Austin Lawyer, May 2016

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austinbar.org MAY 2016 | VOLUME 25, NUMBER 4

Judge Williams Hopes to Foster Balance and Respect at New Travis County Court at Law #9

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n March 31, 2016, the Honorable Kim Williams was sworn in as judge of the newly created Travis County Criminal Court at Law #9. Williams is an Austin native – she lives here with her husband and newborn child. After graduating from St. Mary’s University School of Law, she became licensed in Texas in 2006. Her legal career began that

including the Austin Bar Association, Travis County Women Lawyers’ Association, Green Doors (an organization dedicated to preventing and helping end homelessness), and many more. Williams was guided from a young age by the ideal instilled by her father, a criminal defense attorney, about the importance of fairness in the criminal justice system.

Williams was guided from a young age by the ideal instilled by her father, a criminal defense attorney, about the importance of fairness in the criminal justice system. year at the Travis County Attorney’s Office as an Assistant County Attorney. She transitioned in 2007 to the Travis County District Attorney’s office. “I have handled almost every type of criminal offense, ranging from traffic tickets to murder charges,” said Williams. “I have particular experience prosecuting domestic violence and child abuse cases, fighting to protect vulnerable women and children in Travis County.” Committed to both the legal and Central Texas communities, Williams belongs to a number of professional and non-profit organizations,

“He and his friends and colleagues taught me how imperative it is for everyone accused of a crime to get competent representation and equal treatment under the law regardless of race, ethnicity, gender, religion, sexual orientation, or income level,” said Williams. While her previous experience comes from being a prosecutor, she respected and learned from her father and other criminal defense attorneys. Having had the exposure to prosecution as well as defense, she is looking forward to bringing a balanced perspective to the bench. “I have had the privilege of working with Judge Williams during

TOP: Judge Elisabeth Earle swears in Judge Kim Williams; ABOVE: Margaret Moore was among the standing room only crowd to attend the investiture ceremony

her public service as a prosecutor, and I have admired her intellect, her integrity, and her commitment to justice,” said Judge Elizabeth Earle, County Court at Law #7. As a judge, respect will be a priority for Williams. She hopes both

to protect the rights of the accused and seek justice for victims, while approaching all cases from a human perspective. “It’s about human beings who deserve toAUSTIN be treatedLAWYER fairly and with dignity,” said Williams. AL AL



CONTENTS

AUSTINLAWYER MAY 2016 | VOLUME 25, NUMBER 4 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

CONNECTIONS

1

Judge Williams Hopes to Foster Balance and Respect at New Travis County Court at Law #9

6

President’s Spotlight

11

Opening Statement

ONLINE austinbar.org

5

Morton to Present Keynote Address at Bar Leaders Luncheon

15

Legislative Update

8

David Sheppard Retires

18

Briefs

10

Thank You to the Newest Austin Bar Foundation Fellows

19

3rd Court of Appeals Update

12

Robert W. Calvert Inn of Court Accepting Applications

20

AYLA

12

Law Day Reception and Annual Meeting

23

Classifieds /Ad Index

13

American Bar Association President Paulette Brown Visits Austin, Speaks to Boys & Girls Club

16

Texas Advocacy Project Awarded a LASSA Grant

17

Link Between Domestic Violence and Animal Abuse

ONLINE

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NEWS & ANNOUNCEMENTS

EVENTS & MORE

TBLS Names Leo D. Figueroa Executive Director

MAY 3

TAJC Holds Champions of Justice Gala Benefiting Veterans Members of the judiciary and legal community unite to support veterans.

The State Bar of Texas and TYLA Seek Leadership SBOT Nominations Twenty for diversity initiative. ★ Texas ★ ★lawyers ★ ★sought ★★ ★★★ ★★

★★★★★★★★★★★★ ★★★★★★★★★★★★ DEADLINE FOR NOMINATIONS IS THURSDAY, JUNE 30 The State Bar of Texas and Texas Young Lawyers Association are looking for 20 Texas lawyers to participate in LeadershipSBOT. This diversity initiative is designed to recruit, train, and retain Texas lawyers for leadership positions in the legal community and the State Bar of Texas. Program participants will be selected to reflect the cultural, ethnic, geographic, and practice area diversity of the state. It is not designed to compete with bar association and local affiliate leadership academies but to complement those exceptional programs. Take a minute to think about lawyers in your area who might benefit from participating in LeadershipSBOT. Those selected for LeadershipSBOT will be: • Current members of the State Bar of Texas. • Individuals who aspire to lead and have the demonstrated potential to become leaders. • Individuals who have a goal to serve their communities and the profession and are committed to a profession and judiciary that reflect the diversity of the state. • Individuals willing to commit sufficient time to attend two sessions of LeadershipSBOT plus the 2017 State Bar of Texas Annual Meeting.

• Individuals willing to make an additional year commitment of service within the organized bar (the individual will have a variety of options for service presented throughout the sessions).

Bench Bar Conference Held on April 15

Participants will examine what is expected of leaders and receive

guidance and advicea from current leaders on appropriate activities in Austin Bar’s 26th annual conference great success. which to be engaged in to be effective in the profession and respected in the community. Nomination forms should be submitted by June 30, 2016. Once your nomination is received, we will follow up with that individual to ascertain their interest and commitment in participating. Thank you so much for helping us assure that Texas lawyers remain committed to the importance of the organized bar, professionalism, and community service. It is our goal that this program and others like it lead to a legal community in Texas that reflects the demographics of the state. To submit a nomination, fill out the form below or visit texasbar.com/leadershipform for a nomination form, and for more information, visit texasbar.com/leadershipletter.

MAIL Nancy Gray Managing Editor Austin Bar Association 816 Congress Ave., Suite 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar

austinbar.org

Figueroa unanimously selected to succeed Gary McNeil.

