Austin Lawyer, Dec. 2019/Jan. 2020 by Austin Bar Association

austinbar.org DEC. 2019 / JAN. 2020 | VOLUME 28, NUMBER 10

Join Us for “Boots and Bourbon” at the Austin Bar Foundation Gala

he 17th Annual Austin Bar Foundation Gala will be held on Sat., Jan. 25, 2020 at the new Omni Barton Creek Resort and Spa. The “Boots and Bourbon” themed event is being chaired by Amanda Arriaga, along with auction chair Mary Ellen King. Proceeds from the Gala benefit the Austin Bar Foundation. The Foundation supports programs of the Austin Bar such as the Veterans Assistance Programs, the Self-Represented Litigant Project, Austin Adoption Day, and the CANLAW Clinic. The Foundation typically awards approximately $20,000 in grants each year in grants to area law-related programs such as CASA of Travis County, American Gateways, Volunteer Legal Services, Texas Accountants and Lawyers for the Arts (TALA), and many more. In addition, the Foundation supports the Justice Mack Kidd Fund by providing confidential financial assistance to attorneys who suffer from depression or other mental illness so they can get needed help and support. Since its inception, the Justice Mack Kidd Fund has given out $50,000 in mental health assistance and is currently down to its last $10,000. The Austin Bar Foundation plans to give the fund a grant from a portion of the

proceeds raised during the Fund-aNeed segment of the live auction at the Gala. Donors who give $500 or more to Fund-a-Need will receive a commemorative paver named for themselves, or in honor or in memory of someone else. The engraved pavers will be placed in the main walkway at the front of Hilgers House. The Justice Mack Kidd Fund Trustees, Ann Greenberg, Woodie Jones, and Velva Price, have engraved the first paver in memory of Justice Mack Kidd.

The Gala will begin with a cocktail party at 6:30 p.m., followed by dinner at 7:30 p.m. Dinner will include an awards presentation and a live auction, presided over by the Siren Sisters Auctioneers. Following dinner, guests can try their luck at the casino tables, or dance to music provided by The Nightowls. The Gala will feature silent and live auctions for such items as vacation homes in Costa Rica and Marfa; a condo in Breckenridge, Colorado; a two-night stay at the Omni Barton Creek Resort and Spa, including 18 holes of golf for two; a two-night stay at Camp Lucy and dinner for two at Tillie’s in Dripping Springs; plus much more. Attendees will have the opportunity to purchase raffle tickets for numerous gift baskets valued

at more than $500 each and participate in a jewelry pull with jewelry provided by Laura Elizabeth. New this year is a wine pull where a $25 purchase of a bottle of wine could result in acquiring a bottle with a much higher value. Bourbon tastings and hand-rolled cigars will also be available. The Barton Creek Omni Resort & Spa provides valet parking for $15 and plenty of self-parking in the parking garage. If using a ride-share service such as Lyft or Uber, the resort will send out a call to drivers at the end of the event so there will be plenty of cars available for the ride home. Visit austinbar.org to purchase tickets or tables or to become a sponsor. Discounted tickets are available for AYLA members. continued on page 8

CONTENTS

AUSTINLAWYER DEC. 2019 / JAN. 2020 | VOLUME 28, NUMBER 10 AL A L INSIDE FEATURED ARTICLES 1

Join Us for “Boots and Bourbon” at the Austin Bar Foundation Gala

6 10 12 15 19

CONNECTIONS

DEPARTMENTS

There’s No Place Like Home

18th Annual Austin Adoption Day

16 Texas Access to Justice Foundation’s 35th Anniversary

22 Lawyer Referral Service of Central Texas in the Community

25 CLE Update from The Honorable Lee Yeakel IP Inn of Court

28 30

President’s Column Briefs Be Well Opening Statement Third Court of Appeals Civil Update Third Court of Appeals Criminal Update Federal Civil Court Update Federal Criminal Court News AYLA Entre Nous Practice Pointers

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NEWS & ANNOUNCEMENTS

EVENTS & MORE

The Holidays are Happening at Hilgers House!

Dec. 24 – 25

Austin Bar Offices Closed for the Holidays

Jan. 1

Austin Bar Offices Closed for New Years Day

The Inaugural Hilgersfest Event Will Be Held on Dec. 14 RSVP at austinbar.org

Texas Access to Justice Commission Launches Texas Transfer Toolkit New Digital Resource for Low-Income Texans

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INTERESTED IN WRITING FOR AUSTIN LAWYER? Contributing authors sought for inclusion in Austin Lawyer. Articles on various legal-related topics are considered for publication monthly. Please limit submissions to between 500 and 750 words. Send articles to Nancy Gray, Managing Editor, at nancy@austinbar.org. Submission is not a guarantee of publication.

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION D. Todd Smith �� President Kennon Wooten �� President-Elect David Courreges �� Secretary Amanda Arriaga �� Treasurer Adam Schramek �� Immediate Past-President

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Ste. 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 of Texas Federal Court and the Texas 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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PRESIDENT’S COLUMN D. TODD SMITH, SMITH LAW GROUP

Time to Reflect and Begin Anew

“

he days are long, but the years are short.” You often hear this quote in the parenting context. An experienced parent usually imparts this bit of wisdom when a newer parent complains about exhaustion from caring for their kids. The quote might sound like a cliché, but as my sons close in on adulthood, I can attest to its truth. And this aphorism applies in plenty of other contexts, including bar association life. You get busy in the day-to-day, and before you realize it, years have passed like nothing at all. As the calendar turns to December, we’re nearly halfway through the 2019-2020 bar year. How is that possible? The days are long, but the bar year is short. For most of us, the calendar year will wrap up at a frantic

pace, with holiday parties, gift-buying and exchanges, and travel. Hopefully, we get to spend some time with family and enjoy a break from work. Then January 1 hits, and we start all over again. We work toward new goals or recommit ourselves to old ones we didn’t quite accomplish last year. We promise ourselves to eat better and exercise more. But old habits die hard. Making changes in the new year (or anytime, really) requires serious commitment and discipline. If that’s the path you’re on, I’m right there with you. I can use all the help I can get. One thing you can do to start 2020 off right is attend the annual Austin Bar Foundation Gala, which will be held on Jan. 25, 2020 at a new venue, the Omni Barton Creek Resort & Spa. This year’s theme— “Boots and Bourbon”—is perfect for this Hill Country setting. And the venue, with all its amenities, is a wonderful spot for a post-holiday, early new-year getaway. The Gala will once again feature both silent and live auctions, and we have confirmed several outstanding items that are sure to generate a little friendly com-

Well-Being Committee is working petition when bidding begins. on its own plan for assisting the Another major element involves Fund through an event to take honoring Austin lawyers who place in the spring. have excelled in our profession A new year means new and in the community. As opportunities. So make those noted elsewhere in this issue, resolutions, write down those this year’s lineup of honorees goals, and set yourself on the is terrific, and their awards are right path. Then find some good well-deserved. in each day, even if it didn’t go I’m also pleased to report exactly as planned. The calendar plans to raise money at the Gala will come back around before we for a special donation to the AUSTIN LAWYER know AL it. AL Justice Mack Kidd Fund, which assists attorneys seeking treatment for depression or similar mental-health conditions. Additionally, the Austin Bar’s Lawyer

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AUSTINLAWYER | DECEMBER 2019 / JANUARY 2020

There’s No Place Like Home 18th Annual Austin Adoption Day

hirty-nine children became part of 23 families on Nov. 7, 2019 at Austin Adoption Day held at Gardner-Betts Juvenile Justice Center. Now in its 18th year, Austin Adoption Day is a partnership between the Austin Bar Association, Austin Bar Foundation, Texas Department of Family and Protective Services, and CASA of Travis County, with the assistance of Travis County Juvenile Probation, Partnerships for Children, the Travis County Office of Child Representation, and the Travis County Children’s Protective Services Board. Along with more than a dozen attorneys, Chief Justice Jeff Rose, Justice Chari Kelly, and Justice Gisella Triana of the Third Court of Appeals, along with many other judges from Travis County, volunteered their time to create forever families for these 39 children, who are among thousands across Texas in foster care because they were victims of abuse or neglect.

ABOVE LEFT: The Holland & Knight team of Paul Smith, Diane Pedersen, Amy Stork, Nora Mata, and Paul Sarahan ran the photo booth and popcorn machine at the event. RIGHT: Associate Judge Ami Larson presiding at Austin Adoption Day.

from the Heart Gallery of Central Texas provided them with formal family portraits. Each family also received a gift basket stuffed with presents to help them celebrate the special occasion. Donated books were used to create a “bookstore,” from which each child could select a book to take home.

