Austin Lawyer, March 2020 by Austin Bar Association

austinbar.org MARCH 2020 | VOLUME 29, NUMBER 2

17th Annual Austin Bar Foundation Gala Raises $80,000 Funds Raised Support Foundation’s Law-Related Programs, Projects, and Grants

ore than 500 guests attended the “Boots and Bourbon”-themed Austin Bar Foundation Gala on Jan. 25, 2020. Members of the legal community, many decked out in their finest black tie and boots, turned out for the event, which was held for the first time at the Barton Creek Omni Resort and Spa. Guests enjoyed a cocktail hour that included bourbon flights and hand-rolled cigars while they took chances on winning one of the many exclusive raffle baskets on display, picked up bottles of wine at the wine pull, and purchased gift bags containing jewelry created by Austin designer Laura Elizabeth. During the seated dinner, a live auction was led by the Siren Sisters auctioneers. Bidders raised their paddles to bid on a Breckenridge retreat for 14 at Sapphire Lodge; a Texas two-step package, including four nights in South Padre Island and four nights in Marfa; two private dinners for ten to be held at Hilgers House; five nights in Playa Hermosa, Costa Rica; a private Kentucky Bourbon Trail tour and tasting; and a package that included a strand of pearls, 12

1 months of flower deliveries, and a weekend at an historic farmhouse near Fredericksburg. The $80,000 raised for the Austin Bar Foundation supports the many law-related programs and projects the Foundation funds throughout the year, such as Austin Adoption Day; the CANLAW Clinic; Veterans Assistance Programs; the SelfRepresented Litigant Project; the Diversity Fellowship Program; scholarships for Texas LGBT law students; and the Justice Mack Kidd Fund. In addition, the

continued on page 7

4 1. Table decorations reflected the “Boots and Bourbon” theme of the evening. 2. 2020 Austin Bar Award Winners: (L-R) Kate Lincoln-Goldfinch, David Walter Community Excellence Award; Justice Craig Enoch (ret.), Larry F. York Mentoring Award; Nelia J. Robbi, Joseph C. Parker, Jr. Diversity Award; Austin Bar President D. Todd Smith; Lulu Flores, Distinguished Lawyer Award; and Chief Justice Wallace B. Jefferson (ret.), Distinguished Lawyer Award. 3. A sample of a commemorative paver available for purchase. 4. The ballroom at the start of the Austin Bar Foundation Gala.

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CONTENTS

AUSTINLAWYER MARCH 2020 | VOLUME 29, NUMBER 2 AL A L INSIDE FEATURED ARTICLES 1 9

DEPARTMENTS

17th Annual Austin Bar Foundation Gala Raises $80,000

Funds Raised Support Foundation’s Law-Related Programs, Projects, and Grants

Volunteer Legal Services of Central Texas Welcomes New Executive Director

12 Honoring Professionalism and Civility as Lawyers A Half-Day of Free Ethics CLE

10 15 16 17

12 Travis County Women Lawyers’ Association Honors Attorneys 20th Annual Pathfinder Awards Luncheon Held in January

14 Austin Bar/AYLA Leadership Academy Announces Class of 2020

20 22 26

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

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

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NEWS & ANNOUNCEMENTS

EVENTS & MORE

Results of 2020 Judicial Preference Poll Announced

MAR. 14 Cycling & CLE Presented by the Lawyer Well-Being Committee 8 a.m. ride; 9:30 a.m. ethics CLE presented by Claude Ducloux Veloway, 4900 La Crosse Ave

Members of the Austin Bar and ACDLA Vote On Contested Travis County Races

Commemorative Pavers for Hilgers House Now Available Proceeds Help Support the Justice Mack Kidd Fund

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

AUSTIN YOUNG LAWYERS ASSOCIATION Sandy Bayne �� President David King �� President-Elect Rachael Jones �� Treasurer Blair Leake �� Secretary Jorge Padilla �� Immediate Past-President

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

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PRESIDENT’S COLUMN D. TODD SMITH, SMITH LAW GROUP

Brick by Brick

hen I arrived in Austin in mid-2003, Justice Mack Kidd was a long-standing member of the Third Court of Appeals. I remember meeting and visiting with him at Austin Bar Appellate Section luncheons as I was getting plugged into the local legal community. He took a genuine interest in getting to know me, a young lawyer at a large firm looking to develop a practice in his court. He was charming and friendly, and as I learned later, he was a great mentor to many others. He was respected and loved. In January 2005, Justice Kidd died by suicide. At the time, no one talked openly about Justice Kidd’s death in those terms. Suicide and mental illness were taboo subjects, especially among lawyers and

judges. We’ve made progress on that front over the past 15 years, but we still have a long way to go. How does change happen? Step by step, or in this case, brick by brick. If you’ve read this column regularly, you know I have focused my presidency on lawyer well-being. Our new Lawyer Well-Being Committee has put on some fantastic events, with more to come, and this publication has featured a “Be Well” article each month. Our goal has been to help break stigma and to raise awareness of depression, alcoholism, addiction, and other mental-health issues so lawyers feel more free to speak up for themselves (to get help), to speak out on the issues (to advocate), and to speak into each other’s lives (to ask for and offer support from each other). HELPING LAWYERS GET HELP After Justice Kidd’s death, a fund was established in his honor to assist local attorneys impaired by depression or similar mental-health conditions. The Justice Mack Kidd Fund anonymously helps pay for treatment, including therapy and medication, when no other resources are available. To date, the Fund has given out $50,000 and has helped more than 20 attorneys

get the help they need. We have reached a critical point in the Fund’s history, as it’s down to its last $10,000. To help keep the Fund going, the Austin Bar Foundation is offering a limited number of commemorative pavers to be installed in the main walkway to Hilgers House, the Austin Bar’s new home. With a $500 contribution, a purchaser may name a paver after an individual or firm; or in honor, appreciation, recognition, or memory of someone else. The Foundation will help replenish the Fund by issuing a grant from a portion of the proceeds raised from this effort. Purchasing a commemorative paver is a great way for lawyers and law firms of any size to show their support for the Justice Mack Kidd Fund and what it stands for.

The pavers will remind anyone entering Hilgers House that the Austin Bar looks out for its own. And with each paver sold, we will be one step closer to helping local lawyers take care of themselves in a way they wouldn’t be able to otherwise. It’s only fitting that the Fund’s trustees—Chief Justice Woodie Jones (ret.), Ann Greenberg, and Velva Price—have purchased the first paver in honor of Justice Kidd. Space is limited. When the pavers sell out, this opportunity will be gone forever. I hope you’ll join me in keeping Justice Kidd’s memory alive, helping lawyers in our community get the help they need, and ensuring the Austin Bar’s continued leadership on this important issue.AUSTIN Visit austinbar.org LAWYER to purchase your paver today. AL AL

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17th Annual Austin Bar Foundation Gala Raises $80,000 continued from cover

Foundation has awarded more than $168,500 in grants to lawrelated organizations, including past grant recipients American Gateways, Volunteer Legal Services, Austin Community Law Center, Austin Classical Guitar’s Guitar and Juvenile Justice Program, CASA, and the Texas Fair Defense Fund, to name a few. More than $19,000 was raised during the Fund-a-Need portion of the auction. A grant will be given from the Foundation to the Justice Mack Kidd Fund with a

portion of these proceeds. The Justice Mack Kidd Fund provides anonymous financial assistance for counseling and medical treatment on a short-term basis for Austin attorneys suffering from mental health issues. Commemorative pavers to be placed in the main walkway of Hilgers House were given to those donors who gave $500 or more during Fund-a-Need. There are still a limited number of pavers available, which can be purchased at austinbar.org. A portion of the

proceeds from the continued sale of the pavers will be included in the grant given to the Justice Mack Kidd Fund. An awards presentation followed the auction. The 2020 Austin Bar award winners were: • Larry F. York Mentoring Award

Justice Craig T. Enoch (ret.); • David H. Walter Community Excellence Award

Kate Lincoln-Goldfinch; • Joseph C. Parker, Jr. Diversity Award

• Distinguished Lawyer Awards

Phil Durst (posthumous) Lulu Flores Chief Justice Wallace B. Jefferson (ret.).