EMAIL Nancy@austinbar.org

Law Day Reception and Annual Meeting

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4th Friday CLE

Topic: How to Ethically Deal with Difficult Clients Panelists: Rick Freeman, Craig Hopper, Kellie Bailey RSVP at austinbar.org

LeadershipSBOT Nomination Form Name of Nominee: ____________________________________

Nominated By: _______________________________________

Title: _______________________________________________

Title: _______________________________________________

Firm/Company Name:__________________________________

Firm/Company Name:__________________________________

Address: ____________________________________________

Address: ____________________________________________

City, State, ZIP: _______________________________________

City, State, ZIP: _______________________________________

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Email: ______________________________________________

Phone: _____________________________________________

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Please describe why you are nominating this person, including community or bar involvement, type of diversity represented (racial, ethnic, gender, geographic, practice area, etc.). We encourage you to nominate an attorney who has not previously participated in a bar association or local affiliate leadership academy. Please return this form by June 30, 2016, to ensure that your nominee(s) receive full consideration. Mail, e-mail (jreames@texasbar.com), or fax (512.427.4215) your nomination to the State Bar of Texas, c/o Jennifer Reames. Those selected for LeadershipSBOT will receive a packet informing them of their selection and asking them to commit to attending two 2-day sessions and the 2017 annual meeting during the coming bar year. They will also be required to commit to serving on a State Bar/TYLA/or related-entity committee/board the year following the academy.

MAY 2016 | AUSTINLAWYER

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Judge Eric Shepperd ............. President Leslie Dippel .............................. President-Elect Amy Welborn ............................ Secretary Adam Schramek ....................... Treasurer Judge Elisabeth Earle ........... Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION Chari Kelly .................................. President Katie Fillmore ........................... President-Elect Jorge Padilla .............................. Secretary Austin Kaplan ............................ Treasurer Amanda Arriaga ....................... Immediate Past President

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AUSTINLAWYER | MAY 2016


Morton to Present Keynote Address at Bar Leaders Luncheon Michael Morton to Speak About Justice at State Bar of Texas 2016 Annual Meeting in Fort Worth

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ichael Morton, the Williamson County man who served nearly 25 years in prison for his wife’s murder, only to be set free after DNA tests exonerated him, will present the keynote address at the Bar Leaders Recognition Luncheon on June 16 during the State Bar of Texas 2016 Annual Meeting.

JUNE 16 STATE BAR OF TEXAS 2016 ANNUAL MEETING BAR LEADERS LUNCHEON FORT WORTH OMNI & CONVENTION CENTER

His story and the Michael Morton Act remind us that we are united by a common goal: justice. Morton is the author of Getting Life: An Innocent Man’s 25-Year Journey from Prison to Peace: A Memoir. His case, which also was the subject of the documentary An Unreal Dream: The Michael Morton Story, led the Texas Legislature to adopt the 2013 Michael Morton Act. The act changed the way criminal cases are handled in

Texas by including new open-file discovery rules. “We are honored to announce Mr. Morton will be a keynote speaker at the 2016 Annual Meeting,” said Brad Parker, Annual Meeting co-chair. “Mr. Morton’s story is well known, but his personal message continues to resonate with people everywhere.”

chair Cindy Tisdale. “His story and The State Bar of Texas Annual the Michael Morton Act remind us Meeting will be held June 16-17 at that we are united by a common the Fort Worth Omni and Convengoal: justice.” tion Center. Online registration for the event “Mr. Morton’s wrongful convicis now open. To register or learn tion was a tragedy, but his journey more,LAWYER go to texasbar.com/annualbeyond it is one that inspires AUSTIN meeting. many,” said Annual Meeting coAL AL

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

MAY 2016 | AUSTINLAWYER

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PRESIDENT’S SPOTLIGHT JUDGE ERIC SHEPPERD, COUNTY COURT OF LAW #2

Do We Fail to Dare Greatly?

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; . . . who at the best knows in the end the triumph of high achievement, and who at worst, if he fails, at least fails while daring greatly.”

How many of us have said “I’ll get more involved once my life gets a little less complicated,” or “I’ll start doing pro bono work when my career gets more established/less hectic or when I retire?” How many of us sit on the sidelines and assume the role of critic while we wait for the time to be just right or our lives to be perfect? We love to talk about how the system is broken, but we dare not get into the arena to get blood and sweat on our faces for fear of how it might make us look. Our persona of perfection might appear askew. We talk a good game about equal access to justice, indigent

defense, veterans’ assistance or pro bono service, but in the end—we fail to dare greatly. One organization that is deeply committed to being in the arena is Volunteer Legal Services (VLS). They are there every day, week after week, month after month, year after year—daring greatly for their clients. They are in the trenches with their sleeves rolled up, making a difference to the many people in our community who need legal help but can’t afford it. VLS, along with hundreds of volunteer attorneys, dare greatly every single day. Isn’t it time we join them?

AIDS Legal Project to provide legal assistance to low-income people living with HIV and AIDS. And as rising housing costs continue to force the poor to move farther away from central Austin, VLS is working to expand its outreach into areas such as Bastrop, Hays, and Caldwell counties. VLS works closely with the Austin Bar Association and Texas RioGrande Legal Aid to recruit, train, and support over 750 members of the Austin Bar who have volunteered their time and expertise in resolving the everyday

legal problems of our community. But VLS is always looking for new volunteers, particularly those who speak Spanish. Attorneys can get involved with VLS by: • providing legal advice at our evening walk-in clinics; • representing a low income individual on a civil pro bono case; or • mentoring a new VLS volunteer attorney handling a pro bono case. To volunteer or to learn more about VLS, contact VLS Associate Director Anna K. Meyers atAUSTIN akmeyers@vlsoct.org LAWYER or 512.640.7745. AL AL

>

— Theodore Roosevelt

THIS IS ONE OF MY FAVORITE QUOTES, and part of the introduction to a book called Daring Greatly, by Dr. Brené Brown, a research professor at the University of Houston’s Graduate College of Social Work. Her specialty is studying vulnerability, courage, worthiness, and shame. She wrote the book after her TED talk on The Power of Vulnerability went viral. It is one of the top five most-viewed TED talks in the world, with over 25 million views. The quote resonated with Brown, as it does with me, because it sums up what it means to be vulnerable and courageous. Brown says, “We spend our lives waiting until we’re perfect or bulletproof before we walk into the arena, we ultimately sacrifice relationships and opportunities that may not be recoverable, we squander our precious time, and we turn our backs on our gifts, those unique contributions that only we can make. Perfect and bulletproof are seductive, but they don’t exist in the human experience.”