November is National Adoption Month, and Austin Adoption Day is part of the nationwide effort to celebrate adoptive families and draw attention to the continuing need for foster and adoptive homes. Across Texas, there are 3,199 children waiting for adoption, including 69 in Travis County. “There’s No Place Like Home,” theme of the annual carnival-like Adoption Day event, which includes games, food, giveaways, and magic shows for children of all ages. Each child received a necklace or ID bracelet donated by Whitestone Jewelry, engraved with his or her new name and the adoption date. Several local photographers volunteered to provide the families with candid shots of their adoption ceremonies, and photographers

Moms were part of the celebration too. Kendra Scott donated a charm to each mom and brought a Color Bar so each child could select a piece of jewelry for themselves or as a gift. In addition, each family was given access to a complimentary wills package, consisting of family wills, durable powers of attorney, medical power of attorney, and directives to physicians, provided by Austin attorney Joseph Gagen.

EMERALD LEVEL Cook-Walden Funeral Homes and Cemeteries Austin Bar Association Family Law Section Ballet Austin Joseph Gagen, Attorney at Law Kendra Scott Whitestone Fine Jewelry

YELLOW BRICK LEVEL A-Tex Family Fun Center Amy’s Ice Cream Amanda Andrae Austin Flower Company Austin Lawyers Auxiliary Bridget Karam Photography Estrella Chacón Photography Joanne P. Hopkins, Attorney at Law Heart Gallery of Central Texas Holland & Knight Kittleman Photography Latcham Photography Linda Stanley & Mary Jo Burns Marilyn Griggs Photogray Maudie’s Tex Mex Matthew Chambers Photography Michael Barker Photography Photography by Talia Wade Stuffed Safari

Travis County District Clerk’s Office Cassandra & Kerry Wiggins

LOLLIPOP LEVEL Kristin Johnson Aldred APAPA-ATC Youth Group Apples the Clown Austin Chinese American Network Bikers Against Child Abuse Adrienne Cain Alan & Alexander Carter Bridget Elliott Foster Angels Stephanie Freed-Whitaker Girl Scouts of Central Texas Troop 8618 Hiduke Law Leslie Hill & Maggie Ellis Anna Joseph Maverick Magic Judge Scott McCown & Maura Powers Sara Srinivasan Susdy the Clown Lynne Sweeny Texas Health & Human Services Commission Tiffs Treats Travis County Office of Child Representation Jennifer Withers

children are waiting for adoption, including 69 in Travis County. To learn more about foster care and adoption, please visit adoptchildren.org or call the Texas Adoption Information AUSTIN LAWYER Line at 800.233.3405. AL AL

DECEMBER 2019 / JANUARY 2020 | AUSTINLAWYER

Join Us for “Boots and Bourbon” at the Austin Bar Foundation Gala continued from cover

2020 HONOREES

Honoring Austin lawyers who have excelled in their profession and service to the community is the highlight of the evening. The Foundation is pleased to announce this year’s award recipients. DISTINGUISHED LAWYER AWARD The Distinguished Lawyer Award recognizes the dedication and hard work of attorneys who have practiced law for 30 years or more and have significantly contributed to the legal profession and the greater community.

2020 AWA RD REC I PI EN T S

Phil Durst

Lulu Flores

Chief Justice Wallace B. Jefferson

Kate Lincoln-Goldfinch

Justice Craig T. Enoch

Nelia J. Robbi

Phil Durst (posthumous)

Phil Durst graduated from the UT School of Law in 1982 after taking an extra year to also complete a masters in philosophy. He began his legal career as an Assistant Attorney General of Texas, working for the colorful Attorney General Jim Mattox, “the People’s Lawyer.” He eventually started a firm with his mentor David Richards and his friend Patrick Wiseman. For the past several decades, Durst practiced civil rights and employment law with his friend Martha Owen, most recently as part of the firm Deats Durst & Owen. He was an arbitrator with the American Arbitration Association and was board certified in Civil Appellate Law. In addition to practicing law, Durst was an adjunct professor at the UT School of Law for many years. He was a beloved teacher, winning Adjunct Professor of the Year in 2014 and 2015. He was also a widely sought-after continuing legal education speaker and a collage artist. Austin’s legal community suffered a great loss when he passed away on Oct. 1, 2019.

Lulu Flores

Lulu Flores is a partner at Hendler Flores. For the past 35 years, she has dedicated her professional career to supporting causes of particular concern to women, Hispanics, the arts, and animal rights. Currently a commissioner on 8

Honoring AUSTIN LAWYERS WHO HAVE EXCELLED IN THEIR PROFESSION & SERVICE TO THE COMMUNITY DISTINGUISHED LAWYER AWARD Phil Durst (posthumous) Lulu Flores Chief Justice Wallace B. Jefferson (ret.) DAVID H. WALTER AWARD Kate Lincoln-Goldfinch

the Austin Arts Commission, she served as its chair from 2016 to 20. She serves on the Advisory Committee of the University of Texas Center for Women and Gender Studies, and on the Governance and Policies Committee of the Board of the Austin YMCA. She is a past president of the National Women’s Political Caucus (NWPC) and is currently vice president of the NWPC Foundation. She is a board member of the Hispanic Bar Association of Austin (HBAA) Charitable Foundation and is a past president of HBAA, the Mexican American

AUSTINLAWYER | DECEMBER 2019 / JANUARY 2020

LARRY YORK MENTORING AWARD Justice Craig T. Enoch (ret.) JOSEPH C. PARKER JR. DIVERSITY AWARD Nelia J. Robbi

Bar Association of Texas, and the State Bar Hispanic Issues Section. She has received numerous awards and recognitions, including a State Bar Presidential Citation, the Hispanic National Bar Association’s “National Latina Lawyer of the Year” award, the Imagen Foundation’s “Latina Leader in Advocacy” award, the Travis County Women Lawyers’ Association and Foundation’s “Outstanding Achievement” and “Pathfinder” awards, the Austin YWCA “Lifetime Achievement” award, and the UT Chicano/Hispanic Law Students Association’s

“Spirit of the Community” award. She was inducted into the City of Austin Women’s Hall of Fame for her leadership, advocacy, and mentoring.

Chief Justice Wallace B. Jefferson (ret.)

The Honorable Wallace B. Jefferson is a partner at Alexander Dubose & Jefferson. Prior to joining the firm in 2013, he served as Chief Justice of the Supreme Court of Texas. Appointed to the Supreme Court in 2001 and named Chief Justice in 2004, Chief Justice Jefferson made Texas judicial history as the Court’s

first African American Justice and Chief Justice. He led the Court’s efforts to fund access-to-justice programs; helped reform juvenile justice; and inaugurated a statewide electronic filing system for Texas courts. Chief Justice Jefferson is Treasurer of the American Law Institute, Chair of the Texas Commission to Expand Civil Legal Services, and a Fellow of the American Academy of Appellate Lawyers. He is a member of the Texas Commission on Judicial Selection and serves on the Board of Advisors of the Justice Sandra Day O’Connor Judicial Selection Initiative. Chief Justice Jefferson has been certified in Civil Appellate Law by the Texas Board of Legal Specialization since 1993.

immigration cases, including hosting a monthly pro bono trip to the Karnes Family Detention Center. She was active in working to reunite separated families during the Zero Tolerance policy implemented by the Trump Administration during the summer of 2018. She has appeared on news outlets such as the BBC, MSNBC, the New York Times, and National Public Radio as an immigration expert. Her most important accomplishment of all is her family: her daughters Nora and Winslow, and her husband Josh.

DAVID H. WALTER COMMUNITY EXCELLENCE AWARD The David H. Walter Community Excellence Award is presented to an attorney or judge who has made a significant impact in the community and, at the same time, raised the profile of the legal profession.

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 for at least 10 years and served as role models and counselors to other lawyers, distinguishing themselves as leaders of the profession while fully embracing life’s experiences.

Kate Lincoln-Goldfinch

Justice Craig T. Enoch (ret.)

Kate Lincoln-Goldfinch is the owner of Lincoln-Goldfinch Law, with offices in Austin and Waco. Upon graduating from the University of Texas and the UT School of Law, she received an Equal Justice Works Fellowship in 2008, which she completed at American Gateways. Her project served immigrant families detained at the Hutto Detention Center. After her fellowship and during the federal hiatus from family detention, she entered private immigration practice. Her firm offers family-based immigration and removal defense. Everyone at Lincoln-Goldfinch Law is bilingual and has a connection to the cause of fighting for justice and dignity for immigrants. The mission of the firm is to bring peace to immigrant families. Lincoln-Goldfinch serves as the pro bono liaison for the American Immigration Lawyers Association Texas Chapter and serves on the boards of Casa Marianella and VECINA.org. She regularly mentors and trains pro bono attorneys in

After retiring from the Texas Supreme Court in 2003, Justice Craig T. Enoch was a shareholder of Winstead PC before opening Enoch Kever in February 2011. Justice Enoch served the State of Texas for over twenty-two years as a judge. He served on all three levels of state courts—as presiding judge of the 101st District Court; Chief Justice of the Fifth District Court of Appeals; and for his last 11 years, as a Justice of the Texas Supreme Court. Justice Enoch, in addition to developing an active private practice, continues to serve the judicial branch of government. He completed his service as chair of the Appellate Judges Conference of the American Bar Association Judicial Division and, at the request of that body, continues to serve as president of the Appellate Judge’s education arm, the Appellate Judges Education Institute. Justice Enoch has become a noted writer and speaker on judicial administration and is actively sought out to speak on issues affecting the judiciary and the practice of law.

