Austin Lawyer, Dec. 2017/Jan. 2018 by Austin Bar Association

austinbar.org DEC. 2017 / JAN. 2018 | VOLUME 26, NUMBER 10

It’s Midnight in Miami And Time for the 15th Annual Austin Bar Foundation Gala

oin the Austin Bar Foundation as it shakes things up with a new venue, a new vibe, and some new twists on the annual Austin Bar Foundation Gala. The 15th annual event will be held on January 20, 2018 at the JW Marriott, located at 110 E. 2nd St. in downtown Austin. The Gala will raise funds for the many legal-related programs supported by the Foundation, including Austin Adoption Day, the Justice Mack Kidd Fund, the Diversity Fellowship Program, the Free Legal Advice Clinic for Veterans, the Self-Represented Litigant Project, and a variety of grants for Central Texas law-related charities. In addition to a silent and live auction, numerous gift baskets valued at more than $500 each will be raffled off. Attendees will also have the opportunity to purchase a $50 “Grab for Good” bag. New this year is a private pre-party reception for Austin Bar Foundation Fellows, Life Fellows, and the 2018 Gala award winners and their table guests. Awards winners of the David H. Walter Community Excellence Award, the Larry F.

midnight in AUSTIN BAR FOUNDATION GALA York Mentoring Award, and the Joseph C. Parker Jr. Diversity Award will receive their awards at this reception. A cocktail party will be held for all ticket holders, followed by dinner. Dinner will include the presentation of the Distinguished SAVE THE DATE. GET Lawyer Awards and a live auction. After dinner, dance to music by The Grooves and play casino games. Not ready for Midnight in Miami to end? Guests may attend

SATURDAY, JANUARY 20, 2018

an after-party at the hotel. Special room rates are available for those who want to stay overnight at the JW Marriott. 2018 AUSTIN BAR Visit muradauctions.net/ FOUNDATION GALA austinbargala to purchase JW MARRIOTT 6:30 – 11 p.m. tickets or tables or to become TICKETS: muradauctions.net a sponsor. Discount tickets are READY TO CELEBRATE IN A NEW, LARGER VENUE. /austinbargala available to AYLA members. Honoring Austin lawyers who have excelled in their profession sion and the greater community. and service to the community will be a highlight of the evening. The BETTY BALLI TORRES Foundation is pleased to announce Betty Balli Torres has dedicated this year’s awards and recipients. her professional career to publicDISTINGUISHED LAWYER AWARD interest work serving as an adThe Distinguished Lawyer vocate for civil legal services for Award recognizes the dedication the poor. She has served as the and hard work of attorneys who executive director of the Texas have practiced law for 30 years Access to Justice Foundation, or more and have significantly the largest Texas-based funding contributed to the legal profescontinued on page 8

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AUSTINLAWYER DEC. 2017 / JAN. 2018 | VOLUME 26, NUMBER 10 AL A L INSIDE FEATURED ARTICLES 1 4 5

It’s Midnight in Miami

DEPARTMENTS 10 Minority Bar Spotlight

And Time for the 15th Annual Austin Bar Foundation Gala

Opening Statement

Congratulations Austin Lawyer Trivia Winners— Tequila Mockingbird

Briefs

Third Court of Appeals Civil Update

Third Court of Appeals Criminal Update

Volunteer Legal Services of Central Texas Austin Bar Foundation 2017 Grant Recipient

Free Headshots For Austin Bar Members

Federal Criminal Court News

Austin Adoption Day Created 30 New Families in November

Federal Civil Court Update

Texas Access to Justice Foundation Awards Emergency Funds to Help Those Impacted by Hurricane Harvey

Practice Pointers

AYLA

The Case for Effective Internal Controls

Entre Nous

ONLINE

CONTENTS

CONNECTIONS ONLINE austinbar.org EMAIL nancy@austinbar.org MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Suite 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar

austinbar.org

NEWS & ANNOUNCEMENTS

EVENTS & MORE

A Trial Judge’s Perspective on Chapters 36 and 37 of the Texas Government Code: Court Appointments and Related Fees

JAN 20 Austin Bar Foundation Gala 6:30 – 11 p.m. JW Marriott, 110 E 2nd St. Visit austinbar.org for tickets and information on becoming a sponsor.

by Judge Amy Clarke Meachum

Capital Area Private Defender Service Honors Austin Attorney Chris Oddo Recognized at Recent Austin Bar Board Meeting

STREAM @AustinBarAssociation FOLLOW instagram.com/theaustinbar TEXT austinbar to 313131 for up-to-date news + info Message & data rates may apply.

SUZANNE COVINGTON Senior District Judge

SPECIAL JUDGE BY ASSIGNMENT Arbitration Mediation 512-923-8705 suzanne.covington@judgecovington.com www.judgecovington.com DEC. 2017 / JAN. 2018 | AUSTINLAWYER

Congratulations Austin Lawyer Trivia Winners—Tequila Mockingbird

ongratulations to the winning Austin Lawyer Trivia team, “Tequila Mockingbird.” After six rounds of trivia on November 2, they became the reigning champions. The team was made up of Winstead attorneys Andrew Schumacher, Peter Strenkowski, Leila Melhem, and Laura Thetford. Hosted by Dave Floyd and Sara Foskitt, the event raised more than $1,000 for the Austin Bar Foundation. Thank you to our sponsors: Floyd Real Estate; Enoch Kever; Fawn Crosby with Cornerstone Home Lending; Stephen Yelenosky, Mediator/Arbitrator; Jim Kaighin, Financial Advisor; The Sharp Firm; and Veritext Legal Solutions.

AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Amy Welborn ............................ President Adam Schramek ....................... President-Elect D. Todd Smith ............................ Secretary Kennon Wooten ...................... Treasurer Leslie Dippel .............................. Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION (from left) Dave Floyd, host; Laura Thetford Peter Strenkowski; Leila Melhem; Andrew Schumacher.

Be on the lookout in 2018 for the next Austin Lawyer Trivia Night, to answer the burning question, “Will Tequila Mockingbird keep the trophy?” For more information, or to learn how to be a sponsor, contact Sara AUSTIN LAWYER AL AL Foskitt at sara@floydre.com.

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EXECUTIVE OFFICES 816 Congress Ave., Suite 700 Austin, TX 78701-2665 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward........................... Executive Director Nancy Gray ................................ Managing Editor Debbie Kelly .............................. Director of AYLA Kennon Wooten ...................... Editor-in-Chief Kelli Horan ................................. Editorial Assistant Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District Federal Court and Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.

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FOUNDATION SPOTLIGHT

Volunteer Legal Services of Central Texas Austin Bar Foundation 2017 Grant Recipient

ith support from the Austin Bar Foundation, Volunteer Legal Services of Central Texas (VLS) launched its Debtor’s Prison Project in 2017 as a pro bono legal solution to the practice of jailing low-income and disadvantaged Central Texans for failure to pay traffic tickets and court fines from other minor offenses. VLS collaborates with Texas Fair Defense Project (TFDP) to help indigent clients, their children and families, who face the terrifying reality that their lives could be completely disrupted in an instant simply because they cannot afford to pay legal debts. Chief Justice Nathan Hecht said it best in his 2017 State of the Judiciary Address: “Jailing criminal defendants who

cannot pay their fines and court costs—commonly called debtors’ prison—keeps them from jobs, hurts their families, makes them dependent on society, and costs the taxpayers money. Most importantly, it is illegal under the U.S. Constitution.” Since kicking off the Debtor’s Prison Project with a half-day CLE training in April, VLS has connected more than 40 clients referred from TFDP, with more than 100 separate individual tickets, to pro bono volunteers. With an incredible response from local law firms willing to help with such cases, including King & Spalding, Fish & Richardson, and DLA Piper, at press time, VLS was seeking volunteers in nine Debtor’s Prison cases. VLS Intern Lauren Cohen experienced the urgency of the debtor’s prison problem when she

was conducting a routine intake by telephone with a VLS applicant regarding a landlord-tenant matter. Their conversation was interrupted by the knock of a police officer with a warrant in hand. The applicant was arrested on the spot because of an outstanding speeding ticket which she could not afford to pay. “It was a jarring lesson in how legal issues intersect and, more importantly, the impact we can have as pro bono attorneys,” said Cohen. While these matters may seem daunting at first glance, the legal issues are fairly simple. Leila Melhem, who practices environmental and administrative law at Winstead, attended the VLS training and has volunteered to help three Debtor’s Prison clients. “These cases are straightforward: demonstrate that your client can’t afford to

pay the fines, explain the impact on your client’s life, and request the court or prosecutor to lift the warrants and waive the fees. If there are any complicating factors, VLS has resources, including experienced mentors, ready to assist.” VLS is grateful to the Austin Bar Foundation for its support of the Debtor’s Prison Project and encourages Austin Bar members to consider volunteering to take a Debtor’s Prison case. In doing so, we can ensure the most vulnerable members of our community will not be jailed simply because they are too poor to pay traffic tickets, fines for other low-level and fine-only offenses, or court costs. For more information on VLS’s Debtors Prison Project, please contact Diana Villegas at AUSTIN LAWYER AL AL dvillegas@vlscot.org.

