Austin Lawyer, May 2020 by Austin Bar Association

austinbar.org MAY 2020 | VOLUME 29, NUMBER 4

Legal Aid in the Age of COVID-19 A Perfect Storm is Brewing: Preparing for the Aftermath

he reverberations from the COVID-19 pandemic can be felt around the world. Individuals, families, communities, businesses, and governments have all been impacted in ways large and small. In some instances, people have been brought to their knees. And, in many ways, those who are most vulnerable in our communities have been hit the hardest. Unfortunately, the legal-aid providers who normally are able to assist this population with a wide range of legal services are also suffering and struggling to meet the needs of existing and potential clients.

is creating a backlog of need that will be unleashed when the stayat-home orders are lifted and inperson legal clinics can resume. Concurrently, legal-aid providers are confronting funding deficits related to the pandemic. According to Betty Balli Torres, executive director of the Texas Access to Justice Foundation (TAJF), “Low-income Texans, and many Texans not previously eligible for legal aid, are experiencing the loss of their livelihood requiring legal assistance with unemployment claims, landlord-tenant problems, and consumer credit. These challenges inevitably affect family

With legal-aid funding decreasing at a time when legal-aid needs are increasing, lawyers stepping up and helping to fill the justice gap by providing pro bono legal services are more important than ever. The pandemic has caused all face-to-face legal aid clinics to cease temporarily and has limited access to legal services and the courts. Many who are served by these legal clinics do not have access to the internet and must depend on public libraries to access computers. But the libraries are now closed, too. While many legal-aid providers such as Volunteer Legal Services of Central Texas (VLS) have pivoted and are now providing virtual legal clinics, their clients’ limited access to the internet impacts the organizations’ ability to serve in a meaningful way. Lack of access

stability, and exacerbate mental and physical health needs.” Torres further notes, “Unfortunately, the number of Texans eligible for legal services will likely exponentially grow in this uncertain economy.” The amount of available funding for legal aid, however, is likely to decline. The recent lowering of the federal funds rate to zero will have the effect of lowering the interest revenue generated by one of the major funding sources for legal aid—the Interest on Lawyer Trust Accounts (IOLTA) program. The loss of IOLTA revenue will have a significant negative impact on

grant funding the TAJF provides to legal-aid programs. TAJF anticipates an annual loss of nearly 75 percent in IOLTA funding, or approximately $1 million each month. This funding provides critical access to legal aid for people to protect their livelihoods, health, and families. TAJF currently funds 37 legal-aid organizations, law school clinics, and pro bono organizations providing vital legal-aid services to families who cannot afford legal services, including veterans, older Texans, survivors of sexual assault, mothers with children, Texans with disabilities, and others. This dramatic loss of funding, coupled with the anticipated increase in demand for services, can only be viewed as a perfect storm looming on the horizon. In a recent meeting of the Austin Bar’s Pro Bono Committee, Tracy Whitley of Texas RioGrande Legal Aid (TRLA), reported that a disaster team has tracked stats and expects to see a wave of cases involving domestic violence, consumer fraud, tax issues, employment issues, wills and estates, bankruptcies, and evictions. “Everyone’s first priority is supporting the health and safety of their communities and states right now. But families across

Texas and throughout the country are feeling economic distress that will lead to legal problems related to housing, securing emergency benefits, and unpaid bills,” Torres said. “Based on past disasters, we know there will be a huge spike in demand for qualified, compassionate legal help in the coming weeks and months.” With legal-aid funding decreasing at a time when legal-aid needs are increasing, lawyers stepping up and helping to fill the justice gap by providing pro bono legal services are more important than ever. The preamble to the Texas Disciplinary Rules of Professional Conduct points out the moral obligation lawyers have to provide pro bono service: “Every lawyer, regardless of professional prominence or professional workload, continued on page 7

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CONTENTS

AUSTINLAWYER MAY 2020 | VOLUME 29, NUMBER 4 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

