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Back in 1998 when he was an assistant district attorney, Chuck Rosenthal regaled colleagues with a list of endorsements to guide them in the Houston Bar Association's pre-election judicial qualifications poll. His descriptions of candidates ranged from dismissive to ribald. One aspirant for an appeals bench "can't find his ass with both hands," Rosenthal wrote. Another judge got this recommendation: "[I]f for nothing else, she looks great in jeans."
Then-district attorney Johnny B. Holmes Jr. was not amused. Rosenthal admitted he had prepared his list during work hours despite the fact that Holmes had a strict rule against politics in the office.
Now Holmes is gone and the former jokester is in charge. In a move that has some wondering if the political floodgates are open, District Attorney Rosenthal has used office funds to pay the HBA dues for more than 200 of his prosecutors, giving them voting privileges in the HBA judicial polls. The rankings are frequently cited in judicial campaigns and are considered key assets for candidates who garner high ratings.
"I can certainly see the district attorney encouraging the members of his office to join the Houston bar I just don't understand why it's acceptable for public money to be used for it," says Houston attorney Kent Schaffer, a director of the National Association of Criminal Defense Lawyers.
Another veteran attorney says if criminal defense lawyers had their dues underwritten by any source -- public or private -- "the D.A. would be screaming his head off about it."
Neither Rosenthal nor the bar association could provide specific information on the membership costs for 217 assistant district attorneys. Annual dues for a government attorney range from $60 to $85, according to a bar association official, meaning the total expenditure by Rosenthal ranges from $13,020 to $18,445.
The district attorney said he informed county commissioners of the "sizable expense" but did not need their approval. He covered the costs of dues with money from hot check and forfeiture funds that had accumulated under Holmes.
"Johnny left me in very good shape from the standpoint of discretionary funds," he says.
The HBA netted some other big fish this year. As part of a concerted campaign to bring overall membership above the 11,000 mark, bar association officials vigorously promoted their "100 Club." That refers to law firms, corporate legal departments, law schools and government agencies that sign up 100 percent of their lawyers for the association.
"We had an extra effort in recruitment," says HBA president Roland Garcia. Officials of the association made repeated phone calls and personal visits to potential members.
The effort paid off. Michael Stafford, the county attorney, also used office funds to finance the dues for his 84 attorneys, at a cost of about $5,500.
Rosenthal says he opted to cover prosecutors' dues in part because of the HBA's pro bono work in low-income and minority communities. He is unable to name any specific program. The district attorney admits that another reason was to get his staff access to the bar polls.
"That wasn't the primary reason I did that, but I do think that one of the things that happens is if prosecutors aren't members of the bar and aren't able to vote on judges, then all you really hear about are the people who have a defense practice that rate those judges," he says.
Rosenthal says he will not attempt to influence his staff's selections in HBA polls or elections, despite his jocund recommendations of the past.
Unlike Rosenthal, Stafford expounds at length on why it makes sense to fund association dues. He argues that membership would enable his staffers to get their required 15 hours of continuing legal education with minimal time away from the office. He also cites networking opportunities with other lawyers, and the community outreach initiatives of the bar.
"You can certainly use public money to educate and keep licensed the public lawyers that work for the county," he says. "There's not a hidden political dimension to this that motivated any of us."
Stafford says he used part of his office's $20,000 allotment for continuing legal education and will do a cost analysis to see if the savings pan out.
In the meantime, both Stafford and Rosenthal have won the appreciation of the nonprofit bar association for providing them with so much fresh blood. This summer the association honored the two officials with award plaques.
Garcia says it is unlikely that the influx of government lawyers will unduly skew the poll results.
"If all 200 assistant district attorneys vote, that would still comprise a small percentage of the total votes," he says. Schaffer is not so sure. With relatively few lawyers responding to the polls, he says, the addition of a bloc of prosecutors and other government attorneys could have an impact. Schaffer adds that the public generally has little familiarity with judges, giving the bar polls significant weight.
"There could be just a matter of hundreds of people saying that a judge is well qualified, and that might be enough to get a couple of thousand of votes for that person," he says. "It's not exactly an exact science."
While Schaffer faults his fellow criminal defense practitioners for not joining the bar, he finds it offensive that county officials would use public money for their lawyers' dues.
"It sure smells bad," he says.
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