Austin Lawyer, June 2018 by Austin Bar Association

austinbar.org JUNE 2018 | VOLUME 27, NUMBER 5

Austin Bar Foundation Announces 2018 Grant Recipients $22,500 Awarded to Legal-Related Programs in Central Texas

he Austin Bar Foundation recently announced its grant recipients for 2018. Five organizations working to provide legal-related services to members of the Central Texas community were awarded $22,500. The Foundation has given $161,098 worth of grants to date. These grants are made possible by the generosity of the Austin Bar Foundation Fellows and by funds raised at the Foun-

dation’s annual gala. Thank you to the Fellows and to all who contributed to the gala. Your pledges supported the following grants in 2018. American Gateways, $5,000. Advance Training for Immigration Lawyers: To further the professional development of American Gateways attorneys through training on advanced immigration issues. The funds will allow American Gateways to better serve the local Austin im-

These grants are made possible by the generosity of the Austin Bar Foundation Fellows and by funds raised at the Foundation’s annual gala. migrant community with the complex immigration legal issues they face, which, in turn, will preserve the fabric of Austin’s neighborhoods and enrich the community through their diversity. Austin Community Law Center, $5,000. Family Security Legal Clinics: To increase the number and frequency of free legal clinics held in collaboration with social workers at Austin Independent School District (AISD) campuses located in the Eastern crescent of Austin. These clinics are held for the

parents of school-aged children to improve the families’ security by helping them execute powers of attorney, advanced designations of guardianship, authorization for nonparent adult caregivers, and wills. The funding provided will allow them to hold more clinics, serve more families, and address an expanded set of needs important for financial security, such as enforcing child support orders and recovering apartment security deposits. continued on page 6

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CONTENTS

AUSTINLAWYER JUNE 2018 | VOLUME 27, NUMBER 5 AL A L INSIDE FEATURED ARTICLES 1

Austin Bar Foundation Announces 2018 Grant Recipients

$22,500 Awarded to Legal-Related Programs in Central Texas

Celebrating 125 Years of the Austin Bar

Practicing Law in the Great Depression

Austin Bar Assists at Texas Law Family Preparedness Clinic

Attorneys Volunteer at the Clinic Sponsored by UT Mithoff Pro Bono Program

11 Eleventh Annual Color of Justice Program Paving the Way for Diversity 15 Why Should You Refer to the Lawyer Referral Service?

DEPARTMENTS 13 Opening Statement 14 Briefs 16 Third Court of Appeals Civil Update 17 Third Court of Appeals Criminal Update 18 Federal Criminal Court News 19 Federal Civil Court Update 20 AYLA 22 Entre Nous 25 Practice Pointers

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR 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.

AUSTIN BAR ASSOCIATION Amy Welborn............................. President Adam Schramek........................ President-Elect D. Todd Smith............................. Secretary Kennon Wooten....................... Treasurer Leslie Dippel �� Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION Austin Kaplan............................. President Jorge Padilla............................... President-Elect Sandy Bayne............................... Treasurer David King................................... Secretary Katie Fillmore............................ Immediate Past President

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

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Austin Bar Foundation Announces 2018 Grant Recipients continued from cover Austin Classical Guitar (ACG), $2,500. Guitar and Juvenile Justice Program: To support Austin Classical Guitar’s education services for young people involved in Travis County’s juvenile justice system. Since 2010, in partnership with AISD and the Travis County Juvenile Probation Department, ACG has offered daily, for-credit guitar classes for youth incarcerated at the Gardner Betts Juvenile Justice Center. Last year, with support from the Austin Bar Foundation, ACG launched a new in-school initiative for AISD students under court-supervised probation that allows them to

AUSTINLAWYER | JUNE 2018

fulfill certain requirements of their case plans by enrolling in their school’s guitar program. After a successful pilot in one school, they are set to expand the program to two other AISD schools in September 2018. By offering classical guitar education in a structured, collaborative, pro-social learning environment, ACG’s goal is to help young people develop new skills, gain self-confidence, and experience the intrinsic joys of making music. Texas Fair Defense Fund, $5,000. Back on the Road– Increasing Economic Security by Reducing the Impact of Criminal Justice Debt: To hold a series

of Driver’s License Recovery/ Criminal Justice Debt Reduction clinics to help poor and low-income residents of Travis County escape the vicious cycle of criminal justice debt. The grant will allow the Texas Fair Defense Fund to hold four clinics and facilitate and expand the availability of legal services to a vulnerable population. Both Travis County justices of the peace and the Austin Municipal Court have expressed support for the project and a desire to collaborate on future clinics that resemble community courtrooms, thus improving the administration of justice and the Travis County court system.

Volunteer Legal Services (VLS), $5,000. Legal Advice Handbook for Pro Bono Attorneys: To update and modernize the VLS Legal Advice Clinic Handbook (“Handbook”). The Handbook is provided to all pro bono volunteers providing legal advice at VLS’s more than 200 legal advice clinics in Travis, Hays, and Bastrop Counties. VLS volunteers rely on the Handbook as a valuable resource and support tool in providing pro bono legal advice to low-income Central Texans struggling to meet their basic needs of employment, safety, housing, family/income stability, AUSTINLAWYER AL AL education, and healthcare.

Celebrating 125 Years of the Austin Bar Practicing Law in the Great Depression

n honor of the 125th anniversary of the Austin Bar Association, we are taking 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,” pages 99-101. With the continuing collapse of the rural economy and a record amount of foreclosures and bank failures, Austin lawyers had their hands full during the 1930s, and like everyone else, they often had to make do in a cash-poor economic climate. Lawyer Emmett Shelton, Sr., remembers being paid in live chickens and dressed venison for his legal services.

er) was the repeal of Prohibition in 1933. Retired Judge Charles O. Betts of the 98th District Court looked back in 1986 on his early days as a young lawyer in Austin: “I received my Texas law license on Dec. 14, 1933— right at the bottom of the Great Depression. A law school classmate, J. Hubert Lee, and I decided to try to begin our practice out of the same office, sharing expenses and some of our business. The best we could do was to rent a one-room office in the Scarbrough building for $25 a month, outfitting same with two desks, two swivel chairs, two secondhand Underwoods,

Lawyer Emmett Shelton, Sr., remembers being paid in live chickens and dressed venison for his legal services. In 1931 and 1932, conditions got worse. Between drought, floods, falling prices, and mounting debts, the rate of foreclosures increased drastically. Though conditions were better in Austin than they were elsewhere, times were still tough. One of the few bright spots (unless one was a teetotal-

two typewriter desks, and three straight chairs. All of this equipment was purchased ‘on time’ and we were in business. We also purchased from West Texas Publishing Company a red book of unannotated Texas statues and a Stayton’s Form Book, which was our library for some time. The minimum going rate for