Videos honoring all three Distinguished Lawyer Award winners, along with photos from the event, can be viewed at austinbar.org. The evening ended with casino games and dancing to live music providedLAWYER by local soul band The AUSTIN AL AL Nightowls.

Nelia J. Robbi: and

Attendees enjoying the “Boots and Bourbon”-themed Austin Bar Foundation Gala at the Barton Creek Omni Resort and Spa. Visit austinbar.org to view a full gallery of photos by Nicole Ryan Photography. MARCH 2020 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Carlos Benavides Megan Evans Mollie Fields

TOP: Conner, Cumings, Leffingwell, Martin, Mayfield, Murrell BOTTOM: Sapire, Soltero

Lorenzo Garcia Carrie Gorner Austin Jones Payne Keinarth Alex Kruzyk Nicholas Madsen Gordon Martens Richard McAuliffe Darren McHugh Susanna Meringola Wendy Mills Cole Ruiz Jenna Schneider Mark Symms Stephanie Wartenberg

NEW TO THE OFFICE

Graves Dougherty is proud to welcome Frank Leffingwell as of counsel to the firm’s Real Estate & Tax Law Practice. Leffingwell’s practice focuses on the representation of entrepreneurs, investors, closely held and family businesses, and high-net-worth individuals with regard to a wide range of tax and transactional matters. Dykema announced the addition of Denise L. Mayfield to its Intellectual Property Practice Group as a member in the firm’s Austin office. Mayfield has experience handling a wide range of patent matters, including genetic testing, disease detection and screening tools, veterinary medicine, vaccines, orthopedic devices, dental devices, chemical purification, extraction techniques, plant products, and cannabis products and production materials.

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Carlos Soltero, Greg Sapire, and Matthew Murrell launched Soltero Sapire Murrell PLLC, an Austin-based litigation firm located at 7320 N. MoPac Suite 309, Austin, TX 78731. The firm provides thoughtful, respectful, and vigorous representation of clients in complex litigation matters throughout Texas and will continue each of the partners’ tradition of collaborating with lawyers at other firms. MOVING ON UP

Graves Dougherty is pleased to announce Brian Cumings, John Conner, and Natasha Martin have been elected shareholders.

Cumings’ practice focuses on representing creditors, Chapter 7 trustees, and parties-interest in bankruptcy cases. Conner’s practice focuses on representing clients in estate and gift tax planning, management and preparation of estate plans, and creation of various estate planning documents. Martin’s practice focuses on counseling clients on regulatory permitting, compliance, and enforcement on air, water, and waste issues.

Volunteer Legal Services of Central Texas Welcomes New Executive Director

he Volunteer Legal Services Board of Directors is excited to announce that Alisa De Luna has been appointed executive director of Volunteer Legal Services of Central Texas. De Luna brings to VLS proven expertise in volunteer recruitment, nonprofit growth, and leadership development, as well as a steadfast commitment to diversity, inclusion, and social justice. According to VLS Board President Judge Catherine Mauzy, “Alisa is going to be a tremendous asset to VLS. In addition to her proven track record in non-profit management, she has a passion for VLS’s mission of ensuring that all members of our community have access to legal representation.” De Luna was most recently senior director of community initiatives at CASA of Travis County, where she led the

volunteer recruitment, screening, and training team, as well as the diversity and legislative efforts for the organization. Prior to joining CASA of Travis County, she was instrumental in establishing CASA of Williamson County during its first six years. Under her leadership, CASA of Williamson County was recognized as the fastest growing CASA program in the state. It was also during these years at CASA where she earned her certification as a facilitator of “Knowing Who You Are,” a workshop on healthy racial and ethnic identity, and honed her diversity and inclusion knowledge and skills. For her work with volunteers on behalf of CASA with the Texas Legislature, she was honored with the J.C. Montgomery Child Safety Award by the Texas Office for Prevention of Developmental Disabilities. De Luna graduated from Rice

Alisa De Luna, executive director of Volunteer Legal Services of Central Texas

ation and Austin Opera before University and her background committing herself to advocacy in is in nonprofit management and theLAWYER child welfare system through fundraising, including work withAUSTIN CASA. the Muscular Dystrophy AssociAL AL

MARCH 2020 | AUSTINLAWYER

BE WELL

The Holistic Hustle Three Practices to Help Attorneys Thrive at Work and at Home BY NIK SALLIE

Nik Sallie is an award-winning intellectual property attorney in Austin, providing legal services and business coaching to corporate women with side hustles through her website, NikSallie.com— “The Home of Holistic Hustle.” She is a sought-after speaker, former State Bar of Texas IP Section Council Member and was recently named a ‘2020 Woman to Watch’ by Austin Woman Magazine.

s an attorney, business coach, and speaker, one of my mantras is “take care of you, then take care of business.” For far too long, social norms dictated that business and personal matters remain separate. But now, there’s a movement sweeping through corporate culture that encourages people to bring their “whole selves” to work, resulting in happier, more productive employees, which is good for business. Admittedly, I was a skeptic at first, believing it’s safer, and more appropriate, to separate my personal life from my professional life. But now, I’ve whole-heartedly adopted this mindset. I wear meditation bracelets nearly every day, have crystals on my desk, and attend meditation and yoga sessions when offered at my office (yes, I work in tech). My spiritual practice is part of my authentic self, and I no longer leave it at home when it’s time to go to the office. Doing so has helped me stay focused, reduce stress, and build great working relationships in my career. According to science, everything is made of energy, and if 10

AUSTINLAWYER | MARCH 2020

that’s the case, how we manage our own energy is critical to our quality of life. Clients, colleagues, and caseloads are all vying for our expert attention, in addition to the ongoing commitments to family, friends, and organizations outside of the office. If you’re looking to increase the quality of your professional life (and let’s face it—we all are), here are three practices that can help you find clarity, connection, and relief on your career path. PLAY FAVORITES We spend a lot of time at work, so it pays to create a space that is welcoming, comfortable, and productive. My favorite desk items please the senses: pink peonies, decorative crystals, a mug warmer topped with a cup of chamomile tea, and a stash of Pilot G-2 0.5mm gel pens in black (yes, these pens are magic; no, I’m not an affiliate). I have an “energy” playlist with my favorite alternative rock, pop, and R&B songs to help me power through emails, and for professional development, I have a curated list of YouTube videos that include greats like Tony Robbins. If your desk is a bland desert of papers, folders, and generic office supplies, it’s time to liven it up. Get a small succulent plant (they’re seriously low maintenance), frame postcards of beautiful places where you want to vacation, and keep your favorite scented lotion or lip balm close by. During times of stress, a quick glance around and word of gratitude for your special space can help rebalance you. ADHERE TO THE 50/10 RULE Any time I feel a bit rushed and underwater, this practice sets me back on course. I work for 50 minutes starting at the top of the

During times of stress, a quick glance around and word of gratitude for your special space can help rebalance you. hour, and for the last 10 minutes, I do whatever is energizing and appropriate for me. Fifty minutes is the perfect amount of time to focus on a task, especially if it isn’t the most exciting project. During the break you can grab tea, take a walk around the building, watch YoutTube, meditate, and return to your task refreshed. Try it and watch your to-do list vanish. COMPARTMENTALIZE This may sound ironic after suggesting that you bring your whole self to work, but it’s not. “Work” isn’t who you are, it’s what you do and only a small part of what you do. When you’re home, at a concert, or on a well-deserved vacation, leave work at the office! If you must check in, set a strict 30-45 minute window to finish an assignment and then shut down all electronics. I can tell you from personal experience that shutting down my Mac at the end of the day is incredibly gratifying.