Free Headshots For Austin Bar Members Update Your Picture for the Online Member Directory

he Austin Bar provides an online member directory for the public at austinbar.org. When your profile is searched, does it reveal a photo so old only your mother would recognize it? Or worse, nothing at all except the Austin Bar logo? Now’s your chance to update your headshot free of charge. RCL Portrait Design will be in the Austin Bar office to take member headshots beginning on January 16, 2018. Schedule your free session at goRCL.com. Choose “Schedule” from the menu on the left side of the website, then choose “Guest

Update your headshot free of charge. Schedule your free session at goRCL.com. Account” to get to the calendar, or, call RCL Portrait Design at 800-580-5562 to schedule your AUSTINLAWYER AL AL appointment.

DEC. 2017 / JAN. 2018 | AUSTINLAWYER

Austin Adoption Day Created 30 New Families in November

he 16th Annual Austin Adoption Day was held at Gardner-Betts Juvenile Justice Center on November 2, 2017. This event, along with others held throughout Texas and the U.S. during the month of November as part of National Adoption Month, aims to raise awareness for the critical need for adoptive and foster families.

Travis County, Partnerships for Children, DFPS, Travis County Children’s Protective Services Board, the Travis County Juvenile Probation Department, and the Travis County Office of Child Representation. Adoption Day happens every year because of the dedication and passion of Austin Bar Adoption Day Committee Chair, Denise Hyde. Hyde steers a

Gardner-Betts was transformed into a scene from the Wizard of Oz where 44 children found their forever families. Gardner-Betts was transformed into a scene from the Wizard of Oz where 44 children found their forever families. The children adopted at Austin Adoption Day were among the thousands of children statewide who are in foster care because they are victims of abuse or neglect. According to the Texas Department of Family and Protective Services, there are 119 children in Travis County and 3,939 in the state who are currently waiting for adoption. The Austin Bar Foundation sponsors the event in partnership with CASA of

core committee made up of representatives of each partnering organization, and a committee of Austin Bar attorneys and judges who volunteer their time to finalize the adoptions for each family. Her tireless dedication to this event has made it one of the biggest and best in the state of Texas. A special “thank you” also goes to the Austin Lawyers Auxiliary, led by Anne Winckler, who served as the decorating committee for the event. Austin Adoption day could not have happened without the many attorneys and judges who participated, or without the numerous sponsors who make this day so special for the children and AUSTIN LAWYER AL AL families involved.

TOP: Characters from the Wizard of Oz made Adoption Day even more special for the children and families who found their forever homes. MIDDLE: (left) This baby girl joined a family who had previously adopted her two older brothers. (right) Denise Hyde, Austin Adoption Day Committee chair, representing an adoptive family.

AUSTINLAWYER | DEC. 2017 / JAN. 2018

BOTTOM: A new adoptive mom and her baby pick pick out a piece of jewelry from event sponsor Kendra Scott’s Color Bar. Each mom was also presented with a Kendra Scott necklace by the judge presiding over the adoption.

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DEC. 2017 / JAN. 2018 | AUSTINLAWYER

2018 Gala Award Recipients

of the Year by the Greater Austin Chamber of Commerce.

continued from cover source for legal services to the poor, since 2001. She began her career as a staff attorney at Legal Aid of Central Texas after graduating from the University of Texas School of Law. Torres has held various public-interest law positions, including executive director of Laredo Legal Aid Society, Inc., legal director of Volunteer Legal Services of Central Texas, managing attorney of Legal Aid of Central Texas, and staff attorney at Advocacy, Inc. She is a past president of the National Association of IOLTA Programs. She serves as co-chair of the board of Grantmakers Concerned with Immigrants and Refugees and the American Bar Association’s Working Group on Unaccompanied Minors. She serves on the boards of Management Information Exchange (MIE) and Pro Bono Net. She serves as chair of the Hispanic Issues Section of the State Bar of Texas and is a member of the Texas Human Trafficking Prevention Task Force. CLARKE HEIDRICK Clarke Heidrick is an attorney with the firm of Graves, Dougherty, Hearon & Moody where he

has practiced law since 1977. A former president and managing partner of the firm, he specializes in business organizations and transactions, mergers and acquisitions, banking, and finance. Heidrick is involved in a variety of community organizations and activities, including current service as chair of the board of Shivers Cancer Foundation, executive chair of the board of Seminary of the Southwest, chair of the board of Rebekah Baines Johnson Center (a housing project for low-income seniors), and a member of the board of managers of the Travis County Healthcare District (now Central Health). He was a member of the Organizing Committee for the creation of the Dell Medical School at The University of Texas at Austin, and he currently serves as a member of the steering committee for the LiveStrong Cancer Institutes. He is also a member of Austin Area Research Organization where he serves as chair of the Transportation Committee. He was awarded the David H. Walter Community Excellence award by the Austin Bar in 2007, and in 2014 he was named Austinite

REV. JOSEPH C. PARKER, JR. Joseph C. Parker, Jr., is the senior pastor of David Chapel Missionary Baptist Church. He was licensed to practice law in the Texas and federal courts in 1983, and practiced as a trial attorney and mediator prior to becoming pastor in 1992. After graduating from the University of Texas School of Law, he served as a prosecutor and chief of criminal litigation in the Travis County Attorney’s Office; civil litigator, director and vice president with the firm Long, Burner, Parks & Sealy; and chief of litigation for the State Bar of Texas. He was elected the first African-American president of the Austin Bar in 1996. He has received numerous awards and recognitions, including the 2013 Heman Marion Sweatt Civil Rights Legacy Award, presented by the University of Texas. He was honored as a “Trail Blazer” by the State Bar of Texas. He is a Master of the Court Emeritus in the American Inns of Court, and a Fellow of both the Texas Bar Foundation and the Center for Public Policy Dispute Resolution at the University of Texas School of Law.

His framed photograph, biography, and autograph are on permanent display in a UT School of Law classroom as a part of the Distinguished Minority Alumni Portrait Collection. DAVID H. WALTER COMMUNITY EXCELLENCE AWARD

The David H. Walter Community Excellence Award is presented to an attorney or judge who has recently made a significant impact in the community and, at the same time, raised the profile of the legal profession. This year, the two recipients are the co-founders of the Cancer Law Clinic, CANLAW. CAITLIN HANEY JOHNSTON Caitlin Haney Johnston is an associate at The Haney Law Firm, where she works with her mother, Susan Haney, and sister, Amber Haney. Her practice includes estate planning, probate, probate litigation, and general civil litigation. A graduate of the Austin Bar/ AYLA Leadership Academy, Johnston co-founded CANLAW to provide pro bono estateplanning services to cancer patients and survivors. She gives presentations on estate planning to local cancer-survivor groups and at CancerCon, the largest gathering of young adult

celebrating... Betty Balli Torres Clarke Heidrick Rev. Joseph C. Parker, Jr.