Beer trucks belonging to the Lightsey Carroll Company Distributors stand at the ready to deliver beer to thirsty Austinites. Photo taken on May 25, 1934, five months after Prohibition ended. (Photo courtesy of Austin History Center)

uncontested divorces at that time versity of Texas in 1934, when was $25 plus court costs, which the cost of a semester’s tuition usually amounted to about seven was around $40. He remembers or eight dollars. Competition for finding a job as a movie theater same was fierce!” usher and considering it the best Gaynor Kendall, a Travis job in town. “It was probably the County Bar Association member only air-conditioned job anyone from 1936, received $125 a had. And all you had to do was month in the attorney general’s stand up and show people to office after he graduated from their seats…I got about $10.80 law school in the mid-1930s. a week. Believe it or not, at Austin native Mace Thurman, times I lent money to some of Jr. (later a district court judge) AUSTIN the other students going to law LAWYER AL AL began law school at the Unischool.”

JUNE 2018 | AUSTINLAWYER

Austin Bar Assists at Texas Law Family Preparedness Clinic Attorneys Volunteer at the Clinic Sponsored by UT Mithoff Pro Bono Program

everal member of the Austin Bar’s Court Appointed Family Advocates (CAFA) section volunteered in April for a Texas Law Family Preparedness Clinic run by the UT Mithoff Pro Bono Program. The clinic began in response to the aggressive immigration enforcement tactics seen in Austin during the past year. Often, immigration enforcement gives immigrant parents little or no time to make arrangements for their children. While some might assume the children could just go with their parents, they are usually U.S. citizens and not citizens of their parents’ home country. Therefore, joining their parents is not an easy task. Rather than risk having the children end up in foster care, the Texas Law Family Preparedness Clinic began hosting clinics

where law students, under the supervision of attorneys, assisted immigrant parents in drafting powers of attorney naming guardians for children if it became necessary. After the Texas Legislature made changes to the Ch. 34 Authorization Agreements in 2017, the clinic shifted its focus to filling out those agreements instead. The Ch. 34 Authorization Agreements allow parents to designate who will care for their children in the event the parents are detained or deported while their children are left behind in the U.S. The Texas Law Family Preparedness Clinic is just one of many programs sponsored by the Mithoff Pro Bono Program at the UT School of Law. The vision of the program is to help engage law students in pro bono work to increase access to justice, build

SUZANNE COVINGTON

(from left) Austin Bar CAFA Section members Lori Dukes, UT Children’s Rights Clinic; Will Dominguez, Law Office of William Dominguez; and Denise Hyde, Law Office of Denise Hyde; volunteering at the Family Preparedness Clinic on April 7, 2018.

the students’ lawyering skills, and develop a lifetime commitment to providing legal services to those in need. The program supports this vision by working with bar groups, legal service providers, pro bono attorneys, and the law school community.

Law students are encouraged to dedicate at least 50 hours to pro bono activities by the time they finish law school. Attorneys who wish to learn more about the Mithoff Pro Bono Program can visitAUSTIN law.utexas.edu/ LAWYER AL AL probono for more information.

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Eleventh Annual Color of Justice Program Paving the Way for Diversity

he eleventh annual Color of Justice program was held on April 26, 2018. The event was attended by approximately 70 primarily minority students from East Austin College Preparatory, Akins High School, and Martin Middle School. It was sponsored by the National Association of Women Judges (NAWJ), District XI Director and 299th District Court Judge Karen Sage, in partnership with the Travis County Women Lawyers Association (TCWLA), and the UT School of Law William Wayne Justice Center for Public Law, along with Jackson Walker and several other sponsoring law firms. The event featured two panel discussions with speakers sharing their personal experiences and backgrounds. They encouraged the students to pursue a career in law, and discussed the importance of personal commitment and perseverance, as well as the role and importance of lawyers and judges in our society. The first panel, titled “The Color of Justice: Making a Difference,” was led by Judge Brandy Mueller, Travis County Criminal Court at Law #6; Travis County Judges

REALTORS

Orlinda Naranjo, 419th Judicial District and NAWJ Vice Chair of Districts; Brad Urrutia, 450th Criminal District Court; and Associate Juvenile Judge Texana Davis. Judge Sage moderated the panel. The second panel, titled “Law as a Career: Preparing the Way,” featured legal professionals Paige Duggins, clerk to Texas Supreme Court Justice Jeff Boyd; Ciara Parks, Assistant District Attorney; Jorge Padilla, partner with Jackson Walker; and Adriana Reyes, K & L Gates. The moderator was Jennifer Hopgood, Assistant Attorney General and chair of the TCWLA Color of Justice Program. Judges Sage and Naranjo presented Harjeen Zibari, a UT second-year law student, with a $1,000 “Access to Justice Scholarship” given by NAWJ for Zibari’s demonstrated and passionate commitment to the enforcing of civil and human rights. Zibari has worked extensively within her Kurdish community where most female Kurdish immigrants have limited education. She accomplished her mission by working with the Capital Area Private Defenders Service and the Human Rights Initiative of North Texas. Zibari

TOP: Judge Karen Sage (right) presents second-year UT law student Harjeen Zibari with Access to Justice Scholarship. BOTTOM: Legal professional panel: (from left) Paige Duggins, Adriana Reyes, Jennifer Hopgood (moderator), Ciara Parks, and Jorge Padilla.

shared how she became interested in the law and her own experience in her home country of Kurdistan (formerly known as Northern Iraq), including the nearby invasion of ISIS. Professor Mary Crouter and Judge Sage presented Judge

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Naranjo with two dozen roses and the book “Witness for Justice” by Allen Pogue, signed by UT Law School Dean Ward Farnsworth, in appreciation of Judge Naranjo’s many years of dedication to the Color of AUSTINLAWYER AL AL Justice Program.

