Austin Lawyer, July/August 2018 by Austin Bar Association

austinbar.org JULY/AUGUST 2018 | VOLUME 27, NUMBER 6

Leading by Example Meet Austin Bar Association’s New President, Adam Schramek

he summer months are typically quiet at the Austin Bar Association. The bar year roughly follows the traditional school year. A new president takes the helm in the summer, and the programs and activities of the Austin Bar ramp up in the fall and wind down by the end of May. The end-of-year board reception, held in late May, is a chance for the organization’s leadership to gather and celebrate all the good work it has done throughout the past year. Then, everyone takes a vacation. After catching its collective breath, the Austin Bar starts again in the fall with a new president, new officers, and new board members. Typically… but not this year. On June 1, 2018, newly elected Austin Bar president Adam Schramek hit the ground running. He spent his first day on the job as Austin Bar president at the Travis County courthouse, representing an indigent defendant trying to keep the family home in which he lived from being sold under unfair terms. A commercial litigation partner at Norton Rose Fulbright and chair of his firm’s

pro bono committee, Schramek plans to work to increase participation by Austin lawyers in pro bono projects throughout his term in office. “Attorneys are the only people who can go to the courthouse to represent the legal needs of the poor and disadvantaged,” Schramek said. “Austin lawyers can do more, and we should each strive to meet the State Bar’s goal of at least 50 hours of pro bono service every year.” Proving he doesn’t just “talk the talk” when it comes to rolling up his sleeves and serving others, he has set the bar high and intends to lead by example in the coming year. To introduce himself to the members of the Austin Bar, Schramek slowed down just long enough to answer a few questions about himself. AUSTIN BAR: Where did you grow up and go to school? SCHRAMEK: I grew up in Pasadena, Texas, which is along the Houston ship channel. My father was a pipefitter and my mother worked for the Nabisco cookie factory in downtown Houston. Graduating first in my class at PHS (the fightin’ Eagles!), I attended American University in

(from left) Sara Foskitt, Austin Bar President Adam Schramek, Alexander Clark, and Ivan Grant at the Travis County Courthouse on Schramek’s first day in office.

Washington, D.C., where I studied political science. A lifelong Democrat, I spent my college years interning and volunteering for President Clinton’s White House, the Democratic National Committee, and my Congressman at the time, Ken Bentsen (Lloyd Bentsen’s nephew). After four years in D.C., I decided I was ready to come back home to Texas, so I accepted my offer from the University of Texas School of Law. AUSTIN BAR: How did you become one half of a power couple? SCHRAMEK: As a 3L at UT School of Law, I competed for a spot on the Texas Invitational, an interscholastic mock trial team. I was selected and paired with a 2L by the name of Chari

Kelly. Well, Ms. Kelly and I apparently hit it off pretty well and in 2003, she became “Mrs.” Kelly. Chari and I soon became involved in the Austin Young Lawyers Association and are the only husband and wife in AYLA history to have both been president of the association. AUSTIN BAR: Why did you want to become a lawyer? SCHRAMEK: Growing up in a family where every dollar counted, my mother refused to be taken advantage of by any retailer. If there was a coupon that had been misrepresented or an “automatic renewal” bait and switch, she was on the phone, talking to the manager, and demanding fair compensation. That instilled in me at an early continued on page 6

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CONTENTS

AUSTINLAWYER JULY/AUGUST 2018 | VOLUME 27, NUMBER 6 AL A L INSIDE FEATURED ARTICLES 1

Leading by Example

DEPARTMENTS 15 Opening Statement

Meet Austin Bar Association’s New President, Adam Schramek

Briefs

TCWLA Holds Annual Grants and Awards Luncheon

Diversity Fellowship Program Begins Ninth Year

Third Court of Appeals Civil Update

Third Court of Appeals Criminal Update

Federal Criminal Court News

Federal Civil Court Update

17 Austin Bar/AYLA Leadership Academy Graduates Newest Class

AYLA

27 Lawyer Referral Service by the Numbers

Practice Pointers

10 Austin Bar and AYLA Boards Present Awards 12 Lloyd Lochridge—A Lawyer’s Life Well Lived 13 J. Chrys Dougherty and Lloyd Lochridge Parallel Tracks and a Decades-Long Squash Game

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Leading by Example continued from cover

Austin Bar president Adam Schramek and wife, Chari Kelly.

age a desire to fight for what was right, to know the rules, and to rarely accept “no” as the answer. AUSTIN BAR: What was your first job out of law school? SCHRAMEK: I am one of a dwindling group of attorneys who still works at the same firm at which he or she started. I was very proud to be offered a job with a litigation powerhouse like Fulbright & Jaworski. And while a few things have changed over the years, including the firm’s name, I remain proud of my choice and continue to enjoy working with some of the best attorneys in Texas AUSTIN BAR: How long have you been involved with the Austin Bar?

AUSTINLAWYER | JULY/AUGUST 2018

SCHRAMEK: I first became involved in the Austin Bar when I tried out for Bar & Grill over a decade ago. I was selected for a duet (with Simi Denson), and a few years later, I was helping to write and cast the annual all-lawyer musical fundraiser. Since then, I’ve held every executive leadership position in both AYLA and the Austin Bar. AUSTIN BAR: Why would you encourage someone to get involved with the Austin Bar? SCHRAMEK: I watched lots of attorneys with whom I started leave Big Law or just burn out. One thing I credit for making partner (and continuing to enjoy my job) is my involvement in AYLA and the Austin Bar. I got involved early and forged

friendships with many attorneys I otherwise would never have known. It has been both professionally and personally rewarding to watch my colleagues across practices develop their careers and share and learn from each other. AUSTIN BAR: If you could give your younger self a word of advice, what would you tell him? SCHRAMEK: Stay gold, Ponyboy! AUSTIN BAR: What are your primary goals for the Austin Bar in the upcoming year? SCHRAMEK: We need to increase attorney participation in pro bono cases. There are many individuals who sign up with Volunteer Legal Services of Central Texas (VLS) and yet never get an attorney to handle his or her case. And there are even more people who barely exceed the income requirement for VLS (and are therefore rejected), yet realistically cannot afford counsel. We have to find ways to bridge these gaps. We, as a profession, can and must do more. AUSTIN BAR: What challenges do you think the Austin Bar faces and how do you think these challenges can be overcome? SCHRAMEK: We need to get more attorneys involved in the local bar. Everyone who does ends up enjoying the experience and wishing they had participat-

ed earlier. We need to get people out of their offices and to section meetings, social events, and pro bono projects. AUSTIN BAR: Anything else of note you’ll be doing this bar year? SCHRAMEK: As most attorneys know, my wife, Chari, has decided to throw her hat into the political arena and is running for a spot on the Third Court of Appeals. While being a political candidate’s spouse has certainly filled up my social schedule, I’ll hold off discussing that any more until November 7th! AUSTIN BAR: What is a little-known fact about yourself that you’d like to share? SCHRAMEK: I once won a spear throwing contest in Hawaii. AUSTIN BAR: Is there anything else you’d like to share with our members about yourself or your goals for the coming year? SCHRAMEK: It’s going to be a great year. We’re going to have fantastic programming and a wonderful winter gala at the new Fairmont Hotel. And we are going to move the needle on increasing pro bono representation by Austin lawyers. I am honored to be this year’s president, and I look forward to the many great AUSTIN LAWYER AL AL things to come.