Legal Aid in the Age of COVID-19

President’s Column

We Are All in This Together

Briefs

10 Best Practices for Zoom Court Proceedings

Be Well

15 Travis County Women Lawyers’ Association Awards Scholarships

Opening Statement

16 Austin Bar/AYLA Leadership Academy Class of 2020 Announces

Third Court of Appeals Civil Update

Third Court of Appeals Criminal Update

20 Texas Board of Legal Specialization Inducts 239 Attorneys

Federal Civil Court Update

25 Deadline Extended for Regina Rogoff, Professionalism Award

Class Pro Bono Project

18 American Inns of Court Now Accepting Applications 19 Thirteenth Annual Color of Justice Program

Federal Criminal Court News

Nominations

AYLA

29 Working at Home (Somewhat) Productively with Pets

Practice Pointers

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Visit austinbar.org for important updates and resources including information on courts and links to resources provided by the State Bar of Texas, TLAP, and the ABA on topics such as law practice management, webinars, lawyer well-being, educational resources for children, and more.

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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

Adapting in a Time of Crisis

hat a difference a month makes. When I last sat down to write this column, “COVID-19,” “coronavirus,” and “social distancing” had not yet made their way into our everyday vocabularies. The stock market was up, and unemployment was low. The first U.S. coronavirus death had just occurred in Washington state. What we are experiencing as I write this month’s installment is unprecedented in American history. Stay-at-home orders issued to curb the virus’s spread and avoid overloading our health care system have brought the economy to its knees. Massive layoffs are occurring across industries. Courthouses have been closed and jury trials have been postponed. The Texas Supreme Court has issued several emergency orders, extending statutes of limitations, abating res-

idential eviction proceedings, and clarifying possession schedules in family law cases. The pandemic is transforming the legal industry. Technophobes are being forced to adapt. Lawyers are working from home by necessity, not by choice, and are finding new ways to serve their clients. Courts are holding hearings over Zoom and broadcasting publicly on YouTube, keeping their dockets moving and the courts open. I can’t imagine where we would be if the Texas Supreme Court had not mandated e-filing on a statewide basis just a few years ago. The Austin Bar Association has adapted too. Since the virus took hold, we have dedicated a page on our website to relevant news, updates, and resources and are updating it daily. We are offering new members half-off regular dues with a deferred payment option. Unable to hold live events, we are increasing our online CLE offerings and are scheduling webinars tailored to issues we anticipate the pandemic will bring to the forefront. Presentations will cover domestic violence, bankruptcy, landlord-tenant matters, employment relationships, legislative updates, and technol-

ogy tips. Pro bono needs will abound in the coming months, and the Austin Bar is doing its best to anticipate and address those needs proactively. While fallout from the pandemic presents a tremendous opportunity for us to help others, we should not neglect ourselves. Working from home can be wonderful, but it can also be very difficult when combined with maintaining a household and caring for our families. Those who experience depression or addiction have had their normal coping mechanisms curtailed or taken

away. Keep the faith—we will get through this—but don’t forget to take care of yourself as well. What does the future look like? Our lives and practices will undoubtedly change, perhaps in some ways for the better. We’ll better appreciate things we might have taken for granted before— coffee or lunch with a friend, working out at the gym, date night out with a spouse or partner, or attending a sporting event. Lawyers are resilient. Our job is to rise up and lead. It’s time to fulfill our roleAUSTIN once again and show LAWYER the world how to persevere. AL AL

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Legal Aid in the Age of COVID-19 continued from cover

should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the profession generally.” Austin Bar Association Executive Director DeLaine Ward remarked, “We are proud that the members of the Austin Bar have always stepped up during critical

times.” The leadership of the Austin Bar and the Austin Bar’s Pro Bono Committee are working with partner organizations such as VLS, TRLA, and others to be ready when the time comes to step in and provide support to those who need it most. HOW CAN YOU HELP? Virtual legal clinics need help now. • The Austin Bar hosted its first virtual Veterans Clinic in April and the next one is scheduled

for Wed. May 20. CLICK HERE to sign up to volunteer. Questions? Contact Isabel Salazar. • CLICK HERE to learn how to volunteer to assist with the VLS virtual phone clinics. • Immigration Justice Campaign, VECINA, and Texas Accountants and Lawyers for the Arts (TALA), among many others, need help now too. • TRLA is conducting intakes by phone.