Healthy boundaries aren’t only effective when applied outwardly to other people, but also when we set boundaries for ourselves. Set your out-of-office message, turn off your phone during dinner, and don’t work on your laptop in your bedroom because it can introduce stress in the room that should be your sanctuary. When at a happy hour, remember it’s called that for a reason! Be mindful to talk to your friends and colleagues about topics other than work and your stressful day. Unfortunately, we are trained to believe that multitasking is a necessary skill, but it can actually undermine productivity, both at the office and at home. All we really have is the present moment, and if you’re spending time with family or friends, then it’s better to be completely with them and fully engagedLAWYER today. Work will be AUSTIN AL AL there tomorrow.

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Honoring Professionalism and Civility as Lawyers A Half-Day of Free Ethics CLE

he Robert W. Calvert American Inn of Court and the Austin Bar Association have combined efforts to present a free half-day CLE, including three hours of ethics. The event will be held at the Third Court of Appeals on Thursday, April 2, 2020, from 8:45 a.m. to 12 p.m. Area experts will present on ethics, professionalism, and civility, and there will be a surprise guest or two! The CLE is open to all Austin-area attorneys. Space is limited, so registration will

remain open until full. In 1989, the Texas Supreme Court and the Court of Criminal Appeals promulgated the Texas Lawyer’s Creed to renew the spirit of professionalism and civility in lawyer conduct. The Creed’s preamble reminds us: The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader

Ethical, professional, and civil duty to the legal system. The practices are core principles of Supreme Court of Texas and the Robert W. Calvert American Court of Criminal Appeals Inn of Court and the Austin Bar. are committed to eliminating The presentations are focused a practice in our State by a on supporting, encouraging, and minority of lawyers of abusive celebrating true professionalism tactics which have surfaced and civility resulting in not only in many parts of our country. a day, but a lifetime, of conduct The desire for respect and worthy of our profession. We confidence by lawyers from hope that you will join us. Look the public should provide the for information in Bar Code and members of our profession at austinbar.org soon. Regiswith the necessary incentive tration will begin on March 3, to attain the highest degree AUSTIN LAWYER 2020. AL AL of ethical and professional conduct.

Travis County Women Lawyers’ Association Honors Attorneys 20th Annual Pathfinder Awards Luncheon Held in January

n January 21, 2020, the Travis County Women Lawyers’ Association hosted its 20th Annual Pathfinder Awards luncheon at the Four Seasons, recognizing the following outstanding Travis County trailblazing attorneys:

TINA AMBERBOY Amberboy leads the Supreme Court of Texas Permanent Judicial Commission for Children, Youth, and Families—often referred to as the Children’s Commission. At the Children’s Commission, she has brought her extensive knowledge of the child welfare and court systems to the table and made countless improvements to the child protection courts across the state, among many other achievements. Amberboy is co-founder of the Austin Bar Association Section of Court Appointed Family Advocates and recently championed the creation of a Child Welfare Law board certification. 12

AUSTINLAWYER | MARCH 2020

MOLLY CAGLE Cagle is a partner at Baker Botts in the area of environmental law. Whether appearing before the Texas Commission on Environmental Quality, the Railroad Commission, Texas Parks and Wildlife, or the Environmental Protection Agency, Cagle is an elite practitioner who is recognized and respected by agency personnel and private counterparts. Among many distinctions, she is a Fellow in the American College of Environmental Lawyers and has been recognized since 2003 in Chambers USA: America’s Leading Lawyers for Business in environmental law and as a Super Lawyer. MARTHA SMILEY Smiley was a founder of the University of Texas Center for Women in Law, a founder of Grande Communications, and an early influential female member of the University of Texas Board of Regents. She has extensive regulatory, legislative, and administrative experience in public utility law, and particularly in the

2020 TCWLA Pathfinder Award winners, (L-R): Molly Cagle, Martha Smiley, and Tina Amberboy.

area of telecommunications law. Smiley is also very involved in the community and currently serves on the Waterloo Greenway board of directors. She is counsel at the firm of Enoch Kever. TCWLA recognized the award winners for being role models and pioneers who are shattering stereotypes and blazing trails

for female attorneys. Every year, TCWLA makes an effort to select and honor a panel of Pathfinders who represent a diversity of life and work experiences, which results in a thought-provoking and inspirational program. This year was no exception. Congratulations to the TCWLA 2020 AUSTIN LAWYER AL AL Pathfinders!

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Austin Bar/AYLA Leadership Academy Announces Class of 2020

n January 6, 2020, the newly selected Austin Bar/Austin Young Lawyers Association Leadership Academy class members met for an opening retreat as they began their six-month leadership training program. The all-day retreat was held at the Texas Law Center, where participants learned about the purpose of the Leadership Academy, networked with one another, and received a tour of the Texas Supreme Court guided by Justice Debra Lehrmann. Par-

of practice areas, firm sizes, firm types, and levels of experience. The Leadership Academy was established to help local lawyers find ways to make a positive impact in the community, serve in local bar associations, and develop professional leadership skills. Following the opening retreat, the Leadership Academy offers a series of five monthly presentations for participants to engage and network with local leaders in public policy, the judiciary, the private sector, non-profit organizations, and bar associations.

The Leadership Academy offers a series of five monthly presentations for participants to engage and network with local leaders in public policy, the judiciary, the private sector, non-profit organizations, and bar associations. ticipants also heard from Travis County District Judge and Leadership Academy co-founder Karin Crump, Third Court of Appeals Justice and former Leadership Academy member Chari Kelly, Austin Bar Association President D. Todd Smith, Austin Young Lawyers Association President Sandy Bayne, and State Bar of Texas Deputy Executive Director Ray Cantu. The 2020 class is made up of 26 attorneys representing a variety

Later in January, United States District Judge Robert Pitman kicked off this year’s monthly luncheon presentations with inspiring remarks and a thoughtful question-and-answer time with the class. Past presenters include Senator Kirk Watson, Mayor Steve Adler, and Travis County Judge Sarah Eckhardt. This year’s Leadership Academy’s class project will help raise funds for the Austin Bar Foundation’s grant program. The

Congratulations to the members of the Austin Bar/AYLA Leadership Academy

CLASS OF 2020 Matthew Arth Brian Aslin Hannah Hembree Bell Rebekah Breque Haley Bullard Kristiana Butler Aaron Collins Joshua Crowley Rachel Enav Emma G. Garrett Jonathan Glusband Theresa Golde Sarah Harp

Leadership Academy program culminates with a graduation ceremony at Hilgers House, where local bar leaders will provide advice on next steps for further community involvement. For those interested in applying to future Leadership Academy classes, applications are typically accepted in November for the class beginning the following January.