TCWLA Holds Annual Grants and Awards Luncheon

he Travis County Women Lawyers Association and Foundation’s Annual Grants and Awards Luncheon was held on Friday, May 18, 2018, at the Four Seasons. Featured speakers were Angela Barbee Styles of Bracewell, and Meymo Lyons of radio station WAMU 88.5 at American University. The Foundation awarded $65,000 in grants to local nonprofits providing direct legal services to women, children, and families. Grant recipients included American Gateways, Volunteer Legal Services of Central Texas, Asian Family Support Services of Texas, Casa Marianella, Center for Child Protection, Family Eldercare, Refugee Service of Texas, Inc., Texas Rio Grande Legal Aid, Lone Star Justice Alliance, Texas Fair Defense Project, and Jane’s Due Process.

Honorees and award recipients at the annual TCWLA luncheon on May 18, 2018.

The TCWLA recognized the following women for their contributions: • Public Interest Trish McAllister; • Contribution to Minority Community Kathy Richardson; • Advance of Women’s Interest Amber (MacIver) Fischer;

• Government Service Catherine Reyer; • Pro Bono Kelly Ausley-Flores;

• Outstanding Achievement Cynthia Smiley; and AUSTINLAWYER AL AL • Firm Enoch Kever.

• Litigation/Appellate Kennon Wooten; • Corporate/Transactional Sujata Ajmera; • Criminal Justice Claire Carter;

JULY/AUGUST 2018 | AUSTINLAWYER

Diversity Fellowship Program Begins Ninth Year

embers of the newest Diversity Fellowship Program met recently at the Austin Bar to kick off its ninth year. This year’s participating law students are Ashley Berry, Ruben Cardenas, Ricardo Gilb, Desiree Hunter-Reay, Jun Hyeok Kang, Jeaeun Kim, Danran Li, Rachel Ochoa, Kevin Taki, and Roel Torres. The program enables first-year law students of diverse backgrounds to participate in law firm, governmental agency, and judicial internships for 10 weeks during the summer. They are selected through a competitive application process. Judge Lora Livingston, Judge Eric Shepperd, Rudy Metayer, Tony Nelson, and Leslie Dippel serve as co-chairs of the Diversity Committee which coordinates the program. Judge Orlinda Naranjo is also an active participant and advisor to the committee. Numerous other bar members and elected officials assist in the selection process, as well as the orientation held for each class. The Austin Bar Foundation provides a stipend to each student, funded by donations from the participating firms. Past participants in the program have continued on to traditional clerkships later in law school and have reported

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This program has given highly qualified students great exposure to opportunities they may not have otherwise received. successful employment after graduation—some with the firms that sponsored them as interns through this program. According to Judge Shepperd, “When we first agreed to chair this committee, it was important to us for the committee to do something big. Not just talk about diversity—but actually demonstrate cultural competency. This program has given highly qualified students great exposure to opportunities they may not have

otherwise received. I am amazed the program is entering its ninth year and am so proud of these students’ successes. Watching them grow and hearing about their careers, some of them now with firms where they did their internships, is a testament to the success of the program. An additional point of pride is its continuing growth with respect to the size and quality of the applicant pool, and the stellar support from the Austin Bar.

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To go from awarding three fellowships our first year to 10 for this year’s class is nothing short of amazing. And we still had difficult choices to make.” The Diversity Committee could not be successful without the support of the participating firms: Armbrust & Brown; The Fowler Law Firm; Graves Dougherty Hearon & Moody; Howry Breen & Herman; Jackson Walker; Lloyd Gosselink; Locke Lord; McGinnis Lochridge & Kilgore; Naman Howell Smith & Lee; and Clark Hill & Strasburger. Special recognition to McGinnis, Graves, and Armbrust, which have faithfully supported the AUSTINLAWYER AL AL program since its inception.

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Austin Bar and AYLA Boards Present Awards for Outstanding Service

embers of the boards of directors for the Austin Bar Association and the Austin Young Lawyers Association celebrated the end of another successful bar year on May 30, 2018 at the Austin Club. The event was the culmination of the leadership of Austin Bar President Amy Welborn and AYLA President Austin Kaplan. Each outgoing president was given the opportunity to recognize and honor some of their

outstanding board members and committee chairs. Kaplan presented Francesca Di Troia with the Outstanding Director Award, and Blair Leake with the Outstanding Committee Chair Award for his work with as the chair of the Community Services Committee, which organized monthly community service days. Erin Bennett was awarded the President’s Award of Merit for her leadership as the AYLA representative to Austin Lawyer, and for stepping in to help with Runway for Justice.

Members of the boards of directors for the Austin Bar Association and the Austin Young Lawyers Association celebrated the end of another successful bar year.

Because of their efforts on the Women’s Resource Fair, Jennifer Hopgood and Monica Stallings were given Service Awards, and Johnathan Stone was presented with a Volunteer Award. Incoming AYLA president, Jorge Padilla, presented Kaplan with a plaque in recognition of his year of service as president. Welborn presented a combined Outstanding Director and Outstanding Committee Chair Award to Blair Dancy and Amanda Arriaga, co-chairs

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TOP ROW (from opposite left): Amy Welborn presents Amanda Arriaga and Blair Dancy with a combined award for Outstanding Director and Outstanding Committee Chair. Members of the AYLA and Austin Bar boards celebrating their achievements at the Austin Club. Adam Schramek thanks out-going president Amy Welborn for her year of service. BOTTOM ROW (from opposite left): Austin Kaplan recognizes Monica Stallings and Jennifer Hopgood with Services Awards for their work on the Women’s Resource Fair. Allison Dancy chats with Austin Bar board member Pete Reid.

of the Bench Bar Committee. In addition to their outstanding work on that committee, Dancy was instrumental in initiating an expansion of the Austin Bar’s online member directory and took the lead in negotiating the contract for the project, while Arriaga served as co-chair of the 2018

Foundation Gala which raised almost $80,000 for the Austin Bar Foundation. Adam Schramek, Austin Bar’s incoming president, presented Welborn with a plaque and thanked her for her service and leadership as president this year. New boards and officers for

both organizations took office July 1, 2018. The new bar year kicks off in full swing in late August with a cocktail reception celebrating the 125th anniversary of the Austin Bar AUSTIN LAWYER AL AL Association.

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Lloyd Lochridge—A Lawyer’s Life Well Lived BY DIRK JORDAN

he Austin Bar Association isn’t the only one to have a major milestone birthday this year. Lloyd Lochridge turned 100 years old in February, 2018. For almost 75 years, since his release from the United States Navy in 1946, he has been practicing law. He is more than simply a lawyer—he is a statesman in the truest sense of the word. The accolades Lochridge has received are legion. He has served as president of both the Travis County (now Austin) Bar Association and the State Bar of Texas. He received the Louis Powell Professionalism Award from the American Inns of Court, and in 2010, the Lloyd Lochridge Inn was formed and named in his honor.