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TRAIN NOW TO HELP LATER. • The Austin Bar is offering multiple free CLE webinars on a number of topics related to COVID-19. Check the event calendar at austinbar.org to see upcoming topics. • A library of over 70 hours of free online CLE, including topics related to COVID-19, is available to Austin Bar members. (Password: ABarCLE2020.) Included in the online library are several CLE presentations focusing on veterans’ issues and issues affecting low-income individuals generally. • Domestic violence cases are on the rise. Please consider representing a victim of violence or abuse in a family law matter through VLS. If you are not already a volunteer with VLS, please sign up through VLS VolunteerHub. Attorneys who agree to take one family law case through VLS will have free access to the VLS Divorce Basics Seminar. Contact Katie Valle, VLS Director of Family Legal Services, to view the online training at your convenience. • The Travis County Law Library and Self-Help Center anticipates a large number of self-represented litigants seeking help when the stay-at-home order is lifted. Volunteer with the Austin Bar’s Self-Represented Litigant Project to meet this demand. There are videos online now at austinbar.org to train attorneys to do simple divorces, name changes, and occupational drivers licenses. CLICK HERE to learn more. Sign up to volunteer and receive a link and a password to view the training videos.

Contact Austin Bar Pro Bono Committee Chair Caitlin Haney Johnston or Austin Bar President-Elect Kennon Wooten with questions or suggestions on other ways the legal community can help. Together, we can not only weather this storm but be a shelter from it for those who need AUSTIN LAWYER AL AL it most. MAY 2020 | AUSTINLAWYER

We Are All in This Together How Six Women Are Helping to Care for Austin’s Homeless Population BY POOJA SETHI

Pooja Sethi is an immigration attorney with her own practice. She also provides pro bono services to immigrant clients who are victims of sexual assault and domestic violence.

n Austin, approximately 2,500 people are without any sort of home. Austin’s homeless numbers have gone up in recent years due to social issues. Moreover, this number is expected to increase due to the coronavirus. The effects of the virus—which spreads through airborne particles transmitted from person to person—has caused most cities and states in the U.S. to issue “stay-at-home” orders requiring all non-essential businesses to temporarily close. In some cases, a stay-at-home order may include fines for residents who are out for non-essential tasks or activities. In Austin, Mayor Steve Adler issued a stay-at-home order on March 24 to enforce social distancing. This order shut down non-essential retail shops and most businesses, and people were told to work from home. In addition, restaurants can only serve food to-go or for delivery. This order has caused restaurants, shops, and some businesses to fire, lay off, or furlough staff. As a result, the rates of unemployment and homelessness have begun to 8

AUSTINLAWYER | MAY 2020

rise rapidly. According to public radio station KUT, the unemployment rate in Austin is projected to be almost 25 percent by the summer months. Resources set up to help the homeless in Austin, including food banks and shelters, have now been forced to shut down in order to contain the virus. As a result, those who are without a permanent home or access to home or access to food or supplies needed to take a shower now have greater difficulty in obtaining these resources. Lost along with these resources is a sense of security for individuals experiencing homelessness in the midst of the pandemic. A group of Austin women are helping to care for the homeless in our community. In March 2020, Austin Bar member Pooja Sethi, after speaking to her friend and Austin EMS Association President Selena Xie, realized that in the new world of COVID-19, there was a gap in how some members of our communities can access food. Concerned, Sethi contacted other women about helping those who are food-insecure. They formed a group called the “Quaranteam”—comprised of Sethi, fellow Austin Bar member Margaret Chen Kercher, Austin Bar President-Elect Kennon Wooten, Julie Ann Nitsch, CJ Zhao, and Ashley Cheng. These women took the initiative to step in and help replace resources lost for the homeless population. The first mission started with Wooten making peanut butter sandwiches to feed those without access to food. The Quaranteam escalated from there. They have partnered with Austin EMS Association; contacted restaurants and community members to donate meals; and donated meals, masks, and tents to members of our unhoused population.