Volunteer Legal Services

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olunteer Legal Services was founded in 1981 by members of the Austin Bar Association committed to the enduring principle that poverty should not be a barrier to justice. The high cost of legal services means that poor people often cannot get professional legal assistance for divorces, child custody disputes, landlord-tenant proceedings, and other important civil matters. To help meet this need, VLS was formed to mobilize volunteer attorneys to represent individuals who would not otherwise be able to afford a lawyer. Today, VLS serves thousands of people annually through a variety of programs, including twice-weekly legal advice clinics, partnerships with law firms and other nonprofits, pro se clinics, and the direct representation of individual clients. To fulfill its mission, VLS continues to rely heavily on the support 6

AUSTINLAWYER | MAY 2016

of the Austin legal community. Volunteer attorneys help victims of abuse end violent relationships, secure medical and financial benefits for persons with disabilities, and keep people out of homelessness by defending against wrongful evictions and foreclosures. Recent success stories include: • defense of an eviction proceedings brought against a low-income tenant caring for a child with autism and Down’s syndrome; • recovery of a client’s car that was wrongfully repossessed in connection with a fraudulent auto title loan; and • clearing title to land on behalf of a client who had paid off his mortgage, but the lender had refused to deliver the title. VLS strives to keep pace with the changing needs of the local community. For several years, VLS has partnered with the Capital Area


NEW MEMBER BENEFIT OFFERED Interested in observing a jury trial? Want to stay updated with what jury trials are happening at the HMS Courthouse? The Austin Bar is texting members each jury week with the trial schedule. If you want to receive these updates, text “Austinbar” to 313131.

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David Sheppard Retires Hundreds Celebrate Sheppard’s Distinguished 42-year Career

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avid Sheppard’s 42year career as a criminal defense attorney came to an official end on February 25, 2016 at the Rattle Inn when hundreds of his fellow attorneys, along with members of the judiciary and others in the Austin legal community, came together at a retirement party in his honor. The party was hosted by Dan Dworin and Todd Nickle.

Since obtaining his law license in 1974, Sheppard’s devotion to his profession and his community has led him to serve in multiple capacities for a variety of professional and community service organizations, receiving many awards in recognition of his contributions. Most recently, he received the 2016 Distinguished Lawyer Award presented by the Austin Bar Association.

He has earned an impeccable reputation for integrity and ability with both prosecutors and the judiciary. Looking back on his career, Sheppard views the 20 years spent teaching at the UT Criminal Defense Clinic as a particular highlight. He has also been especially gratified by the freedom he has helped win for wrongfully convicted inmates, including non-DNA exoneration, through the

cal mentor that David Sheppard is. And, we need to do it with humor. Because fundamentally, we need to enjoy the practice of law. It needs to be something we do because we want to do it. And I think he’s always wanted to do it, even though he’s quitting on us. That’s another role model he’s giving us. There comes a time at which we should just go enjoy life. And that’s what he’s going to do.”

We all should aspire to be the counselor, the thoughtful, analytical mentor that David Sheppard is. And, we need to do it with humor. Because fundamentally, we need to enjoy the practice of law. – MARTHA DICKIE, Fellow Distinguished Lawyer Award Winner Texas Center for Actual Innocence, which he helped found. When asked what he regarded as Sheppard’s greatest asset, Dworin responded, “I’d say his greatest asset is his humility. You will never hear him brag about himself or some great thing he’s done. And he could all day long because, certainly, there are plenty who have done less who do.” According to the Honorable Elisabeth Earle, County Court at Law #7, “He has trained and mentored numerous criminal defense lawyers here in Travis County, along with prosecutors and judges who serve our community. Without his advice, support and mentorship, we would not be where we are now.” She added, “He’s dedicated to his clients and his career—we’ve seen that by all the things he’s done and accomplished over the years. But it’s his devotion to his family that I think characterizes truly what kind of man he is.” Fellow Distinguished Lawyer Award Winner Martha Dickie said, “We all should aspire to be the counselor, the thoughtful, analytiCLOCKWISE FROM TOP: David and Sue Sheppard; (from left) Dan Dworin, David Sheppard, and Todd Nickle; (from left) Jody Scheske, Marcy Greer, and Judge Robert Pitman; (from left) Judges Cliff Brown, Karen Sage, and David Wahlberg.

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AUSTINLAWYER | MAY 2016

“Criminal lawyers tend not to retire—they tend to just drop dead,” quipped Dworin. “I think that, in large part, is because most people just don’t value family time. And David really does.” Having more time with his family is certainly something he’s looking forward to as this chapter of his life ends and another begins. Austin’s legal community and the citizens of Travis County are grateful for his many years of service, his integrity and professionalism, and his devotion to the rule of law andAUSTIN the SixthLAWYER Amendment to the US Constitution. AL AL


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Thank You to the Newest Austin Bar Foundation Fellows

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he Austin Bar Foundation is grateful to the following new Fellows, Life Fellows, and Sustaining Fellows who give generously to help the Foundation achieve its mission of supporting and expanding the provisions of legal-related charitable and education programs in Central Texas. If you would like to know more about the Fellow program or how to become one, visit austinbar.org/foundation/fellows.

FELLOWS (December, 2015) Chris Atwell Catherine Benouis Chelsey Blevins Antonio A. Cobos Amy K. Gehm Robert Hargrove Jeffrey D. Miller Hilton Moore Karen M. Neely David Plaut William D. Powers Maria Sanchez Daniel R. Smith Susan Barker Snyder Carol Wood

LIFE FELLOWS (December, 2015) Kelly J. Capps Daniel J. Christensen Thomas R. Phillips Jennifer Barrett Poppe

Rex VanMiddlesworth

SUSTAINING FELLOW (2015) Michael Curry

FELLOWS (January, 2016) William G. Barber Leslie Bollier Scott Brutocao David M. Davis B. Craig Deats W. Richard (Dick) Ellis III Walter Chip Evans Michael A. Gershon David M. Gottfried R. Alan Haywood Karen R. Johnson Kurt Kuhn J. Pete Laney Steven L. Lee John B. McFarland Judge Amy Clark Meachum Jeffrey David Miller Eric J.R. Nichols Daniel Read Richards C. Brooks Schuelke Andrew Schumacher JoAl Sheridan Christopher D. Sileo Paul Skeith Ryan Squires William F. Stutts William J. Sutton Christopher Taylor Paul Trahan Travis Turner