AUSTINLAWYER | DEC. 2017 / JAN. 2018

Caitlin Haney Johnston

Randy Cubriel

Tracy McCormack Richard Pena

cancer survivors in the country. Johnston’s commitment to the cancer community stems from her own battle with cancer and Crohn’s Disease. She served as an associate editor for the American Bar Association’s Litigation News magazine, and is on the board of directors for the Austin Young Chamber of Commerce, and Horselink, a nonprofit providing equineassisted therapy to survivors of traumatic events. Having grown up in a family that values community service, Johnston strongly believes in the power of volunteerism and sharing one’s time and talent with others. RANDY CUBRIEL A solo practitioner, Randy Cubriel has a thriving transactional practice and a governmental consultancy where he advises and represents corporate clients before the Texas Legislature and state agencies. He is licensed to practice law in North Carolina and Texas. A survivor of Hodgkin lymphoma, Cubriel’s volunteer work is deeply entrenched in the cancer community. In late 2015, he co-founded CANLAW to provide pro bono estateplanning services to cancer patients and survivors. He was the 2014 Leukemia & Lymphoma Society’s (LLS) Austin Man of the Year, having raised more than $100,000 for the organization. He chaired the Man & Woman of the Year campaign during its recent record-setting year. Cubriel is a director on, and the

2018 chair-elect of, the Austin LLS board. He also serves on the boards of the Texas Eggfest Association, a political action committee, and nonprofits that engage in voter education. Cubriel is a former member of the Young Men’s Business League and a graduate of Leadership Austin. LARRY F. YORK MENTORING AWARD

The Larry F. York Mentoring Award is given to a local lawyer or judge who has demonstrated exceptional skill and generosity in mentoring younger members of the bar. Nominees must have practiced at least 10 years and have served as role models and counselors to other lawyers, distinguishing themselves as leaders of their profession while fully embracing life’s experiences. TRACY WALTERS McCORMACK Tracy Walters McCormack is a senior lecturer and director of advocacy at The University of Texas School of Law. Professor McCormack left private practice as a trial and regulatory lawyer with Akin Gump, Strauss, Hauer & Feld and began teaching full time in 2000. McCormack has created and teaches courses in evidence (specific to litigators) and other advocacy-related subjects. She co-authored the book, “The First Trial: Where do I sit? What do I say?,” and has written various articles on the importance of advocacy,

privatization of the justice system, and mandatory mediation. She is a certified arbitrator, and she has been an active member in bar activities, legal boards, and foundations. She currently serves on the boards of the National Board of Trial Advocates and the Austin Bar. A member of the Austin American Inns of Court, Litigation Council of America, and National Institute for Trial Advocacy, she is a frequent speaker at Continuing Legal Education programs. She received her BA from the University of Notre Dame in 1983 and her JD from The University of Texas School of Law in 1986. JOSEPH C. PARKER, JR. DIVERSITY AWARD

This award, named in honor of Rev. Joseph C. Parker Jr., honors a firm or an individual who has led the way in bringing diversity to Austin’s legal community and who exemplifies Parker’s commitment to championing the equal, ethical, and fair treatment of all people, while raising awareness of the need to diversify our legal community. RICHARD PENA Richard Pena is president and CEO of The Law Offices of Richard Pena. He is a past-president of the State Bar of Texas. He served as president of the American Bar Foundation and was on the Board of Governors for the American Bar Association (ABA). He is also past-president of the Austin Bar,

former chair of the Texas Bar Foundation, and former chair of the Fellows of the American Bar Foundation. He was a director to the State Bar of Texas and a state delegate to the ABA. Pena has received three Presidential Citations from the State Bar of Texas for his meritorious service to the profession, and has been selected as a member of the American Inns of Court. He received the Austin Bar’s Distinguished Lawyer Award in 2007. In 2014, the Texas Bar Journal recognized him as one of 20 “trailblazers”. He also was the recipient of the 2010 Difference Makers Award presented by the ABA General Practice, Solo & Small Firm Division. He is currently the chair of the ABA’s Commission on Hispanic Legal Rights and Responsibilities, for which he has also served on the board of directors. Through People to People Ambassadors Program, and Academic Travel Abroad, Pena has led 19 delegations to numerous countries, including Turkey, South Africa, China, Tibet, Cuba, Vietnam, Cambodia, Egypt, India, Israel, and Brazil. Pena is a Vietnam veteran who, on the last day of American military involvement in Vietnam in March 1973, left on one of the last two planes out of Saigon. He co-authored the book “Last Plane Out of Saigon” with award-winning scholar, John Hagan, about hisAUSTIN experiences during the final LAWYER L AL year of theAwar.

DEC. 2017 / JAN. 2018 | AUSTINLAWYER

MINORITY BAR SPOTLIGHT

2017 Hispanic Heritage Luncheon

he Hispanic Bar Association of Austin held its annual Hispanic Heritage Luncheon at the Omni Hotel on Friday, September 22. The luncheon is held every year during Hispanic Heritage Month and serves as the primary fundraiser for the HBAA Charitable Foundation. “The luncheon was an overwhelming success and raised over $63,000. The HBAA is very thankful all of those who attended and contributed to this great event,” said HBAA President, Kevin Terrazas. The HBAA Charitable Foundation supports educational and community programs that significantly benefit the Hispanic community, focusing primarily on awarding scholarships to demonstrably talented Hispanic students in Central Texas who

express an interest in a legal education. In 2017, the HBAA Charitable Foundation awarded more than $27,000 in scholarships to 23 students—both law students and undergraduate students—pursuing a law degree. The keynote address was given by Carlos González Gutiérrez, the Consulate General of Mexico in Austin. Gutiérrez shared thoughtful remarks and perspectives on the U.S.-Mexico relationship and the Texas-Mexico relationship in particular. The luncheon features a cultural speaker who highlights one or more aspects of Latino culture. This year, the cultural speaker was Zachary Caballero. Caballero recently graduated with honors from the South Texas College of Law Houston and was a recipient of both the HBAA Bar Review scholarship

2016-PRESENT

AUSTINLAWYER | DEC. 2017 / JAN. 2018

In 2017, the HBAA Charitable Foundation awarded more than $27,000 in scholarships to 23 students...

ABOVE: The winners of HBAA’s Eighth Grade Essay competition. RIGHT: Zachary Caballero, recent law school graduate, HBAA scholar, and poet, was the cultural speaker for the luncheon.

and the HBAA’s Irma Rangel Memorial Scholarship, which is awarded in partnership with the Hispanic Scholarship Consortium. In addition to being an HBAA scholar, Caballero is a nationally recognized poet, having been acclaimed as one of the Top 10 Spoken Word Poets Who Speak to Diverse Latino Issues by HuffPost Latino Voices. Caballero performed three poems for the luncheon guests. HBAA’s Education Outreach Committee conducts an annual Eighth Grade Essay Competition in conjunction with the Hispanic Heritage luncheon. Members of the committee visited nine area middle schools that have been identified as having a high minority student population. The lawyer-volunteers spend time speaking to eighth graders about the essay competition and

emphasizing the importance of continuing their education and considering the legal profession. The continued success of the luncheons provided for increased prizes. This year, a winner from each participating middle school was presented with a new laptop and accessories at the luncheon. “We had a noticeable uptick in participation from the students and were pleased to play a role in inspiring students to start thinking about legal issues in their communities, and to serve as mentors and role models,” said HBAA Charitable AUSTINFoundation LAWYER AL AL Chair, Betsy Peticolas.

ADAM LOEWY

LOEWY LAW FIRM

KenDavison Greg Bourgeois Eric Galton David Moore Kim Kovach Fred Hawkins Ben Cunningham Lynn Rubinett Lucious Bunton

AUSTINLAWYER | DEC. 2017 / JAN. 2018

OPENING STATEMENT

Wayfinding Within Briefs Traditional and Trendy Approaches to Numbering BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

he major parts of a brief are typically numbered, and the point headings and subheadings within those parts are numbered as well. (I’m using brief to mean any legal analysis submitted to a court: a motion, a memorandum of law, a trial brief, an appellate brief, and so on). Numbering serves at least three purposes: 1. It conveys sequence and, sometimes, importance: in some documents, part 1 is more important than part 2, and so on. 2. It breaks up text and allows readers to refer to parts of a document: instead of saying “page 23, second full paragraph,” we can say “part 3.” 3. It tells readers where they are within the document— within the writer’s largescale outline or hierarchy. Traditional approaches to numbering in legal documents serve the first and second purposes well, but in this era of screen reading, they don’t do as well for the third purpose. In this column, I describe traditional approaches to numbering and suggest that they should remain conventional, but I also introduce new approaches to numbering that are showing up outside briefs and that fulfill all three purposes. For briefs, traditional numbering schemes start with Roman numerals and then alternate the alphabet (uppercase and lowercase) with Arabic numerals (with and without parentheses). Here are two traditional numbering schemes: First level: I. II. III Second level: A. B. C. Third level: 1. 2. 3. Fourth level: a. b. c.