THE EARLY YEARS

Lochridge was born in Austin in 1918. He graduated from Princeton University in 1938, where he studied chemistry. Practical considerations were the main influence in his decision to go to law school. Not sure what he wanted to do after graduation, he listened to his mother who told him there had always been a doctor in the Lochridge family. He applied and was admitted to both the Harvard Medical and Law Schools. In 1938 the United States was still in the throes of an economic depression, and Lochridge wanted to carry his weight financially. Considering that he would be out of law school in just three years, while medical school would take more than two years longer to complete, he decided to become a lawyer. He served in the Navy during World War II. After he was discharged, he hitched a ride on a U.S. Army Air Force plane to Mission in the Rio Grande Valley, where his uncle had a two-person office. His uncle’s partner left the practice, so his 12

AUSTINLAWYER | JULY/AUGUST 2018

ABOVE: Lloyd Lochridge; RIGHT: Lloyd Lochridge appearing before the Texas Senate during his term as president of the State Bar of Texas in 1974-75.

uncle offered him a job. As with most small-town practices, his practice consisted of doing anything that came in the door. This included title work, oil and gas, real estate, and litigation. He was paid $250 per month—about half of what he earned in the Navy. Sometimes he was paid in chickens. Still, he describes his practice in Mission as being varied and interesting.

happened while still in the Valley. He was involved in political litigation in Starr County. After WWII, a new group was attempting to wrest power from the old

His childhood friend, Bob McGinnis, offered him a position in what is now known as McGinnis Lochridge. He was the seventh lawyer in the firm. After practicing in the Valley for almost 14 years, he moved to Austin in 1959 so his six children might have greater educational opportunities. His childhood friend, Bob McGinnis, offered him a position in what is now known as McGinnis Lochridge. He was the seventh lawyer in the firm. CAREER HIGHLIGHTS

Asked about the highlights of his legal career, Lochridge pointed to two instances in which he was in the public eye. The first

guard who had controlled the county for decades. The factions fought over who drove school buses, who served on the school board, and other positions that had the ability to hand out jobs. In that day, a person could talk to two people in a county and get all of the votes. And we think the political system is corrupt now! The other highlight of his career came when he was in a case against Clinton Mangus, a prominent Texas oil magnate. The case was appealed to the Texas Supreme Court. One of

the Justices, Ted Robertson, had received a $120,000 campaign contribution from Mangus. During oral argument, Justice Robertson dominated the questioning, not allowing Lochridge to discuss his position. After a few minutes, Lochridge asked Justice Robertson to hold his questions since he conceded his vote, saying that he wanted to talk to the other Justices who had not yet made up their minds. The contribution was featured as part of a story called “Justice for Sale” reported for CBS by Mike Wallace on 60 Minutes in 1987. The segment is available for view on YouTube. CHANGES IN THE PRACTICE OF LAW

Lochridge has seen many changes in the practice of law over his many years in the profession. One of the major changes that has had a tremendous impact is the advent of technology. Information now comes at lawyers more rapidly.

J. Chrys Dougherty and Lloyd Lochridge The post office used to deliver all correspondence, and if the message was really urgent, one sent a telegram. Manual typewriters were the main office tool and carbon paper was used to make copies. One had to strike the keys with some force to make an impression through three layers of paper. The telephone was used extensively. Now, email is the primary tool of communication. According to Lochridge, the problem with email is you don’t know if the recipient has read it or not. He thinks we have lost something by not communicating either by telephone or face-to-face. He may be on to something there. CURRENT STATUS OF THE PROFESSION

While ethical issue are similar throughout the ages, Lochridge feels the practice of law has become more complex because the world has become more complex. He is troubled with the lack of affordability of legal services, as well as the high cost of law school tuition and the attendant debt that comes with it. Lochridge views the practice of law as a profession rather than a business. He is concerned that most lawyers today see it differently. They tend to focus on economics, which makes the profession just another business. Clearly, his chosen profession is more than just a business to him. At age 100, he still goes into his office six days a week, as much as he’s able. When asked why he still makes this part of his daily routine, he says he’s not sure what he would be doing if he weren’t there. He enjoys being with his firm, interacting with other lawyers, and the intellectual challenges the law provides. Lloyd Lochridge is a great example of a lawyer’s life well lived. He has influenced generations of Texas lawyers, and I hope he continues to make a difference for many more years AUSTIN LAWYER AL AL to come.

Parallel Tracks and a Decades-Long Squash Game

n honor of the 125th anniversary of the Austin Bar Association, we have taken a look back at its history in each Austin Lawyer issue this year. The following is an excerpt from “Austin Lawyers—A Legacy of Leadership and Service,” page 113. Back from the war in 1946, Harvard-trained attorneys and good friends J. Chrys Dougherty and Lloyd Lochridge both began practicing law in Texas. The newly married Dougherty immediately set up shop in Austin with his father-in-law, Ireland Graves. (The firm later became Graves, Dougherty & Greenhill; then Graves, Dougherty, Hearon & Moody, P.C.). Lochridge, meanwhile, set up shop over his uncle’s grocery store in the coastal farming community of Mission. Over the next few years, he and his wife had six children and by 1959, they began worrying about schools. They decided to make the move to Austin. Throughout their decades of practice in the city, both Dougherty and Lochridge became respected pillars of the legal community. Early in his

Austin Bar Association President 1970 – 71

do for others,” he eventually helped found the Appleseed Foundation, a national organization dedicated to creating a just society through legal advo-

TOP LEFT: J. Chrys Dougherty; BOTTOM LEFT: Lloyd Lochridge; ABOVE: Lloyd Lochridge in 1975, then president of the State Bar of Texas, along with Joe Greenhill and John Onion, help excavate the property that would later become the Texas Law Center.

Inns of Court Professionalism Award for the Fifth Circuit in recognition of his “sterling character and unquestioned Both men served as Travis County Bar integrity, coupled with ongoing dedication to the highest Association presidents, and both served standards of the legal proas presidents of the State Bar of Texas. fession.” Both men served as Travis County Bar Association Through it all, the two men also kept in presidents, and both served as touch, discussing law and family over presidents of the State Bar of Texas. Through it all, the two the weekly squash games they played men also kept in touch, distogether for almost 40 years. cussing law and family during the weekly squash games they career, Dougherty successfully cacy, community activism, and played together for almost 40 argued the landmark Tidelands policy expertise. Lochridge, years. case before the Supreme Court. meanwhile, gained respect as a (Dougherty passed away In accord with the advice his partner in McGinnis Lochridge at the age of 98 on Feb. 20, father once gave him, “the & Kilgore, LLP. The firm later 2014. Lochridge celebrated only good investment we can became McGinnis Lochridge. AUSTIN his LAWYER 100th birthday on Feb. 1, AL AL make in this life is the good we He won the 2000 American 2018.) JULY/AUGUST 2018 | AUSTINLAWYER