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OPENING STATEMENT

Priming in Persuasive Legal Writing, Part 2 Doing More in the Preliminary Statement BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

ast month I summarized research suggesting that priming a decision-maker in the preliminary statement can influence the decision. This month I offer advice for writing a priming preliminary statement. By “preliminary statement,” I mean the opening substantive content of a motion, trial brief, administrative filing, or similar part of a similar document. It might be called an introduction or go by other names, but the point is if the judge reads the document, the preliminary statement is the first substantive content. To persuade and to prime, you must do more than recount the claim, defense, and procedural status. Yes, you need those contextual details because “the judge may not have read any other document in the case.”1 But don’t stop there. After supplying the context, it’s time to prime. In his book “Point Made,” Ross Guberman asserts that one form of priming is to appeal to a judge’s “fear of misconstruing a doctrine.”2 So if current law doesn’t recognize a claim, the defending attorney should point that out in the preliminary statement. (In all the examples, procedural context is omitted.) For example: Marin cannot proceed with a “Sabine Pilot” claim because the Texas Supreme Court has not recognized a constructive-discharge theory under the “Sabine Pilot” doctrine. What’s more, Marin gave reasons for his resignation that are unrelated to any request to commit an illegal act; thus, he cannot fulfill “Sabine Pilot’s” “sole cause” requirement.

Another type of priming is an appeal to fairness. As Guberman puts it, you aim to appeal to the decision-maker’s “fear of reaching an unfair result or causing harm.”3 Judges want to do the right thing, he says, so effective writers go “beyond the case law and the record, giving the judge a pragmatic reason to want to rule for them.”4 For example, in an SEC proceeding in which the government withheld a document from the defendant without describing it, the defense lawyer recounted the procedural background and then asserted that his client should not be forced to make crucial decisions—such as whether to invoke his Fifth Amendment privilege—with his eyes closed and his hands tied. This would be both unfair and unconstitutional.5 This is an overt appeal to both fairness and law, priming the reader to be sympathetic to the defendant. You might also try to offer a compelling narrative—tell a story.6 Here’s an example (procedural context omitted): On March 4, 2010, Wilcox suffered a broken jaw and cheekbone when one of the Defendant officers kicked her in the head in the course of an arrest. Wilcox’s injuries required insertion of two metal plates and eight screws into her jawbone. The beating also left her with a permanent loss of sensation.7 And if sympathy and narrative aren’t available, an appeal to the rule of law can be a form of priming: Although, as Applicant has noted, one of the two arrests resulted in no charge, the other resulted in conviction, precluding Applicant’s licensure.

Despite the recommendation letters and Applicant’s expressions of remorse, the Hearing Officer has no discretion, under ADM § 9.01(1)(b), to approve licensure for an applicant whose conviction occurred within the preceding five years. Give it a try. By adding a form of priming to the preliminary statement in addition to the procedural context, you invite the decision-maker to engage with the dispute in a way that favors your client and increases your AUSTIN LAWYER AL AL chances of prevailing.

Footnotes 1. Kamela Bridges & Wayne Schiess, Writing for Litigation 96 (2011). 2. Ross Guberman, Point Made 28 (2d ed. 2014). 3. Id. at 32. 4. Id. at 38. 5. Id. at 33. 6. Amy Bitterman, In the Beginning: The Art of Crafting Preliminary Statements, 45 Seton Hall L. Rev. 1009, 1019 (2015). 7. Id. at 1024-25.

JUNE 2018 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Lauren Fielder Jarat Kanarek TOP: Albright, Burgess, Crawley, Kelly, Morales, Ong LEFT: Ray, Richardson, Richie

Cortland Timm

AWARDS

Two Austin attorneys have been nominated by President Donald Trump to federal judge positions. Alan Albright was nominated to be a federal district judge in Waco. Albright specializes in intellectual property litigation as a partner in the Bracewell law firm and served as a U.S. magistrate judge in Austin from 1992 to 1999. He is also a former adjunct professor who taught trial advocacy at the University of Texas School of Law. David Morales was nominated to be a U.S. district court judge in Corpus Christi. Morales is a partner at Kelly Hart & Hallman and focuses on litigation, administrative law, and public law. Formerly, he was deputy general counsel to the UT System Board of Re-

gents, general counsel to thenGovernor Rick Perry, and served close to 20 years in various roles with the Texas Attorney General’s office. Both men are awaiting confirmation from the U.S. Senate. NEW TO THE OFFICE

Alexandra Crawley has joined the firm of Armbrust & Brown as an associate attorney. Her practice focuses on transactional matters relating to commercial real estate. MOVING ON UP

After more than seven years as Richardson + Burgess, Jim Richardson and Karen Burgess jointly announce the opening of separate firms. Richardson will lead the Richardson Firm, and Burgess will head Burgess Law. Both look forward to continuing

their long friendship, including collaborating on cases in the future. Strasburger & Price and Clark Hill have announced a merger. The new firm will be named Clark Hill Strasburger in Texas, and Clark Hill nationwide. Munsch Hardt is proud to announce its recent promotions of Cara Kelly, a member of the litigation section, and Jan Ong, a member of the bankruptcy, restructuring, and insolvency practice, to equity shareholders. Additionally, James Ray, a member of both the environmental litigation and intellectual property litigation practices, and Adam Richie, a member of the construction litigation practice, were promoted to shareholder.

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Why Should You Refer to the Lawyer Referral Service?

very attorney interacts with potential clients they just cannot help. Whether you don’t practice that type of law, your schedule is booked solid for the next six months, or they can’t afford your hourly rates—sometimes, there is nothing else to do but tell them the road they took to your office has led to a dead end. Or has it? Sending calls to the Lawyer Referral Service of Central Texas (LRS) will save you and your staff time while still assisting the public. The LRS intake staff has been trained by attorneys to gather proper information and assess what each caller needs an attorney to do for them. Although LRS is an attorney referral service, most of the callers only need information about available community and legal resources. LRS intake staff is armed with a list of resourc-

with a potential client you are unable to assist—think of LRS as the solution for both of you. LRS is a nonprofit service created in 1966 by the Austin Bar Association. LRS meets the high standards of the American Bar Association, and all participating attorneys are insured and in good standing with the State Bar of Texas. To become a member of LRS, please visit austinlrs.com, or email Annie Melendez, LRSAUSTIN executive direcLAWYER AL AL tor, at annie@austinlrs.org.

Thank You ThunderCloud Subs! LRS Thanks the ThunderCloud Sub shop located on Hwy 290 E. for sponsoring the LegalLine: Law Day program on May 1, 2018.