David B. Weaver G. Stewart Whitehead Anne Wynne

LIFE FELLOWS (January, 2016) Matias E. Garcia Adam Loewy Christina A. Mondrik Louis T. Pirkey Judge Deborah Lynn Richardson Jennifer S. Riggs David Wenholz AUSTIN LAWYER AL AL Jay Winckler

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OPENING STATEMENT

Case Illustrations Part 2: Concise Narration BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

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his is the second of three columns on case illustrations. Last month I addressed thesis sentences for case illustrations (Part 1). Next month I’ll address explanatory parentheticals (Part 3). This column (Part 2) describes how to create thorough yet concise case illustrations. In illustrating a precedent case for your reader, you have three related goals: (1) establish credibility as a reliable source of information; (2) provide context for, and examples of, the governing legal principles; and (3) set yourself up for analogies or distinctions that support your position. In accomplishing these goals, you should generally narrate the precedent’s relevant facts, result, and reasoning.

testified that attendance was not required; in fact, she said, it was “totally voluntary.” Id. at 449. She also testified that she could choose among scheduled events at the picnic. Id. Yet because she was the oldest employee in the office, she said, “other people do kind of look up to me” and she felt an obligation to attend. Id. [2] The court rejected this argument and affirmed summary judgment for the employer, [3] concluding that “none of the employees, including Mersch, was required to attend ….” Id. at 450. [1] To efficiently narrate the facts, you must know what to put in and what to leave out—you must decide what’s relevant and necessary. That knowledge comes from experience, knowing your case, and careful reading of precedent. You must

To efficiently narrate the facts, you must know what to put in and what to leave out—you must decide what’s relevant and necessary. That knowledge comes from experience, knowing your case, and careful reading of precedent. Imagine you’re an insurance-defense lawyer writing about a workers’ compensation “course and scope” issue. The employee was injured during a recreational activity. Specifically, he rode a mechanical bull at a company-sponsored conference but did so during a break in a session he chose to attend. He alleges that his participation was required, bringing the activity within the course and scope. He asserts that his supervisor “egged him on” and said, in front of other employees, “I know the top salesman in the region isn’t afraid of a bull.” To save space, I’ll focus on one case illustration, omitting the thesis sentence and first citation. Let’s take a look at the remaining parts—the facts, result, and reason: [1] In Mersch, the employee was injured playing softball at company picnic. Id. at 448. She and others

also be concise—a topic addressed in a series of three columns that appeared here in May, June, and July 2015. [2] You can often give the result at both the trial and appellate levels in one phrase, as here: “affirmed summary judgment for the employer.” In six words we learn that the employer moved for summary judgment, the trial court granted it, the employee appealed, and the appellate court affirmed. Don’t walk the reader through a paragraph-length narration of who sued whom for what and all the procedural steps that led to the appellate decision. [3] The court’s reasoning may require a detailed explanation, or it might be conveyed in a short quotation, as here. Match the depth of your explanation to the importance of the precedent case and your planned use of it.

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THREE OTHER POINTS. First, quote key language to build credibility. Quoting practices fall along a continuum from no quotations, in which readers must trust you entirely, to excessive quotations, which cause readers’ eyes to glaze over. Aim for a middle ground: quote enough to substantiate key concepts or introduce terms of art but not so much you drive the reader away. Second, include contextual facts to give the reader a sense of the story. Strictly confining yourself to legally relevant facts is admirable but not always ideal. Here, for example, saying the employee was injured at a company picnic might have sufficed, but including the twoword detail “playing softball” helps the reader make sense of the events

and easily recall them later when you make an analogical argument. Third, edit the case illustrations and your argument (application of the law to your facts) recursively. That is, after you’ve drafted both parts, go back and be sure to tailor your case illustrations to the way you used those cases in your argument. Next month, explanatory parenAUSTIN LAWYER theticals. AL AL

FEBRUARY 2016 | AUSTINLAWYER

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Robert W. Calvert Inn of Court Accepting Applications

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he Robert W. Calvert Inn of Court is currently accepting applications for admission for the 2016-17 year. The Calvert Inn of Court is the first Inn established in Austin and has been awarded Platinum recognition by the American Inns of Court. Applications are welcome from any practicing attorney or judge in Travis County and the

contiguous counties. Membership is open to all licensed Texas attorneys, without regard to area of practice or trial experience. Membership is limited, and the number of admissions is based upon the available number of openings. Successful applicants are admitted as Associates (licensed less than 8 years), Barristers (licensed 8-19 years) or Masters

The Inn provides a unique opportunity for attorneys from all disciplines to meet and work together in a collegial and collaborative environment, as well as develop relationships with colleagues they might not otherwise encounter...

(licensed 20 years or more). The Inn meets monthly September-April of each year, with each meeting including dinner and a presentation by Inn members. Inn members earn CLE credit for presentations and attendance and also have the opportunity to participate in public service projects. The Inn provides a unique opportunity for attorneys from all disciplines to meet and work together in a collegial and collaborative environment, as well as develop relationships with col-

Law Day Reception and Annual Meeting Honoring 2016 Professional and Student Award Winners

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oin us on Tuesday, May 3 from 6 – 8 p.m. as we celebrate Law Day on the 15th floor Terrace at 816 Congress. The reception will also serve as the Austin Bar’s Annual Meeting and will be the last opportunity to vote in the 2016-2017 Officer and Board Elections for both the Austin Bar and the AYLA. There is no cost to attend the reception. The Austin Bar will present the Professionalism Award to James (Jim) McCormack of the Law Office of James McCormack and the Regina Rogoff Award to Susan Miller of the Texas Attorney General’s office.

AUSTINLAWYER | MAY 2016

MAY 3 AUSTIN BAR LAW DAY RECEPTION

of the Law Day Essay and Poster AYLA will present the Outstanding contests will also beLAWYER in attendance Mentor Award to Tina Amberboy, AUSTIN to receive their awards. AL AL Executive Director, Supreme Court of Texas Judicial Commission for Children, Youth and Families; the Outstanding Young Lawyer Award to Jacquelyn Wilson of the Travis County Office of Parental Representation; and the Liberty Bell Award to Lisa Rush, Manager of the Travis County Law Library and Self-Help Center. Student winners Amberboy McCormack

Rush

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leagues they might not otherwise encounter in daily practice. The application deadline is May 31, 2017. Anyone interested in joining should submit a letter stating their interest, a resume, and two letters of recommendation (preferably from members of the legal community) to: Steve Benesh at Steve.Benesh@bracewelllaw. com or by mail to Steve Benesh, Bracewell LLP, 111 Congress Avenue, Suite 2300, Austin, Texas AUSTIN LAWYER 78701-4061. AL AL

TERRACE AT 816 CONGRESS 15TH FLOOR 6 – 8 p.m.