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OPENING STATEMENT

The Formality Continuum From Complex to Clear, Fancy to Plain BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

ources on legal-writing style often advise writing plainly, being direct, and using shorter, common words in place of longer, obscure ones. In “Legal Writing in a Nutshell,” Lynn Bahrych says, “a plain style is usually the best style.”1 Plain language, according to Mark Cooney in “Sketches on Legal Style,” “isn’t plain at all, if by that you mean dull and drab. It’s refreshing, persuasive, interesting …”2 And in “The Art of Advocacy,” Noah Messing urges us to simplify our writing: “Use the simplest term that meets your needs.”3 I often approach this advice not from the perspective of simplicity and plainness, but of formality and informality. It may be just another way of describing the same thing, but I’ve found that it helps some legal writers, including me, to think about word choice as falling along a continuum: Formal Informal So instead of saying that help is a small word and assist is a big one, I say that help is an informal word and assist is a formal one—it’s closer to the

formal end of the continuum. The formality continuum I’m discussing is for professional legal writing: work-related email, professional correspondence, legal filings, court pleadings, and other legal documents. Your personal text messages, social media posts, and other similar writings are on a separate continuum. Speech is on another. What I’m talking about here is the continuum for legal writing. For almost any idea or concept, legal writers can choose words that fall near the informal or formal end of the continuum. Often, the formal word is of Latin origin, and the informal word is of Anglo-Saxon origin. For example, the left column is Anglo-Saxon, and right column is Latin: ask request build construct job profession start commence teach educate And so on. Similarly, using “and” or “so” to begin a sentence falls near the informal end of the continuum, whereas using “additionally” and “therefore” is more formal. And using contractions

in a legal document would be informal, while avoiding them would be more formal. For example:

Using contractions and beginning with and aren’t wrong; they’re informal. For many legal writers, those choices would be too informal for an appellate FORMAL brief, but would be fine for Additionally, the judgment email. against Hunter cannot stand beNow the advice: cause the economic-loss rule bars First, be aware of the formalithe negligence claim. Therefore, ty continuum in your professionthe judgment should be reversed. al writing, and use the appropriate level of formality for the INFORMAL context—the type of document And the judgment against and the audience. Certainly Hunter can’t stand because the most legal writers are doing this economic-loss rule bars the negalready. ligence claim. So the judgment Second, when you can, move should be reversed. your writing toward the informal You can also move along end. Utilize the base verb in the formality continuum with lieu of the nominalization. Use phrases, particularly a structure the base verb instead of the noun. called a nominalization—a noun Make a selection in favor of the that could have been a verb. So Anglo-Saxon term rather than the Anglo-Saxon help becomes the Latin. Choose the Anglo-Saxthe more formal Latin assist, on word in place of the Latin. which is more formal still in its Your readers will appreciate AUSTIN LAWYER nominalized form, provide assistance to. There are many chanc- AL it. AL es to move along the continuum Footnotes in this way: The defendant wants 1. Lynn Bahrych, Legal Writing in a to settle. The defendant desires to Nutshell 97 (4th ed. 2009). 2. Mark Cooney, Sketches on Legal Style settle. The defendant harbors a 57 (2013). desire to settle. 3. Noah A. Messing, The Art of Advocacy A benefit of thinking about 260 (2013). word choice this way is that we get away from wrong or right.

JULY/AUGUST 2018 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Meme Thomas Erin Shank Braden Bennett Elizabeth Brabb Lena Proft Michael Roseberry Ilida Alvarez TOP ROW: Baker, Bell, Falk, Gilbert, Kirkland, Koplin, BOTTOM ROW: Layne, Lindsey, Morgan, Oddo, Sujata, Welborn

AWARDS

Two members of the Austin Bar Association were recently honored with Austin Under 40 Awards. Sujata Ajmera, a partner with Strasburger & Price, won in the legal category and was named 2018 Austinite of the Year. Toya Bell, deputy chief ethics officer at the Texas Health & Human Services Commission, was recognized as Mentor of the Year.

office in Austin. Led by partners Jeff Layne and Ben Koplin, the new office is part of the firm’s expansion of its Life Sciences Health Industry Group. MOVING ON UP

elected partners of Gjerset & Lorenz. Chris Oddo recently became a named partner at the firm Barron, Adler, Clough & Oddo.

Baxter Morgan, James Lindsey, Catherine Kirkland, and Rachel Gilbert have been

Amy Welborn was elected to the State Bar of Texas Board of Directors for District 9, Place 3. NEW TO THE OFFICE

Robert H. Baker recently joined the firm of Kelly Hart & Hallman as an associate in the Corporate and Securities Practice Group. Family law attorney Alyson Falk has joined Lazar Law. The firm focuses exclusively on representation in family law matters, including divorce, custody, and marital agreements. Reed Smith recently announced the opening of a new

Patrick

Keel Former District Judge

patrickkeel.com (512) 293-0300 16

AUSTINLAWYER | JULY/AUGUST 2018

Mediator Arbitrator

Austin Bar/AYLA Leadership Academy Graduates Newest Class

he 2018 class of the Austin Bar/AYLA Leadership Academy graduated on Tuesday, May 29, 2018. The class consisted of 25 members from a variety of practice areas, firm sizes and types, and levels of experience. The Academy kicked off with an all-day retreat in January, followed by a series of five lunches where the class met and networked with community leaders. Special thanks to United State District Judge Robert Pittman, State Representative Eddie Rodriguez, Travis County Civil District Judge Karin Crump, and attorneys Chuck Ruesink, Brad Compere, Toya Bell, Elizabeth Rogers, and Jeana Patel for sharing their thoughts with the participants of the Leadership Academy.

The 2018 class project is a short film documentary titled “Law: A Tradition of Service” that seeks to document and preserve landmark legal and societal contributions of various Central Texas lawyers. The Academy closed with a ceremony where local bar leaders spoke to the class about continuing opportunities for community engagement. Special thanks to incoming AYLA President Jorge Padilla, prior Leadership Academy Committee Chair Travis Plummer, TYLA District Representative Meagan Harding, and Travis County Criminal Court Judge Elisabeth Earle for attending the graduation ceremony and

speaking with the class. The Academy includes a class project in which participants seek to have an impact on or serve their community. The 2018 class project is a short film documentary titled “Law: A Tradition of Service” that seeks to document and preserve landmark legal and societal contributions of various Central Texas lawyers. The final product will be shown at local bar events, high schools, law schools, and more. For those interested in donating to

Robert Carl Frazer Sarah Tudor Glaser Kristie J. Iatrou Lacey Kalbas Wylie Emmett Kumler Blair Jackson Leake Grant McLoughlin Ryan Eric Meltzer Jenna Reblin Adrian Matthew Resendez Marshall Sales Marshall A. Thompson Claire Vaho Scott Weatherford AUSTINLAWYER AL AL Taylor Ryan Yetter

this project, please visit https:// tinyurl.com/ayla2018.

Congratulations to the members of the 2018 Austin Bar/ AYLA Leadership Academy Class:

Ryan Alter James Brandon Barnes Ray Elliott Beck, Jr. Alex Brown Logan Bauerle Campbell Kristina A. Chung Salvador Davila Sam Denton Kristine Laudadio Devine C. Daniel DiLizia

Guided by COMPASSION. Driven by RESULTS.