I. II. III A. B. C. (1) (2) (3) (a) (b) (c)1 I’ve shown only four levels here. With uppercase and lowercase plus parentheses and no-parentheses options, you could create as many as seven levels. Don’t. Naturally, it depends on the complexity of your document and your own preferences, but a good goal is to avoid creating an outline that has four or more levels. Other best practices for numbering: • Use paired parentheses: (a), not a)2 • Don’t mix periods and parentheses: (a), not (a.) • Abandon Roman numerals if you need to go beyond 10: 18, not XVIII The two traditional schemes and other similar ones are widely used, conventional, and pervasive. They are so commonly used that until there is a major change in practices, the soundest advice is to use them for any court-filed analytical document. These schemes do have a weakness. If you’re paging or scrolling through a long document and you come across B., you can’t be certain if you’ve encountered section IB or IIB or IIIB. But other numbering schemes can solve that problem. Here are two trendy approaches to try. The first is called “scientific numbering”3 and the second I call “never lost” numbering. Here’s what they look like: First level: 1, 2, 3 Second level: 1.1, 1.2, 1.3 Third level: 1.1.1, 1.1.2, 1.1. 1. 2. 3. 1A. 1B. 1C. (or 1a, 1b, 1c) 1A1. 1A2. 1A3.

With these schemes, you never encounter the lone B. You encounter 1.2 or 2.2, or you encounter 1B or 2B, so you always know where you are within the document. With these schemes, you Footnotes: 1. See Bryan A. Garner, The Winning Brief never encounter the lone B. You 34 (3d ed. 2015). encounter 1.2 or 2.2, or you en2. Bryan A. Garner, The Redbook § counter 1B or 2B, so you always 1.38(b) (3d ed. 2013). know where you are within the 3. See Mary Beth Beazley Writing (and Reading) Appellate Briefs in the Digital document. Age 15 J. App. Prac. & Process 47, 71 These schemes have a weak(2014). ness, too: bulk. Both schemes are useful only to three levels because the fourth level is too bulky to be practical in headings with hanging indentation: 1.1.1.2, or 1A1b. But again, a four-level outline is more complex than is ideal. I’ve yet to see these schemes used in briefs, but they’ve started showing up in other places—interoffice memos, administrative filings, long reports, and law-review articles. So although it’s too soon to recommend them for briefs, you might be able to AUSTIN LAWYER AL AL use them in other documents.

DEC. 2017 / JAN. 2018 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Allyson Albert Kristin Aldred ABOVE (from left): Guerrero, Kharod, McNamara, Opel, Roloson, Sciaraffa

James Cheney Grant Chunlea

RIGHT: (from left): Spencer, Whittle, GoransonBain Ausley leadership team

Warren Craig Stephanie Hebert Nicole Huang Ryan Lione Cesar Lopez Sara McKinney Antonio Ortiz Christina Quatacker Ricardo Rodriguez Robert Savage David Springer Matthew Valley Mary Whittle

AWARDS

NEW TO THE OFFICE

The American Board of Trial Advocates (ABOTA) recently elected Karen Burgess as treasurer. ABOTA also named her to the faculty of the National Trial College at Yale Law School to be held in June, 2018.

Ausley, Algert, Robertson, and Flores announces its merger with Dallas-based GoransonBain. The combined firm of 28 lawyers brings together two highly respected Texas family law firms. The new firm, GoransonBain Ausley, will be based in Austin.

Mary Evelyn McNamara, of Rivers McNamara, has been admitted as a fellow in the American Academy of Matrimonial Lawyers. McNamara specializes in family law and family law appeals. Bracewell is pleased to announce that W. Glenn Opel, chair of the firm’s Public Finance Department, has been elected to the board of directors of the American College of Bond Counsel (ACBC). Opel focuses his practice on public finance, infrastructure and transportation development, and public-private partnerships.

Mark Guerrero, former Assistant United States Attorney, and Mary Whittle, formerly of Earthjustice, have opened Guerrero & Whittle PLLC. The firm focuses on civil litigation, including plaintiff’s injury law, environmental litigation, and business litigation. Ketan Kharod and Juliana Sciaraffa are Of Counsel to the firm. Kendra Roloson has joined Dubois, Bryant & Campbell as a firm partner. Roloson focuses her practice on representing clients in a wide

range of real-estate, corporate and commercial transactions, including acquisitions, dispositions, financing, entity formation, leasing (tenant and landlord), and real-estate development. Dubois, Bryant & Campbell has hired Jennifer Lowary Smith as partner in the firm. Smith focuses her practice on complex mergers and acquisitions, commercial transactions, and corporate finance (for both issuers and investors) as well as general corporate governance matters within the entertainment, hospitality, manufacturing, healthcare, and energy industries. Jason Spencer has announced the opening of The Law Office of Jason C. Spencer at 7500 Rialto Blvd., Suite 250. Jason specializes in construction law and is a mediator and arbitrator of construction disputes.

Berry Crowley, Realtor® & Attorney Dave Floyd, Realtor®, Owner & Attorney Sara Foskitt, Broker, Owner & Attorney Vincent Harding, Realtor® & Attorney Ryan Holland, Realtor® & Attorney REALTORS

Shana Horton, Realtor® & Attorney Lisa Miriam, LEED AP, Realtor® & Attorney

ATTORNEYS

www.floydre.com (512) 917-2939

Testimonial from Jo Ann Merica: Sara has represented me in the sale of one property and the acquisition of another - in one of the hottest real estate markets Austin has ever had. She's a thorough, organized and hard-working salesperson and attorney. I can't recommend her highly enough!

Your Attorney Colleagues For All Your Real Estate Needs. Floyd Real Estate, L.L.C., Sara Foskitt, Designated Broker, Lic. 0598363

AUSTINLAWYER | DEC. 2017 / JAN. 2018

The Expert’s Expert. Randall Wilhite is Board Certiﬁed in Family Law by the Texas Board of Legal Specialization. He is also a Fellow in the American Academy of Matrimonial Lawyers as well as the International Academy of Family Lawyers. As a Certiﬁed Public Accountant and an Adjunct Professor of Law at the University of Texas School of Law, Randy serves as trial counsel and co-counsel throughout the State of Texas on issues of business valuation, characterization of assets, premarital agreements, tracing, business distributions and trusts. Randy is also one of the most accomplished and experienced mediators and expert witnesses in the State. He is regarded as one of the most distinguished family law attorneys in Texas.

Randall Wilhite Senior Partner; Family Law; Litigation; Arbitration; Complex Asset Division; Business Valuation P: 512.610.2335 | E: rwilhite@fullenweider.com

HOUSTON | AUSTIN

6034 W. Courtyard Drive, Suite 140, Austin, TX 78730 FWfamilylawyers.com

THIRD COURT OF APPEALS CIVIL UPDATE

Laurie Ratliff, a former staff attorney with the Third Court of Appeals, is board-certified in civil appellate law by the Texas Board of Legal Specialization and a partner at Ikard Ratliff P.C.

The following are summaries of selected Third Court of Appeals’ civil opinions issued during October 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of November 6, 2017.

FAMILY LAW: Arbitration order not appealable. Darlington v. Darlington, No. 03-16-00780-CV (Tex. App.— Austin Oct. 6, 2017, no pet. h.) (mem. op.). Divorce decree provided that if disputes arose

surrounding selling the marital residence, the parties agreed to arbitrate. The trial court signed an order referring the case to arbitration the same day it signed the parties’ divorce decree. Wife appealed the trial court’s order of referral to arbitration. The court of appeals rejected wife’s argument relating to the sequence of the signing of the two orders. According to the court, the arbitration order is interlocutory because it precedes any additional judgment through which an arbitration award would be given effect. The order of referral to arbitration did not dispose of pending legal issues or parties. Thus, the court concluded it was not a final appealable order and dismissed for want of jurisdiction. TRIAL PROCEDURE: Payment of fines ended justiciable controversy and mooted case. Spears v. Falcon Pointe Cmty. Homeowners’ Assoc., No. 03-1600825-CV (Tex. App.—Austin Oct. 17, 2017, no pet. h.) (mem. op.). The dispute involved fines HOA assessed against homeowners for construction of a privacy screen. The court of appeals reversed in part the trial court’s original summary judgment and remanded. HOA filed a second motion for summary judgment, contending the case was moot because the fines had been paid. The trial court

granted the motion and awarded attorney’s fees to HOA. According to the court of appeals, the propriety of the fines was the sole issue on remand. HOA received payment for the fines and no longer sought any money, notwithstanding homeowners’ denial of paying the fines. Thus, there was no justiciable controversy. The court affirmed. TRIAL PROCEDURE: Cannot amend notice of appeal to challenge different order. Fain v. Georgen, No. 03-1700313-CV (Tex. App.—Austin Oct. 19, 2017, no pet. h.) (mem. op.). As part of a divorce, litigation arose with husband’s girlfriend regarding gifts of community assets to her. The parties filed several motions for partial summary judgment. Fain (girlfriend) filed a motion to reconsider the trial court’s ruling on a motion for summary judgment. After a hearing, the trial court denied the motion and Fain appealed. The court of appeals concluded that, like a denial of a motion for new trial, a motion to reconsider is not an independently appealable order. Fain also sought to amend an earlier filed notice of appeal. According to the court, Fain could not amend a notice of appeal to challenge an entirely different order than the one named in the notice. The court dismissed for want of jurisdiction.