Miller

Wilson


American Bar Association President Paulette Brown Visits Austin, Speaks to Boys & Girls Club Brown, Members of the Austin Bar Association, and Austin Young Lawyers Association Encourage the Next Generation to Consider a Legal Career

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aulette Brown, the first woman of color to be named president of the American Bar Association (ABA), was in Austin on Thursday, March 31, 2016. The visit was part of her Main Street Initiative, in which she is crisscrossing the country during her presidential year. She is visiting at least two states per month, reaching out to lawyers, law schools, and bar associations across the country. At most stops, Brown visits with local chapters of the Boys & Girls Clubs. While in Austin, Brown and members of both the Austin Bar Association and Austin Young Lawyer’s Association paid a visit to the Boys & Girls Club at Volma Overton Elementary

While in Austin, Brown and members of both the Austin Bar Association and AYLA paid a visit to the Boys & Girls Club at Volma Overton Elementary School where she spoke to the children about the law and encouraged them to consider a path toward working in the legal profession. School where she spoke to the children about the law and encouraged them to consider a path toward working in the legal profession. Brown was also in town to open an ABA conference on “40 Years After Gregg v. Georgia: a National Conference on the Death Penalty,” held March 31 – April 2 at the University of Texas School of Law. Her opening remarks discussed

the ABA’s long history and dedication to the examination of capital punishment in America. The conTOP: ABA President Paulette Brown with members of AYLA and students at the ference also featured appearances Boys & Girls Club of Volma Overton Elementary from judges, prosecutors, defense attorneys, academics, government ABOVE: AYLA members Andrea Rose and Amanda Arriaga; ABA President Paulette Brown; Boys & Girls Club Director Kedrick Jeffries; and AYLA members Austin Kaplan officials, journalists, and victims’ and Jeana Patel advocates. Brown is partner at Locke Lord LLP and co-chair ofAUSTIN the firm-wide LAWYER Diversity & Inclusion Committee. AL AL

MAY 2016 | AUSTINLAWYER

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LEGISLATIVE UPDATE

An Evolving Perspective on Crime and Punishment The Future of Programs Such as the Driver’s Responsibility Program BY ERIC WOOMER, CONGRESS AVENUE PARTNERS

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exas has a well-earned reputation for being “tough on crime.” It is also, politically speaking, an undeniably conservative state. For most of the past several decades, conservatism and a “tough on crime” mindset went hand-in-hand. However, more recently, conservative thinkers and their supporters in the Legislature are suggesting a new approach toward criminal justice. Many Texas lawmakers now see ever-increasing incarceration rates as untenable and as having a deleterious impact on

designed to link bad driving habits to funding for the state’s trauma system by imposing surcharges for committing certain driving-related offenses. The program has been very successful in creating a much-needed revenue stream for trauma care, but critics believe it is unduly harsh, in some instances resulting in tens of thousands of dollars in fees. Some lawmakers think the program should be ended, in part because it has led to more than a million Texans having their licenses suspended, making it difficult for them to work and impacting the

The Driver’s Responsibility Program was designed to link bad driving habits to funding for the state’s trauma system by imposing surcharges for committing certain driving-related offenses. the state’s economic conditions. One such example of the evolving perspective on crime and punishment is the Driver’s Responsibility Program, or DRP. The program was

state’s economy. Others are protective of the state’s trauma care system and would prefer the program to be modified to lessen the impact on Texas drivers.

Consistent with this new philosophy, this year, the Texas Legislature is taking a hard look at existing criminal justice programs and will make recommendations to the 2017 Legislature to modernize many policies that impact Texans who find themselves on the wrong side of the law. Among the potential policy shifts for 2017, legislative committees are reviewing pretrial services and bonding practices throughout the state with an eye toward reducing the cost to taxpayers and protecting the rights of the accused. Two separate committees tasked with making recommendations to balance law enforcement needs with individual private property rights are scrutinizing civil asset forfeiture. The Legislature is examining diversion and treatment programs around the country and recommending best practices for reform. Lawmakers are also studying incarceration rates for nonviolent drug offenders and identifying alternatives to incarceration. Revocations faced by those on probation and parole are also being studied, as are the causes of recidivism and programs designed to aid reentry and provide educational and economic opportunities for released offenders. In particular, the mental health issues facing incarcerated Texans are a major part of the discussion, along with the potential for increased housing support and substance abuse treatment programs for those who need them. The evolution in conservative thinking on these issues could have a profound impact on the legal profession in the representation of their clients. Congress Avenue Partners can provide additional information on these discussions for those members of the Austin Bar Association AUSTIN LAWYER who are interested. AL AL

Congress Avenue Partners is comprised of principals Eric Woomer, Eric Wright, Buddy Garcia, and Gregg Knaupe. The firm offers strategic legislative advice and political counsel. They are located next door to the Austin Bar Association on the 7th floor of 816 Congress.