The Austin Bar Foundation plans to give the Justice Mack Kidd Fund a grant from a portion of the proceeds raised during the Fund-aNeed segment of the live auction at the Gala.

Donors who give $500 or more to Fund-aNeed will receive a commemorative paver named for themselves, or in honor or in memory of someone else. The engraved pavers will be placed in the main walkway at the front of Hilgers House. Justice Enoch holds not only undergraduate and law degrees from Southern Methodist University in Dallas, but also a Master of Laws degree from the University of Virginia School of Law in Charlottesville, Virginia. He also holds extensive post-graduate professional education certifications, including being board certified in civil trial law by the Texas Board of Legal Specialization. He is also a member of the Texas Bar College. Justice Enoch is also an elected member of the American Law Institute, the prestigious national organization responsible for the Restatements of Law, relied on as authoritative sources of the law by virtually every state and national appellate court. JOSEPH C. PARKER, JR. DIVERSITY AWARD This award honors a firm or an individual who has led the way in bringing diversity to Austin’s legal community, and who exemplifies Rev. Joseph C. Parker, Jr.’s commitment to championing the equal, ethical, and fair treatment of all people, while raising awareness of the need to diversify our legal community.

Nelia J. Robbi

Nelia J. Robbi is a lecturer with the David J. Beck Center for Legal Research, Writing, and Appellate Advocacy at UT School of Law.

She was a civil litigation partner with McGinnis Lochridge, where she remains of counsel. Robbi is actively involved in inclusion efforts within her firm, the law school, and the legal community. She is a member of the Austin Bar’s Diversity Fellowship Program Committee, which provides clerkship opportunities to law students from diverse backgrounds. McGinnis Lochridge has hosted a Fellow through the program since the program’s inception. Robbi has mentored many law students and young attorneys over the years through her involvement with the Lloyd Lochridge American Inn of Court, The Travis County Women Lawyers’ Association, and the Texas Law Alumni Association. Robbi serves on the Board of Directors for Stop Abuse For Everyone (SAFE) and is the current board chair. She has been involved with SAFE for nearly 20 years and is a former SafePlace employee, where she advocated for survivors of domestic violence and sexual assault in the criminal justice system and co-authored a training manual for law enforcement, prosecutors, judges, and court personnel on how best to serve survivors with disabilities. Robbi also serves on the UT School of LawAUSTIN Alumni LAWYER Association Executive Committee. AL AL

DECEMBER 2019 / JANUARY 2020 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Ashley Bunyard Daniel Lockwood Marisela Maddox Diane Byrnes Kenneth Long Rouzhna Nayeri Gwendolyn Seale Cody Vaughn Michelle Martell Alexandra Burks

TOP: Boykin, Bunyard, Kempf, Metcalfe, Nelson LEFT: Prather, Toth

AWARDS

The St. Mary’s University Law Alumni Association recently honored Meghan K. Kempf with the Distinguished Young Alumna award at its annual Distinguished Law Graduate Dinner on Saturday, Nov. 2, in San Antonio. Kempf is a policy and legislative attorney for the Texas Health and Human Services Commission. Sally Metcalfe was honored at the September meeting of the Capital Area Trial Lawyers Association (CATLA), as this year’s recipient of the Scott Ozmun Award. Metcalfe was recognized for her numerous volunteer efforts. She is involved with the Texas Legal Services Board, Meals on Wheels, and activities within her church, as well as the years of service she has offered with the Texas Trial Lawyers Association.

Laura Prather was awarded the 2019 Tony Mauro Media Lawyer Award by the American Lawyer and ALM. Prather, a partner at Haynes and Boone in Austin, was given the award for her tireless and successful efforts advocating for legislation to strengthen free press and speech rights in Texas. NEW TO THE OFFICE

Floyd Real Estate welcomes Eric Nelson to the team. Nelson’s legal practice is primarily dedicated to wills, trusts, and estates. He works closely with other realtors, brokerages, and title companies to resolve title issues involving probate or inherited real estate matters.

to its Austin office, both in the firm’s litigation department. Toth is a former Justice for the Third Court of Appeals. Shapiro Bunyard joins Dykema as an associate whose practice encompasses a broad range of corporate matters in both state and federal court. NEW DIGS

The Law Office of Leslie J. Boykin, P.C has moved to 609 West 9th Street. The firm will continue to serve community members charged with crimes in the Austin area, as well as in surrounding Central Texas counties.

Dykema announced the addition of attorneys Mike Toth and Ashley Shapiro Bunyard

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AUSTINLAWYER | DECEMBER 2019 / JANUARY 2020

BE WELL

A Lawyer’s Ethical Duty of Self-Care BY HEIDI BLOCH

Heidi Bloch is a shareholder at Greenberg Traurig. She is board certified in both civil appellate and civil trial law, and is a former chair of the State Bar of Texas Appellate Section.

Secure your own oxygen mask first before assisting others. – International Civil Aviation Organization, Pre-Flight Safety Demonstration

here’s a good reason why we hear this admonition while waiting for a plane to depart—you are better able to help someone else if you’ve

taken care of yourself first. This is not only good advice for lawyers, it’s our ethical obligation. This article is not intended to add more pressure (goodness knows we’re stressed enough; now you’re telling me I may be breaching my ethical duties as well???), but instead to arm you with professionally-based justification for taking steps toward self-care. Several provisions of the Texas Disciplinary Rules of Professional Conduct (DRs) address a lawyer’s responsibility to maintain not only competence, but “fitness” to represent clients: PREAMBLE: A LAWYER’S RESPONSIBILITIES

3. … a lawyer should zealously pursue client’s [sic] interests within the bounds of the law. In doing so, a lawyer should be competent, prompt, and diligent.

RULE 1.01. COMPETENT AND DILIGENT REPRESENTATION

(b) … a lawyer shall not … neglect a legal matter entrusted to the lawyer; (c) … neglect signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients. Comment 6. A lawyer’s workload should be controlled so that each matter can be handled with diligence and competence. RULE 1.15. DECLINING OR TERMINATING REPRESENTATION

(a) A lawyer shall decline to represent a client or, where representation has commenced, shall withdraw … from the representation of a client, if: (2) the lawyer’s physical, mental, or psychological condition materially im-

pairs the lawyer’s fitness to represent the client …. TERMINOLOGY

“Fitness” denotes those qualities of physical, mental, and psychological health that enable a person to discharge a lawyer’s responsibilities to clients in conformity with the DRs. The DRs recognize that the pressures of our profession are significant. We are in the business of dealing with problems. Clients entrust us with concerns that could ruin their livelihoods, or even their lives. Employers and law partners demand long hours and peak performance— two things that often conflict. Opposing counsel’s job is to make our job more difficult (and, too often, with a lack of civility befitting our profession). Families tug on our shirtsleeves for more quality time with them. It can be overwhelming. A

BOOK CORNER “The Happiness Advantage” by Shawn Achor Recommended reading by the Austin Bar’s Lawyer Well-Being Committee We’ve been taught that if we work hard, we will be successful, and then we’ll be happy. If we can just find that great job, get a raise, lose those five pounds, happiness will follow. But recent discoveries in the field of positive psychology have shown that this formula is actually backward: Happiness fuels success, not the other way around. Shawn Achor, who spent over a decade living, researching, and lecturing at Harvard University, draws on his own research—including one of the largest studies of happiness and potential at Harvard and at large companies like UBS and KPMG—to share strategies for how to fix this broken formula in “The Happiness Advantage.” Using case studies from his work with thousands of Fortune 500 executives in 42 countries, Achor explains how we can reprogram our brains to become more positive, and ultimately more successful at work. A must-read for everyone trying to excel in a world of increasing workloads, stress, and negativity, “The Happiness Advantage,” at its core, is about how to reap the benefits of a happier and more positive mindset to achieve the extraordinary in our work and in our lives.

AUSTINLAWYER | DECEMBER 2019 / JANUARY 2020

Several provisions of the Texas Disciplinary Rules of Professional Conduct (DRs) address a lawyer’s responsibility to maintain not only competence, but “fitness” to represent clients. study by the Hazelden Betty Ford Foundation and the ABA Commission on Lawyer Assistance Programs,1 involving almost 15,000 attorneys from 19 states, found that among licensed working attorneys: • 21 percent are problem drinkers; • 28 percent struggle with some level of depression; and • 19 percent suffer from anxiety.

do so. We are better able to meet deadlines when we’ve managed our schedules in a way that allows us to do so realistically, without adding unnecessary pres-

sure. In other words, sometimes it’s best to say “no” (with an appropriate explanation of your workload). Remember: Self-care is not only important; it’s our AUSTIN LAWYER AL AL ethical responsibility.