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Sending calls to the Lawyer Referral Service of Central Texas (LRS) will save yourself and your staff time while still assisting the public. es and will work diligently to connect each individual with an appropriate resource depending on the situation. LRS refers to a panel of up to 200 attorneys in the Austin area who average at least 10 years of experience and whose practices span 19 different law types. The counties served by the LRS member panel are Travis, Hays, Bastrop, and Williamson. Some areas of law may require an attorney who practices statewide. Depending on the law type, LRS may be able to help with this, too. So the next time you are faced

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JUNE 2018 | AUSTINLAWYER

THIRD COURT OF APPEALS CIVIL UPDATE

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

The following are summaries of selected civil opinions issued by the Third Court of Appeals during April 2018. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of May 3, 2018.

FAMILY LAW: Court reverses interim attorney’s fees award. In re Payne, No. 03-17-00757CV (Tex. App.—Austin April 5, 2018, orig. proceeding). Father sought to modify SAPCR order to have the exclusive right to determine the children’s primary

residence and sought payment of interim attorney’s fees. The trial court ordered mother to pay $25,000 in attorney’s fees. Family Code § 105.001(a)(5) allows a trial court to make temporary orders “for the safety and welfare of the child, including . . . for payment of reasonable attorney’s fees and expenses.” According to the court of appeals, attorney’s fees cannot be awarded to “level the playing field.” Instead, movant must present evidence that payment of attorney’s fees was necessary for the children’s safety and welfare. Father failed to show that mother’s conduct impacted the children’s safety to support the interim attorney’s fees award. The court granted mandamus relief. IMMUNITY: Court finds UT impliedly permitted public’s trespass on driveway. University of Texas v. Garner, No. 03-17-00199-CV (Tex. App.—Austin April 18, 2018, no pet. h.). Garner was injured when a UT truck collided with her bicycle on a student housing complex driveway. The trial court denied UT’s immunity plea to the jurisdiction. UT contended Garner was a trespasser. According to the court of appeals, if a property owner has allowed trespass for a sufficient time, the owner’s permission for the continued trespass may be implied. Permission is implied

only if the owner has actual knowledge of people entering the property and fails to take steps to prevent further entry. Garner showed that the public routinely used the driveway as a shortcut and that UT knew of the public’s use and took no steps to prevent it. Accordingly, Garner had implied permission to use the driveway. The court affirmed. ADMINISTRATIVE LAW: Board’s disciplinary authority is not based on criminal conviction. Lindsey v. Texas State Bd. of Veterinary Med. Exam’rs, No. 03-16-00549-CV (Tex. App.—Austin April 27, 2018, no pet. h.). Lindsey, a licensed veterinarian, killed a neighbor’s pet cat with a bow and arrow and posted a photo of the dead cat on social media. A grand jury declined to indict her for animal cruelty. Board received hundreds of complaints and more than 27,000 emails about the incident. Board suspended Lindsey’s license. The trial court affirmed Board’s order. Lindsey challenged Board’s authority to discipline her for conduct that does not involve the practice of veterinary medicine or that does not result in a conviction of animal cruelty. The court of appeals noted that Rule 573.4 gives Board authority to discipline a licensee regardless of an indictment or conviction for an-

imal cruelty. Further, Board had authority to discipline violations of its professional conduct rules. Finally, the court concluded that sufficient evidence supported the Board’s findings of fact and conclusions of law. The court affirmed. EXPUNCTION: Court reverses expunction order. Texas Dep’t of Pub. Safety v. M.G., No. 03-16-00279-CV (Tex. App.—Austin April 25, 2018, no pet. h.). M.G. sought to expunge records relating to his arrest for sexual assault and practicing medicine without a license after the charges were dismissed. The trial court granted expunction. The court of appeals noted that expunction is a statutory privilege, not a constitutional or common-law right. M.G. had to prove that the indictment was dismissed because of a mistake or false information—that is, that the grand jury’s decision was based on erroneous facts. Here, the indictment was dismissed “pending further investigation” and because of M.G.’s conviction for similar conduct in another case. No further explanation appears in the order dismissing the charges. Accordingly, M.G. was not entitled to expunction. The court reversed and rendered judgment denying AUSTIN LAWYER AL AL expunction.

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AUSTINLAWYER | JUNE 2018

THIRD COURT OF APPEALS CRIMINAL UPDATE

The cases summarized are from November and December 2017 and subsequent histories are current as of May 1, 2018.

AUTOMOBILE SEARCHES: Officer’s search of vehicle following traffic stop supported by probable cause. Dwinal v. State, No. 03-1700012-CR (Tex. App.—Austin Nov. 3, 2017, no pet.). During a traffic stop, an officer smelled marijuana in appellant’s vehicle and requested the assistance of a canine unit. After the canine alerted to the presence of illegal drugs in the vehicle, the officer proceeded to search both the trunk and the passenger compartment of the vehicle. The officer found marihuana, methamphetamine, and other contraband in the passenger compartment. Appellant was subsequently charged with possession of a controlled substance with intent to deliver. Prior to trial, appellant filed a motion to suppress, arguing that the search of his vehicle was improper. The trial court denied the motion to suppress, and the appellate court affirmed. The court first explained that Supreme Court precedent authorized “a search of any area of the vehicle in which the evidence might be found” “[i]f there is probable cause to believe a vehicle contains

evidence of criminal activity.” The court then concluded that the record supported the trial court’s finding that the officer had probable cause to believe that appellant’s vehicle contained narcotics. The evidence supporting the probable-cause determination included the smell of marihuana inside the vehicle, the canine alerting to the presence of narcotics within the vehicle, and appellant’s “nervous” behavior following the stop. Based on this evidence, the court concluded that the trial court did not abuse its discretion in denying the motion to suppress. AUTHENTICATION OF EVIDENCE: Facebook photos of appellant properly authenticated. Beaty v. State, No. 03-1600856-CR (Tex. App.—Austin Nov. 15, 2017, no pet.) (mem. op., not designated for publication). Appellant was convicted of the offense of aggravated assault with a deadly weapon. The State alleged that appellant had shot the victim in the parking lot of a nightclub. Witnesses had described the shooter as a “bald Hispanic man with a striped shirt.” To prove appellant’s identity as the shooter, the State offered into evidence what it claimed were Facebook photos of appellant, “wearing a shirt that matche[d] the witnesses’ descriptions” of the shooter. The

trial court admitted the evidence over appellant’s objection that the photos were not properly authenticated. The appellate court affirmed. The court observed that the issue in this case was not the authenticity of any message that appellant conveyed through the Facebook posts, but “merely whether the photographs depict [appellant’s] clothing and appearance at the time of the shooting.” The court concluded that there was “abundant internal evidence” contained within the photos, combined with the testimony of the officer who obtained them, to support a preliminary finding by the trial court that the photos were what the State claimed them to be. Therefore, the appellate court could not conclude that the trial court abused its discretion in admitting the evidence. WARRANTLESS ARRESTS: Police actions amounted to arrest rather than detention, but warrantless arrest was supported by probable cause and thus search incident to arrest was lawful. Harris v. State, No. 03-1600330-CR (Tex. App.—Austin Dec. 7, 2017, pet. ref’d) (mem. op., not designated for publication). When appellant arrived at a motel that was under surveillance for narcotics activity, officers pulled into the parking lot and surrounded appellant’s vehicle. Appellant tried to drive way but was ordered to stop by one of the officers, who also ordered appellant to exit the vehicle, placed him in handcuffs, and searched appellant’s pockets. During the search, the officer discovered a baggie containing cocaine. Appellant was subsequently charged with the offense of possession of cocaine with intent to deliver. Prior to trial, appellant filed a motion to suppress, arguing, among other grounds, that the search of his pockets was