MAY 2016 | AUSTINLAWYER

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Texas Advocacy Project Awarded a LASSA Grant The Texas Access to Justice Foundation Awards $165,496 to Texas Advocacy Project to Assist Sexual Assault Survivors

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he Texas Advocacy Project (the Project) has received $165,496 in funding as one of eight agencies awarded a Legal Aid for Survivors of Sexual Assault (LASSA) grant from the Texas Access to Justice Foundation. The funding for these grants was obtained through a state tax levied on certain types of sexually-oriented businesses. With this funding, the Project will continue delivering legal services to low-income sexual assault survivors referred by collaborative partners including victims of intimate partner violence, as well as acquaintance and stranger sexual assault. Family law services include advice and counsel through the Project’s legal lines, aid with protective orders including Magistrate’s Order of Emergency Protection (MOEP), oversight in pro se matters, direct representation, and impact litigation. In addition to family law services, attorneys at the Project will provide holistic legal remedies that are identified as primary needs of survivors, such as safety, privacy, employment, housing, immigration, and education. Finally, funding allows the Project to participate in targeted outreach and training to college and university students, faculty, campus law enforcement, and others on the legal rights of victims of sexual assault, leveraging its experience with youth and education law to benefit that especially vulnerable population. As one of the eight grantees, Texas Advocacy Project will be a direct referral of the LASSA Hotline, 1.844.303.SAFE, hosted by the Texas Legal Services Center. “Whether someone experiences a sexual assault as part of intimate partner violence or from an acquaintance or stranger, the effects can be devastating. Victims of sexual assault end up navigating a complex legal system when seeking justice. Protective orders are one of the most immediate and successful forms of legal relief that the civil court system can offer victims of these crimes. In addition to safety protections, survivors often need information about available federal protections created under Violence 16

AUSTINLAWYER | MAY 2016

Against Women Act. For example, a sexual assault survivor may need housing remedies such as access to crime victim’s compensation, eviction protection or assistance with a lease termination,” said Heather Bellino, the Project’s executive director. Texas Advocacy Project was established in 1982 with the mission to provide free legal services, and access to the justice system, to

victims of domestic and dating violence, sexual assault, and stalking throughout the state of Texas. Texas Advocacy Project’s services affect the lives of thousands of Texans each year. The organization’s vision is that no child in Texas should ever ting cases that affect how the justice have to see one parent harm the system functions in Texas. If you or other. In 2015, the Project provided someone you know needs help, call legal services in 5,560 cases, servtheLAWYER Project’s Legal Line at 800.374. ing 13,430 Texans. The Project’s AUSTIN HOPE. attorneys often argue precedent-setAL AL

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Link Between Domestic Violence and Animal Abuse

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oth people and animals can suffer at the hand of domestic violence. There is actually a link between those who abuse animals and those who are domestically violent. According to the American Humane Association and National Coalition Against Domestic Violence, about 71 percent of women entering shelters who own pets report their batterer also threatened, abused, or even killed their pets. In many cases, the victims aren’t able to bring pets with them if they try to escape the abusive situation, leaving between 25 and 40 percent unable to leave out of concern for their animals’ wellbeing. Abusers are violent toward pets and other animals as a way to coerce and control family members into doing what they want. It is also described as another way of abusing the human victim. Despite the abuse to both the animal and themselves, they stay in the situation in an attempt to protect the animal. “Sadly, victims of domestic violence often remain in dangerous or dysfunctional relationships to

protect their pets,” according to the American Society for the Prevention of Cruelty to Animals (ASPCA). In response to recognizing animal abuse, whether in domestic violence situations or not, there are ways to take the animal from the abuser. These range from seizure of the cruelly treated animal, to hearings and penalties under the Texas Health and Safety Code, Title 10. A protective order issued to protect the human victim can also be used to help protect an abused animal. These are different from restraining orders, which differ in cost, duration, and enforcement. According to Texas Family Code 85.022, “in a protective order, the court may prohibit a party from removing a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code and prohibit the person found to have committed family violence from harming, threatening, or interfering with the care, custody, or control of a pet.” While steps are in place to help domestic violence victims also dealing with animal abuse, there are still

areas that need attention. These include changes in legislature to have pets viewed as sentient beings with rights rather than property, training for law enforcement in cruelty cases, and shelter for abused animals of domestic violence victims.

The Animal Law Section hosted a CLE on this topic entitled “The Intersection Between Domestic Violence and Animal Abuse” on February 24, 2016, presented by Victoria Rambo, a staff attorney at AUSTIN LAWYER Texas Advocacy Project. AL AL

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BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Don Ballard Sheel Bedi Brett Beeler Catherine Chamblee Erin Cowden Kaili Cusak Terry Hammond Casey Kelly Josh Leamons Michelle Locke Scott McLellan Margaret Menicucci Marvin Okafor Joshua Rogers Alexander Schoch Erin Selvera Ambrosia Silva Jarren Sternburg Cassie Stinson Jamie Turner Garrett Wilson Yvette Yarbrough

TOP ROW: Barber, Bast, Hopkins, Kimbrough, Lutz, Metayer BOTTOM ROW: Mullins, Royer, Rupprath, Stotts, Vale, Ware

AWARDS

NEW TO THE OFFICE

The Austin firm Pirkey Barber, including Austin Bar members Louis Pirkey, Shannon Vale, and Bill Barber, was named a top firm in the country in 2016 for trademark law according to World Trademark Review 1000.

Graves, Dougherty, Hearon & Moody announced Martin T. Lutz has joined the firm as a new shareholder. Lutz practices Corporate & Securities and International Law.

The Boy Scouts of America will award Justice Jeff Brown the National Eagle Scout Association’s Outstanding Eagle Scout Award for distinguished service to his profession and community. Justice Brown became an Eagle Scout at age 16, and has been an active adult volunteer with the Boy Scouts of America for more than 15 years. Cynthia Bast was selected by the Travis County Women Lawyer’s Association and Foundation to receive the Corporate/Transactional Attorney Award for 2016. Bast is recognized nationally as a preeminent lawyer in the area of affordable housing and community development finance. Rudolph (Rudy) Metayer was appointed as a new minority director at the State Bar of Texas. Metayer is also the president of the Austin Black Lawyers Association, member of the State Bar Grievance Committee, member of the State Bar Law Focused Education Committee, member of the Pflugerville Finance and Budget Committee, member of the Capital Area African American Chamber of Commerce, and vice president of the Austin Texans Soccer Club.

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AUSTINLAWYER | MAY 2016

Texas Advocacy Project named Sheri Hunter one of four new members to its Board of Directors. Hunter is a trademark attorney for King & Spalding. The Texas Advocacy Project’s mission is to provide free legal services and access to the justice system to victims of domestic and dating violence, sexual assault, and stalking throughout Texas. Shackelford, Bowen, McKinley & Norton announced the addition of William Hopkins as a partner for their Austin office. Hopkins represents health care entities in litigation, matters of licensure, regulatory compliance, and administrative issues. Carrie Rupprath, Kristi Stotts, and Jordan Ware have been elected shareholders to Winstead. Rupprath focuses on public and regulatory law; Stotts focuses on real estate development and investments; and Ware focuses on wealth preservation. Erin Selvera joined the Texas Rural Water Association as the Legal and Legislative Services director. Previously, Selvera was at the Texas Commission on Environmental Quality where she served as special assistant to the air permits division director and was formerly a staff attorney in the environmental law division.