Allison Kalis Joseph Keeney Scott Kidd Raimonda Kundrotaite Jessica MacCarty Catherine E. Marsolan Rachel McKenna Lena Proft Leigh Savage Brian Shepherd Gabrielle Smith Natalie Tarnosky Megan Watkins

This year’s organizing committee includes co-chairs Ayeola Williams and Michael Roberts and members Elliott Beck, Sam Denton, Lindsay Drake, Mitchell Zoll, Ciara Parks, Ben Dower, Justin Rosas, and Gracie Wood Sheppard, along with advice and assistance from Austin Bar Director of Communications Nancy Gray and immediate committee AUSTINLAWYER past-chair Emily Morris. AL AL

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Inelegant Variation Avoiding Word Repetition—Wisely BY WAYNE SCHIESS | TEXAS LAW | LEGALWRITING.NET

t’s common writing advice to avoid repeating a word in the same sentence or the same paragraph. Here’s typical advice from Ben Yagoda, a professor of English and journalism: “Word repetition is a telltale sign of awkward, non-mindful writing.… [It] sounds like a fingernail on the blackboard.”1 This is what he’s talking about: • The defendant’s manager had seen ice on the floor near the soda machine and had asked other employees to monitor the floor in front of the soda machine so that water did not accumulate near the soda machine.

The word repetition there is truly, fingernail-scrapingly awkward. So let’s rewrite: • The defendant’s manager had seen ice on the floor near the soda machine and had asked other employees to monitor the floor in front of the soft-drink dispenser so that water did not accumulate near the carbonated-beverage appliance. Better? That’s an example of what the writing expert Patricia O’Conner calls “Slender Yellow Fruit Syndrome,” as in “Freddie was offered an apple and a banana, and he chose the slender yellow fruit.”2 Better writing advice would be to avoid word repetition without resorting to “elegant variation,” the practice of using a synonym or near-synonym or creating your own, made-up synonym (slender yellow fruit). The English-usage expert H.W. Fowler coined the phrase “elegant variation” for this writing flaw and said, “The fatal influence is the advice given to young writers never to use the same word twice in a sentence—or within 20 lines or other limit .… There are few literary faults so widely prevalent ….”3

Today, the writing expert Bryan Garner gives it a more apt name: “inelegant variation,” and he doesn’t like it either: “Variety for variety’s sake can confuse readers.”4 And as to legal writing, Garner qualifies the advice: “One should not repeat a word in the same sentence if it can be felicitously avoided.”5 So let’s rewrite our example to avoid needless repetition but also to avoid inelegant variation. How? There are other tools, but we can often avoid repetition and inelegant variation by using pronouns carefully and by eliding understood concepts: • The defendant’s manager had seen ice on the floor near the soda machine and had asked other employees to monitor the floor there so that water did not accumulate. Besides the guidance on word repetition generally, legal writers should remember that legal writing has terms of art, standard terminology, and stock phrases. Varying those can cause problems: “If we use the word ‘negligence’ in one paragraph and ‘fault’ in the next, the reader will wonder if we are talking about the same thing or something different.”6 So say Harold and John Warnock, a father-son pair of lawyers. Their advice? “Do not vary key terms.”7 That means that legal writers shouldn’t do this: • The claimant first asserted that …. Nevertheless, the hearing examiner refused to consider the complainant’s submission …. On no other occasion did the movant mention the incident …. This is confusing because the reader likely wonders if claimant and complainant and movant are the same person, and upon realizing they are, is likely to be

Besides the guidance on word repetition generally, legal writers should remember that legal writing has terms of art, standard terminology, and stock phrases. Varying those can cause problems. annoyed. In this context, repeating the word claimant is entirely appropriate, and a careful writer could work in pronouns, too. So avoid inelegant variation. Don’t fear sounding simple, and don’t go nuts with a thesaurus. If you can’t felicitously work around it, go ahead and use the same AUSTIN LAWYER AL AL word twice. Footnotes 1. Ben Yagoda, How to Not Write Bad 135, 137 (2013). 2. Patricia T. O’Conner, Woe Is I 199 (1996). 3. H.W. Fowler, Modern English Usage 148 (2d ed., Ernest Gowers, ed., 1965). 4. Bryan A. Garner, Garner’s Modern American Usage 508 (4th ed. 2009). 5. Bryan A. Garner, Garner’s Dictionary of Legal Usage 548 (3d ed. 2011). 6. John Phelps Warnock & Harold C. Warnock, Effective Writing: A Handbook with Stories for Lawyers 137 (2003). 7. Id. MARCH 2020 | AUSTINLAWYER

STATE BAR BOARD OF DIRECTORS’ CORNER

Update on First Quarterly Meeting of 2020 BY LESLIE DIPPEL, ADAM SCHRAMEK, AND AMY WELBORN

he State Bar Board of Directors held its quarterly meeting on January 24, 2020. As your representatives on the board, it is important to us keep you updated on highlighted items of interest. Changes to Disciplinary Rules. Proposed revisions to the attorney advertising rules (Part VII) were referred back to the DCAAP committee for additional consideration, specifically to consider amending the proposed

rules to be consistent with the majority of other states on the issue of allowing trade names by law firms. The Board approved a revision to Rule 6.05 addressing conflicts of interest in pro bono representation, and rejected a proposed revision to Rule 1.01 on competent and diligent representation. Member Benefits. The board approved the renewal of the State Bar’s contract with Member Benefits, Inc., the third party administrator of the health plan under

the private exchange. The group health plan will continue to be offered for firms at competitive rates and another limited offering is being made available for solo practitioners. New non-insurance benefits include a rebate offer from AT&T, Enterprise rental car discounts, 24 Hour Fitness gym membership discounts, and discount tickets to professional sporting events. Please visit the Member Benefits section of the State Bar website to see many benefits you may be not be aware

of (texasbar.com/benefits). Succession Planning. The Succession Planning Work Group created a system to enable lawyers to designate another lawyer to assist in closing their practices in the event they pass away, become disabled, or are otherwise unable to practice. There will be an online electronic designation process with sample forms to make this process as easy as possible for our families AUSTIN LAWYER and clients. AL AL

nominated Donald Delgado, of College Station, and Jeanine Rispoli, of Waco, as candidates for TYLA president-elect. In the Austin area, voters also will elect a State Bar director for District 9, Place 1 and a TYLA director for District 8, Place 2. SBOT District 9 currently holds three places with directors Leslie Dippel, Place 1; Adam Schramek, Place 2; and Amy Welborn, Place 3. Austin Bar President D. Todd Smith is running to fill the empty

seat left by Leslie Dippel when her term expires. Smith is an appellate lawyer. He launched his own firm in 2006 after practicing for nearly a decade with Fulbright & Jaworski (now Norton Rose Fulbright). Before joining Fulbright, Smith served a two-year clerkship with the Texas Supreme Court Justice Raul A. Gonzalez. For more information on the State BarAUSTIN elections,LAWYER go to AL AL texasbar.com/election.

Vote in the State Bar Elections April 1 to 30, 2020

otes for State Bar of Texas and Texas Young Lawyers Association presidents-elect and district directors will be cast via paper ballot or online April 1-30, 2020. On April 1, eligible voters will be mailed an election packet that includes a paper ballot, candidate brochures, and instructions on how to cast their vote. An email will also be sent to eligible voters with instructions on how to vote

online. Be sure to check your spam filter. Election emails are sent by the State Bar’s election provider, Election Services Corporation, from statebaroftexas@ electionservicescorp.com. The deadline to cast ballots is 5 p.m. CDT on April 30. The State Bar Board of Directors nominated Pablo Almaguer, of Edinburg, and Sylvia Borunda Firth, of El Paso, as candidates for State Bar president-elect. The TYLA Board of Directors

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THIRD COURT OF APPEALS CIVIL UPDATE

The following are summaries of selected civil opinions issued by the Third Court of Appeals during January 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of February 3, 2020.

