attorney’s office had already agreed to the terms in his proposed findings. Wynne wrote that he knew the Burks family was planning a press release and he warned Don Burks that the story was false. He informed the district attorney’s office of the plans and said he wasn’t involved and he had advised against the release.

In response to Wynne’s motion to withdraw, prosecutors backtracked on many of their professional misconduct allegations. The only rule the state still believes that Wynne violated is failing to supervise his non-lawyer assistant, said an April 16 motion. For example, the "agreed" proposed findings was filed by mistake, and although it was meant to be filed under seal, it was public. Next, the motion to strike was supposed to be public, but was mistakenly filed under seal and not emailed to prosecutors. That’s what lead the confused court to sign the proposed findings by mistake.

During an April 17 hearing, the court denied Wynne’s motion to withdraw and said he should proceed to argue the merits of Burks' writ application, Wynne said. The judge also warned counsel about their responsibilities to supervise non-lawyer employees, said Reiss.

Wynne said in an interview that he’s infuriated because he’s had to explain himself to the press, his law firm, other attorneys and his family. He feels the district attorney’s office “conducted no good-faith investigation” of their allegations of professional misconduct before they filed them, and did it just to embarrass him.

“I think they’re just trying to find something on me so they don’t look like complete idiots and so I don’t sue them,” said Wynne. He said he planned to report the prosecutors to the State Bar of Texas.

Reiss, one of the state’s lawyers, denied that prosecutors committed any misconduct.

“The judge found and verbally warned him that he needed to be more careful monitoring his non-attorney assistant, so on the one ground that was remaining, he was warned,” Reiss said, adding that he has no plans to file a grievance against Wynne with the State Bar.

He said the whole situation is a cautionary tale for other lawyers.

“You need to be more careful on e-filing and delegating things to your paralegal, and be mindful about the rules of trial publicity,” said Reiss.

Wayne Paris, who handles attorney disciplinary matters in his practice as a partner in Houston's Gillis Paris & Heinrich, said he doubts that Wynne's actions or prosecutors' actions violated bar rules.

"I think it's an error and I think it's a justifiable error, if the paralegal or legal assistant will testify as such. In my opinion, I don’t think it's prosecuteable,” said Paris. "As far as both entities throwing claims of ethical misconduct back and forth at each other, I think that’s unfortunate, but it could be that they might get accepted as a classified complaint, so each party can explain their position from the standpoint of the chief disciplinary counsel's office. If it’s reviewed I think there are reasonable explanations on both sides."