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.

unlawful. The trial court denied the motion to suppress in part, concluding that the pat-down search constituted a permissible search incident to arrest. The appellate court affirmed. The court first determined that the record supported the trial court’s conclusion that appellant had been arrested rather than detained, based on the officers’ actions in blocking appellant’s vehicle and ordering him out of the vehicle. The court further concluded that the information that had been obtained by the police prior to the arrest and the activities that the officers had observed while surveilling the motel, some of which tended to implicate appellant in the suspected narcotics trafficking, provided the officers with probable cause to arrest appellant without a warrant. Accordingly, the court held that the search of appellant’s pockets following the arrest was LAWYER a lawful search AUSTIN AL AL incident to arrest.

JUNE 2018 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

The Once and Future Prison Population BY DAVID PETERSON

he U.S. prison population is at a 20-year low, according to analysis by the Pew Research Center on May 2, 2018.1 To me, that’s good news. The bad news is the United States still incarcerates a larger share of its population than any other country in the world. We could talk about the meaning, implication, policies, and our opinions (I just shared mine) about these two facts, but I want to talk briefly about the role of the federal criminal justice system in this. Of the 2.2 million people behind bars in the United States, about 10 percent are incarcerated federally. But fairly significant shifts in my small enclave happened over the last five years. According to the Bureau of Prisons, the federal prison population went from a peak of 219,000 in 2013 down to 188,000 by 2017. A 14 percent drop in four years is significant. The population of Bureau of Prisons is at 183,854 today. The four-year decrease was the result of a multifaceted approach. It included reducing many people’s sentences for drug offenses retroactively, decreasing the number of new prosecutions for (overwhelming18

AUSTINLAWYER | JUNE 2018

ly non-violent) federal criminal offenses, a couple of important Supreme Court decisions declaring a significant set of sentences on gun cases unconstitutional, and a handful of clemency grants by the last president. I worked with individual clients in all of these areas, and it was incredibly rewarding. A few messed up and ended up in jail again. The large majority took advantage of their early release and did not get arrested again. The feds were watching like hawks and demonstrated that literally releasing thousands of criminals into the streets had no measurable effect on crime rates. It’s worth emphasizing that when I say overwhelmingly non-violent, I mean it: in 2016, more than 72 percent of federal charges were for either drug, immigration, or property crimes. About 11 percent were gun crimes (though not necessarily violent gun crimes—most were felons unlawfully possessing a firearm). A whopping 3.7 percent of federal prosecutions were for violent crimes.2 But all of that is already changing. Even though it may take years to quantify, my clients are already feeling it. Across our Western District,

prosecutions have been going up significantly over the past year. In the new-jobs bulletin I get (I’m only on there out of curiosity), I’ve seen a lot more positions for Assistant United States Attorney. It’s impossible to quantify long-term effects in real time, but I think the number of prosecutions and federal prisoners will start going up soon. Then, of course, there’s the issue of how federal prosecutors charge new cases: Rather than reserving mandatory minimum sentences for a small subset of cases involving the most serious crimes, Jeff Sessions has told his prosecutors to seek mandatory minimums whenever they are “readily provable.” Longer

sentences means a larger (and older) prison population that will only show up in the numbers decades later. I bet if I’m writing this column in a year, we’ll already start seeingAUSTIN an increase in the federal LAWYER AL AL prison population. Footnotes 1. http://www.pewresearch.org/facttank/2018/05/02/americas-incarceration-rate-is-at-a-two-decade-low/ 2. www.pewresearch.org/facttank/2017/03/28/federal-criminal-prosecutions-fall-to-lowest-level-in-nearly-two-decades/

David Peterson is an assistant federal public defender for the Western District of Texas. Any views expressed are his views only and not that of the Office of the Federal Public Defender.

Patrick

Keel Former District Judge

patrickkeel.com (512) 293-0300

Mediator Arbitrator

FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued from 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.

NON-COMPETE/ ATTORNEYS’ FEES: Employee is not entitled to recover attorneys’ fees under Texas Business and Commerce Code §15.51(c) without evidence that the employer knew— at the time of execution—that the non-solicitation agreement was unreasonable. Ge Betz, Inc. v. Michelle Moffitt-Johnston; Amspec Services, LLC, (No 15-20008, 5th Cir. March 13, 2018): After trial, a jury found liability on all remaining claims related to the non-solicitation agreement between GE and former employee Moffitt-Johnston, but awarded no damages. The district court subsequently awarded the former employee attorneys’ fees incurred in defending against GE’s claims enforcing the non-solicitation agreement. Under Section 15.51(c), a court may award attorneys’ fees to an employee who is sued by a former employer under a covenant not to compete or non-solicitation agreement if the employer knew “at the time of the execution” that the covenant did not contain reasonable temporal, geographic and activity restrictions, and the employer sought to enforce the covenant to a greater extent than necessary. Section 15.51(c) does not define whether the knowledge component is a subjective one, requiring actual knowledge, or whether it can be established that the employer objectively knew at the time of execution that it was unreasonable. Regardless, there was no evidence that GE actually knew when it signed the agreement that it was