ADMINISTRATIVE LAW: Board failed to file its decision of record. Risoli v. Bd. of Adjustment of the City of Wimberley, No. 03-1700385-CV (Tex. App.—Austin Oct. 20, 2017, no pet. h.) (mem. op.). City sought to revoke Risoli’s use of her property as a short-term rental. After a hearing, City Administrator wrote a letter to Risoli stating that she was to immediately cease operating the short-term rental. Local Government Code § 211.011(b) requires a suit for judicial review to be filed within 10 days after a decision is filed in the board’s office. Administrator informed Risoli that the Board’s minutes of her hearing would be approved at the Board’s November 7 meeting. Risoli filed her suit for judicial review on November 17. The trial court granted City’s plea to the jurisdiction, finding the 10-day window ran from Administrator’s letter. The court of appeals noted that the letter contained no indication that it was filed. Because City failed to produce evidence that the letter was filed in the Board’s office, the court reversed and AUSTIN LAWYER AL AL remanded.

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AUSTINLAWYER | DEC. 2017 / JAN. 2018

THIRD COURT OF APPEALS CRIMINAL UPDATE

The cases summarized are from May 2017 and subsequent histories are current as of November 1, 2017.

ASSAULT ON A PUBLIC SERVANT: Evidence sufficient to support conviction for assault on a public servant when appellant assaulted volunteer firefighter. Griffin v. State, No. 03-1500398-CR (Tex. App.—Austin May 19, 2017, pet. ref’d) (mem. op., not designated for publication). During a residential fire in Hays County, Phil Arbogast, the assistant chief of the Wimberly Volunteer Fire Department, drove a fire truck to a low-water crossing at a creek and began filling the truck with water for transport back to the scene of the fire. As he was doing so, Arbogast was approached by a man, later identified as Griffin, who informed Arbogast that he was on private property. According to Arbogast, when he explained to Griffin that he needed the water to fight a fire, Griffin pushed Arbogast into the creek. Griffin was subsequently charged with and convicted of the offense of assault on a public servant. One of the issues on appeal was whether the evidence was sufficient to support Griffin’s conviction. Specifically, Griffin asserted that a volunteer firefighter was not a public servant as that term was defined in the Penal Code. The appellate court disagreed, observing that the definition of “public servant” was broad, “encompassing not only individuals employed by the government but also, under certain circumstances, private citizens.” One such circumstance is when a private citizen is acting as an “agent of government,” i.e., someone who is acting on the government’s behalf. The court concluded that there was sufficient evidence in the record to prove that

Arbogast was acting on behalf of either the City of Wimberley or the emergency services district that funded the fire department. At the time of the assault, Arbogast was filling a fire truck with water to fight a fire in the Wimberly area; the fire truck was marked as belonging to the fire department; and Arbogast was wearing a t-shirt that contained the words, “Wimberley Fire and Rescue.” Moreover, Arbogast had informed Griffin of the public purpose for which he was taking the water. The court also rejected Griffin’s argument that he should have been charged under a different statutory provision that applied to “emergency services personnel,” which specifically included volunteer firefighters. The court observed that the statutory provisions were not mutually exclusive and that the issue was not whether the State could have charged Griffin under a different statutory provision but whether the State presented sufficient evidence to prove that Griffin committed the charged offense. The court concluded that the State satisfied its burden in this case. SEARCH AND SEIZURE: Search of metal canister attached to defendant’s keychain not permissible as inventory search or search incident to arrest. Calhoun v. State, No. 03-1600691-CR (Tex. App.—Austin May 26, 2017, no pet.) (mem. op., not designated for publication). Officers executed an outstanding arrest warrant at Calhoun’s residence. During the arrest, one of the officers, upon Calhoun’s request, retrieved Calhoun’s keys from inside his recreational vehicle. Attached to the keychain was a small, green metal canister that the officer opened after Calhoun stated that the keys belonged to him. Inside the canister was a plastic bag that contained what was later determined to be methamphet-

amine. Calhoun filed a motion to suppress the evidence, which the district court denied. The appellate court reversed. The court first rejected the State’s argument that the search was permissible as an inventory search. The court observed that the State bears the burden of establishing that the police conducted a lawful inventory search, which it does by demonstrating that (1) an inventory policy exists and (2) the officer followed that policy. But in this case, there was no evidence presented that the search was conducted pursuant to a policy designed to protect either the property or the police. Although there was evidence presented that the police department had an inventory policy, there was nothing in the record to indicate that the officer had followed that policy when he opened the canister. On the contrary, the officer testified that he opened the container because, in his experience, the canister was a “common place” to “hide narcotics.” According to the court, “[t]his justification does not except [the] search from the warrant requirement.” The court also rejected the State’s alternative argument that the search of the canister was incident to Calhoun’s arrest. The court observed that the keychain was not on Calhoun’s person when the officer opened the canister. The court concluded that the search of the canister was illegal, and the evidence found inside should have been AUSTIN LAWYER AL AL suppressed.

Zak Hall is a staff attorney for the Third Court of Appeals. The summaries represent the views of the author alone and do not reflect the views of the Court or any of the individual Justices on the Court.

DEC. 2017 / JAN. 2018 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Is Deferred Prosecution a Ticket to Deportation? BY DAN DWORIN

D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in Criminal Law by the Texas Board of Legal Specialization. dworinlaw.com.

any state (and very rarely, federal) prosecutors offer first-time offenders a chance to keep their criminal record clean, usually for a non-violent offense, by offering a “deferred prosecution” or “pretrial diversion.” Such programs usually require the defendant to stipulate to his or her guilt, but the case is conditionally dismissed upon completion of a period of good behavior, counseling, community service, or other reasonable conditions.

Many defendants who would otherwise be subject to deportation (non-U.S. citizens charged with either a felony offense, or a misdemeanor involving family violence) are usually quite eager to enter into such an agreement in order to avoid the uncertainty of trial and certainty of deportation if the trial goes poorly for them. Now, the Board of Immigration Appeals, which is part of the U.S. Department of Justice’s Office of Immigration Affairs and hears direct appeals from decisions of immigration judges, has ruled that such an agreement constitutes a “conviction” for the purposes of immigration law.1 In that opinion, the Board held that although there was no formal withholding of a finding of guilt (such as in a deferred adjudication, which immigration law has long considered to be equivalent to a conviction) and technically there was no “sentence,” the stipulation of guilt in the agreement, and the imposition of terms and conditions, made the agreement a “conviction” because it was effectively a “form of punishment, penalty, or restraint on the alien’s liberty” that was “ordered” by a judge.2 In Travis County, the most common use of “deferred prose-

cution” is by the County Attorney for misdemeanor cases, and involves entry into a similar contract between the State and the defendant, but that agreement is not made part of the public record and the agreement is not ratified or supervised by the court. In fact, in these cases, the State conditionally dismisses the case and then re-files it if the defendant fails to honor the agreement. Since there is no court supervision of the defendant, it may be that these agreements could be argued to fall outside of the rule announced in the Mohamed case.3 However, the Travis County District Attorney has for several years operated a “Pre-Trial Diversion” program in which defendants contract with the State to abide by certain terms, including being supervised by a Travis County Community Supervision officer, and the case is not dismissed until the time period agreed to runs out and the conditions are met. Both agree-

ments currently used require the defendant to admit guilt and stipulate to a guilty plea in the event the defendant is discharged unsuccessfully from the program. The Mohamed case is being appealed to the U.S. Court of Appeals for the Fifth Circuit, and criminal and immigration practitioners will be watching to see how the case is ultimately resolved. In the meantime, anyone representing a non-citizen, or a prosecutor offering what would otherwise be a very generous deal to a defendant, should read and be familiar with LAWYER this potentially AUSTIN AL AL disastrous decision. Footnotes: 1. Matter of Ali Mohamed Mohamed, 27 I&N Dec. 92 (BIA 2017), Interim Decision #3900 2. Id. 3. This writer is not an immigration attorney and does not pretend to be one, and his opinions are merely that.