2 Jeena Cho, Self-Care Isn’t Selfish and Can Actually Help Your Performance, ABA Journal (March 1, 2019), http:// www.abajournal.com/magazine/ article/self-care-mommy-lawyers

Footnotes 1 Krill, Patrick R. JD, LLM; Johnson, Ryan MA; Albert, Linda MSSW, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys (Jan. 2016) https://www.americanbar.org/ groups/lawyer_assistance/research/ colap_hazelden_lawyer_study/ (Featured in the March 2016 issue of Texas Bar Journal).

Attorneys in their first 10 years of practice exhibit the highest incidence of these problems, all of which could affect a lawyer’s fitness to represent a client. Under the DRs, “fitness” involves not only physical health, but mental and psychological health as well. When we’re physically ill, we go to the doctor. But when our mental or psychological health is compromised, we tend to try to power through it, or perhaps self-medicate, which could exacerbate the underlying concern. Jeena Cho, a leading author advocating self-care for lawyers, defines “self-care” as “any activities that you do for yourself where you take steps to identify your own needs and meet them.”2 Cho recommends purposefully setting aside time to take proper care of yourself, even placing such activities (or non-activities) on your to-do list at the office, and making self-care part of your daily or weekly schedule. Otherwise, self-care falls to the bottom, after the demands of clients, bosses, and families are met. So, as you power through your workday, keep in mind that selfcare is not selfish. We are better able to represent our clients zealously when we’re physically, mentally, and emotionally fit to DECEMBER 2019 / JANUARY 2020 | AUSTINLAWYER

AUSTINLAWYER | DECEMBER 2019 / JANUARY 2020

OPENING STATEMENT

Singular They It’s Catching On, Even in Legal Writing BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

an we use the plural pronoun they to refer to a singular person whose gender is unspecified? Can we do this? • The buyer might change their mind. • Every vehicle owner must have their vehicle inspected annually. • Always keep the reader in mind and try to meet their expectations. Well, in speech and informal writing, many of us are already using this “singular they.” The singular pronouns in English— she, her, hers, and he, him, his— are gendered, and if you don’t know the gender of the unspecified antecedent (buyer, owner, reader), you don’t know what pronoun to use, so we use they. You could default to he, him, his. But there’s broad agreement that doing so is sexist, and many careful writers avoid defaulting to male pronouns for that reason. Still, using male pronouns for gender-unspecified antecedents is an established convention and one that some legal writers follow. You could switch to the female, she, her, hers, and some writers do. That convention isn’t as common in legal writing, and because it isn’t common, it might attract more attention than you want. You could use he or she or he/ she each time. These pairs are entirely appropriate in formal legal writing, and they’re used regularly. For me, they can become tedious and distracting after a while, but they’re acceptable. By the way, a case-law search turned up a few instances of s/he, which, although used in other genres, still isn’t common in legal writing. If those options don’t appeal to you, what should you do in formal legal writing? Two suggestions.

First, you can write around the problem every time it comes up. That takes some thought and effort as you edit, but with practice it becomes second nature. And writing around the problem is unlikely to distract readers. Some examples— Pluralize—then the plural pronoun works just fine: • All vehicle owners must have their vehicles inspected annually. • Always keep your readers in mind and try to meet their expectations. Repeat—being careful about potentially distracting repetition: • Every vehicle owner must have the owner’s vehicle inspected annually. • Always keep the reader in mind and try to meet the reader’s expectations. Rephrase—to avoid the need for a pronoun: • The buyer might have a change of mind. • Every vehicle owner must have the vehicle inspected annually. In my own writing, I’ve found that these three techniques work well. Second, you could jump on the “singular they” bandwagon. That’s the position of two authors of a Michigan Bar Journal article called, “Evolving They.”1 Brad Charles, a legal-writing professor, and Thomas Myers, a Michigan Supreme Court staff attorney, say the time has come to embrace the singular they: “More and more writing experts and guides are trumpeting that the once-plural-only pronoun may now be used as a singular pronoun .…”2 The authors cite as some of the trumpeting sources The American Dialect Society, The Washington Post’s style guide, and the

You can write around the problem every time it comes up. That takes some thought and effort as you edit, but with practice it becomes second nature. And writing around the problem is unlikely to distract readers. AP Stylebook—which allows the singular they in “limited cases.”3 The authors also note that Justice Sonia Sotomayor used a singular they in her majority opinion in Lockhart v. Unites States from 2016: “Section 2252(b)(2)’s list is hardly the way an average person, or even an average lawyer, would set about to describe the relevant conduct if they had started from scratch.”4 What do I do? I still write around the problem in formal documents, and I tell my students to check with their supervisor and then do what the supervisor says. Finally, Charles and Myers encourage legal writers to respect a person’s preferred pronouns, acknowledging that some prefer

they, them, their to the gendered pronouns. I encourage legal writers AUSTIN LAWYER ALtoo. AL to respect those preferences,

Footnotes 1 Brad Charles & Thomas Myers, Evolving They, 98 Mich. B.J. 38 (June 2019). 2 Id. at 38. 3 Id. at 39. 4 Lockhart v. United States, 136 S. Ct. 958, 966 (2016).

DECEMBER 2019 / JANUARY 2020 | AUSTINLAWYER

Texas Access to Justice Foundation’s 35th Anniversary Richard L. Tate Honored with Kleinman Award

he Texas Access to Justice Foundation (TAJF) celebrated 35 years with a special event featuring renowned author John Grisham at the Fairmont Austin on Oct. 25, 2019.

the prestigious Harold F. Kleinman Award, named for TAJF’s first chairman. Tate was recognized for his decades of service to the Foundation, including his work defending the constitutionality of the Interest on Lawyers’

Richard L. Tate was recognized for his decades of service to the Foundation, including his work defending the constitutionality of the Interest on Lawyers’ Trust Accounts (IOLTA) program, which has provided millions of dollars for civil legal services for Texans with limited incomes. Grisham practiced law for a decade and served in the Mississippi House of Representatives before his success as a best-selling author. He is a strong believer in the importance of legal aid, based on his own experiences seeing the difference having a lawyer can make in people’s lives. He is also on the Leaders Council of the Legal Services Corporation, an independent nonprofit established by Congress in 1974 to provide financial support for civil legal aid to low-income Americans. Later in the evening, Richard L. “Dick” Tate, the Foundation’s chairman since 1999, received

Trust Accounts (IOLTA) program, which has provided millions of dollars for civil legal services for Texans with limited incomes. “My parents instilled in me that every person is entitled to the same dignity and respect, and I’ve used that as guide in helping those less fortunate obtain access to a lawyer,” Tate said. “Legal aid plays a crucial role in ensuring that vulnerable Texans have access to justice to meet their basic civil legal needs.” Former Texas Supreme Court Chief Justices Wallace B. Jefferson and Thomas R. Phillips were honorary co-hosts. Other event

PATIENT

(from left) Austin Bar Executive Director DeLaine Ward with Austin Bar members Amy Meredith, Judge Maya Guerra Gamble, Judge Jan Soifer, Kennon Wooten, and Jo Ann Merica at the TAJF dinner. Photo credit: The Mill Photography Studio.

co-hosts included former Texas Supreme Court Justice Deborah Hankinson, Denise Scofield, Travis Torrence, Carlos Zaffirini, Jr., and Tate. Since TAJF’s creation, nearly $770 million has been granted to legal aid organizations across Texas. With support from TAJF grants, nonprofit organizations throughout the state provide free or low-cost legal services for veterans, victims of domestic violence and sexual assault, the disabled, and other vulnerable individuals.

PRACTICAL

Created by the Supreme Court of Texas in 1984, TAJF is the largest state-based funding source for the provision of civil legal aid in Texas. The organization is committed to the vision that all Texans will have equal access to justice, regardless of their income. The Foundation administers a variety of funding sources that are earmarked for assisting nonprofit organizations in providing legal aid to more than 150,000 Texas families each year. For more information, AUSTIN LAWYER please visit www.tajf.org. AL AL

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THIRD COURT OF APPEALS CIVIL UPDATE

The following are summaries of selected civil opinions issued by the Third Court of Appeals during Oct. 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Nov. 5, 2019.