TCPA: TCPA does not apply in lawsuit for unpaid attorney’s fees. Wendt v. Weinman & Assocs., P.C., No. 03-19-00036-CV (Tex. App.—Austin Jan. 31, 2020, no pet. h.). Weinman sued Wendt for recovery of outstanding attorney’s fees. The trial court denied Wendt’s motion to dismiss under the TCPA. Wendt contended that Weinman’s collection suit was in response to his communications during the legal representation and thus was related to his right of free speech on a matter of public concern. According to the court of appeals, private communications made in connection with a matter of public concern fall within the TCPA. Wendt, however, failed to allege any particular communication by him to support his argument. Thus, Wendt failed to show how his communications were matters of public concern. The court further concluded that the collection suit did not implicate Wendt’s right to petition in a lawsuit that concluded two years before the collection suit was filed. The court affirmed.

FAMILY LAW: Financial assistance from family members included in childsupport calculation. Ismail v. Khan, No. 03-19-00039CV (Tex. App.—Austin Jan. 24, 2020, no pet. h.) (mem. op.). The trial court ordered Ismail to pay child support and awarded both spouses an undivided one-half interest in land in Bangladesh. Ismail argued that the trial court erred in considering money she received from her family as part of her resources. The court of appeals observed that the Family Code defines “resources” as all other income received, including gifts. Ismail further challenged the characterization of the Bangladesh property as community. The court concluded that the trial court did not divide any spouse’s separate property. According to the court, there was no abuse of discretion in awarding each a one-half interest in their joint, partial ownership interest in the land. The court affirmed. The dissent concluded that the evidence conclusively established the land was Ismail’s separate property and thus would reverse and remand the division of the community estate. ADMINISTRATIVE LAW: Trial court’s reversal of some violations required remand to agency. Harrison v. Tex. State Bd. of Dental Exam’rs, No. 03-18-00229CV (Tex. App.—Austin Jan. 23,

2020, no pet. h.) (mem. op.). Board sanctioned Harrison for violations of the Dental Practice Act. The district court reversed two conclusions of law that supported the sanctions but affirmed the remainder of the sanctions. On appeal, Harrison contended the district court should have remanded to the Board in light of the reversal of two violations used to impose the sanctions. The court of appeals noted that the sanctions were based in part on two conclusions of law that the district court rejected as having no evidentiary support. Thus, the matter must be remanded to the Board to reassess the sanction. The court affirmed in part and reversed and remanded in part. IMMUNITY: Board’s interpretation of federal law does not support an ultra vires claim. Freshour v. Van Boven, No. 0318-00817-CV (Tex. App.—Austin Jan. 9, 2020, no pet. h.) (mem. op.). After receiving complaints, Board temporarily restricted Van Boven’s medical license and reported the restriction to the National Practitioner Data Bank (NPDB). The ALJ issued a decision for the doctor and dismissed the complaint. Board then issued a “revision-to-action” report to NPDB. Van Boven contended Board members committed ultra vires acts when they failed to submit a void report to NPDB which would remove the disciplinary

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

action from the data bank. The district court granted defendants’ pleas to the jurisdiction in part. According to the court of appeals, Board was tasked with interpreting federal law in carrying out its duty to report disciplinary actions. Misapplying collateral federal law does not support an ultra vires claim. The court affirmed in part and reversed and rendered in part, dismissing VanLAWYER Boven’s AUSTIN AL AL claims against defendants.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

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

The following are summaries of selected criminal opinions issued by the Third Court of Appeals during September 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of February 3, 2020.

COMPETENCY RESTORATION/RIGHT TO TESTIFY: Trial court did not abuse its discretion in determining that defendant was competent to stand trial, and counsel did not deny defendant his right to testify. Ruffin v. State, No. 03-18-00013CR (Tex. App.—Austin Sept. 4, 2019, pet. ref’d) (mem. op., not designated for publication). Ruffin was charged with assault. At a pretrial hearing, the trial court took judicial notice of a report from the Austin State Hospital opining that Ruffin was competent to stand trial. The parties did not object to the trial court taking judicial notice of the report, and the trial court signed an agreed judgment that Ruffin was “now competent to stand trial.” On appeal, Ruffin argued that the trial court abused its discretion in restoring him to competency be18

AUSTINLAWYER | MARCH 2020

cause the court had no evidence on which to base its decision. The appellate court disagreed. The report referenced Ruffin’s referral to the hospital, described his treatment, and contained the opinion that Ruffin was “currently competent to stand trial.” The court concluded that the trial court did not abuse its discretion in relying on this report alone in its competency determination. Ruffin also argued that he was denied his right to testify at trial when counsel called him to the stand, asked Ruffin only one question (his name), and the State did not ask him any questions. The appellate court was unable to conclude on the record before it that counsel denied Ruffin his right to testify. Applying the Strickland v. Washington framework for ineffective assistance of counsel, the appellate court explained that the record reflected that counsel had advised Ruffin not to testify and Ruffin had represented to the court that he was unsure if he wanted to testify. The record was silent as to how counsel’s advice impacted Ruffin’s decision. Moreover, because Ruffin failed to provide the substance of his anticipated testimony, he could not prove prejudice. UNSANITARY BLOOD DRAWS: Trial court abused its discretion in granting motion to suppress blood draw that defendant claimed had exposed him to an unreasonable risk of infection. State v. Fikes, No. 03-19-00338CR (Tex. App.—Austin Sept. 6, 2019, no pet.) (op.). Fikes’s blood was drawn following his arrest for DWI. During the blood draw, a trashcan and a “sharps container,” also known as a “biohazard bin,” were placed next to Fikes. The phlebotomist who drew Fikes’s blood used gloves during the procedure, but she touched her hair and put on a sweater while wearing the gloves. She also applied a tourniquet to Fikes’s arm that

she had removed from the top of to an unjustified risk of infection. the biohazard bin and used other The trial court agreed and items that were on top of the bin, granted the motion to suppress. including gauze and packages of The appellate court reversed, disinfectant wipes. After drawing concluding that Fikes “failed to the blood, the phlebotomist meet his burden of showing that “removed the tourniquet, [the phlebotomist’s] actions were threw the used syringe into the so egregious that they created an opening on the top of the sharps ‘unjustified element of personal container, and placed the gauze risk of infection and pain’ that on Fikes’s arm, placing the rose to the level of violating the side of the gauze that had been Fourth Amendment.” Although facing up when it was sitting the court acknowledged that on the sharps container on his “using a biohazard container as arm. [The phlebotomist] labeled a workstation for a blood draw the vials and then removed an is not ideal,” Fikes presented “no evidence concerning adhesive bandage from the top the likelihood that [the of the sharps container. The phlebotomist’s] actions would bandage’s wrapper was partially spread a pathogen”; “no evidence opened, and the exposed part of of how many people, if any, [the the bandage had been sticking phlebotomist] drew blood from … to the container. She applied the before drawing his blood”; and bandage to Fikes’s arm. [The “no evidence that any part of the phlebotomist] then threw the gauze or bandage that touched bandage wrapper and her gloves the sharps container later made into the trash can.” Fikes filed a contact with [Fikes’s] puncture motion to suppress, arguing thatAUSTIN LAWYER site.” A L AL the blood draw had exposed him

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 an overview; please review the entire opinions. Subsequent histories are current as of February 3, 2020.