ABOVE: (L-R from top) The “Quaranteam”: Pooja Sethi, Julie Ann Nitsch, Kennon Wooten, Margaret Chen Kercher, CJ Zhao, and Ashley Cheng.

The Quaranteam has partnered with Austin EMS Association; contacted restaurants and community members to donate meals; and donated meals, masks, and tents to members of our unhoused population.

coming together in crisis

In order to have a healthy community, we need to care for those who are the most vulnerable. Quaranteam members have worked to achieve this goal, and these volunteers exemplify the Austin spirit of “we are all in this together.” Sethi recalls one of her favorite Quaranteam missions: Delivering Easter baskets to a church in downtown Austin for children whose families have lost their homes. Nitsch and Constable Stacy Suits have delivered food to shelters housing the homeless. Cheng has worked with Chinatown restaurant to provide hundreds of meals to the homeless. In addition to Chinatown, the Quaranteam has received donations from Zaika Indian Cuisine, Shu Shu’s Restaurant, and Emojis Grilled Cheese Bar. These restaurants have dedicated time and space to helping the homeless—including making as many as 80 meals in a single weekend. Wooten added tents to the Quaranteam’s mission. She collected more than 20 tents to give to our Austin residents without homes, and enlisted her daughter to write notes of hope to place inside each one. Finally, Zhao and Kercher have been giving essential masks to a number of organizations in town, including Front Steps and the Travis County Correctional Complex. In order to have a healthy community, we need to care for those who are the most vulnerable. Quaranteam members have worked to achieve this goal, and these volunteers exemplify the Austin spirit of “we are all in this

together.” Quaranteam members have delivered food almost every day since the stay-at-home order was issued, and hundreds of meals have been given across Austin to feed our unhoused population. Although this response is a mere drop in the bucket compared to the many needs that still exist, the Quaranteam’s outreach efforts prove that our community is strongest when united together in helping those in need. Won’t you lend a hand too? There are many in our community who need help during the pandemic. Contact any one of the organizations that are working hard to meet those needs and ask how you can get involved. Not only will you be assisting others, you just might find that the simple act of caring for someone else gives you a sense of purpose and meaning that will help you navigate the stress and anxietyLAWYER most AUSTIN of us are experiencing today. AL AL

LEFT: (from top) Kennon Wooten’s daughter, Linden, helping her mom write notes to put inside tents. EMS Association President Selena Xie with Zaika Indian Restaurant staff. EMS worker Amber Price accepting donations at the Sobering Center of Austin. Pooja Sethi bringing food and water to a downtown church.

MAY 2020 | AUSTINLAWYER

Best Practices for Zoom Court Proceedings BY GRAHAM SUTLIFF professionally participate in a Zoom proceeding. Several best practices have emerged to help you present your case in the best manner.