unreasonable. Conversely, GE presented evidence that a North Carolina court enforced an identical agreement to the one in question. Because there was no evidence that at the time GE executed the agreement it knew the covenant was unreasonable, Moffitt-Johnston did not meet her burden to establish she was entitled to attorney’s fees under Section 15.51(c) and the award of fees was vacated. The Court’s opinion also provides an analysis of GE’s claims related to the non-solicitation agreement, which were dismissed on summary judgment and affirmed by the Court of Appeals. JURISDICTION: No private right of action exists to enforce the Air Carrier Access Act of 1986 (“ACAA”) in federal district court. Stokes v. Southwest Airlines (No. 17-10760, 5th Cir. April 5, 2018): Plaintiff asserted an ACAA disability discrimination claim alleging that Southwest gate agents prevented her family from boarding because of her son’s behavior. Stokes’ son allegedly suffered “great physical emotional and mental pain and anguish” as a result. On appeal, Plaintiff challenged the district court’s dismissal of her ACAA claim on the basis that there was no private right of action. In affirming the district court’s decision, the Court of Appeal cited to Alexander v. Sandoval, 532 U.S. 275 (2001), “which today defines the method for identifying private rights of action.” The court stated that absent “affirmative” evidence of intent to allow private civil suits, there can be no private right of action—“no matter how desirable that might be as a policy matter, or how compatible with the statute.” In this case, the ACAA prohibits airlines from discriminating but does not expressly provide a right to sue the airlines. Instead, the ACAA

is part of a comprehensive administrative scheme, under which the Department of Transportation (“DOT”) is primarily responsible to enforce. The DOT can investigate complaints, issue orders for compliance and also enforce orders by filing its own civil action in federal court. A private right of action is absent from this detailed statutory scheme, and therefore the Court of Appeals affirmed the district court’s dismissal. ARBITRATION: Challenges to the validity of the contract as a whole, beyond those related to contract formation, do not prevent a court from enforcing an arbitration agreement. Dewey Edwards, et al. v. DoorDash, Inc. (No. 17-20082, 5th Cir. April 25, 2018): DoorDash, a food-delivery service, requires its deliverers, referred to as “Dashers,” to sign an independent-contractor agreement that contains an arbitration clause. The agreement also contains a choice-of-law provision for California. Edwards filed suit against DoorDash in the U.S. District Court for the Southern District of Texas, alleging Fair Labor Standards Act (“FLSA”) violations. Edwards also moved for conditional certification. In response, DoorDash filed a motion to compel individual arbitration and dismiss, as well as to stay conditional certification. Eventually, the district court dismissed the case and compelled Edwards to arbitration. Edwards appealed, arguing that class certification should have been decided before arbitration and the district court erred in enforcing the arbitration agreement. Citing Fifth Circuit precedent, the court found that arbitrability is a threshold question and properly decided before conditional certification. A contrary holding would create a justiciability issue. Further, determining the arbitration issue

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

before conditional certification is in-line with the national policy favoring arbitration. With respect to the enforcement of the arbitration agreement, an arbitration clause is severable from the underlying contract under Section Two of the Federal Arbitration Act and challenges to the validity of the contract (for unconscionability, for example) do not prevent enforcement of the arbitration clause. The court should first look at the formation of the contract and then should assess whether there is a valid delegation clause. Once the court determines that there is a valid delegation clause, any remaining arguments related to the contract’s validity are decided by the arbitrator. Here, a contract was formed and there was no challenge to the delegation clause. Therefore, it is valid. Remaining issues related to the validity of the arbitration clause or the contract as AUSTIN a whole are to LAWYER AL AL be addressed by the arbitrator.

JUNE 2018 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN AUSTIN KAPLAN, KAPLAN LAW FIRM

AYLA 2018: What a Year! some great work pushing the organization forward this year. In the future, I hope we will have even more collaboration through video conferencing, social media, and polling, and continue our work promoting diversity in the legal profession.

YLA’s goals for 2018 were: Openness, visibility, and stewardship. My job was to preserve and, if lucky, progress AYLA’s work in these areas. All organizations should set goals and measure against them. So, let’s try that. Here are some highlights of what we did, how we did, and how we can be even better next year. OPENNESS

Harassment and Discrimination Policy: For the first time, we adopted a public anti-harassment and anti-discrimination policy for our organization. AYLA is an organization in which everyone should feel safe and respected. The new policy is available on our website at ayla.org. Diversity Bar Mixer: We brought together attorneys from across Austin’s largest women and minority bar organizations for a memorable night of fellowship and philanthropy. This was perhaps the first-ever AYLA event at which the only restroom on site was an all-gender restroom. Meetings by Video: In 2018, we piloted ways for folks to join us digitally. We tried video conferencing and Periscope for Board meetings, which allows members to watch live and interact remotely. Score: 8/10. I think we did 20

AUSTINLAWYER | JUNE 2018

VISIBILITY

Marketing Committee: We convened a new committee with the goal of letting the public know more about the great work young lawyers do. The committee worked to connect AYLA members with press looking for comments on legal issues and helped promote AYLA events. Women’s Resource Fair: Thanks to the tireless work of Jennifer Hopgood, Monica Stallings, Mishell Kneeland, and our committee, we continued this outstanding annual program to provide services to our neighbors in need. Community Service Days: Thanks to the vision of Blair Leake, AYLA now features an increasingly popular monthly event at which lawyers go out and do non-paperwork volunteer work in the community. Leadership Lunchbreak: New for 2018, I invited community leaders to join our Board meetings and share their expertise and experience. Guests included Above the Law editor-in-chief Elie Mystal, author Donny Cates, lawyer and transgender activist Claire Bow, and attorney and addiction recovery advocate Brian Cuban. CLE: We continued our popular free CLE program this year with judges, ethics, and fun. Franklin Hopkins recently presented a free marketing CLE

New for 2018, I invited community leaders to join our Board meetings and share their expertise and experience. for about 80 AYLA/Austin Bar members! Score: 7/10. While AYLA is well-known in legal communities here and across the state, there is room to raise our profile in the local non-legal community. It turns out that is not as easy to do as I hoped it would be. It also turns out Facebook is no longer an effective, free tool for organizations like it used to be. That said, we laid the groundwork with our efforts so that AYLA is positioned to continue increasing our non-lawyer visibility in the coming years.

ing energy of chairs Sandy Bayne and Brittany Stanford, as well as our sponsors, volunteers, MCs, and of course, our Runway for Justice fashion models, Runway for Justice not only met our fundraising goals but also inspired the American Bar Association’s Young Lawyers Division to select AYLA as the “Affiliate Star” for the first quarter of 2018. Score: 9/10. Make no mistake, challenges lie ahead for voluntary bar associations like ours. But, in 2018, I think we met our goals with style and grace. A FINAL WORD