Partners, left to right: Michael Burnett, Travis L. Turner

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with such accolades as Super Lawyers, Best Lawyers, and Best Law Firms. If you want an attorney who empathetically listens to your concerns while fearlessly fighting to protect your interests, call us to arrange an initial consultation. BurnettTurner. Your Professional Advocate. Your Personal Ally.

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Michael Burnett Travis Turner Becca Kennedy Cade Aaron Jobe

Michael Burnett (Family Law, 2015-2018, Commercial Litigation, 2016-2018) Travis Turner (Family Law, 2015-2018)

Michael Burnett (2011-2018) Michael Burnett (2016-2017 Texas Top 100) Michael Burnett (2015-2018 Top 50 Central/West Texas Super Lawyers) Travis Turner (2017-2018)

Travis Turner (2009, 2012Michael Burnett 2017) Travis Turner Travis Turner (2017, Up-AndComing 100: Texas Rising Star) Becca Kennedy (2010-2011) Cade Aaron Jobe (2017)

JULY/AUGUST 2018 | AUSTINLAWYER

THIRD COURT OF APPEALS CIVIL UPDATE

Adam Herron, an associate with Ikard Ratliff, is filling in this month for regular contributor, Laurie Ratliff.

The following are summaries of selected civil opinions issued by the Third Court of Appeals during May 2018. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of May 31, 2018.

FAMILY LAW: Venue transfer was mandatory, ministerial duty. In re Rusch, 03-18-00163-CV (Tex. App.—Austin May 9, 2018, orig. proceeding) (mem. op.). Father sought to modify divorce decree that gave

Mother sole right to designate children’s primary residence. Mother moved to transfer venue to Brazos County where children resided. Father argued that Mother failed to give requisite notice for the venue-transfer hearing. The trial court said it would never transfer the case and gave Father sole right to designate children’s primary residence. The court of appeals granted mandamus relief because the transfer to a county where a child has resided more than six months is a mandatory, ministerial duty. Because Father admitted children resided in Brazos County for several years, no hearing on Mother’s motion to transfer was required.

Dunster’s membership ceased before it filed suit but denied defendant-members’ motion for summary judgment on Dunster lacking standing to bring derivative claims. The court of appeals held Dunster lacked standing to bring derivative claims because it was not a member when it filed suit and no exception to that rule applied. The court of appeals also held that defendants lacked an adequate remedy by appeal because allowing Dunster to pursue claims without standing would deprive defendants and LoneStar 1 the rights to not have their governing mechanisms subverted and LoneStar 1 pursue claims that a bystander desires.

BUSINESS LITIGATION: Former member lacked standing to sue on LLC’s behalf. In re LoneStar Logo & Signs, LLC, 03-18-00214-CV (Tex. App.—Austin May 31, 2018, orig. proceeding). Before a contract between TxDOT and LoneStar 1 (an LLC) reached termination, one of LoneStar 1’s six members secured TxDOT’s next contract. Five of LoneStar 1’s members—all but Dunster Live, LLC—formed LoneStar 2 to perform under the new contract. Dunster, derivatively on behalf of LoneStar 1, sued the five other members for wrongfully excluding Dunster. The trial court acknowledged that

DISCOVERY: Attorney-client privilege applied before formal relationship existed. In re Levien, 03-18-00079-CV (Tex. App.—Austin May 11, 2018, orig. proceeding) (mem. op.). To receive additional trust funds, Harlan and Stephen adopted two adults—Johnson and Ives. Trustees sued to set aside the adoptions as fraudulent. The trial court ordered production of emails between Ives and an attorney under the crime-fraud exception to attorney-client privilege. Finding the exception inapplicable, the court of appeals vacated the order. It was later discovered that the attorney was not Ives’s

attorney when the emails were exchanged, so the trial court again ordered production. Harlan, Stephen, Johnson, and Ives again sought mandamus relief, and the court of appeals found the emails privileged because they pertained to legal issues and were between a lawyer and prospective client. The court of appeals also noted that intent has no bearing on an adoption’s validity. ADMINISTRATIVE LAW: TCPA must be read in context. Sullivan v. Texas Ethics Comm’n, 03-17-00392-CV (Tex. App.—Austin May 17, 2018, no pet. h.). Sullivan appealed to district court an order by TEC assessing a penalty for failing to register as a lobbyist. The district court granted Sullivan’s request that TEC be realigned as plaintiff, so TEC amended its pleadings. Sullivan then filed a TCPA motion to dismiss, which the district court denied. Sullivan argued he was entitled to TCPA dismissal because TEC’s amended pleading was a legal action relating to Sullivan’s exercise of the right of free speech and to petition. The court of appeals disagreed because (1) Sullivan exceeded the “maximum extent” of permissible exercise of those rights and (2) allowing dismissal would frustrate the legislature’s lobbyist-registration AUSTIN LAWYER AL AL schemes.

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THIRD COURT OF APPEALS CRIMINAL UPDATE prejudicial. Therefore, the court was unable to conclude that the district court had abused its discretion in excluding the evidence.

ADMISSIBILITY OF GANG-RELATED EVIDENCE: Trial court did not abuse its discretion in excluding defense evidence tending to show that State’s witness was a gang member. Johnson v. State, No. 03-1600658-CR (Tex. App.—Austin Jan. 11, 2018, no pet.) (mem. op., not designated for publication). Appellant was convicted of various sex offenses, including aggravated sexual assault of a child. During trial, appellant sought to admit evidence tending to show that the victim of the offenses, a teenage boy, was a member of a gang. The State objected to the admissibility of the evidence, and the district court sustained the objection, finding that the evidence was not relevant and was more prejudicial than probative. On appeal, the appellate court affirmed. The court first observed that it was unlikely that evidence of gang membership would have any bearing on the victim’s credibility in this case, given the nature of the victim’s testimony. But, the court explained, even if the evidence had some marginal relevance to the victim’s credibility, the evidence of gang membership was highly

INEFFECTIVE ASSISTANCE OF COUNSEL — FAILURE TO REQUEST LESSER-INCLUDEDOFFENSE INSTRUCTION: Counsel not ineffective for failing to request instruction on lesser-included offense. Ballard v. State, No. 03-1700040-CR (Tex. App.—Austin Jan. 11, 2018, no pet.) (mem. op., not designated for publication). Appellant was convicted of capital murder based on evidence tending to show that he had shot and killed two of his friends while he was high on drugs. On appeal, appellant asserted that counsel was ineffective for failing to request an instruction on the lesser-included offense of serious-bodily-injury murder. The appellate court disagreed, concluding that appellant was not entitled to the instruction. The court first observed that an individual commits serious-bodily-injury murder “if he . . . intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual” and that “proof that appellant intentionally and knowingly caused the deaths of two people by shooting them would also

The cases summarized are from January 2018 and subsequent histories are current as of June 1, 2018.