Graham Sutliff is the co-founder of Sutliff & Stout, Injury & Accident Law Firm. Sutliff is board certified in personal injury trial law, and he has been actively trying personal injury cases for over 15 years.

he stay-at-home and shelter-in-place orders issued across the country have presented unique challenges in many forms. For litigators, these challenges have required an industry resistant to change to adapt quickly and dramatically to fulfill our obligations to our clients and the legal system. We commend judges, counsel, clients, those in the legal industry, and everyone else who is taking part in learning and mastering these virtual substitutes, for continuing to innovate and keep the wheels of justice moving. Video conferencing has become the new norm for all types of proceedings throughout Texas and the United States. In Texas, the Office of Court Administration (OCA) secured a Zoom contract and a license is available to all State of Texas judges. Additionally, the OCA recommends that most non-essential proceedings, except for jury trials, be conducted remotely. While the means for conducting proceedings has been given, the legal community is now faced with handling the logistical details of how to effectively and 10

AUSTINLAWYER | MAY 2020

FIRST THINGS FIRST— SETTING UP ZOOM FOR YOUR PRACTICE One of the main reasons why Zoom seems to be such a popular video conference option is its cost-effectiveness. Zoom has a free option that provides a number of features, and its subscription service is relatively inexpensive (e.g., $149.90 for an annual, single license). In comparison, competitors such as GoToMeeting do not offer any type of free plan. Installing Zoom is extremely easy and user-friendly. A web browser client is downloaded whenever you start or join your first Zoom meeting. On the Zoom website, any number of plugins or extensions can be installed so that Zoom can be run from applications such as Google Chrome, Microsoft Outlook, or Skype for Business. Zoom can also be run from a mobile device, such as a tablet or smartphone. As might be expected, running Zoom from a computer with a webcam or a laptop provides a richer experience than using it on a tablet or smartphone. A smartphone should only be used as a last resort. AS ALWAYS, CHECK FOR LOCAL RULES Before appearing in a proceeding, you should also check with the specific rules of a court. Different judges will have their own preferences on topics such as mute procedures, whether or not recording is allowed, and how to submit evidence. Additionally, as judges gain more experience with Zoom, those preferences may change over time. For instance, the 345th District Court issued procedures that include a rule about muting when not speaking and a detailed procedure on how

to submit exhibits. In comparison, Judge Kyle Carter includes in his Court Decorum rules the following: “Mute Button When You Are Not Speaking, Identify Yourself Each Time You Speak, and Recording is Prohibited.” These rules may seem strange or arbitrary, but they are often the result of some surprising discoveries about Zoom. For instance, many courts are setting Zoom videoconferences to private, utilizing breakout rooms and keeping witnesses in virtual waiting rooms. This has become a necessity because of Zoombombing (a form of hacking). Recordings are generally discouraged because the only official record of a court proceeding should be the one produced by the court reporter. Additionally, several courts are advising that chats be avoided altogether or prohibiting private chats. This is in response to the discovery that messages that are sent in a private, person-to-person mode can actually be viewed by anyone who downloads the transcript from Zoom. THREE WAYS TO IMPROVE YOUR PRESENTATION 1. Backgrounds A clean and professional-looking background is important when engaging via Zoom. This is necessary for both depositions

and court proceedings, since deposition recordings may be introduced later during a hearing and court proceedings are often livestreamed to YouTube or Facebook to ensure the public has access under the Open Courts Provision of the Texas Constitution. You don’t want people thinking about what is going on behind you and not listening to what you have to say. With this in mind, you have several options. You can look for an organized, clutter-free space in your home to be your background. Alternatively, as a way to improve your presentation or the presentation of your witness, you can use a virtual background through Zoom. For depositions, assuming it is your witness, be sure to give some thought about the witness’s background. If you want to use a virtual background, you need to test it to see if the space you want to use will need a green screen. A cluttered background makes it difficult for the technology to differentiate you from what is behind and around you. In this situation, you will need a green screen to use a virtual background. There are many options for purchasing a green screen online, but you can also purchase inexpensive options such as a

green poster board or make your own screen by painting a sheet or piece of cardboard. Also, be sure that your clothes are not the same color as your background (e.g., a green shirt with a green background) or you will become the invisible person. The process of adding a virtual background is very easy and you can add anything you think would look best. CLICK HERE to access a photo gallery of professional, license-free images that can be downloaded and used, along with instructions on how to download and upload images to your Zoom account. 2. Submitting and Presenting Documents For court proceedings, each court will likely have its own rules about how to present documents. Some courts have used Dropbox to allow attorneys

