Following her resignation as Parliamentarian for the House of Representatives, House Speaker Tom Craddick (R-Midland) sent Denise Davis a harshly-worded, insulting letter instructing her to essentially keep quiet about his business and any advice she had given him during her tenure as Parliamentarian, Capitol Annex has learned.
According to a copy of the letter obtained by Capitol Annex [.pdf here], Craddick emphasized that Davis was his employee, and essentially told her that any legal advice she provided him—as well as any parliamentary advice—was not to be divulged and was, in fact, protected under attorney-client privilege:
It is therefore incumbent upon me to bring to your attention certain issues regarding your employment here.
During your time with the Speaker's Office you provided legal and parliamentary advice to me. The depth and breadth of your representation of me means that you must be particularly careful to ensure you do not divulge legal confidences. As your former client, I am putting you on notice that I expect you to keep confidential all privileged matters that transpired during the time you worked for me.
In addition, as you are aware, you are ethically obligated to decline to provide advice or services or make statements that are substantially related to or would challenge the validity of your work here. I therefore respectfully request that you endeavor to avoid putting yourself in positions where your ethical obligations could come into conflict with any future discussions or legal activities you may pursue.
There are several red flags raised by Craddick's letter to Davis.
First and foremost, it is insulting. Davis is an attorney who formerly worked for the Texas Legislative Council and has a longstanding record of work for the state. As an attorney, Davis most certainly knows of the rules governing attorney-client privilege as outlined in the Rules of Professional Conduct of the State Bar of Texas. This letter improperly implies that she does not and would, in fact, breech her ethical duties.
In addition, the letter fails to recognize that the two jobs performed by Denise Davis were, in fact, very different. Denise Davis served not only as Parliamentarian but as Special Counsel to the House. In her capacity as Parliamentarian, she no doubt advised not only Speaker Craddick—who appointed her—but also other members of the Legislature, committee staff, and more. Although Davis is an attorney and special counsel, her duties as Parliamentarian are not necessarily governed by the same requirements as her service as Special Counsel.
Does attorney-client privilege apply to parliamentary advice given to the Speaker or other members merely because Davis is an attorney and also Special Counsel? Probably not. Her ruling papers are public record (and we've published some on Capitol Annex before).
Craddick, by sending this letter, is doing his best to attempt to muddy the waters between the positions of Special Counsel and Parliamentarian.
Why?
The answer should be obvious: Craddick clearly does not want Davis to ever say publicly how she advised him on rulings on motions to vacate the chair. Again, one may ask, "why?"
While Davis has never publicly acknowledged that she likely advised Craddick he had to recognize those who moved to vacate the chair, it is clearly obvious that she was in such disagreement with his decision not to recognize House members for such motions that she resigned.
Obviously, Craddick doesn't want the public at large hearing from his former Parliamentarian that he disregarded her professional advice and instead turned to lackeys Terry Keel and Ron Wilson to bail him out of a political jam.
Also, given it was pretty clear from the outset that the matter would either end up in Court or before the Texas Attorney General's Office, Craddick clearly didn't want Davis submitting a reply brief to the Keffer/Cook Opinion Request. Why? Because she would likely "tell it like it is," and hammer nails all over Craddick's already lined political coffin.
Craddick appears to be trying to use attorney-client privilege to paint, with a very broad brush, everything Denise Davis did as parliamentarian as legal advice to him personally rather than what it was: serving out the duties of the appointed office of Parliamentarian.
It is very unlikely that any court would ever rule that the advice Davis provided as Parliamentarian was, in fact, protected by attorney-client privilege. Much of it was, in fact, done in front of constantly recording cameras and is archived on the Internet for everyone to see. Mics on or off, you could often hear Davis telling Craddick (or whomever was in the Chair) if something was out of order.
If these Parliamentary communications were so privileged, then why did Davis—and every parliamentarian prior and since including Terry Keel—give the advice inches away from a microphone in front of the general public? Why were they not constantly whisking Craddick away to a back room to tell him, "Yes, Mr. Speaker, you can recognize this person for that motion."
While some deliberations and research may have been done behind closed doors, the work of the parliamentarian is not, in essence, legal work. There is no requirement, statutory or otherwise, that says so, and no House Rule provides for this. In fact, the word "parliamentarian" appears not once in the 226 pages of the Rules and Precedents of the Texas House of Representatives.
Further, there is no requirement that the Parliamentarian be an attorney, though it has been a past practice and custom. Perhaps this is for the very reasoning Craddick is trying to exercise now: if you hire a lawyer as Parliamentarian, you can try to cover everything under the blanket of "attorney-client privilege."
In fact, the blanket Craddick is attempting to throw over Davis is, in fact, a hampering of her First Amendment rights.
Finally, that Craddick warned Davis about what kind of future employment she should accept is beyond belief. There is no law on the books today that would not prevent Davis from engaging in any employment so long as she does not run up against a conflict of interest defined within the Rules of Professional Conduct for attorneys. Finding such employment where her day-to-day duties would put her in a conflict position because of her rulings would be either quite difficult or quite easy, depending upon which school of thought you subscribe to.
Either she can't be in "direct" conflict with her consultations as Special Counsel to Craddick and other House Members (i.e., going to work for Public Citizen and filing ethics complaints against legislators would be out as a future career possibility), or she could never practice law again if she ever had any case to do anything with a statute which was before the legislature upon which she offered Craddick advice on how to rule on a point of order.
Since the latter is absurd (i.e. Davis could never, for example, practice family law because she ruled on points of order raised on bills dealing with the Texas Family Code) , the former is what would apply.
The bottom line here is this: While Craddick may be factually correct in reminding Davis that "legal advice" she gave him cannot be divulged, his letter was insulting and demeaning to a longtime public servant who deserved better than this; and, there is no rule or law which provides that the advice of a Parliamentarian—even if that Parliamentarian is an attorney—is protected by attorney-client privilege or that the speech of a former Parliamentarian about her duties and rulings as Parliamentarian, should be so private as to be worthy of the insulting, demeaning letter Speaker Craddick sent Denise Davis.
[Ed. Note: Capitol Annex is also aware that former Deputy Parliamentarian Christopher Griesel, who resigned along with Davis, received a similar letter, but we do not have a copy of that correspondence.]