TCPA: Court holds LinkedIn post was not defamatory per se. Neurodiagnostic Consultants, LLC v. Villalobos, No. 03-1900743-CV (Tex. App.—Austin Oct. 4, 2019, no pet. h.) (mem. op.). Synaptic sued Villalobos, a former employee, and Traxx, alleging that they harmed Synaptic. While the lawsuit was pending, Villalobos commented on a LinkedIn group post that Synaptic was a “dirty company.” Synaptic amended to sue Villalobos for defamation. The trial court dismissed Synaptic’s defamation claim under the TCPA. According to the court of appeals, Synaptic’s claim was for extrinsic defamation. That is, Villalobos’s comment required outside facts known to the reader to establish the meaning of the post. Extrinsic defamation requires proof of damages. Synaptic presented unsupported suspicions, rather than circumstantial evidence, that it was damaged. The court concluded Synaptic failed to meet its burden and affirmed. MANDAMUS: Court holds that an offer of proof provides an adequate appellate remedy.

In re Bertucci, No. 03-19-00245CV (Tex. App.—Austin Oct. 18, 2019, orig. proceeding). Relator challenged the probate court’s denial of his motion to exclude the court-appointed auditor’s report and the ruling that the auditor’s report was conclusive. Relator argued that without mandamus review, he would be deprived of his right to cross-examine the auditor and that because of the court’s ruling that the report was conclusive, he could not present evidence at trial. According to the court of appeals, relator can preserve error for appeal of the denial of his cross-examination right by an offer of proof and develop the record by bill of exception with any excluded evidence. Accordingly, relator had an adequate appellate remedy. The court denied mandamus review. HEALTH CARE LIABILITY: Expert report implicating physician was sufficient to implicate hospital. Seton Family of Hosps. v. White, No. 03-19-00209-CV (Tex. App.— Austin Oct. 24, 2019, no pet. h.). Two days after delivering her child, Latoya Jones returned to Seton’s ER with elevated blood pressure. An ER doctor evaluated her and sent her home. Jones died two days later. Plaintiff sued numerous health care providers. Seton sought dismissal, claiming Plaintiff’s expert reports were deficient. The trial court denied

the motion to dismiss. Plaintiff’s expert opined that the ER doctor failed to diagnose preeclampsia and admit her for treatment. Seton did not challenge the report’s implication of the doctor, but instead contended the report failed to implicate Seton. The court of appeals noted that with vicarious liability claims, a report implicating the actions of a party’s agent or employee is sufficient. The court concluded that Plaintiff’s pleadings put Seton on notice of the vicarious liability claim. The court affirmed. QUO WARRANTO: Court reverses to allow State’s challenge to city’s incorporation to proceed. State v. City of Double Horn, No. 03-19-00304-CV (Tex. App.— Austin Oct. 30, 2019, no pet. h.). State filed a quo warranto proceeding to invalidate City’s incorporation. State contended that City sought to incorporate to stop development of a nearby quarry. The trial court denied State’s petition and dismissed the lawsuit. The court of appeals observed that under CPRC § 66.002, if there is a probable ground for the proceeding, the trial court shall grant leave to file the information. The trial court must accept State’s allegations as true. The appellate court noted that State need only prove that City was not a town or village prior to incorporation and that the incorporated area does not

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 an owner at Laurie Ratliff LLC.

contain only territory to be used for municipal purposes. State alleged that City was a subdivision of 92 homes without any stores or businesses. State further alleged that City included land to be used for a quarry in its boundary when such land would not be used for municipal purposes. Accordingly, State properly stated a claim for relief. The court reversed and AUSTIN LAWYER AL AL remanded.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

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.

The following are summaries of selected criminal opinions issued by the Third Court of Appeals during June 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Nov. 1, 2019.

WITHDRAWAL OF TRIAL COUNSEL AND RELATED ISSUES: Trial court did not err in failing to hold a hearing on counsel’s motion to withdraw filed prior to trial. Smith v. State, No. 03-17-00694CR (Tex. App.—Austin June 11, 2019, pet. ref’d) (mem. op., not designated for publication). Smith was convicted of aggravated assault with a deadly weapon and aggravated assault causing serious bodily injury. The case was delayed from proceeding to trial when appellant began complaining about his court-appointed counsel. The trial court “reluctantly” allowed counsel to withdraw and appointed new counsel to represent Smith, but Smith also clashed with new counsel. Smith then sought to represent himself but changed his mind after being admonished as to the dangers of self-representation. Appointed counsel filed a motion to withdraw prior to trial but continued to represent Smith. On appeal, Smith asserted that 20

the trial court erred by not holding a hearing on counsel’s motion prior to trial. The appellate court disagreed, explaining that at prior pretrial hearings, the trial court had already considered Smith’s request to remove counsel, but Smith and his counsel had informed the trial court that they had agreed that counsel would continue representing Smith. Moreover, the record reflected that although counsel had filed his motion to withdraw prior to trial, he did not bring the motion to the court’s attention until after sentencing. “Prior to that point,” the court observed, “nothing in the record reflects that the trial court should have been aware that there existed a conflict of interest that actually affected the adequacy of the trial attorney’s representation.” Instead, the record reflected “that despite appellant’s threatening and disruptive behavior, the trial attorney continued to communicate with appellant throughout the trial.” There were other issues in the appeal related to counsel’s representation of Smith, including claims of ineffective assistance of counsel and a complaint that during the punishment phase of trial, at a time when Smith was absent from the courtroom, counsel had provided information to the trial court relevant to sentencing. The appellate court concluded that the record did not show that Smith had suffered either prejudice or harm from any of counsel’s actions, and it affirmed his conviction for aggravated assault with a deadly weapon. However, the court reversed and vacated his conviction for aggravated assault causing serious bodily injury, concluding that Smith’s conviction for both offenses violated double jeopardy. EVIDENTIARY SUFFICIENCY: Evidence was sufficient to prove that defendant committed forgery and theft. Zapata v. State, No. 03-17-00537CR (Tex. App.—Austin June 19, 2019, pet. ref’d) (mem. op., not

AUSTINLAWYER | DECEMBER 2019 / JANUARY 2020

designated for publication). In a case with a complicated (and riveting) factual history, Zapata was convicted of forgery of a will, theft, and money laundering. The stolen property belonged to the estate of John Edward Sullivan, and Zapata was ordered to pay $1.8 million in restitution to Sullivan’s estate. The circumstances surrounding Sullivan’s death and his forged will resulted in both civil litigation and a “multitude of criminal prosecutions” against Zapata and others. The court discussed these circumstances and provided an in-depth and compelling analysis of why the evidence, when viewed in the light most favorable to the verdict, was sufficient to support Zapata’s convictions. The court also concluded that there was evidence in the record to support the district court’s restitution order and that the district court did not abuse its discretion in entering the order. An additional issue in the

appeal was the admissibility of Zapata’s grand-jury testimony. Zapata asserted that the district court violated his constitutional right against self-incrimination by admitting into evidence a transcript of his grand-jury testimony without showing that he was provided the admonishments required by article 20.17(c) of the Code of Criminal Procedure. However, Zapata’s objection at trial was that he had not been provided the warnings required under article 38.22 of the Code of Criminal Procedure. Because Zapata’s appellate complaint did not comport with his objection at trial, he failed to preserve the issue for review. The court also concluded that because article 38.22 warnings applied only to statements made during custodial interrogations, and not grand-jury investigations, the trial court did not abuse its discretion in admitting the transcript Zapata’s AUSTINover LAWYER article 38.22 objection. AL AL

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Lawyer Referral Service of Central Texas Fulfilling Its Mission in the Community

he Lawyer Referral Service of Central Texas (LRS) has had a great year continuing to integrate its program into the Austin community. LRS is a non-profit public service organization created in 1966 by the Austin Bar Association. It is a trusted source for the community to find legal resources or a referral to a vetted attorney, and is certified as a lawyer referral service by the American Bar Association (ABA). Community outreach is an important part of the mission and objectives of LRS. To that end, LRS continues to develop partnerships with several local organizations. Some highlights of LRS’ community outreach in 2019 are: • Partnered at 10 Volunteer Legal Services of Central Texas (VLS) clinics at Webb Middle School, at which 31 referrals were made;

• Attended 11 community fairs hosted by AISD, the City of Austin, and AGE of Central Texas; • Assisted at nine Austin Bar Free Legal Advice Clinics for Veterans; • Offered free first-year membership dues to the State Bar’s Texas Opportunity & Justice Incubator (TOJI) Cohort Teams; and • Sponsored a CLE event on common law marriage in Texas at Burns Anderson Jury & Brenner. LRS co-hosted the ABA’s 2019 National Lawyer Referral Workshop with the State Bar of Texas (SBOT). LRS and SBOT welcomed close to 60 lawyer referral service programs from various parts of the country. Attendees learned innovative ways to enhance their referral service programs and were updated on

LEFT: Travis County District Clerk Velva Price, LRS Executive Director Annie Melendez, and ABA Chair of Standing Committee of Lawyer Referral Services Stephen Steinberg. RIGHT: Melendez and Price.

applicable legal trends. Travis County District Clerk and LRS Trustee Velva Price and LRS Executive Director Annie Melendez presented one session on the importance of collaborating with local courts, bar associations, and other non-profit organizations. Other topics such as intake staff wellness and new technology programs were also presented.