to share evidence, but many others prefer email. Be sure to call the court prior to your hearing to determine how the court handles the presentation of evidence. Some judges manage exhibits themselves and share their screen on Zoom when the exhibits are used. If, on the other hand, you are required to present your exhibits, then you need to know how to share your computer screen and how to direct people’s attention to the parts you want. An app we find helpful in the presentation of evidence is Snagit. This app allows you to easily cut and paste from documents and zoom in. For depositions, we suggest coordinating with the videographer beforehand so they can verify that they have high-quality, clean copies and will be able to zoom in on relevant portions of exhibits as

As judges gain more experience with Zoom, they may have specific preferences. For instance, the 345th District Court issued procedures that include a rule about muting when not speaking and a detailed procedure on how to submit exhibits.

needed. You should also familiarize yourself with Zoom’s ability to share your computer screen so you can present documents on the fly during the deposition. 3. Technical Capabilities In order to make sure you have high-quality video and audio, you will need a strong wired or WiFi connection. You may need to experiment in different parts of your home to find the strongest signal. Attorneys should also try to find a quiet place where ambient noise will be at a minimum (think rooms with carpet or rugs and rooms with no echo). If available, using ear buds with a built-in microphone provides a better listening experience, reduces background noise, and allows others to hear you better. With respect to lighting, you want the room to be well lit. Lamps are helpful and, when available, should be placed evenly with or a little behind your camera. Avoid having bright lights in the background because such light will create problems for the camera. As for the location of the camera, try to have it at eye-level so it appears that you are looking at the other individuals on the conference. Even with the best preparation, anticipating how your Zoom video conference will behave on the day you need it can be difficult. Travis County Associate Judge Aurora Martinez Jones suggests avoiding Zoom “traffic,” if possible, by requesting or setting a start time that is mid-morning or later. She also recommends having a number of backup devices available in case your audio does not work or you need to have private attorney-client communication. If you do end up using multiple devices, properly label them all when logging into Zoom, using your first and last name, so that they can be easily identified by the host of the videoconference. If you only use a phone, provide the host with your phone number ahead of time. If you are the host of a Zoom video conference, you should ask all

participants to log in early to iron out any technical difficulties. Travis County Judge Dimple Malhotra also has a number of suggestions to ensure successful Zoom video conferences. If there is time before the official start of the hearing, turn your video off until it is needed. She also encourages attorneys to be aware of issues regarding access. Not all participants have the capability to use Zoom. Some clients may not have a compatible device or internet access, and you should be prepared to come up with alternative arrangements. PROPER PREPARATION— BE SURE TO TEST YOUR SETUP AND SYSTEM BEFORE ANY HEARING OR DEPOSITION After installing Zoom, users should test out the functions in Zoom by going through the various options and setting up a videoconference with a friend or colleague. When setting up this test, be sure to record the test session. This will allow you to go back and watch the test so you will understand what others will see. You’ll want to familiarize yourself with the basic functions such as different view options, mute, and chat. Depending on the device used and the form of Zoom interface, certain features may not be available. For instance, some devices may not have the video capabilities to utilize virtual backgrounds. Finally, attorneys should practice working with the different video and audio options, as well as how to use screen sharing and documents. With these best practices in mind, combined with patience and learning from experience, Zoom can be a powerful tool to help courts AUSTIN and attorneys continLAWYER AL AL ue their important work.