Zinda & Davis announced the hiring of former Associate Court Judge Michele Locke to its family law group. Prior to becoming a judge, Locke ran a successful family law practice and is knowledgeable in contested family law matters that involve issues of domestic violence, stalking, harassment, and child abuse.

MOVING ON UP Sedgwick announced JoAnn Dalrymple as a partner. Dalrymple focuses on commercial, insurance, and healthcare disputes. Governor Greg Abbott has appointed Rich Villa for a term on the State Board of Dental Examiners. Villa is a partner at Streusand, Landon & Ozburn. Jordan Mullins was elected as a new partner for McGinnis Lochridge. Mullins represents both landowners and operators for issues such as oil and gas pricing, contract disputes, lease termination issues, and more. Bowman and Brooke re-elected Kelly Kimbrough as managing partner for the firm’s Austin office. Kimbrough manages a comprehensive product liability practice as national and regional coordinating counsel for some of the country’s largest pharmaceutical and medical device manufacturers. C. Micah Royer has been made partner at Coldwell Bowes. Royer represents clients in family law matters, including divorces, child custody disputes, grandparent cases, modifications, appeals, and enforcements.


3 RD COURT OF APPEALS UPDATE

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The following are summaries of selected civil opinions issued by the Third Court of Appeals during March 2016. The summaries are intended as an overview; counsel are cautioned to review the complete opinion. Subsequent histories are current as of April 5, 2016. Estate litigation: Court refuses to recognize tortious interference with inheritance. Anderson v. Archer, No. 03-1300790-CV (Tex. App.—Austin March 2, 2016, no pet. h.). A jury found that Ted Anderson tortiously interfered with the Archers’ inheritance and awarded the Archers over $2 million in damages. The Andersons challenged the existence of tortious interference with inheritance as a cause of action. Tortious interference with inheritance occurs when one by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that she would have received. The court of appeals cited numerous cases that have found that the tort exists in Texas. The court, however, concluded that it cannot create a “new cause of action,” and that the Texas Supreme Court should resolve the issue. The court reversed and rendered. Public Information Act: Pre-arrest information protected from disclosure. City of Carrollton v. Paxton, No. 03-13-00571-CV (Tex. App.— Austin March 31, 2016, no pet. h.). At issue were police dispatch

system notes on 911 calls and the application of the law-enforcement exception to public information in Gov’t Code §552.108(c). That section provides access to “basic information about an arrested person, an arrest, or a crime.” The district court ordered City to produce the information. The AG construed the statute as encompassing basic information about an investigation of a potential or reported crime, regardless of whether any crime was charged. The court of appeals rejected the AG’s interpretation and concluded that subsection (c)’s “basic information” requires disclosure of information related solely to an arrested person, an arrest, or a crime. The bulk of the requested information related to pre-arrest information and was thus protected by the law-enforcement exception. The court reversed and rendered in part and affirmed in part. Theft Liability Act: Attorney’s fees award reversed for failure to prove fees were reasonable and necessary. Shamark Smith LP v. Longoria, No. 03-14-00698-CV (Tex. App.— Austin March 11, 2016, no pet. h.) (mem. op.). Shamark sued Longoria for trespass, conversion, and theft. Longoria counterclaimed for malicious prosecution, emotional distress, and defamation. The judgment awarded Longoria damages and attorney’s fees. The court of appeals sustained Shamark’s evidentiary challenges to Longoria’s damages. The court observed that under the Theft Liability Act, each person who prevails shall be awarded reasonable and necessary attorney’s

fees. Because Longoria prevailed in Shamark’s TLA lawsuit, he was entitled to recover his attorney’s fees. Longoria, however, failed to present evidence of attorney’s fees. Other than evidence of a contingency fee contract, Longoria offered no evidence that his fees were reasonable and necessary. The court reversed and rendered that Longoria take nothing. Restricted appeal: Default judgment reversed because of improper service. Bartonplace Condos. Homeowners Assoc. v. Keup, No. 03-1400453-CV (Tex. App.—Austin March 31, 2016, no pet. h.) (mem. op.). Following an injury sustained at the condo complex, Keup sued and obtained a no-answer default judgment. Bartonplace filed a restricted appeal. The sole issue was whether there was error apparent on the face of the record. Keup served the lawsuit on Bartonplace’s general manager and on the secretary of state. The court of appeals noted that the secretary of state can serve as a corporation’s agent for service only if the registered agent cannot be found. The record contained no evidence that Keup attempted to serve Bartonplace’s registered agent. Thus, service could not be effectuated on the secretary of state. Further, Keup’s service on the general manager failed to support the default. No evidence in the record showed the manager was Bartonplace’s registered agent. Because the record did not support strict compliance with the rules of service, the court AUSTIN LAWYER reversed and remanded. AL AL

Laurie Ratliff is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization and is a shareholder with Ikard Golden Jones. From 1998 through 2001, she was a staff attorney with the Third Court of Appeals.

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AUSTIN YOUNG LAWYERS ASSOCIATION

SXSW: From Spectator to Presenter Business-Legal Immigration Law Interests SXSW Attendee Entrepreneurs and Startups BY JASON FINKELMAN

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outh by Southwest (SXSW) is arguably one of the largest and most influential festivals for culture and business in the world. Getting to participate in the festival as a presenter is a privilege that is not easy to come by. I, fortunately, had the honor of being one of only a handful of Austin attorneys who were selected to speak at SXSW. As a long-time immigration attorney, the experience of getting to present, not once but twice, to an audience of some of the most influential entrepreneurs, founders, startups, and business executives from around the world was an experience I will not soon forget. Having attended SXSW many times in the past, I wanted to participate in the 2016 Interactive portion of the festival as a panelist. I knew that my business-immigration legal experience and advocacy work on behalf of international entrepreneurs, startups, and highly-skilled foreign nationals seeking U.S. visas would make for an interesting discussion for those attending SXSW from around the world. In July 2015, I submitted