> COPYRIGHT: Failure to mitigate damages is not a complete defense to copyright infringement or Digital Millennium Copyright Act claims for statutory damages. Energy Intelligence Group, Inc. v. Kayne Anderson Capital Advisors, L.P., 18-20350, 2020 WL 219008, ___F.3d ___ (5th Cir. Jan. 15, 2020). Energy Intelligence Group, Inc. and Energy Intelligence Group (UK) Limited (“EIG”) collectively publish information and news relevant to the global energy industry, including a daily newsletter called Oil Daily. Kayne Anderson Capital Advisors, LP and Kayne Anderson Fund Advisors, LLC collectively (“KA”) are boutique investment firms that subscribed to Oil Daily and shared its contents with employees and other third parties in violation of their subscription agreements with EIG and copyright law. EIG sued KA for copyright infringement and violations of the Digital Millennium Copyright Act (“DMCA”). In defense, KA argued that EIG learned of KA’s infringement seven years prior to suit and did nothing to investigate or dissuade KA. Further, KA argued that EIG knew many of its subscribers improperly redistributed its newsletters, but EIG did nothing to stop the redistribution. Thus, KA advanced a failure to mitigate damages defense, and the district court found legally sufficient evidence to support the defense. At trial, the jury found that EIG failed to mitigate damages. KA argued that failure to mitigate damages was a complete bar to recovery of statutory damages for copyright infringement and violations of the DMCA.

In a matter of first impression for any appellate court, the Fifth Circuit held that the failure to mitigate damages is not a complete defense to liability for statutory damages under the Copyright Act or DMCA. Statutory damages are meant to compensate a plaintiff and deter a defendant from committing future wrongful conduct. Mitigation of damages applies to consequential damages. However, because statutory damages are meant to deter future wrongful conduct by a defendant in addition to compensating a plaintiff, failure to mitigate is not a complete bar to recovery of statutory damages. Nonetheless, because a plaintiff’s consequential damages may be relevant to the amount of statutory damages awarded, failure to mitigate damages may reduce the amount of statutory damages awarded. The Court held that the trial court did not clearly err in concluding that EIG did not knowingly include inaccuracies in its copyright registration. The Court affirmed the district court’s dismissal of KA’s motion for referral to the U.S. Copyright Office. The Court also vacated and remanded the copyright infringement judgment. CLASS ACTIONS: The commonality element of class certification requires evidence of some “glue” that holds the class together, and lack of standing by any class member may be a separate ground for denying class certification. Flecha v. Medicredit, Inc., 946 F.3d 762 (5th Cir. 2020). Flecha failed to pay her medical bills. The hospital enlisted Medicredit, a voluntary debt collection service provider, to help collect Flecha’s medical debt. Medicredit sent a collection letter to Flecha stating that Flecha was seriously delinquent, that her account needed to be resolved, and to discuss payment arrangements with its office. Flecha never contacted Medicredit, but did call the hospital. Her conversations with the hospital left her under

the impression that the hospital would sue to collect her debt. In response, she sued the hospital and Medicredit for violations of the Fair Debt Collection Practices Act (“FDCPA”), alleging that Medicredit’s letter made a false threat of legal action against her because the hospital never intended to sue her over the unpaid medical debt. Flecha also sought class certification, arguing that everyone who received the same letter from Medicredit was also falsely threatened with legal action that the hospital never intended to bring. On appeal from the district court’s grant of Flecha’s motion for class certification, the Fifth Circuit reversed and remanded. The Court noted that Flecha did not support her motion for class certification with evidence to establish the commonality element of class certification. To establish commonality, Flecha needed to introduce evidence of some “glue ... holding the alleged reasons for all those [letters] together—namely, evidence of a uniform intention by [the hospital] regarding [intent to sue].” (internal citations and quotation marks omitted). Flecha’s evidence only consisted of the letter Medicredit mailed, which provided no evidence of whether the hospital intended to sue each recipient of the letter. The Court noted that the district court erred because it presumed that Medicredit and the hospital acted with the same intent with regard to each letter recipient for the purposes of class certification, rather than searching the record for evidence of intent. Without evidence, Flecha failed to establish the commonality element for class certification and therefore necessarily also failed to establish the typicality and predominance elements. In dicta, the Fifth Circuit also suggested that the class failed for lack of Article III standing. While the Fifth Circuit has not yet decided whether unnamed class members must establish standing in addition to the class representative, other circuits have held

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

that no class may be certified if it contains members lacking Article III standing. Here, several members of the class lacked standing because there was no evidence of injury; the class included members, for example, who received the letter but ignored it as junk mail or gave it no meaningful attention. However, the Fifth Circuit declined to reach the issue because the class failed for lack ofAUSTIN commonality, typicality, and LAWYER predominance. AL AL

MARCH 2020 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Onward Through the Fog Prosecutorial Discretion in Texas Marijuana Prosecution BY DAN DWORIN

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

lthough marijuana possession remains a criminal offense in Texas, recent legislative changes allowing the production and use of hemp, coupled with changing attitudes of many Texas communities concerning marijuana prosecution, made the law somewhat of a dead letter. As was well detailed in last month’s Austin Lawyer,1 Texas law now defines “hemp” as the cannabis sativa plant, including its extracts, with a concentration

of delta-9 tetrahydrocannabinol (THC, the psychoactive component of marijuana) of less than .3%. Since most crime labs currently operating in Texas don’t have the capability to test for THC concentration, many prosecutors around the state have essentially thrown in the towel on low-level pot prosecutions.2 In Austin, the City Council recently voted to prohibit the Austin Police Department from spending any money on trying to get testing done to be able to support marijuana prosecutions.3 Although this does not, by itself, mean that marijuana has been decriminalized, it does mean that Austin police are far less likely to make arrests in marijuana cases, since they know the County Attorney’s office won’t prosecute them.4 Regardless of the technical issue of proving THC concentration in marijuana cases, the move by Travis County and other large urban counties to exercise prosecutorial discretion in not filing these cases reflects changing attitudes towards marijuana prohibition, particularly in the age of “progressive prosecution.” It is notable that prosecutors in other counties have taken a very

Anji Maddox

AUSTINLAWYER | MARCH 2020

different position. In Hays County, District Attorney Wes Mau has publicly stated that his office will continue to prosecute marijuana cases and will find a lab to do the needed testing.5 What remains to be seen is whether taxpayers in that county will want to foot the bill for the costs of incarceration, prosecution, and testing for these types of offenses. Prosecutorial discretion is often viewed skeptically by the lawreview crowd, particularly when coupled with data on demographics.6 But choosing not to prosecute people for an offense that has historically been disproportionately brought against members of minority communities undoubtedly reflects a positive exercise of that discretion. It also reflects the reality that jurors in places like Travis County are very unlikely to return a guilty verdict, or even say during jury selection that they can consider the full range of punishment (up to 180 days in jail) for a two-ounce or less marijuana charge. When prosecutors heed the will of their communities in a way that will benefit defendants of all backgrounds, this reflects the type of discretion that is, toAUSTIN quote Shakespeare, LAWYER the AL 7 AL “better part of valor.”

Footnotes 1. Lisa Pittman, “New Laws in Texas for Hemp,” Austin Lawyer, Feb. 2020 2. Megan Menchaca, “CBD, Hemp, Medical Marijuana? Here’s What You Need to Know about Texas’ Changing Pot Laws,” Texas Tribune, Jan. 28, 2020. 3. Id. 4. But see Jolie McCollough, “Austin Police Chief: We Will Still Ticket, Arrest for Marijuana,” Texas Tribune, Jan. 24, 2020. 5. Faylita Hicks, “The High Cost of Hays County’s Decision to Keep Prosecuting Low-Level Marijuana Cases,” The Texas Observer, June 19, 2019. 6. See, e.g., Douglas Lieb, “Vindicating Prosecutorial Vindictiveness: Prosecutorial Discretion and Plea Bargaining, Past Present and Future,” 123(4) Yale L. J. 1014 (2014). 7. William Shakespeare, Henry IV, Part I, 5:4.