MAY 2020 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Samuel Rajaratnam Allen Rothman Jordan Turk

ABOVE: Gilford, Linkin, Meringola, Nguyen, Pittman, Shepperd LEFT: Corinne Smith, Michael Smith, Wood

NEW TO THE OFFICE

Streusand, Landon, Ozburn & Lemmon announced that Anh Nguyen joined the firm as an associate. Her practice includes labor and employment, bankruptcy, and commercial litigation matters. In addition to prior experience in a broad range of bankruptcy cases and civil litigation, Nguyen clerked for the Hon. Jeff Bohm of the U.S. Bankruptcy Court for the Southern District of Texas. Coats Rose announced the addition of Lisa L. Pittman to the Cannabis Business Law practice in the firm’s Austin office. Pittman’s pioneering work in the cannabis business industry in Texas has earned her the title, “The First Lady of Texas Cannabis Law.” Her practice is focused on hemp and cannabis business planning and compliance, as well as commercial litigation.

PATIENT

Munck Wilson Mandala has added litigation partner Robert Linkin to the firm’s Austin office. Linkin represents clients in complex litigation, securities litigation, and class action lawsuits. He brings more than 24 years of legal experience advising clients in business disputes, financial reporting, and commercial litigation. Kevin Wood, Corinne Smith, Marshall Meringola, and Michael Smith, seasoned healthcare attorneys with years of experience, have joined Winstead PC’s Healthcare Industry Group in Austin. The group adds to Winstead’s expanding healthcare practice, which handles a wide range of transactions, compliance, and dispute resolution matters involving the growing and dynamic healthcare business sector.

PRACTICAL

AWARDS

The Austin Black Business Journal recently announced its top ten list of Central Texas Super Lawyers for 2020. Among those honored were Austin Bar members Dexter E. Gilford, Director, Civil Rights Division of the Travis County District Attorney Office; Judge Eric Shepperd, Travis County Court at Law #2; and Linda von Quintus, Vice President, Government and Community, for AAA Texas (not pictured).

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AUSTINLAWYER | MAY 2020

Rob Hargett

In these ever-changing times, weâ&#x20AC;&#x2122;re doing our part to keep everyone connected. Given the City of Austinâ&#x20AC;&#x2122;s Stay Home - Work Safe Order, the May and June issues of Austin Lawyer are digital-only. To our readers, all advertisements are linked to a website or an email. We encourage you to click on the ads. Reach out to your peers, and check in with each other.

To our advertisers, know your marketing is our priority as we navigate this unusual time together. Austin Lawyer will be back in print for the July/August issue. Until then, stay safe! Chellie Thompson, Monarch Media, Advertising Sales for Austin Lawyer 512-293-9277, chellie@monarchmediainc.com

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

MAY 2020 | AUSTINLAWYER

BE WELL

What Lawyers Can Do About Worrying During the COVID-19 Pandemic BY CHRIS RITTER, DIRECTOR, TEXAS LAWYERS ASSISTANCE PROGRAM

eginning with law school, lawyers are at, or near, the top of the list of those suffering from anxiety and depression. Before anything goes wrong in the world, we lawyers are managing the worst things for so many clients that we are constantly on the verge of overload with fear and exhaustion. This likely explains why more than 46 percent of attorneys admit to suffering from depression. Then, something major like this COVID-19 pandemic, or a family loss, or a divorce happens and we can be truly at our tipping point. This is why, I believe, we have an obligation—now more than ever—to learn how to cope with our worrisome minds. Here are five things that can help: 1. Use your calendar to schedule your self-care. Self-care is a solution to worry. However, we are never going to take care of ourselves unless we make it

possible. The idea that we will do healthy things after we finish everything else is one that will always result in failure because we do not have time to finish everything, ever. If we will just put three or more things on our calendar for self-care per week, it can make a world of difference. 2. After a stress trigger, do something physical. Every time we check the news, email, or voicemail, we are triggering our sympathetic nervous system. We will remain in a state of chronic stress until we do something physical, such as walking or swimming or (as the “woke” lawyers are doing) meditating on the breath. One study showed meditation could reduce stress from the 90th to the 57th percentile in just a few weeks. 3. Focus on the things you can control. We are seeing the horrors of a pandemic and experiencing serious loss. Having the wisdom to know the things we cannot change can be a game-changer. If I cannot control it, I need to focus on the few things that I can control. The main one is myself. I can direct my attention away from the things I am pointlessly ruminating about and toward what I can do to help