Offices in Austin, Round Rock and Dallas 18

AUSTINLAWYER | DEC. 2017 / JAN. 2018

FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued from the U.S. Court Of Appeals for the Fifth Circuit in October 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions.

FIRST AMENDMENT: The employer’s interest in maintaining an effective, harmonious work environment outweighed any interests former county employees had in their deposition testimony, and text messages concerning predominantly private workplace grievances. Lumpkin, Krenek v. Aransas, County, Texas, No. 17-40060 (5th Cir., Oct. 13, 2017) (unpublished): Text messages concerning workplace matters from Plaintiffs—paralegals in the Aransas County Attorney’s office—were produced in connection with another employee’s lawsuit. Plaintiffs were ultimately terminated based on these text messages, along with their deposition testimony in the other employee’s lawsuit (and possibly based on inconsistencies between the two). Plaintiffs claimed unlawful retaliation under the First Amendment. The Fifth Circuit concluded both the

text messages, which were not required to fulfill job duties, and the deposition testimony were citizen speech. The Fifth Circuit also found that even though the text messages discussed the judicial campaign of the county attorney, the messages were predominantly private employee grievances, and thus, were not matters of public concern. Conversely, Plaintiffs’ sworn deposition testimony was a matter of public concern. The Fifth Circuit, however, held that Plaintiffs’ interests were outweighed by the County’s interests in maintaining an effective, harmonious work environment, affirming summary judgment for the County. RES JUDICATA: Nonsuiting claims that are related to claims dismissed in an adverse judgment barred Plaintiff from further litigating the nonsuited claims. Portillo v. Cunningham, et al., No. 16-20633 (5th Cir., Oct. 6, 2017): Plaintiff brought state and federal Section 1983 claims relating to his termination as a police officer in state court. The state court dismissed with prejudice all of Plaintiff’s claims, with the exception of a Section 1983 claim against one defendant who had not moved for dismissal. Subsequently, Plaintiff nonsuited the case.

Plaintiff then brought an action in federal court, alleging essentially the same claims. The Fifth Circuit affirmed the dismissal of all of Plaintiff’s claims by the district court on the basis of res judicata. The Fifth Circuit held that in instances where a court issues an adverse judgment against Plaintiff for some of his claims, and Plaintiff nonsuits the remaining claims that are related to the adverse judgment, Plaintiff is barred by res judicata from further litigating the nonsuited claims. FORECLOSURE: Defendant’s purchase of a property at a foreclosure rendered preliminary injunction to stop foreclosure sale moot. Dick v. Colorado Housing Enterprises, LLC, et al., No. 17-10357 (5th Cir., Oct. 4, 2017): Plaintiff filed a motion for a preliminary injunction after receiving a notice of a scheduled foreclosure sale. Plaintiff then appealed the denial of the preliminary injunction to the Fifth Circuit. While the appeal was pending, Plaintiff’s property was sold at the foreclosure sale to Defendants, and two hours after the sale, the district court granted Plaintiff’s motion to stay foreclosure proceedings pending appeal. Plaintiff argued at the Fifth Circuit that her preliminary injunction was not moot since

Wilson Stoker is board certified in Labor and Employment Law by the Texas Board of Legal Specialization and senior vice president and managing attorney with Welter Law.

Defendants were the successful bidders at the sale and the Court could order them to cancel or rescind the sale. The Fifth Circuit chose not to apply reasoning from an unpublished case that would cause the outcome in the case at bar to conflict with controlling precedent. The Fifth Circuit therefore held the appeal of the preliminary injunction denial was moot because a court could not enjoin LAWYER a sale that had AUSTIN AL AL already taken place.

Edward C. Fowler, CFA, ASA, MAFF (512) 476-8866 edward@financial-valuations.com www.financial-valuations.com

Thorough and Supportable Business Valuations Since 1996 DEC. 2017 / JAN. 2018 | AUSTINLAWYER

Texas Access to Justice Foundation Awards Emergency Funds to Help Those Impacted by Hurricane Harvey Funds will be Distributed to Legal Aid Organizations Across the State

he Texas Access to Justice Foundation (TAJF) announced the distribution of $1.5 million in emergency funds to legal-aid organizations in areas impacted by Hurricane Harvey. These funds will help provide a range of civil legal services for low-

income Texans impacted by the hurricane. The announcement was made at a luncheon with the Texas Supreme Court justices held on October 28, 2017. TAJF, the Texas Access to Justice Commission, the State Bar of Texas, the Austin Bar Association, and other Texas legal-aid

AUSTINLAWYER | DEC. 2017 / JAN. 2018

organizations were gathered at the luncheon to celebrate and recognize the kickoff of National Pro Bono Week. Pro Bono Week highlights the need to expand access to justice through pro bono civil legal services. After a catastrophic natural disaster like Hurricane Harvey, legal-aid and pro bono

assistance can provide help in securing FEMA and other benefits, filing health and property insurance claims, and assisting in housing issues related to mortgages, foreclosures, and landlord/tenant problems. The emergency funds made available to legal-aid providers address the long-term effects Harvey has had on low-income Texans. Distributing the funds will take a three-pronged approach: (1) providing ongoing support to secure “boots on the ground” with additional staffing needs, (2) serving Harvey survivors who cannot otherwise access civil legal aid, and (3) hiring professional, dedicated staff to coordinate volunteer opportunities that have surfaced in the aftermath of Harvey, placing emphasis on legal-aid support. “Due to Harvey’s destruction, the need for access to a lawyer will be greater than ever,” Richard L. Tate, chair of the board of directors for the TAJF, said. “Legal-aid and pro bono assistance play a crucial role in ensuring vulnerable Texans impacted by Hurricane Harvey will have the opportunity to rebuild their lives.” In addition to the $1.5 million in funds announced at the luncheon on September 1, 2017 the TAJF board authorized the emergency awarding of $200,000 for the immediate needs of impacted legal-aid organizations. Survivors of Hurricane Harvey need additional help. TAJF has also created the Hurricane Harvey Legal Aid Fund to assist low-incomeAUSTIN Texans in need of LAWYER AL AL essential legal services.

PRACTICE POINTERS

Solo Practice on a Shoestring Budget BY AMY E. MITCHELL

hung my shingle the day I passed the bar and took on my first client the next day. In 2004, that was pretty unusual. However, these days I routinely hear from newly licensed lawyers that they are interested in striking out on their own—either because they do not have more traditional job opportunities, or because they like the flexibility that comes with being their own boss. They are often happy to hear that running a law practice does not necessarily mean signing on for enormous monthly expenses. In fact, with today’s technology, it is entirely possible to run a solo practice on less than $1,000 per month. Following are some tips for keeping operating costs low: 1. CONSIDER A VIRTUAL OFFICE

Commercial office space can be expensive and lock you in to a multi-year lease. However, meeting a prospective client at your home or a coffee shop may affect the client’s perception of your professionalism. Many solos enjoy a happy medium by subscribing to a virtual office package. Packages often include some free conference-room hours or you may choose a basic “mailbox” package and pay hourly for access to an individual office or conference room for meetings. As an added perception advantage, many “virtuals” are

available in downtown high-rises with impressive addresses. Plus, if you are licensed in more than one state, you can usually include a “sister” office for little to no extra money. Most virtual offices also include a slate of add-on administrative features for printing, copying, mailing, or even virtual receptionist services, which may eliminate the need to have a salaried staff member. In other words, you only pay for what you need. Similarly, co-working spaces are very popular these days, with Firmspace, a co-working space catering to lawyers, having recently opened in Austin. 2. INVEST IN LAW PRACTICE TECHNOLOGY

Utilizing technology is an excellent way to operate a law firm on a shoestring budget, and there is no shortage of technology marketed to lawyers. If you can find a comprehensive law practice management system that works for you (most are less than $100 per user per month), then you stand to save both on administrative time and subscription fees for multiple services. Less time spent on administrative matters means more time is available for billing, networking, family, etc. Personally, I have used Clio for many years for law-practice management. While it took time to get accustomed to using their system and building it

into my workflow, once I got the hang of it, I found it to be a very powerful tool that helps me stay focused and organized. More specifically, it offers a centralized, cloud-based system for matter and document management, trust accounting, time tracking, billing, etc. Like other practice- management systems, Clio also integrates with many other popular software programs such as Quickbooks, LawPay, Dropbox, and many others. 3. GO PAPERLESS

Scan documents and keep digital files. Not only will you save office space by reducing the amount of physical file storage you require, you will save money on office supplies like printers, ink, paper, file folders, etc. Remind clients that operating a paperless office reduces your overhead and translates to lower fees! Similarly, by invoicing clients electronically, you avoid the time and expense of printing and mailing paper invoices to clients. Why not use those savings to accept online payments? Clients often pay bills faster online. Services like LawPay even allow you to ethically accept trust payments via credit card because the full retainer amount is deposited into your trust account and all processing fees come out of your operating account.