prove appellant intended to cause serious bodily injury to at least one person.” Therefore, the court concluded that serious-bodily-injury murder was a lesser-included offense of capital murder. However, the court further concluded that appellant failed to present any evidence that if he was guilty, he was guilty only of the lesser-included offense. According to the court, “the evidence established that [appellant] retrieved his father’s gun from his car, loaded the weapon, fired the weapon at [both victims] while he was in close range to both victims, fired multiple bullets into both victims, hit vital areas of the victims causing multiple fatal injuries to each victim, continued to fire the weapon until all of the bullets had been discharged, and left the scene to see his girlfriend without calling 911 for help.” In light of this evidence, the court concluded, a jury could not rationally conclude that appellant, if guilty, only intended to cause serious bodily injury. SUFFICIENCY OF THE EVIDENCE —ASSAULT AND HARASSMENT OF PUBLIC SERVANTS: Evidence sufficient to prove that appellant intended to assault and harass police officers. Childress v. State, Nos. 03-1600535-CR, 03-16-00536-CR, 03-16-00537-CR (Tex. App.— Austin Jan. 12, 2018, no pet.) (mem. op., not designated for publication). Appellant was convicted of the offenses of assault of a public servant and harassment of a public servant. The convictions were based on an incident that occurred on Sixth Street in downtown Austin during South by Southwest. According to the evidence presented, appellant was involved in a disturbance and was subsequently arrested by police officers. During his arrest, appellant “was combative and

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.

physically resisted the officers’ efforts.” Then, after appellant had been placed in a police car, he began spitting at an officer, and some of his saliva landed on the arm of another officer who was standing nearby. Appellant was convicted of assaulting the two officers who had arrested him and harassing the officer who was standing nearby when appellant began spitting. On appeal, among other complaints, appellant asserted that the evidence was insufficient to prove that he possessed the necessary intent to assault or harass the officers. The appellate court disagreed, concluding that appellant’s intent to assault the arresting officers could be inferred from his words and conduct. The court also concluded that under a theory of transferred intent, there was sufficient evidence to prove that appellant had intended to harass the officer on LAWYER whom AUSTIN AL AL appellant’s saliva had landed.

JULY/AUGUST 2018 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Supremes Extend Search Warrant Requirement to Driveways BY DAN DWORIN

It is not unusual for warrants to search a premises to include vehicles found on or around the location to be searched.

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.

f warrantless searches of automobiles can be justified by their inherent mobility, can police rely on the “automobile exception” to enter onto a suspect’s driveway to photograph a motorcycle without a warrant? The U.S. Supreme Court recently said the answer to that question is “no.” In Collins v. Virginia1, the Court considered the tension between the long-established “automobile exception” with the equally venerable notion that police entry onto the “curtilage,” or area adjacent to a home, is a search of the home within the meaning of the Fourth Amendment which requires, absent special circumstances, a search warrant. In 2013, the Court ruled that officers needed a warrant to bring a drug-sniffing dog onto the “curtilage” of a residence.2 This case helped further reinforce the idea that the area around the outside of a suspect’s home is considered to be as private as the home itself. 20

AUSTINLAWYER | JULY/AUGUST 2018

However, in many cases, the Court has carved out exceptions for investigations involving motor vehicles, on the grounds that their use is heavily regulated by the government, and because by their very nature they are mobile, so requiring a warrant for every vehicle search would be extremely difficult (since the officer would rarely know exactly where a vehicle might be found). So long as the officer can articulate “probable cause” to believe a search of a vehicle found in a public place will result in the discovery of evidence, the search will likely be held reasonable.3 It is not unusual for warrants to search a premises to include vehicles found on or around the location to be searched. Although the officers in Collins had determined (based on the suspect’s Facebook pictures, of all things) that the motorcycle—which had eluded them twice in recent high-speed chases, and was apparently stolen—might be located at a particular residence, they did not ask a court for a warrant. Rather, one of the officers, upon seeing what appeared to be a motorcycle covered by a tarp parked in the suspect’s driveway, walked onto the driveway, pulled back the tarp, and took photographs of the suspect vehicle to obtain its registration information. Determining that it was indeed the same motorcycle, the office waited until the suspect returned home and arrested him. Writing for the majority, Justice Sonia Sotomayor wrote

that the suspect had the same Fourth Amendment expectation of privacy in his driveway that he would have had the motorcycle been seen through the windows of his house to be sitting in his living room.4 Justice Alito, in dissent, opined that since the violation of privacy in this case was minimal, the search should have been considered reasonable.5 It is interesting to note that Collins struck out with his arguments in the trial court, and all the way through the Virginia appellate system. Justice Thomas, in a concurrence, made a familiar argument that the Court should reconsider whether the federal exclusionary rule (that evidence obtained in violation of the Fourth Amendment must be suppressed) should be applied to the states at all.6 Mr. Collins, and state defenders throughout the country, can be quite glad that this position has yet to attract enough votes to so

fundamentally change Fourth AUSTIN LAWYER AL AL Amendment jurisprudence. Footnotes 1. 584 U.S. ___ (2018) 2. Florida v. Jardines, 569 U.S. 1 (2013). 3. See, e.g., California v. Carney, 471 U.S. 386 (1985). 4. 584 U.S. ____ (2018). 5. Id. 6. Id.

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.

TRADEMARK: A mark that had been extensively and consistently licensed establishes ownership of the mark as an identifier of goods and services. Viacom International, Inc. v. IJR Capital Investments, LLC, No. 17-20334 (5th Cir., May 22, 2018). Defendant IJR Capital Investments decided to open seafood restaurants in California and Texas in 2014, and planned to name the restaurants “The Krusty Krab.” IJR asserted that the name evolved from the crusted glaze applied to cooked seafood. Plaintiff Viacom launched an animated television series in 1999 called “SpongeBob SquarePants.” The main character, SpongeBob SquarePants, lives in an underwater pineapple and works at the fictional “The Krusty Krab” restaurant. The Krusty Krab mark was not registered with the United States Patent and Trademark Office (“USPTO”). IJR, however, did file a trademark application. Viacom asserted claims of unfair competition under the Lanham Act and trademark infringement under Texas common law, alleging that IJR’s use of the mark in connection with restaurant services was likely to cause confusion or mistake, and deceive potential customers, causing them to believe that the services offered by IJR were affiliated with the television show. The Court of Appeals noted that specific elements from within a television show can receive trademark protection, stating that The Krusty Krab is analogous to other protected marks such as The Daily Planet from “Superman” and the General Lee

from “The Dukes of Hazzard.” The Krusty Krab mark is “integral to ‘SpongeBob SquarePants’ as it appears in over 80 percent of the episodes, plays a prominent role in the SpongeBob films and musical, and is featured online, in video games, and on licensed merchandise.” This central role in the show is strong evidence that it is recognized in itself as an indication of origin for Viacom’s licensed goods and television services. The Krusty Krab mark, with its unconventional spelling, is distinctive enough to warrant protection and identify to consumers that Viacom is the source of The Krusty Krab products. The use of the mark is likely to confuse consumers and infringed on Viacom’s trademark. The Fifth Circuit therefore affirmed the district court’s granting of summary judgment to Viacom on its trademark and unfair competition claims. LABOR LAW: Injunctive relief is equitably necessary in collective bargaining when: (1) the employer’s alleged violations of the NLRA and the harm to the employees or union are concrete, egregious, or otherwise exceptional; and (2) those harms have not yet taken an adverse toll so that injunctive relief could meaningful preserve the status quo that existed before the wrongful acts occurred. Kinard, NLRB v. Dish Network Corp., No. 17-10282 (5th Cir., May 18, 2018). In 2009, DISH selected two jobsites in the Dallas-Fort Worth area for the pilot compensation program called Quality Performance Compensation (“QPC”), which provided a lower hourly rate supplemented by incentive pay based on performance metrics. Following introduction of the QPC, employees at both locations became unionized because of the dissatisfaction with the QPC. From July 2010 to November 2014, the parties engaged in collective bargaining. During that time,