A new decade is around the corner and LRS is prepared to continue its grassroots outreach in the Austin area, with plans to expand into surrounding areas. If you are interested in joining LRS or would like more information, please contact Annie Melendez at 512.472,0279 AUSTIN LAWYERor annie@austinlrs.org. AL AL

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FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of Nov. 1, 2019.

SANCTIONS: A lawyer’s reliance on his client’s representations will not insulate him from sanctions under 28 U.S.C. § 1927 when there are glaring red flags that the attorney needs to investigate the veracity of those representations further. Morrison v. Walker, 939 F.3d 633 (5th Cir. 2019). In 2006, Stella Morrison represented a criminal defendant, Peter Tran, in a case before Judge Layne Walker. During the proceedings, Judge Walker determined that Morrison suborned perjury by enticing her client to make a false statement and then filing that statement with the court. Judge Walker reported Morrison to the district attorney and the State Bar of Texas. Seven years later, Morrison hired John Morgan to represent her in a lawsuit against Judge Walker, alleging that Judge Walker fabricated the perjury charge against her. The suit did not specify what caused Judge Walker to make the perjury accusation but simply stated that the charge was unrelated to any proceeding assigned to Judge Walker. This broad assertion was meant to preclude application of judicial immunity. When asked about the lack of details in Morrison’s complaint, Morgan stated that the deficiency was due to Morrison’s “memory deficits.” Judge Walker filed a motion to dismiss based on judicial immunity. The trial court dismissed most of Morrison’s claims but held that her falsified perjury claim could proceed if she amended her complaint to allege specific facts showing why

immunity was not available, including where the event spurring the perjury charge occurred. Morrison, through her attorney Morgan, filed an amended complaint that did not answer that specific question but still asserted that the perjury accusation against Judge Walker “had nothing to do with a case that was pending or had been adjudicated in Walker’s Court.” Judge Walker responded by filing the transcript from the Tran case that showed that Ms. Morrison’s claim was without a doubt related to her representation of Tran in Judge Walker’s court. In response to an order from the court, Morrison admitted that the transcript was accurate and moved to voluntarily dismiss the claims against Judge Walker. Judge Walker moved for sanctions against Morgan under 28 U.S.C. § 1927, which authorizes federal courts to order attorneys who unreasonably and vexatiously multiply proceedings to pay costs, expenses, and attorney’s fees. The court awarded Judge Walker $29,292.50 in sanctions against Morgan. Morgan appealed. The Fifth Circuit affirmed, holding that the trial court did not abuse its discretion in finding that Morgan recklessly disregarded his duty to the court by advancing, without reasonable inquiry, a baseless claim despite clear evidence undermining his factual contentions. The Fifth Circuit rejected Morgan’s reliance on the unpublished decision in Vanderhoff v. Pacheco, 344 F. App’x 22 (5th Cir. 2009), which Morgan cited to argue that he was entitled to rely on his client’s representations. The Fifth Circuit distinguished Vanderhoff and held that an attorney may not rely on a client’s representations when there are red flags that the attorney needs to investigate further. ARBITRATION AND BANKRUPTCY: The Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), does not require reconsider-

Sameer Hashmi is an associate at Scott Douglass McConnico who practices complex commercial litigation across Texas and around the country.

ation of Fifth Circuit precedent holding that bankruptcy courts may refuse to compel arbitration in proceedings seeking enforcement of discharge orders. In re Henry, No. 18-20809, 2019 WL 5295056 (5th Cir. Oct. 17, 2019). A bankruptcy debtor who completed her Chapter 13 plan brought an adversary proceeding alleging that Wells Fargo violated the bankruptcy court’s discharge order by attempting to collect a discharged debt. Wells Fargo moved to compel arbitration based on the arbitration provision in its original loan agreement with the debtor. The bankruptcy court denied the motion, relying on Fifth Circuit precedent holding that bankruptcy courts may decline to enforce agreements to arbitrate whether a creditor’s efforts to collect a debt violated a discharge order. See In re Nat’l Gypsum Co., 118 F.3d 1059, 1069 (5th Cir. 1997). Wells Fargo appealed, arguing that the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018)—in which it held that the National Labor Relations Act does not override the Federal Arbitration Act—required the Fifth Circuit to overrule National Gypsum. The Fifth Circuit disagreed. Under the rule of orderliness, a Fifth

David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.

Circuit panel may not overrule a prior panel’s decision based on a subsequent Supreme Court decision unless that Supreme Court decision unequivocally directs such overruling. A Supreme Court decision that is merely illuminating with respect to the issue before the Fifth Circuit is not enough. See Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001). The Fifth Circuit observed that far from unequivocally directing it to overrule National Gypsum, Epic Systems showed that National Gypsum’s doctrinal foundation remains sound. Specifically, Epic Systems cites Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220 (1987), which the Fifth Circuit relied on in reaching its holding in National Gypsum. Further, the Fifth Circuit determined that, despite some minor differences in phrasing, the Supreme Court’s decision in Epic Systems applies essentially the same LAWYER test as McMahon. The court AUSTIN affirmed. AL AL

DECEMBER 2019 / JANUARY 2020 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Does the Constitution Require an Insanity Defense? 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.

n many states, including Texas, a criminal defendant can be found “not guilty by reason of insanity” if the defendant can convince a jury that the defendant has a serious mental illness that prevents the defendant from being able to distinguish between right and wrong.1 This term, the U.S. Supreme Court is being asked to decide whether the Eighth Amendment to the U.S. Constitution requires that a state provide such an affirmative defense.2 The defendant in Kahler v. Kansas was convicted of capital murder and sentenced to death in Kansas, a state in which the

legislature effectively eliminated the insanity defense by making it applicable only if the evidence supports a defense that the defenant did not have the required culpable mental state to commit the crime.3 In other words, insanity would only be a defense if the jury believed that the defendant could not, due to mental illness, form the intent to kill in a murder case. The Supreme Court has left open the question of exactly what level of consideration of mental illness is constitutionally required.4 What is not in question is that, nationally, insanity defenses are only attempted in about one percent of criminal cases and, of that small number, only succeed 25 percent of the time.5 Given the difficulty of establishing that a defendant could not, due to mental disease or defect, appreciate the moral and legal wrongness of the defendant’s act, this is not surprising. Most states, including Texas, have provisions which require that commitment proceedings immediately be held for defendants who are found not guilty of a violent crime by reason of insanity.6 A frequent complaint of defense lawyers who try these types of cases to juries is that Texas law does not require, or even allow, the jury to be instructed on what will happen in the event they find

A frequent complaint of defense lawyers who try these types of cases to juries is that Texas law does not require, or even allow, the jury to be instructed on what will happen in the event they find the defendant not guilty by reason of insanity. the defendant not guilty by reason of insanity. It could well be that many jurors feel that if they return such a verdict, they will be freeing a dangerous person. According to court-watchers, Justice Stephen Breyer peppered the attorneys for Kansas with questions indicating a fair amount of skepticism towards their position that the defense of insanity is not constitutionally required, while Justice Samuel Alito—despite the fact that a majority of states have an insanity defense—questioned whether requiring one in Kansas would create a “revolution in criminal law.”7 Justice Brett Kavanaugh, the most recent appointee to the Court, questioned whether Kansas had really abolished the insanity defense, suggesting that taking mental illness into account at sentencing—or in considering whether the defendant acted with criminal intent—could

be one way of providing protection to mentally ill defendants.8 A decision in the case is expected later this year. If the Court rules for Kansas, it will be interesting to see if there is a push to revise insanity defense statutes in other states, at least those in which fear of crime and its consequences is a more potent political motivator than a desire to ensure that mentally ill defenAUSTIN LAWYER AL AL dants are treated fairly. Footnotes 1 2 3 4 5

Tex. Penal Code § 8.01. Kahler v. Kansas, Case No. 18-6135. Id., Brief for Pet. at 5. Clark v. Arizona, 548 U.S. 735 (2006). See, e.g., Gary Melton et al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers 200 & 795 n.11 (4th ed. 2018). 6 Tex. Code Crim. Proc. art. 46C.251. 7 http://amylhowe.com/2019/10/07/ justices-open-new-term-withquestions-and-concerns-aboutinsanity-defense/. 8 Id.