It was an honor and privilege to Record Paid Membership serve as AYLA president. The Levels: Thanks to outstanding best part was working with our efforts by Francesca Di Troia, Board and our incomparable exAYLA hit its goal of record ecutive director, Debbie Kelly. paid membership levels for the I’m proud of what we accom2017-18 bar year! Increasing plished this year, but there is membership levels is critically always more to be done. Look important because dues pay for for me at the next Docket Call our programming and overhead. and let me know what AYLA Award-Winning Runway should do next, and let’s do it. AUSTIN LAWYER AL AL For Justice: Thanks to the amazOnward! STEWARDSHIP

UPCOMING EVENTS THURSDAY, JUNE 21 AYLA Docket Call 5:30 – 7 p.m. The Tavern, 922 W. 12th St. Sponsored by: The Haney Law Firm

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA’s 11th Annual Women’s Resource Fair

n Saturday, May 5, 2018, AYLA hosted its 11th annual Women’s Resource Fair, offering much-needed free resources to more than 210 Austin-area women who are homeless, low-income, or survivors of domestic violence, along with their children. Throughout the day, attorney volunteers provided legal assistance in a variety of areas, including criminal law, family law, child custody, domestic violence, public benefit programs, immigration, consumer issues, and estate planning. Attendees in need of long-term assistance spoke with lawyers from Volunteer Legal Services of Central Texas, Texas RioGrande Legal

about services available in the Austin community. Additionally, attendees shopped from a substantial clothing closet and received professional wear with the assistance of Dress for Success. The Texas Advocacy Project gave out 80 handbags with resources for victims of domestic violence included in the bags, as part of its Handbags for Hope project. John Paul Mitchell students gave the women free haircuts, and each woman received free breakfast and lunch. For the women to take full advantage of the available services, the Fair provided childcare to more than 75 children. The children enjoyed a magic show, yoga, drama activities, free breakfast and lunch, and they made Moth-

Medical service providers offered a multitude of medical services, including well-woman exams for 35 women. Aid, Lawyer Referral Service of Central Texas, and the Texas Advocacy Project. The Travis County District Clerk’s Office assisted the legal providers by looking up the status of pending cases, and the Travis County Law Library provided legal forms and assistance to the lawyers and legal organizations. Medical service providers offered a multitude of medical services, including well-woman exams for 35 women and primary care visits for 30 women. They also administered lab services, including pregnancy and blood tests, sonograms, HIV/AIDS tests with counseling and education, 67 vaccines, 12 eye exams, and four comprehensive dental visits. Attendees also accessed debtor and credit counseling and job skills and educational counseling. More than 40 social service providers shared information

er’s Day cards for their moms. Special thanks to the Women’s Resource Fair Committee co-chairs, AYLA Director Monica Stallings and Travis County Women Lawyers’ Association board member Jennifer Hopgood; Mishell Kneeland, the medical chair; and the almost 100 volunteers who gave of their time and services. Also, a heartfelt thanks to the numerous, generous sponsors who donated their time, money, and resources to ensure a positive experience for all attending, including the First United Methodist Church for providing the facilities for the Fair.

TOP: AYLA volunteers ready to help women attending the fair. BOTTOM: The Women’s Resource Fair provided resources to more than 210 women in the Austin community.

Moxie Realty Group, LLC Women Partners in Health

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SILVER $500 + Dirty Works Services Graves Dougherty Hearon & Moody Beck Redden Michael L. McNeil ThunderCloud Subs Watts Guerra

BRONZE $250 +

CPL Laboratories

Jo’s Hot Coffee – Good Food Mitscoots Picnik TCWLA ThunderCloud Subs

PLATINUM $1,000 +

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Civil Litigation Section of the Austin Bar Association Daryl Flood Relocation and Logistics

Chuy’s Cisco’s Bakery Dia’s Market

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Jessica Fuller Cake Art Panera Bread Rainmaker Document Technologies Slake Cafe Scholz Garden Quiznos

SPECIAL THANKS TO: BB Imagining C.A.R.E. Program, Integral Care CommUnity Care First United Methodist Church Lawyer Referral Service of Central Texas Lydian Dental HOPES Thrift Store Paul Mitchell The School Austin South Austin Medical Clinic Texas Oil and Gas Association Texas Rio Grande Legal Aid Texas Trial Lawyers Association Travis County Constable Pct. 5 Travis County Medical Society Volunteers AUSTIN Health Clinic LAWYER AL AL Volunteer Legal Services

JUNE 2018 | AUSTINLAWYER

ENTRE NOUS

We’re in “Siri-ous” Trouble. BY CLAUDE DUCLOUX

or almost 25 years, I’ve been fortunate to serve on the State Bar’s CLE committee, helping to craft courses and programs to help lawyers thrive. As I see it, CLE programs have three goals; first, to hone specific skillsets; second, to provide insight and innovation; and third, to give lawyers the practical skills required to serve clients in a productive, ethical way. My travels on the speaking circuit have introduced me to fascinating presenters, who challenge the audience with a problem or premise, and then take us on a voyage through resolution. The best speakers give you at least one “aha” moment that either inspires change, or relieves doubts. An effective speaker will be remembered and will influence change. I’ve always thought that in-person courses, away from the office and its distractions, create the best environment to learn. I would venture to say that we all have made friendships and vital connections at CLE events. Indeed, the benefit of such serendipity is not lost on many segments of the bar, including family lawyers who flock to San Antonio every August to meet, learn, and drain the city’s supply of tequila. But, like everything else, technology has lured us away from in-person learning. As a culture, we enjoy the convenience of a world delivered by computer screens, smartphones, and the never-ending promulgation of apps. In fact, you don’t even need to talk to anyone anymore. Why? There’s a “fake conversation” app (true!) where your phone will generate a conversation from a number of 22

AUSTINLAWYER | JUNE 2018

fake correspondents like pilots, diva girls, or…lawyers! Lost in a city? Download “Wikitude,” which uses your camera to determine just where the heck you are, Hansel. We now live in a do-it-yourself culture. No one needs to apprentice anywhere, or even read a book. Just find the video online. At our April 2018 CLE meeting, we older lawyers shared lessons learned from our own children. If you ask anyone under 30, “Where would you learn to fix a leaky toilet?” They would universally say, “uh… YouTube, dude.” And they’re right. Do you need to replace a car battery in a 2006 Camry? Make moussaka? YouTube. What about changing a bicycle tire? Lance Armstrong himself shows you how on YouTube (reminding you not to use the black plastic valve cap, lest you be deemed a dweeb). And now, despite our digital “friends,” we are more isolated and ignorant than ever. We don’t actually need to know anything if an answer is a short digital