Amy E. Mitchell is a solo transactional entertainment lawyer serving creative professionals in the music, film, and television industries since 2004. She is the founder and chair-elect of the Entertainment and Sports Law Section of the Austin Bar Association and currently serves as the immediate past chair of the Entertainment and Sports Law Section for the State Bar of Texas. amyemitchell.com

Word of mouth. Never underestimate the power of word of mouth. Let other lawyers know about your services and and of your interest in referrals or overflow. Of course, the most effective marketing is doing a great job for clients so they will share your name with their friends and family. 5. USE YOUR BAR MEMBERSHIPS TO YOUR ADVANTAGE

State and local bar associations usually provide free or inexpensive access to legal research Make your website work tools and CLEs, mentoring, for you. Websites are a key discounts on software and other marketing tool and generally inlegal technology, workspace expensive to maintain. Perhaps availability, etc. For the Texas integrate a blog with recent case Bar, go to texasbar.com and updates or information relevant search for “Member Benefits to your clients. (Tip: Don’t forget and Services.” For the Austin to have your attorney website Bar Association, visit austinbar. approved by the Advertising org/for-attorneys/ Review Department because it AUSTIN LAWYER membershipAL AL benefits is considered an advertisement.) 4. LOW COST MARKETING

DEC. 2017 / JAN. 2018 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

he Austin Young Lawyers Association organizes projects and events throughout the year in service to the community and the Bar. Make it your New Year’s resolution to join your fellow young attorneys on one or more of the following committees and play an important role in the development of those projects and events. Visit ayla.org, and sign up today!

SERVICE TO THE PUBLIC

Spring 2018 Women’s Resource Fair Chair: Monica Stallings This committee is responsible for the Women’s Resource Fair, a comprehensive, all-day event providing homeless women and survivors of domestic violence a variety of free resources and services, including legal assistance, medical services, job skills training, educational counseling, social services, veteran’s assistance, shelter referrals, mental health counseling, spiritual care, child care, breakfast, lunch, and

transportation. Ongoing Community Service Days Chairs: Blair Leake and Jorge Padilla This committee provides lawyers and non-lawyers with periodic opportunities to volunteer for nonprofit organizations, including coordinating multiple community service events on MLK Day in honor of Dr. Martin Luther King, Jr. The community service events provide an opportunity for lawyers to make a relatively small time commitment, usually just a few hours on a single day, while interacting with various charitable organizations and meeting other members of the legal and non-legal communities. SERVICE TO THE BAR/MEMBERS

Ongoing Continuing Legal Education Chairs: Katie Fillmore and Franklin Hopkins This committee organizes Continuing Legal Education

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Make it your New Year’s resolution to join your fellow young attorneys on one or more of the following committees. programs for AYLA members. Ongoing Docket Call Chairs: Francesca Di Troia, Brittani Miller, and Katie Fillmore This committee hosts a monthly happy hour for AYLA members. This is the gateway event for many of our members, as nearly everyone’s first experience with AYLA is a Docket Call. FUNDRAISING

Spring 2018 Runway for Justice Chairs: Sandy Bayne, Brittany Stanford, and Monica Stallings This committee organizes a fashion-show fundraiser showcasing lawyer and law-student models and includes a silent auction. A portion of the pro-

ceeds go directly to the Women’s Resource Fair. JOINT PROGRAMS

Spring 2018 Bench Bar Conference Chair: David King This committee works with the Austin Bar to host an annual daylong CLE. This year’s event will take place in San Antonio on April 13-14, 2018. Ongoing YMCA Youth & Government Chairs: Andy Cates and Francesca Di Troia This committee works with the Austin Bar and YMCA Youth and Government to train attorney volunteers as student evaluators for district and state AUSTINLAWYER AL AL conferences.

UPCOMING EVENTS SUNDAY, DECEMBER 10 AYLA Holiday Baskets/Reindeer Games 1 – 3 p.m. Parque Zaragoza, 2608 Gonzalez St. To donate and volunteer, visit ayla.org. THURSDAY, DECEMBER 14 AYLA Holiday Party 5:30 – 7 p.m. Upstairs at Caroline, 621 Congress Ave. MONDAY, JANUARY 15 MLK Day of Service To volunteer, email debbie@austinbar.org. THURSDAY, JANUARY 18 AYLA Docket Call 5:30 – 7 p.m. Location TBD

AUSTIN YOUNG LAWYERS ASSOCIATION

Have a Free Morning or Afternoon? Volunteer for the YMCA

erve as a Mock Trial or Moot Court evaluator, help score teams, and provide feedback. Judicial case and procedures will be sent prior to the conference, and training is

provided. Join your fellow AYLA attorneys at the Texas Youth and Government State Conference Friday and Saturday, January 26 – 27, 2018. The conference takes place at the Texas State

Capitol, Texas Supreme Court, and other court venues. Volunteer times are 9 a.m. – 1 p.m., 12:30 – 5 p.m., or full day with lunch 9 a.m. – 5 p.m. Email Debbie AUSTIN Kelly at DebLAWYER ALup. AL bie@austinbar.org to sign

JAN 26–27 TEXAS YOUTH & GOVERNMENT STATE CONFERENCE VARIOUS LOCATIONS EMAIL: debbie@austinbar.org

Save the Date for AYLA’s Annual MLK Day of Service Monday, January 15, 2018

he Austin Young Lawyers Association is coordinating the Sixth Annual Day of Service, which will take place on Martin Luther King, Jr. Day, January 15, 2018. In honor of Dr. King’s legacy, AYLA will provide volunteer opportunities at various nonprofits around the Austin area. AYLA invites attorneys and their families to join us by volunteering at one of these worthwhile organizations. More

details concerning time and specific projects will be available in the coming weeks on the AYLA website as well as in future BarCode emails. Although subject to revision, we plan to offer volunteer opportunities with the following organizations. Austin Animal Center – Volunteers will assist with walking dogs or spending time with the cats at the shelter. Austin Parks Foundation – Volunteers needed for various projects, including tree planting

and mulching (kids welcome). BookSpring – This organization needs help sorting book donations and other general assistance (kids are welcome). Ronald McDonald House – Volunteers help plan and prepare a meal onsite for families staying at the Ronald McDonald House. Austin Children’s Shelter – Volunteers should plan to assist with organized activities (kickball, board games, arts and crafts) with children who are staying at the shelter.

JAN 15 6TH ANNUAL MLK DAY OF SERVICE VARIOUS LOCATIONS EMAIL: debbie@austinbar.org

HELP Center of Austin – (Horse Empowered Learning Program) Volunteers needed to help with facilities maintenance AUSTIN LAWYER AL AL and yardwork.

A Full October with AYLA CLE and Community Service ALL ABOARD THE AYLA CLE ETHICS BUS

For the fourth year, AYLA hit the road for ethics credit. AYLA and Austin Bar members traveled by chartered bus on October 27 to Treaty Oak Distillery for three hours of ethics credit, a barbeque lunch, and a tour and tasting at the distillery. Our talented speakers—April Lucas, McGinnis Lochridge; Patrick Keel, Mediator and Arbitrator; and Claude Ducloux, Affinipay—made it especially successful. Special thanks to sponsors Exponent Engineering and Scientific Consulting, and 1836 Property Management, as

well as in-kind sponsor Access ATX Tours. TAILGATE FOR A CAUSE

AYLA hosted the second annual fundraiser tailgate for the UT vs. OSU game on October 21. Fans of both teams joined in the fun. Admission into the tailgate was a suggested $20 donation per person. This year we raised approximately $1,000 for the Reindeer Games, an AYLA holiday event for underprivileged families in the community. Thank you to our tailgate committee Franklin Hopkins, Jorge Padilla, Kristen Rosado, and Cade Jobe. Special thanks

to Franklin Hopkins for organizing, hosting, and smoking the delicious briskets, and to his friends for letting us use their tailgate space! This event would not have been possible without our generous sponsors, Judge Karin Crump, Judge Aurora Martinez Jones, Tito’s Handmade Vodka, South Austin Brewery, Texas Crown, and Germer Beaman & Brown. COMMUNITY SERVICE DAY

Several young Austin attorneys volunteered for the Austin Parks Foundation on October 28 to help repaint pool facilities and fire lanes at Dove Springs Dis-

trict Park in southeast Austin. The effort was part of AYLA’s monthly Community Service Days program, which provides opportunities for Austin’s legal community to volunteer together for local nonprofit organizations. On December 9, AYLA will will help Habitat for Humanity build a new home for a very deserving family here in Austin. If you’re interested in volunteering, be sure to check the AYLA website throughout the year for details on upcoming monthly LAWYER Community Service AUSTIN AL AL Day events.