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AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN SANDY BAYNE, BAYNE LAW

“I am committed to this creed for no other reason than it is right.” —The Texas Lawyer’s Creed, Nov. 7, 1989 a great place to strengthen your skill set, gain more experience, and help out those in need.

he Texas Lawyer’s Creed is too long to cover in its entirety here, but I do encourage you to review it and do some spring cleaning of your practices. Let’s go over a few important reminders set forth in the Creed. I. OUR LEGAL SYSTEM. “I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.” There are so many opportunities in our community to help those in need. There are an overwhelming number of pro se litigants in Travis County. We have a tremendous opportunity to help those in need to have equal access to the justice system. Through Volunteer Legal Services and various Austin Bar programs, there are many opportunities to help our community. I applaud Travis County District Clerk Velva Price and her efforts to put together the Expunction Clinic. It is pro bono efforts such as this that truly help make a difference for people who otherwise couldn’t afford legal representation. Through the Expunction Clinic, deserving citizens are now able to apply for jobs, housing, and loans due to the charitable time and effort put in by Austin attorneys. For younger lawyers wanting to get handson experience, pro bono work is

AUSTINLAWYER | MARCH 2020

II. LAWYER TO CLIENT. “I will advise my client that civility and courtesy are expected and are not a sign of weakness.” I suspect that I am not the only attorney who has had a client who didn’t love my kind, respectful, and professional demeanor during a deposition. Some clients want to see you come out with guns blazing, ripping the witness apart to prove you’re the tough lawyer worth their legal fees. I think it’s crucial to advise your client upfront that we are part of a wonderful legal community in Austin, and we will not be disrespectful or put on a show for purposes of intimidation (or an Academy Award), and that this is not a sign of weakness. One client expressly told me that I shouldn’t be nice to the opposing party, to “show them how tough we were.” I told her my personal opinion was that you catch more flies with honey than you do with vinegar and that I would not be disrespectful to the witness. I’ve rarely seen witnesses totally cave when under attack. Rather, their answers become more defensive and evasive. When I have been overly courteous and respectful, I can actually get witnesses to admit much more information. (I like to include lots of sympathetic head nodding: “Isn’t it true that anyone can make a mistake? That’s what happened here, isn’t it?”) When not feeling attacked, the witness is likely to make more concessions. So be civil and courteous, not only because it’s our ethical

duty, but also because it renders better results. III. LAWYER TO LAWYER. “I will comply with all reasonable discovery requests. … I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process.” Sadly, all too often these days, there are unreasonable discovery objections that seem to be made just for the sake of objecting. Lawyers hike up billable hours and there are weeks and months of discovery disputes that at times seem endless and futile. If you’ve ever been to a CLE where judges discuss their pet peeves, senseless discovery disputes are always on the list. The Creed states that we will not make objections or give instructions to a witness “for the purpose of delaying or obstructing the discovery process.” I think a lot of us can be guilty of this. This is our reminder to comply with our obligations as set forth in the Creed. Of course the Creed references “reasonable discovery requests,” so if something basic is being requested that truly isn’t objectionable and you know that in a motion to compel a judge would likely order you to disclose the information, let’s be efficient and judicious and turn the information over. IV. LAWYER AND JUDGE. “I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.” We are so fortunate in Travis

County to have the most amazing judges. I am so grateful to have made the acquaintance of many of our judges and justices and am honored to call many of them my friends. This tenet of the Creed reminds us to maintain proper decorum in the courtroom. I think the Creed has in mind the respect due unto members of our judiciary, but also our profession as a whole. When interacting with judges and justices, there are many non-attorneys in the courtroom observing, such as jurors, staff, and bailiffs. It is our obligation to uphold and perpetuate the respect that our judiciary deserves. It is our obligation to refrain from conduct that degrades this symbol. When addressing the Court, don’t forget your manners; we can’t have any My Cousin Vinny moments. act like a disreAUSTINDon’t LAWYER spectful youth! AL AL

AUSTIN YOUNG LAWYERS ASSOCIATION

10th Annual MLK Day of Service

n Jan. 20, 2020, the Austin Young Lawyers Association hosted its 10th Annual MLK Day of Service, modeled after the national Martin Luther King Day of Service, which is intended to transform Dr. King’s life and teachings into community service to help solve social problems.

The MLK Day of Service is intended to transform Dr. King’s life and teachings into community service to help solve social problems. AYLA members volunteered for multiple nonprofits around Austin. The service events included organizing books at BookSpring, performing a magic show and hosting activities for children at the SAFE Children’s Shelter, helping organize thrift items for Austin Pets Alive, making birthday cards for students and mentors for Kids In a New Groove, and putting together birthday boxes for The Center for

1. A group of AYLA volunteers at SAFE Children’s Shelter. 2. Magician Adam Schramek and his assistant, Justice Chari Kelly. 3. Birthday boxes assembled for The Center for Child Protection.

Child Protection. Thank you to all of the volunteers that helped make this annual event a success! Mark your calendars for the next two opportunities to volunteer with AYLA: March 8, 2020 with The Green Corn Project, and April 4,

AUSTINLAWYER AL AL 2020 with Prom Rack Austin.

UPCOMING EVENTS FRIDAY, MARCH 6, 2020 AYLA 2020-2021 Nominations Due Nominations are now open for the AYLA Board of Directors. Visit our website at ayla.org for a nomination form. THURSDAY, MARCH 26, 2020 AYLA’s 6th Annual Runway for Justice Chateau Bellevue, 708 San Antonio St. 6 – 9 p.m. Tickets on sale now at ayla.org

MARCH 2020 | AUSTINLAWYER

ENTRE NOUS

Learn to Litigate for Fun and Profit Today’s Special: Habeas Your Own Corpus

BY CLAUDE DUCLOUX

any of you are old enough to remember when, during the 1980s, a series of “Do It Yourself” (DIY) auto repair places opened up across the country where the weekend mechanic could take his car, put it up on a hydraulic lift, and ratchet like a professional … devoid of that actual skill, of course. Those businesses failed. There were too many serious injuries, falling cars, and requests for assistance from the local attendant—which later 24

AUSTINLAWYER | MARCH 2020

resulted in claims of faulty advice. Professional skills are crafted through education, training, and experience. Nevertheless, emboldened by a false confidence that we can accomplish anything with the help of YouTube, most people think they can do, fix, or handle anything, especially when it will save them a few bucks. And now, it appears this DIY culture has come to the legal profession. It isn’t surprising. The costs of legal services are not within reach

of more than half the population. And certainly, there are routine legal procedures and documents that can be handled by a non-lawyer with proper preparation. Rarely, however, does that include litigation. Why? It’s all those stupid rules. When someone consults me about doing a complicated case pro se, I have this unerring advice: “It is perfectly legal for you to represent yourself in Court. It’s also perfectly legal for you to take out your own tonsils. You’ll do just as good a job in both of

those endeavors.” But most people can’t help but think, “I can do this case myself. I just need a few minutes of a lawyer’s time. I’ll be fine.” So, capitalizing on this flawed logic, enterprising companies have advertised that they’ll get you a lawyer to handle some nuts and bolts of your upcoming case, and you only pay for what the lawyer’s services include. This makes me nervous. It’s like asking to be taught how to take off in an airplane, but not how to land. No

matter how good your flight is, your landing will be in the news, usually with the word “tragic” in the report. Lawsuits are serious. Comments to numerous states’ disciplinary rules warn lawyers that agreeing to do only stated tasks might leave a client in worse shape than doing nothing. If “limited scope” representation can help you, great. But I doubt there are “limited scope” surgeons: “Yes, Mr. Plodnick, I’ll make the initial incision, and … just text me when you get that ol’ appendix out, and I’ll come back up here from the coffee shop to sew you up. Okay? Greaaaat. Turn your head. This could get messy. Here we go…” Nevertheless, induced by coincidental desires of lawyers to make a few quick bucks, and of clients to save a few, I envision more of these unbundled services to spread. If they’re smart, lawyers may follow the example of Affordable Care Act (Obamacare) health plans. You could provide “Platinum” level legal advice, or “Sil-

ver,” or perhaps the economical “Copper” plan. As it turns out, I have now run that idea through the appropriate message strategizers (we don’t have advertising firms nowadays, only strategizers, content curators, and message analysts) and, without any input from me, they knocked it out of the park. They got a cool name, and catchy slogan, and voila! WELCOME TO THE ‘YOU GOT THIS’ (YGT) LEGAL SERVICE PLAN. Slogan: “Hire our lawyers by the hour, and give yourself some courtroom power!” PLATINUM PLAN: For a mere $1,500, your YGT lawyer will: Meet with you in a lawyer’s office, prepare your pleading or answer, and provide up to five hours of consultation throughout discovery, motion practice, and trial, including form review and the inside scoop on your judge. You will be provided with a downloadable copy of the Texas Rules of Civil Procedure, and the Texas Rules of Evidence.