the parties’ position with respect to the QPC changed, because wages increased substantially under the QPC model. Union technicians at the two facilities were making approximately $19,000 more per year than non-union technicians at other branches where the QPC was no longer in place. DISH rejected the proposal to keep the QPC and countered with a “final offer” regarding wages. The parties argued over the final offer for a year and a half, until April 2016, when DISH unilaterally implemented the final offer. The union filed an unfair labor practice charge in response, and the NLRB filed for injunctive relief against DISH’s implementation of the final offer under Section 10(j) of the NLRA, to restore wages and benefits to pre-2016 level. The district court held that DISH’s unilateral implementation of the final offer was exceptional and egregious and granted the injunction with respect to pre-2016 wages and benefits. The Court of Appeals found that the district court made the requisite findings in determining egregiousness: (1) the 50 percent wage reduction was exceptional; (2) the new wage levels compensated certain union employees $5 less per hour than non-union employees; (3) union membership would continue to erode; and (4) loss of membership and morale presented a concrete possibility of union dissolution. Under an abuse of discretion standard, DISH did not demonstrate that the district court “based its decision upon considerations having little factual support” and the injunction was affirmed. The Court of Appeals also affirmed the denial of an injunction to offer reinstatement to employees constructively discharged because of the decrease in pay, and initiate good faith bargaining. JURISDICTION: Legal guardian is indispensable party, and diversity jurisdiction cannot be

Wilson Stoker is board certified in labor and employment law by the Texas Board of Legal Specialization and senior counsel with Cokinos | Young.

maintained without including indispensable party in the analysis. Fairley v. PM Management – San Antonio AL, LLC, No. 17-50826 (5th Cir., May 29, 2018). Juliette Fairley filed this lawsuit on behalf of her father, James Fairley, in relation to his alleged treatment at Lakeside in San Antonio. Juliette is a resident of New York, and her father is a resident at Defendant Lakeside in San Antonio. Juliette asserted federal jurisdiction based on diversity and federal question. James’s wife, Sophie, however was appointed as James’s legal guardian by a Texas probate court. Lakeside asserted that Sophie was an indispensable party to the case and that both Lakeside and Sophie are residents of Texas, thereby defeating diversity jurisdiction even though Lakeside and Juliette are citizens of different states. The district court did not abuse its discretion when it determined that Sophie, as legal guardian, was an indispensable party and therefore diversity failed to exist. Sophie would need to join as a party and the basis for diversity jurisdiction would fail. Additionally, the dismissal of the Nursing Home Reform Act claims must be made by the legal guardian. Juliette is notAUSTIN the proper party to LAWYER AL AL bring this cause of action. JULY/AUGUST 2018 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN JORGE PADILLA, JACKSON WALKER

Interview with Jorge Padilla

YLA welcomes Jorge Padilla as president of the organization for the 2018-19 bar year. AYLA: Let’s start with everyone’s favorite question: Would you tell us a little about yourself? PADILLA: I’m a partner in Jackson Walker’s litigation section, where I’ve practiced for more than 10 years. Originally from Spring, I moved to Austin to attend the University of Texas for undergrad, stayed for law school, and never looked back. My wife, Jackie, and I have three daughters (Isabel, Samantha, and Alexandra), and we all enjoy getting outdoors and all things UT. I am a proponent of the Oxford comma. AYLA: What are some of your Austin-area favorites? PADILLA: There are so many to choose from, but it’s tough to beat a run around Ladybird Lake or hike on the Bull Creek greenbelt. We also enjoy weekend breakfast tacos at Taco Deli, pizza from Little Deli, and movies at Alamo Drafthouse. AYLA: Why did you first get involved with AYLA? PADILLA: I had just completed the Austin Bar/AYLA 22

AUSTINLAWYER | JULY/AUGUST 2018

Leadership Academy and met several other attorneys who were involved with the bar and legal community. That year’s Leadership Academy chairs, Judge Karin Crump and David Courreges, both encouraged each of us to continue to find ways to stay involved and be of service to others. I had heard of the various community events that AYLA had spearheaded and thought this would be a good way to connect with other attorneys while providing a needed service to the community. AYLA: What are your goals for AYLA this year? PADILLA: I’ve always viewed AYLA as a service organization with additional benefits for attorneys (social, networking, and CLE). I want to continue and expand that service mindset as much as possible, especially when it comes to pro bono and other events to assist traditionally underserved groups in our community. AYLA: What do you think are the biggest challenges facing today’s young lawyers in Austin? PADILLA: As Austin continues to grow, we risk losing the collegiality that in some ways is unique to our city. Obviously, getting involved with AYLA and other bar associations and Inns of Court can help young attorneys get to know each other, as well as more experienced lawyers, in Austin. AYLA: If you could impart one piece of wisdom on the first-year lawyer and make it stick, what would it be? PADILLA:This one is simple:

Jorge Padilla with his wife, Jackie, and their daughters Isabel, Samantha, and Alexandra.

other obligations and take time Pick up the phone. Especially if to volunteer with worthy nonyou are dealing with a difficult profits throughout Austin. situation, a lot of things can be lost, misunderstood, or made AYLA: What is an interesting worse in an email. Sometimes fact about you that people talking through things on the probably don’t know? phone (or in person) can help PADILLA: I ran with the bulls diffuse a situation and allow in Pamplona on a trip to Spain AUSTIN LAWYER people to find common ground. AL AL in 2009. AYLA: What has been your most rewarding AYLA experience so far? PADILLA: I’ve always enjoyed the Martin Luther King, Jr. Day of Service, which I’ve helped organize the past several years. It’s pretty special when attorneys will put aside their work and

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA is Here to Help!

s your practice suffering because of a personal crisis? Are you enduring tough times but don’t know where to turn? The Personal Crisis Assistance Program (PCAP) is here to help in your time of need. PCAP was created in 1996 to support Austin-area attorneys who face an immediate need for temporary financial or practice assistance because of a personal crisis. The objective of the program, funded by the Austin Young Lawyers Association Foundation, is to serve as a protection for lawyers and their clients when personal emergencies harm a lawyer’s practice. PCAP is available to attorneys who work or reside in Travis County and who are eligible for regular membership in AYLA. PCAP includes two levels of

short-term assistance for lawyers in crisis: • Financial – PCAP provides limited grant funds of up to $1,500 to assist an attorney who is unable to fulfill certain practice-related financial obligations because of a personal crisis. • Practice-Related – Attorney volunteers agree to handle professional matters for the affected lawyer during the crisis. To apply confidentially for financial or practice assistance, please contact Debbie Kelly at 512.472.0279, x105 or at debbie@austinbar. org. Regardless of how overwhelming the problem may seem, help is available. You have worked hard to build your career. PCAP is here to help AUSTIN LAWYER L AL you get back on yourAfeet.