DEC. 2017 / JAN. 2018 | AUSTINLAWYER

ENTRE NOUS

A Lawyer’s Life Cycle: From Youngster to Yoda BY CLAUDE DUCLOUX

ost of you know I do lots of CLE speaking, and as a result, I am fortunate to hear other speakers from the U.S. and Canada during my travels. I can immediately sense when a speaker grabs the audience’s attention, usually because they stop unlocking their cell phones and instead unlock their curiosity. I’ve also seen horribly ineffective presenters, often brilliant people whose inability to connect reminds me of those Americans who show up in a foreign country and are mystified why the local grocer doesn’t speak English… no matter how loudly and clearly they shout their question. “Que?” When planning a CLE course, I remind every speaker that a good presentation results in the lawyer thinking about changing, updating, or reviewing three things. Memory scientists say communicating three good ideas somehow resonates in our brains, and in the words of Dr. David Armstrong, famous USC medical professor: “If education works, behavior changes.” That is my goal. All of us become far better lawyers, listeners, friends, and confidantes when we benefit from the good ideas of others, but, as the famous German adage promises, “We grow too soon old,… und too late smart.” Aye, there’s the rub. We spend so much time improving our skills, we ignore signs when they are declining. There is a burgeoning problem of lawyers continuing to practice past their “use-by date.” Clearly, some lawyers are able to competently practice through their 90s. But most are not. While the majority of CLE may be aimed at improving skills, there is now a dramatic 24

increase in focus on helping lawyers retire. Bar associations are forming committees, creating courses, and forming task forces to assist many lawyers in transitioning out of practice when the time arrives. This applies to us “Boomers”— members of the post-WWII population boom, most of whom will be hovering around age 70 soon. So, fellow Boomers, consider these facts. To quote Thomas Jefferson, “... the Laws of Nature and of Nature’s God” shall dictate that every lawyer will stop practicing law at some point. Clearly, it would be best if that event was occasioned by thoughtful planning and smooth transition, or a calculated termination of practice. But most of us are frail humans, burdened by work, doubt, and a studied avoidance of our mortal limits. The following factors and evasions all work in a suspicious conspiracy to block us from doing what our brilliant legal minds tell us is prudent, thoughtful, and caring for those who are affected by our lives and careers. The Psyche of Practicing Law. Most of us proudly declare that we are attorneys at law. Even though society enjoys demeaning the profession and its demands, we still take pride in the accomplishments which sustain licensure. So, the primacy of our avoidance remains churning out the work, billing,

AUSTINLAWYER | DEC. 2017 / JAN. 2018

There is a burgeoning problem of lawyers continuing to practice past their “use-by date.” and collecting. Although many lawyers acknowledge their inevitable decline and demise, our fears and superstitions prevent us from addressing or formulating a plan. If we do, some suspect, we hasten that demise. I Am Not Planning to Die. Yes, of course. You’ll be the one lawyer who lives forever. Good for you. Don’t plan to retire, or transition. People will admire your inestimable work ethic, right? Wrong. Judges will be calling the bar association, asking someone to involuntarily take away your license. Your secretary will have to help you to the restroom, and curiously, she is not thrilled with those chores. Your

trust account will bounce, and many people will spend hours curing your many oversights, all on your nickel. You will, indeed, get your name in the bar journal, but for the wrong reasons. Here’s a strategy: Check with a medical expert as to the likelihood of immortality. Then, regale in your good health, and retire and enjoy it. Files, Files, Files. The world of work-paper storage is changing daily. Most young attorneys strive to keep the paperless office, but for the vast majority of lawyers older than 50, they still want the comforting texture of paper-in-hand. So we accumulate, and accumulate, and rarely thin out our burgeoning collection of

client files, almost all of which are burdened with confidential information now controlled by various punitive statutes which make the Inquisition look like a tea party. The Texas Professional Ethics Committee tells us we cannot simply dump them, as there is a non-delegable duty to inspect to ensure you are not destroying instruments of value. See Professional Ethics Opinion 627, April 2013. But failure to strategize and close old files will result in a huge task for your successors, and a very likely loss of client information and documentation. Start now. It took me 40 hours to review 1,500 files two years ago, but of those, I ended up only keeping about 100, and shredding all but about 28, which clients picked up. It’s worth your time and will result in immeasurable relief. Encouraging the Unwilling. Most importantly, those of us who work with older attorneys, or are familiar with the

visible decline of our colleagues, need to encourage and intervene when it becomes clear the lawyer is not competently practicing, or is unable to practice because of infirmity. Solicit other friends and colleagues. I have never had a family member resent such a call, asking if there is anything I might do. They are usually aware of the issue, and are incredibly relieved (as is the attorney’s staff), to receive the help of a third party. If you want more information, contact me, and both the Texas Bar and the American Bar Association have incredibly wonderful resources to assist you. By the way, don’t think you all are getting rid of me. I’m not retiring any time soon, and my wife won’t let me come home anyway during the day. So I’ll just be hanging out in a Starbucks, trying to remember my Netflix password. I hope you all have a wonderful holiday season, and, as AUSTIN LAWYER AL AL always: Keep the Faith.

DEC. 2017 / JAN. 2018 | AUSTINLAWYER

CORPORATE SPONSOR

The Case for Effective Internal Controls BY SONIA DESAI AND CHARLES DIXON

eekly, if not describes three factors that are daily, we are present in situations of fraud: inundated with Pressure – the personal or local, stateprofessional motivation or need wide, and national news stories for committing fraud (e.g., debt, highlighting instances of ocposition retention, etc.); cupational fraud in all types of Rationalization – the mindorganizations from governmental set of the fraudster that justifies agencies, to businesses (large them to commit fraud; and and small), to nonprofits. OcOpportunity – the situation cupational fraud includes asset or confluence of events that misappropriation, corruption, enables fraud to occur including and financial statement fraud. when internal controls are weak It is defined by the Association or nonexistent. of Certified Fraud Examiners As a trusted advisor, you may (ACFE) as those instances in be contacted by your clients which an employee, manager, who communicate that one or officer, or owner of an orgamore of their team members has nization commits fraud to the committed a fraud. The first line detriment of that organization. of defense for your clients in preThe 2016 ACFE’s Biannual venting occupational fraud is to Report to the Nations estimates have effective internal controls. the costs associated with the While an effective internal2,410 cases of occupational control system can assist an fraud reflected in the survey organization in meeting its goals during the January 2014 – Octoand operating in an effective and ber 2015 time period exceeded $6.3 billion, and these cases only represent a small sliver of PRESSURE what is likely many thousands of instances of occupational fraud that took place throughout the world during the survey FRAUD period. The Fraud Triangle is a model developed by criminolOPPORTUNITY RATIONALIZATION ogist Dr. Donald Cressey and

HSSK, LLC (hssk.com) provides valuation, dispute advisory and forensics, and financial advisory services to attorneys and their clients including companies and individuals. Ms. Desai and Mr. Dixon can be reached at the firm’s Austin office, 512.355.7870, or by email at sdesai@hssk.com, or cdixon@hssk.com.

efficient manner, internal controls can also be designed to provide reasonable assurance that an organization will comply with applicable laws and regulations, ensure reliability of internally and externally reported information, and safeguard its assets. Internal controls, if effectively implemented and monitored, can safeguard an organization’s assets and deter fraud by: • Establishing structure, authority and responsibility of management and the board related to oversight; • Demonstrating commitment to integrity and ethical values and enforcing accountability; • Identifying and analyzing high-risk areas of the business, including processes and procedures undergoing change;

• Preventing loss through errors, misappropriation of funds, or theft; • Assuring that all transactions are properly authorized and recorded; and • Preventing an “honest” employee from making a mistake under duress that could ruin his or her life. Basic internal controls that should be considered by leadership in all organizations include, among others, background checks of potential and current employees; controlling access to cash; credit cards; and other purchasing instruments (e.g., P-cards), bank account reconciliations; segregation of duties; and AUSTIN LAWYER AL AL physical security of assets.

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