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CLE Update from The Honorable Lee Yeakel IP Inn of Court

he Honorable Lee Yeakel IP Inn of Court held its first CLE-approved meeting of the current Inn year on Oct. 17, 2019 at The Headliners Club in Austin. The program for the meeting, organized by the first pupilage team under team leader Jennifer Nall, consisted of skits prepared by five subteams that enacted real-world fact patterns taken from USPTO and State Bar disciplinary proceedings, accompanied by discussions of applicable ethical rules. Subteam #1 members, Michael Barrett (Cirrus Logic), Joseph Abraham (Dechert), and Shyam Palaiyanur (Wilson Sonsini Goodrich & Rosati), addressed issues related to facilitating the unauthorized practice of law through failure to supervise unlicensed persons engaged in patent preparation and failure to inform and communicate with clients. Subteam #2 members, Raghav Bajaj (Haynes Boone), Alexander

Team 1: Back Row (L-R): Nicole Cave, Judge Juliet Dirba, Mark Rozman, James Ray, David Parker, Jered Matthysse, Michael Barrett, and Shyam Palaiyanur. Front Row (L-R): Brooke Cohen, Jennifer Nall, Eagle Robinson, Leanne Loper, Joseph Abraham, Raghav Bajaj, and Alex Piala.

Piala (Baker Botts), and Bill Raman (Fleckman & McGlynn), addressed issues related to an attorney’s failure to diligently represent a nonpaying client rather than terminating the representation. Subteam #3 members, Mark Rozman (Trop Pruner & Hu), Nicole Teitler Cave (Zagorin Cave), Juliet Mitchell Dirba (USPTO), and James Ray (Munsch Hardt Kopf & Harr), addressed issues related to a patent attorney,

without authorization, adding themselves as a co-inventor on a patent application for an invention developed in the course of the representation. Subteam #4 members, Leanne Flatter (Fish & Richardson), David Parker (Parker Highlander), and Jered Matthysse (Pirkey Barber), addressed issues related to an attorney’s continued practice of law during a period in which the attorney’s license has been suspended. Subteam #5 members, Wes

Enders (Egan, Peterman, Enders & Huston), Brooke Elizabeth Cohen (UT law student), and Eagle Robinson (Norton Rose Fulbright), addressed issues related to an attorney’s inflation of fees and failure to refund unearned fees, misuse of confidential information, and lying to the State Bar LAWYER during a disciplinary AUSTIN investigation. AL AL

DECEMBER 2019 / JANUARY 2020 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN SANDY BAYNE, BAYNE LAW

Forever Young

es, you! I’ve recently had several conversations that go something like this, “Gosh, I love all of the great AYLA events, I wish I could become a member, but I know I’m too old to join….” News Flash: 1. You are forever young! 2. In recognition of that eternal youth, Austin Young Lawyers Association (AYLA) has a membership category for those 40 and older.

attorneys in town. A sustaining member is someone who has aged out of the organization’s regular membership at the age of 40, but continues to support AYLA by attending our events. The sustaining (forever young) membership is $75. Some of AYLA’s programs would not be possible without the help of our sustaining members. On behalf of AYLA, I want to thank our sustaining members for their continued support of AYLA and the AYLA Foundation. We offer numerous opportunities for our members to give back to the community and the profession, and a wide variety of social events too. We see many of our sustaining members at the monthly Docket Call happy hours and at our annual judicial

AYLA’s sustaining members increased by unprecedented numbers last month. AYLA needs all eligible members to join to help us thrive, be it law students, solo/ small firm, government attorneys, or sustaining (forever young) members. We are SO excited that AYLA’s sustaining members increased by unprecedented numbers last month. AYLA needs all eligible members to join to help us thrive—be it law students, solo/ small firm, government attorneys, or sustaining (forever young) members. Our membership is so much richer with all eligible members of our community joining our family! AYLA has more than 180 sustaining members, including many prominent and well-respected 26

reception. So, if you are over 40 years young and are not already a sustaining member, come join us. We invite you to come out to our next monthly Docket Call (December Docket Call). Whether a young member or forever young member, drinks are on us—or, I guess we should say, on our wonderful sponsors! We hope to AUSTINLAWYER see you there. AL AL

AUSTINLAWYER | DECEMBER 2019 / JANUARY 2020

UPCOMING EVENTS THURSDAY, DEC. 5 AYLA Holiday Party 5:30 – 7 p.m. Donn’s Depot 1600 W 5th St. SUNDAY, DEC. 8 AYLA Holiday Program (formerly Reindeer Games) 1 – 3 p.m. YMCA East Communities 5315 Ed Bluestein Blvd. To donate or volunteer, visit www.ayla.org. THURSDAY, JAN. 16 AYLA Docket Call 5:30 – 7 p.m. Location TBD MONDAY, JAN. 20 MLK Day of Service To volunteer, email debbie@austinbar.org.

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Tailgate Fundraiser

27th Annual Bar & Grill Show

O T

he Austin Young Lawyers Association hosted its fourth annual fundraiser tailgate prior to the University of Texas vs. Kansas State football game on Saturday, Nov. 9, 2019. Fans of both teams joined in the fun. Admission into the tailgate was a suggested $20 donation per person. The purpose of the tailgate is to raise funds and awareness to benefit AYLA’s annual community holiday event for underprivileged families, which will be held this year on Dec. 8, 2019. AYLA will partner with the YMCA to provide toys for approximately 300 children. Our goal is to provide holiday cheer to families who might otherwise not have that opportunity. Thank you to our tailgate committee, and special thanks to Franklin Hopkins for smoking the delicious briskets. AYLA would also like to thank our generous sponsors, without whom this event would not have been possible. CHAMPIONSHIP Germer Beaman and Brown

Loewy Law Firm TOUCHDOWN The Dawson Group, P.C.

FIELD GOAL Husch-Blackwell Brough & Resendez Patrick Keel The Morris Law Firm Norton Rose Fulbright

FIRST DOWN

n Saturday, Oct. 26, 2019, AYLA held the 27th Bar & Grill Show, “Law Miserables,” at the Scottish Rite Theater. The money raised by Bar & Grill supports AYLA projects such as the annual Holiday Program benefitting underprivileged families in the community. AYLA would like to thank the generous sponsors of the show and everyone who purchased tickets.

SUPPORTERS Blazier Christensen Browder & Virr Eversheds Sutherland Foley & Lardner PATRONS Gary A. Cobb, Esq. Claude & Susan Ducloux Friday Milner Lambert Turner Graves Dougherty Hearon & Moody

SPECIAL THANKS TO: Amy Fletcher, Keel Vodka EXECUTIVE PRODUCER Floyd Real Estate Norton Rose Fulbright Ben E. Keith Pam Friday and Hill Country UNDERWRITER Middle School Studio E AUSTINLAWYER Thomas Esparza AL AL

Giles Aseron Judge Darlene Byrne Judge Amy Clark Meachum Jackson Walker Laurie Eiserloh Judge Raul A. Gonzales Maria Cantú Hexsel JVM Lending Margaret Kercher Hewlett-Packard Enterprise Jessica Mangrum Judge Aurora Martinez Jones Galan Pirkle, CFP, Edward Jones The Snell Law Firm Justice Gisela Triana Dr. Chad Whited Kennon Wooten Zinda Law Group

Special thanks to Ben E. Keith, Tito’s, Texas Crown, Loro, 104.9 The Horn, Trader Joe’s, Amy Meredith, The Barta Family, Karl & Corinne Vornsand, John Torrance, Floyd’s Coffee AUSTIN Market & LAWYER Cafe, AL AL and Evolve Cryo + Wellness.

DECEMBER 2019 / JANUARY 2020 | AUSTINLAWYER

ENTRE NOUS

THE SOCIAL MEDIA

INTRUDER BY CLAUDE DUCLOUX

I’m told that social media has usurped the traditional role of advertising, and to get noticed in the community, lawyers must start down the lightning trail of social media apps. The problem is, almost NONE of us know our snap-chats from our trans-fats. So, what do we do?

learly, I’m not an “influencer.” I don’t have a podcast or a YouTube channel showing people how to apply makeup, or where to buy the best espresso-rubbed Italian Kopi Luwak. So you’re welcome. I’m weary of the abrasive intrusion of social media. There is no safe place for those of us seeking asylum from .gif images, icons, and emojis. “Ding me up, Scotty.” Of course, sometimes such intrusions are welcome and even

anticipated: “Happy Birthday, Buddy!” and “Your Nordstrom Gift has shipped!” stir happy endorphins. To some lesser extent, most people enjoy having the immediacy of relief through comforting messages like, “I’m home, safe and sound,” or “Your mother-in-law can’t make it,” or “Not guilty.” I admit, most of us older attorneys are living in a world where self-promotion technology is going much too fast. Remember, attorney advertising wasn’t

Remember, attorney advertising wasn’t even “a thing” 40 years ago, and public reputation was reliant on your firm’s identity and word-of-mouth in the legal community. But after the Supremes decided Bates and Ohralik, the hounds were loose. 28