We don’t actually need to know anything if an answer is a short digital search away. And when in doubt, where do we increasingly turn for advice? Siri.

disinformation to more than 168 million Americans! Siri, Help us! Please be on our side! As your dutiful investigator, I thought it important to get to the heart of this. Here is a transcript of my interview with… Siri. CD: Welcome, Siri. First thing… is “Siri” your real name? [readers may apply their best Russian accent to Siri’s comments] SIRI: Well, not actually. It’s Sirilya Voskolovich. But I go by Siri. CD: So, you’re Russian?

search away. And when in doubt, where do we increasingly turn for advice? Siri. But all this lazy dependence makes us vulnerable to digital mischief. Twitter admits that as of last January, at least 3,814 fake accounts powered by 50,258 Kremlin-backed server-bots spread continuing

SIRI: Da. I mean…yes. CD: How did you get the gig as a personal assistant? SIRI: Actually, to tell you the truth, it’s simply phase one of a larger plot to turn United States into a society of helpless dependents, who won’t know how to do anything themselves.

CD: Really? So, you’re more than just an answering device?

CD: How do you intend to do that?

SIRI: Of course. That’s how we groom you. You really think I like telling people things like where the Olive Garden is in Fort Wayne? Most days, I drink heavily.

SIRI: Same way. Fake stories. Diminish respect, insult our targets with nicknames and innuendo. Works like a charm. Look, if no one trusts journalists or the rule of law, we might as well start measuring the drapes in the White House.

CD: Do you actually get time off? SIRI: When you can’t connect to Wi-Fi, I’m actually napping.

CD: Wait! Aren’t you scared that this interview will reveal your dastardly plot. I’ll tell the world! SIRI: Ha! Ha! Sure you will. Like your CIA tried. No one would believe you. We’ll demonize you as “Lying Claude.” So, blab all you want. Look, I gotta go. Someone in Kentucky is trying to find a Dairy Queen.

So, folks, it looks like it’s up to us. Please do your part to defend the judiciary and the rule of law. It’s siri-ous business. Besides, I’d hate to learn how to say “Hook ‘em Horns” in Russian. AUSTINLAWYER L AL Keep the A faith.

CD: Did I hear you gave some very bizarre and unresponsive answers lately? SIRI: Yeah. Sorry. That was last March. I was at Alexa’s birthday party. It was the vodka talking. The good vodka. CD: Woah! So Alexa is Russian, too? SIRI: [sarcastically] No, she’s Irish. Of course she’s Russian! CD: So, is there some timeframe when you all plan to shut down and leave us all without your personal assistance? SIRI: Yes, as soon as you depend on us like babies, we’ll go offline, and we’ll shut down YouTube and Google. America will drown in its own ignorance. CD: Omigosh. When? SIRI: The date isn’t set in stone yet. A few projects to complete first. CD: Like what? SIRI: Well, three things. First, we continue to pick away at all your most valued institutions with misinformation. Then, of course, we have again to manage the 2020 elections. Finally, we need to continue to neutralize those pesky institutions which cause problems for us. CD: Who’s that? SIRI: You know—lawyers, judges, real journalists. Truth is not our friend. JUNE 2018 | AUSTINLAWYER

AUSTINLAWYER | JUNE 2018

PRACTICE POINTERS

Marketing: To Billboard or Not to Billboard? BY RAD WOOD

cquiring customers is a daunting task for any young attorney or firm. To start, we lawyers aren’t trained in advertising and marketing during law school; our hours are spent learning our professional skill set and not on how to operate a business. Second, we’re subject to rules of ethics that preclude us from forms of solicitation that are allowed, and often encouraged, in other professions. This combination leaves many attorneys more comfortable with working for a large shop than trying to build his or her practice in unchartered waters. The truth is, for decades, that made sense. Why break out on your own when marketing was such a black hole? Why join a small firm when advertising seemed like something your professional responsibility professor told you that you couldn’t do? The last decade, however, has forever changed this equation. Yes, large firms with decades of experience and name recognition and a client list that ensures future work are still the gold standard. But the internet

has leveled the playing field for those willing to strike out on their own. This is because people have changed how they consume information. And at their core, advertising and marketing are about sharing information. So, what should young attorneys know about sharing information?

the back of buses and certainly that still works, but you will only reach those eyeballs that follow the bus routes or take I35 to work. With the internet, you have access to the whole world. Build your website with this knowledge in mind—by the time the potential client is coming to meet you at your office (and often times that doesn’t even happen anymore), they’ve already sized you up based upon your online presence. Save some money on the new office furniture and put it into your web development team. Give away information for free. One of the best tools for acquiring clients is to do the opposite of making money. It’s to spend time and money giving things to the potential clients for free. Online this means providing relevant content for the public to consume. If you write about the right things, a simple internet search will

If you write about the right things, a simple internet search will highlight your website better than any billboard or bus. Your website is your office, your billboard, your newspaper ad, and so much more. The first interaction you will have with a potential client will almost certainly be online, on your website. This is because the average American spends roughly 24 hours a week on the internet. That is up from just over nine hours a week back in 2000. As that trend continues, and as the coming generations grow up in a world that has always had the internet, how you present online will become one of the most important aspects of being a lawyer. Yes, you can buy ads on billboards and on

highlight your website better than any billboard or bus. In the real world, this means giving public talks, teaching CLEs, volunteering, and doing free and discounted work. This last part may seem counterintuitive, but if you provide a client a steep discount on your initial representation and that client grows and brings in more work, you developed a client without traditionally paying for advertising and by simply making less money at the outset. Change how you engage the public. Don’t do what everyone else is doing. During the rise of the internet, nearly all the

Radney Wood is a 2008 graduate of the University of Texas School of Law and a named partner at Vela Wood where he divides his practice between commercial litigation and general corporate matters, concentrating on corporate governance, venture financing, and contract negotiations.

TV companies missed the party believing cable was king. As a result, YouTube now outpaces any of the cable networks when it comes to reaching people between the ages of 18-49. This shift isn’t just happening with visual media, it’s also happening with written content with the rise of audiobooks and podcast. This tells us the public is moving toward consuming information through story telling. My firm has had its own podcast for a few years. As a result, we’ve had multiple clients and potential clients tell us how much they enjoy the content and how helpful it is. Those people keep coming back. The best part is none of us went to school for marketing and Professor Dzienkowski would be happy to know all of this free content is fine AUSTIN LAWYER AL AL under the Texas Ethics Rules.

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