Jason Finkleman presents at South by Southwest Interactive

While SXSW 2017 may seem far away, attorneys interested in speaking at next year’s festival should start thinking now about the topics they would like to present. The PanelPicker submission process is expected to open and close again in July... my panel ideas online to SXSW as part of their PanelPicker session submission process. Panels are voted on by the general public and SXSW advisory staff. In December, I found out that my panels were selected and that I would be speaking at SXSW. I can say without question that the experience of presenting at 20

AUSTINLAWYER | MAY 2016

SXSW was like none other. My presentations, “U.S. Immigration Options for Foreign Entrepreneurs and Immigration Reform,” were full of energetic, knowledgeable and notable individuals from some of the largest companies and growing startups in the world. The audiences were engaged in what I had to say, asked thoughtful

questions, and were interested in continuing the discussion beyond the presentation. While SXSW 2017 may seem far away, attorneys interested in speaking at next year’s festival should start thinking now about the topics they would like to present. The PanelPicker submission process is expected to open and close again in July, so you should have your idea ready to go by then. Take a look at the topics that were submitted in 2016, consider the general audience of SXSW Interactive, and choose a topic that would be most valuable to a large audience. Once submitted, share your panel with your network and encourage them to vote on it. If selected, get ready to participate in one ofLAWYER the greatest conferences AUSTIN of yourAlife. L AL

Jason Finkelman is an immigration attorney working at the forefront of immigration law to assist international individuals with obtaining work visas, lawful permanent residence (“green cards”), and U.S. citizenship. He handles a variety of employment-based and family-based immigration matters for both U.S. and foreign companies, investors, startups, entrepreneurs, skilled workers, executives, families, and students.


AUSTIN YOUNG LAWYERS ASSOCIATION

Lawyers and Judges in Fashion: AYLA’s Second Runway for Justice a Fundraising Success

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he Austin Young Lawyers Association held its second Runway for Justice Fashion Show fundraiser on Wednesday, March 23, 2016. Over one hundred attorneys and judges attended the fashion-forward event, with attorneys modeling spring fashions from local boutiques. “We raised thousands of dollars for the Women’s Resource Fair,” said model and AYLA treasurer, Austin Kaplan. This year the show included both male and female attorney models. “I must say that male modeling isn’t easy. You have to turn left. You have to not fall. You have to make quick outfit changes. You have to smile in a room filled with potential opposing counsel. But after seeing the outstanding performances of our lawyer-models, I think some of us need to seriously consider a second career in modeling,” said Kaplan. Proceeds for the event benefit the AYLA Foundation for projects throughout the year, including the Women’s Resource Fair, to be held May 7, 2016. Vendors for Runway for Justice included: Ritual Salon, Z Couture, Luxe Apothetique, League of Rebels, Gooring Bros., AMBERLEAF, Stella & Dot, UT Golf Club, Brown Distributing, TWELVE, Raven + Lily, Embellish Nails and Boutique, Peter Millar, Kendra Scott, Sikara & Co., Love Cycle, Austin Massage Company, Erin Lefler, Jennifer Cochran, Make the Rest Up, Gusto Italian Kitchen + Wine Bar, Budweiser, Alamo Drafthouse, Austin Eats Food Tours, House Wine, Wanderlust Yoga, GoDance Studio, J. Hillburn, Austin Wine Merchant, Capital Cruises, Estancia Churrascaria, HSSK, LawPay, FOUND, Urbanspace, austiNuts, Daily Greens, Mariana Meredith Salon, Stacy Brunson, WestLaw and Deep Eddy Vodka. Special thanks to AYLA’s Runway for Justice sponsors: Civil Litigation Section McCullar Gilbreath Gjerset & Lorenz Norton Rose Fulbright Broadway Bank

CLOCKWISE FROM LEFT: AYLA member Ryan Squires rocks the runway; AYLA President Chari Kelly sparkles as Mistress of Ceremonies; the audience enjoying the show

McGinnis Lochridge Scott Douglass & McConnico Velva Price, District Clerk Fairway Independent Mortgage Stratos Legal Whitehurst, Harkness, Brees, Cheng, Alsafaar & Higginbotham Thompson Coe Law Office of Nikki G. Maples Strüb Residential The Sharp Firm Lloyd Gosselink Rochelle & Townsend Graves, Dougherty, Hearon & Moody, P.C. Urbanspace – Sean Skellenger Labor & Employment Section Megan Kateff Bayne Law Amanda Arriaga Claude Ducloux Amanda B. Hill, JD Kaplan Law AUSTIN LAWYER DudleyALaw L AL

UPCOMING EVENTS THURSDAY, MAY 19 AYLA Docket Call 5:30 to 7 p.m. Location TBD Mingle with your AYLA friends at our monthly happy hour.

MAY 2016 | AUSTINLAWYER

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AUSTINLAWYER L AL AUTHORSA WANTED

OFFICIAL PUBLICATION OF THE AUSTIN BAR ASSOCIATION

Interested in writing for Austin Lawyer? Submissions on substantive law topics from both the criminal and civil sides are wanted. Please contact Nancy Gray, Director of Communications, for editorial guidelines and more details at nancy@austinbar.com.


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A celebration to honor the life-time achievements of Lloyd Lochridge, and to raise funds for the Austin Bar Foundation’s Legal Assistance Projects:

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• Free Legal Advice Clinic for Veterans, and • Austin Bar in Action’s Self-Represented Litigant Project

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Lloyd Lochridge After serving as a Lieutenant Commander in the US Navy, Lloyd Lochridge began his law practice in Mission, Texas. In September of 1959, he became a partner in McGinnis Lochridge’s predecessor firm and has been with the firm ever since. At 98, he still goes to the office every day.

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having peace of mind wherever you are.

What is good? Good is a bank that offers you personal concierge banking and the individualized attention you deserve. It’s a Private Banker who makes you a priority and is there for you anytime, anywhere. At Broadway Bank, good is having a trusted advisor who invests more time in your financial goals so you can invest more time in yourself. PRIVATE BANKING | CUSTOMIZED LENDING BUSINESS SOLUTIONS | PORTFOLIO MORTGAGES

Austin Regional Headquarters | 911 W. 38th Street, Suite 100 512.465.6550 | 800.531.7650 | broadwaybank.com Member FDIC |

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