AUSTINLAWYER | DECEMBER 2019 / JANUARY 2020

even “a thing” 40 years ago, and public reputation was reliant on your firm’s identity and word-ofmouth in the legal community. But after the Supremes decided Bates and Ohralik, the hounds were loose. By the 1980s, lawyers were invading the Yellow Pages and vying for the back cover of the city phone book. Angry-looking lawyers in cowboy hats were suddenly pointing fingers at the camera, daring us to call them. Even that paled after cagey marketeers created the quest for Super-Lawyer status and the glory of self-promotion through feigned importance. Curiously, we rarely saw the holders of the biggest ads in the courtroom. All that posing must be exhausting. But now I’m told that social media has usurped the traditional role of advertising, and to get noticed in the community, lawyers must start down the lightning trail of social media

apps. The problem is, almost NONE of us know our snap-chats from our trans-fats. So, what do we do? Well, we hire a millennial consultant. They live and breathe all those apps. I hired Zogi, recommended by a sous-chef at the local “designer donut” shop. Zogi Blusterphal arrived a bit late for our 10:30 appointment. ZOGI: Greetings. I’m Zogi. ME: Hi, uh…it’s 11:15. Did I make a mistake as to the time of our appointment? ZOGI: Oh, no. It just took me a long time to coordinate my humours. So, what are we looking at for you, sir? A little promotion? What qualities are we selling?” [As he spoke, Zogi’s thumbs flashed in fierce opposition to a tiny keyboard the size of a Dorito as he took notes.] ME: Well, I’m a lawyer with a broad practice, and I am board

certified, and I think I’m fairly reasonably priced, and… ZOGI: Right, yeah yeah… so what do you already use? Twitter, Instagram? ME: No, and … no. ZOGI: Pinterest? TickTock? Snapchat? ME: No. ZOGI: WhatsApp? ME: Are you still talking to me? ZOGI: [sighs] Look. You’re trying to fish for clients, but you don’t even have a line. I need some real bait out there. Do you offer coupons? What about free samples? Do you have a happy hour? ME: No, I don’t do any of that. Is that necessary? ZOGI: Only if you want to cultivate your audience. Look, I curate content for you. Give me something to raise eyebrows… what sets you apart? ME: I try to give good value for the money clients pay me to…

ZOGI: Nope. Boring, too many words. Hmm. Do you know karate? ME: But aren’t words important? ZOGI: Only to losers. Look—we need to strategize your messaging.

your grammar concerning nominative case pronouns. ZOGI: A “nominative” case? Is that like a misdemeanor? ME: No. It’s…. let’s just move on.

ZOGI: I’ll need references to your heroes… and optics.

ZOGI: Look Clark, I need ideas to burst into the heads of your target market. We do that with color, resonant imagery and, of course, fear.

ME: Optics? Like photos or…

ME: Fear?

ZOGI: Are you listening? I need domain-specific context identifiers. You know, thematic narrative.

ZOGI: It is the primary motivator for success. ME: I’m not comfortable with selling fear.

ME: Can’t we do that in words? Like talk about my values, problem-solving, character.

ZOGI: Hmm. Shame. What about identity politics? Who do you hate?

ZOGI: Sure, just as long as we can do it with emojis. Listen, Clark, do you know Senator Gardner? Me and him created a great buzz by …

ZOGI: Okay, what about heroes? I’ll need domain-specific identifiers.

ME: How do we do that?

ME: “He and I.” ZOGI: You know him, too?

ME: “Whom” … and, nobody.

ME: But I care deeply about helping people. Improving the well-being of others and lifting those who are suffering. ZOGI: You’re killing me here. Alright, let me think. I’ll try crossing into strategized messaging based upon solution packaging. That stuff pops. Give me a second. Okay, how about this? ME: [reading] Hire Clark Declue. He’ll tell the truth at his regular hourly fee. Additional facts cost extra. What? That’s terrible. It sounds like I’ll lie for additional money! ZOGI: Please. Alternate facts are part of the creative process. They just cost more.

ME: What about my values of civility and integrity?

Sadly, I had to let Zogi go. Nothing “popped” for me. I can’t understand the appeal or necessity of selling myself on social media. I’ll have to muddle along with my old skills.

ZOGI: Ha! You’re hysterical! Like that stuff will move the goalposts.

Which include pronouns. AUSTINLAWYER L AL —Keep theAfaith

ME: No, I was just correcting

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

DECEMBER 2019 / JANUARY 2020 | AUSTINLAWYER

PRACTICE POINTERS

Answers to the Most Common Pregnancy and Work Questions BY AUSTIN KAPLAN AND MAFF CAPONI could mean your supervisor: fires you shortly after you disclose the pregnancy or return to work from the pregnancy, refuses to accommodate reasonable schedule changes, reassigns clients or cases away from you, forces or encourages you not to take sufficient caregiver leave, passes you over for promotions, or leaves you out of work opportunities.

Austin Kaplan is the founder and managing attorney of Kaplan Law Firm, PLLC, an employment law and civil rights boutique. He is past-chair of the Austin Bar’s Pro Bono Committee and past-president of the Austin Young Lawyers Association. www.myworklawyer.com Maff Caponi is an associate attorney at Kaplan Law Firm. He is a new member of the bar and a UT School of Law graduate.

regnancy discrimination has been illegal since 1978, yet it continues to plague employees and confound employers. Here are answers to some of the most common questions: EMPLOYEE QUESTIONS: Is there guaranteed paid leave for pregnancy? No. The U.S. is the only developed country that does not require some form of paid pregnancy leave. Check your company’s policy—they may offer paid leave. If not, use your paid time off and/or apply for your short-term disability coverage, which often covers a percentage of your wages during leave.

What does workplace pregnancy discrimination look like? When you tell your employer that you are pregnant—or they otherwise find out—they are prohibited from treating you adversely because of your pregnancy. This 30

How do I handle discrimination? Document as much as possible. Get the facts in email or text, even if you are recapping what a supervisor said to you. Report internally. Consider seeking legal counsel. What if I am a dad?

Both men and women have an equal right to parental leave.1 What if I lose a child or have an abortion? The Pregnancy Discrimination Act protects you from being discriminated against on these bases as well. When is my deadline? Probably soon. The statues of limitation are short: The first one runs 180 days from the discriminatory action. Do not delay. What can I recover?

Damages include back pay, reinstatement or front pay, and compensatory and punitive damages.2 EMPLOYER QUESTIONS: What laws apply? Title VII of the Civil Rights Act of 1964 applies if the company employs 15 or more employees for 20 or more calendar weeks this year or last year.3 It prohibits pregnancy discrimination in hiring and firing,4 and requires pregnancy accommodations.5 If the company employs 50 or more employees within 75 miles of the worksite, the FMLA may also apply, which provides for 12 weeks of pregnancy leave in most

AUSTINLAWYER | DECEMBER 2019 / JANUARY 2020

situations.6 Review the policies and the headcount. The company’s managers were just doing what they thought was right, so we are okay, right? Not necessarily. If the managers think they are acting in the best interest of pregnant employees by reassigning them before or after the pregnancy, they may be making assumptions about the capabilities of pregnant employees that are untrue and based on stereotypes. The law specifically protects employees from those kinds of assumptions. Get advice from an employment attorney instead of guessing. A small company can fire pregnant folks for being pregnant, right? If the company always has fewer than 15 employees during the relevant period, the pregnancy discrimination laws probably do not apply. But just because an action is legal, does not mean it is wise. Companies who treat employees with family responsibilities poorly now may regret it in the long run.

Always be fair, open, and transparent with employees, even when AUSTIN LAWYER AL it. AL the law may not require Footnotes 1 See http://ow.ly/LSH250x1TtT ($5 million class-action settlement initiated by a father who was denied 16-week paid parental leave the company offered to mothers on the grounds that he was not the primary caregiver); and http://ow.ly/ vf6n50x1Trm (exercising these rights could be beneficial to your child). 2 Compensatory and punitive damages are together capped under state and federal law at a maximum of $300,000. 3 42 U.S.C. § 2000e et seq.; Tex. Labor Code § 21.001 et seq. 4 Covered companies cannot refuse to hire someone because they are pregnant. 5 Pregnancy-related physical or mental impairments may also be covered by the Americans with Disabilities Act, which requires the employer to make reasonable accommodations. 6 29 U.S.C.A. § 2612. The Affordable Care Act requires reasonable breaks in a safe and private place other than a bathroom for new mothers to pump breast milk for up to one year after a child’s birth. Companies with fewer than 50 employees may not be exempt if the breaks or private space would cause an undue hardship.

Offices in Austin, Round Rock and Dallas

Anji Maddox

Family Law Specialist

*Kimberly A. Edgington Tim Whitten has practiced in family law since 1992. He has been certified kim@whitten-law.com as a Family Law Specialist by the Texas Board of Legal Specialization.

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DECEMBER 2019 / JANUARY 2020 | AUSTINLAWYER

W E A LT H MANAGEMENT

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Austin Lawyer, Dec. 2019/Jan. 2020

Articles inside

A Lawyer’s Ethical Duty of Self-Care