• ADD-ONS: $300 per hour after expiration of five-hour limit, and $500 per court appearance (by agreement only). Latin pronunciations extra. • EXCLUSIONS: family law, post-trial motions, and appeals. SILVER PLAN: For a mere $1,000,

your YGT lawyer will: Meet with you at Starbucks to discuss your case for up to one hour, and thereafter provide an additional three hours of consultation, and supply you with a website address to the Texas Rules of Civil Procedure. ADD-ONS and EXCLUSIONS: Same as the Platinum plan. COPPER PLAN: For a mere $500, your YGT lawyer will: Meet with you at Taco Trailer on South Lamar (you buy), and tell you war stories about his victories in J.P. #1. Together, you will review YouTube videos of My Cousin Vinny and Ally McBeal, and discuss appropriate courtroom attire. You’ll rehearse famous cinematic lines, like “No! You’re out of order!” and “You can’t handle the truth!” You will

get Google-Maps directions to the courthouse. • ADD-ONS: For an extra $300 (cash only), your YGT lawyer will handle your contempt hearing. • EXCLUSIONS: Legal explanations, your lawyer’s cell phone number, and malpractice claims against your YGT lawyer or YGT. Welcome to the future. Frankly, I prefer having the long-term relationships I have been so fortunate to cultivate with clients, many of whom have been instrumental to my development as an advocate and are now devoted friends. I guess I was just lucky. Oh, one last thing. I don’t trust YouTube with legal advice. And I won’t until I see a video of a lawyer admitting that practicing law is hard work, it’s occasionally scary, and when you take it seriously, you make a big difference in people’s lives. And that’s worth more than money. AUSTINLAWYER L AL —Keep the A faith.

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PRACTICE POINTERS

Whistleblowers BY AUSTIN KAPLAN AND MAFF CAPONI

that prohibit employers from retaliating against whistleblowers (for example, by firing or demoting them) in specific circumstances. What kind of whistleblower protections are there in Texas for employees of governmental entities? In Texas, public em-

Austin Kaplan is the founder and managing attorney of Kaplan Law Firm, PLLC, an employment law and civil rights boutique. He is past-chair of the Austin Bar’s Pro Bono Committee and past-president of the Austin Young Lawyers Association. www.myworklawyer.com. Matthew “Maff” Caponi is an associate attorney at Kaplan Law Firm. He is newly admitted to the Western District of Texas and a UT School of Law graduate.

o say whistleblowers have been a hot topic lately is a gross understatement. Some newsworthy examples include: 1. The impeachment trial;1 2. The Boeing 737 Max;2 3. Chelsea Manning;3 4. The Veterans Administration;4 5. Cambridge Analytica;5 and, of course, 6. Theranos.6 Despite all the public discussion, whistleblowers continue to be misunderstood and mishandled. Here are answers to some of the most common questions: WHISTLEBLOWER QUESTIONS

Is there legal protection for blowing the whistle? It depends.

Whistleblowers tend to be employees who discover wrongdoing or fraud at their employer, but not all whistleblowing is protected. In Texas, there is almost no common-law whistleblower protection.7 There are statutory protections, under state and federal law, 26

AUSTINLAWYER | MARCH 2020

ployees who report illegal conduct by other public employees or officials cannot be retaliated against.8 To be protected, among other things, the report must be made to “an appropriate law enforcement authority,” which means someone the employee in good faith believes is authorized to enforce, investigate, or prosecute the law allegedly violated. Simply reporting to a supervisor or HR is usually not enough to obtain whistleblower protection.9 What kind of whistleblower protections are there in Texas for employees of non-governmental entities? State law pro-

tections are generally related to health or public safety. For example, employees of hospitals, mental health treatment facilities, or nursing homes, or employees who report suspected child abuse, can potentially be protected.10 Federal law protections are related to fraud (fraud on the government, securities fraud, tax fraud, commodities fraud, SEC violations), and safety violations in government-regulated industries (nuclear, rail, aviation, consumer product, food safety violations). If there is federal money involved, there is probably some whistleblower protection. What is the practical upside of blowing the whistle? Doing the right thing. Feeling good about yourself. Potentially earning a large reward on a significant recovery of taxpayer funds. For

example, part of the reward for a successful qui tam or Texas Medicaid fraud lawsuit is a percentage of the money recovered from correcting the violations. What is the practical downside of blowing the whistle?

Your employer fires you, makes your work life miserable, reassigns clients or cases away from you, leaves you out of work opportunities, or otherwise retaliates even if retaliation is illegal.11 The unfortunate truth is employment law enforcement is reactive, not proactive. So, you should have a plan before blowing the whistle.12

How do I get started blowing the whistle? Document as much as possible. Get the facts in email, text, recording, or screenshot, and confirm in writing any verbal evidence of the fraud or illegal activity. Even if you are an attorney, seek your own legal counsel and make a plan. What if I am outside counsel, and someone from the client blows the whistle to me? If you represent the company, you do not represent the whistleblower. Get off the phone immediately and call your ethics counsel. What are the statutes of limitations at play? Take steps now,

because statutes of limitation are short: The first one may run 30 daysAUSTIN from the LAWYER discriminatory AL AL action. Do not delay. Footnotes 1. https://www.usatoday.com/story/ news/politics/2020/01/30/trumpimpeachment-arrestrandpaultrends-after-whistleblowersnit/2860281001/. 2. https://www.nytimes. com/2019/12/09/business/boeing737-max-whistleblower.html. 3. https://www.theguardian.com/usnews/2018/oct/07/chelsea-manningwikileaks-whistleblowing-interviewcarole-cadwalladr. 4. https://www.nytimes. com/2019/10/24/us/politics/vawhistleblowers.html. 5. https://www.nytimes. com/2019/10/09/books/reviewchristopher-wylie-targeted-brittanykaiser-cambridge-analytica.html. 6. https://www.cnn.com/2019/04/02/ tech/theranos-whistleblowers-ethicsin-entrepreneurship/index.html. 7. Except the Sabine Pilot doctrine, which prohibits employers from firing employees for the sole reason that they refused to perform an illegal (criminal) act. 8. Tex. Gov’t Code § 554.002. 9. See Texas Dep’t of Human Servs v. Okoli, 440 S.W.3d 611, 615 (Tex. 2014). 10. Tex. Health & Safety Code §§ 161.134(a); 242.133; Tex. Fam. Code § 261.110. 11. https://www.govexec.com/ workforce/2020/01/agencyofficials-are-increasingly-retaliatingagainst-whistleblowers-impunity-igsays/162716/. 12. https://www.nytimes. com/2019/11/12/opinion/ whistleblower.html.

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MARCH 2020 | AUSTINLAWYER

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