UPCOMING EVENTS THURSDAY, AUGUST 16 AYLA Bar Year Kick-off Docket Call 5:30 – 7 p.m. Location: TBD

JULY/AUGUST 2018 | AUSTINLAWYER

AUSTINLAWYER | JULY/AUGUST 2018

PRACTICE POINTERS

Time-Saving Approach to Client Screening and Intake BY AMY E. MITCHELL

et’s face it—we lawyers rarely complain that we have too much time on our hands at work. When was the last time you were speaking with a prospective client thinking, “Gosh, I wish I could spend the whole afternoon with this person taking notes and seeing if we’re a good attorney-client fit”? A well-structured client screening and intake process helps lawyers avoid spending precious time screening clients and gathering preliminary client information and more time doing more fulfilling and/or billable work. Following are five tips for streamlining the client intake process:

1. Do the two-step. Before asking someone seeking legal representation for any details of the case, first do a preliminary screening and conflicts check. Who is the party on the other side of the transaction or case? What is the general practice area? What is their timeline? These basic questions can quickly tell you if your firm is qualified to represent the interested person or entity. It also protects the prospective client from disclosing information that you may be required to share with an existing client if there is a conflict. Once you have confirmed that there’s no conflict and you provide (and want to provide) the type of legal services in question, then you can move to phase two and begin gathering more details for the potential representation. 2. Be thoughtful. One size does not fit all when it comes to client screening and

intake. If you practice in multiple areas, create unique checklists and intake forms for each practice area or situation. This will not only save you time preparing for an initial meeting or call, but it will also save your client’s time in preparing to discuss his or her situation with you. After all, being respectful of a person’s time is important on both sides. Moreover, using a questionnaire that is tailored to the particular type of transaction or case is likely to make you stand out as more knowledgeable and experienced than someone who utilizes generic intake forms. My “20 Questions for a New Band Client” form functions in this way. In other words, asking relevant questions in and of itself can be a great marketing tool and grow the client’s confidence in you and your firm. Smart intake forms can also be useful for recommending additional services. For example, do they want to register a trademark in their band name/ logo in addition to forming a band entity? 3. Ask how the prospective client heard about you. You can use this valuable data to track referrals and successful marketing efforts and to calculate your conversion rate. If no one has ever approached you based on a Facebook or Google ad, then perhaps you drop that strategy and law firm expense going forward. If it was a personal referral from another attorney or client, drop her a note of thanks. It takes very little time and might make her more likely to refer to you again.

4. Leverage technology. Make it easy for prospective clients to provide the relevant information. Having client intake forms accessible online is a good start, but, after taking steps to ensure the communication is secure (e.g., require password to access and submit forms), go an extra step and make it a fillable form that can be submitted online. Requiring someone to download a PDF, print, and mail, fax, or scan/email back to you can be cumbersome and deter prospective clients—particularly more sophisticated clientele. Plus, transferring typed data is faster and results in fewer errors than deciphering and entering handwritten responses. Better yet, use a webbased appointment booking solution like Acuity Scheduling that enables you to request what you need to know about a client while scheduling an appointment using integrated online intake forms. You can even require the prospective client to affirmatively click in advance that they’ve agreed to your terms of use and privacy policies. Finally… are you ready to accept the representation? 5. Make it easy to retain you. Be ready to send legal representation and fee agreements quickly. For example, fee agreements and other documents can be emailed to clients for review and signed electronically. If you utilize a cloud-based practice management system like CLIO, you can also start onboarding clients at this time.

Amy E. Mitchell manages an Austin-based boutique entertainment law firm that has served creative professionals in the music, film, and television industries since 2004. She is the founder and returning chair of the Entertainment & Sports Law Section of the Austin Bar Association and course director for the State Bar of Texas’ annual Entertainment Law 101 program. See www.amyemitchell.com for more information.

legal deposit prior to beginning representation, why not offer to collect these initial payments electronically? Many consumers are comfortable with online payments and services like LawPay make paying retainers easy and ethical. Bonus: If you’re worried about credit card transaction fees, you can ask for a small retainer via credit card to get started right away and have the client send the remainder via mailed check. This minimizes the hit from credit card processing fees and shows the client that you’reAUSTIN ready toLAWYER hit the AL AL ground running—a win-win! DISCLAIMER: I am not affiliated with CLIO, Acuity, or LawPay and received no consideration for mentioning their products and services.

Since most attorneys require a JULY/AUGUST 2018 | AUSTINLAWYER

SUZANNE COVINGTON Senior District Judge

SPECIAL JUDGE Arbitration Mediation 512-923-8705

2016-PRESENT

suzanne.covington@judgecovington.com www.judgecovington.com

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

Thorough and Supportable Business Valuations Since 1996 ADVERTISERS ADVERTISER . . . . . . . . . . . . . . . . PAGE Apple Leasing . . . . . . . . . . . . . . . . 6 Armbrust & Brown, PLLC . . . 26 Broadway Bank . . . . . . . . . . . . . 28 BurnettTurner . . . . . . . . . . . . . . . 17 Financial Valuation Services, LC . . . . . . . . . . . . . . . . . 26 Floyd Real Estate . . . . . . . . . . . . 8 26

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Foster, LLP . . . . . . . . . . . . . . . . . . 4

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Horizon Bank . . . . . . . . . . . . . . . . 14 Judge Stephen Yelenosky . . . 10

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Judge Suzanne Covington . . 26

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Shuart & Associates . . . . . . . . . 10 Slack Davis Sanger LLP . . . . . . 5 St. Clair Coaching . . . . . . . . . . . 19

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Lawyer Referral Service by the Numbers

rom June 2017 to May 2018, The Lawyer Referral Service of Central Texas (LRS) has screened 18,274 calls from the Austin-area community. LRS is a non-profit public service organization formed in 1966 by the Austin Bar Association and is a certified lawyer referral program by the American Bar Association.

LRS thanks K&N Management for sponsoring the June and July LegalLine events by providing food from Rudy’s BBQ and Mighty Fine Burgers & Fries for the attorney volunteers.

LRS is a non-profit public service organization formed in 1966 by the Austin Bar Association and is a certified lawyer referral program by the American Bar Association. Of these calls: • 4,914 were referred to a LRS attorney member; • 484 have resulted in retained cases; and • 558 have resulted in office consults with attorneys. LRS would like to thank the attorney panel members for their hard work and dedication to providing quality legal services in Travis County and the Central Texas area. If you would like to join LRS, please visit AustinLRS.org and go to the “For Attorneys” tab to learn how. LRS would also like to thank K&N Management for sponsoring the June and July LegalLine events by providing delicious food from Rudy’s BBQ and Mighty Fine Burgers & Fries for the attorney volunteers. Their commitment to LRS’s community service program is AUSTIN LAWYER AL AL greatly appreciated.

JULY/AUGUST 2018 | AUSTINLAWYER

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