myself or my loved ones today. Today is all we need to manage when things are highly stressful. 4. Try gratitude journaling. One great way to stop worrying and start getting some relief is to focus some attention on the things in your life that are positive. This does not mean we invalidate our fears. This is being honest. I am grateful my daughter is healthy right now. I am grateful I have people to talk to in my life, even if it is by phone. Focusing on the positives can increase our happiness by 25 percent and give us relief from negative thinking. 5. Help others. Another great way to relieve worrying is to focus on helping others in need. This is perhaps the most powerful tool

and has kept me sober for over ten years. When I get resentful or fearful, I can focus on the needs of other people and my despair almost magically dissipates. One study noted that helping others twice or more per month actually offsets the difference in death rate of people who have stressful jobs. In other words, helping others gives us resilience. There is no easy way through anxiety or grief, but having just a few coping strategies can help. CLICK HERE to see TLAP’s extensive list of resources to help during the COVID-19 pandemic. For mental health or substance use support resources, call TLAP at 1.800.343.TLAP AUSTIN LAWYER or text TLAP AL AL to 555888.

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Negotiate With Confidence - Our Trial Team Has Your Back Meghan Alexander | David M. Gottfried | Michael Jurgens | Tara Gillespie

AUSTINLAWYER | MAY 2020

Travis County Women Lawyers’ Association Awards Scholarships

he Travis County Women Lawyers’ Association (TCWLA) Scholarship Fund recently awarded four scholarships to eight well-deserving women law students at the University of Texas School of Law. The Ann Forman Scholarship is awarded annually to a 2nd or 3rd-year law student. The scholarship committee considers each candidate’s interest and aptitude in child welfare law, related community service, and financial need. This year the award was given to Jill Applegate. The Farris-Cisneros Scholarship is awarded annually to a minority law student. The scholarship committee considers financial need, history of community involvement, and future intentions of the scholarship applicants. This year the award was given to two students: Ashley Alcantara and Harjeen Zibari.

The Mary Pearl Williams Scholarship is awarded to a law student who shows, through community service and activities at the law school, exceptional promise of being a leader in the community. This year the award was given to both Anna Roberson and Melissa Sopher. The Margaret (L-R) TCWLA President Sarah Glaser; TCWLA scholarship board member Diane Hebner; TCWLA Cooper Scholarship scholarship co-chair and board member Velva Price, and scholarship recipients Jill Applegate, Natalie is awarded annually Neill, Anna Roberson, Melissa Sopher, and Zoraima Pelaez. to applicant who best demonstrates perseverance in the face of adversity, financial need, and TCWLA Scholarship Fund or to community service. This year make a donation to a scholarship AUSTIN LAWYER AL AL the award was given to three of your choice, visit tcwla.org. students: Ashley Renee Berry, Natalie Neill, and Zoraima Pelaez. For more information on the

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2016-PRESENT

MAY 2020 | AUSTINLAWYER

Austin Bar/AYLA Leadership Academy Class of 2020 Announces Class Pro Bono Project BY THERESA GOLDE AND NATALIE D. TARNOSKY

Golde

Tarnosky

Theresa Golde, De Leon Washburn & Ward, and Natalie D. Tarnosky, Thompson, Coe, Cousins & Irons, are co-chairs of the class of 2020 Leadership Academy Class Project Steering Committee.

ach spring, the Austin Bar Association and Austin Young Lawyers Association hold a Leadership Academy, accepting up to 30 attorneys in all practice areas. The program culminates with a class project designed to teach the participants about leadership as they work together towards a common goal of serving the community and the Austin Bar. The Leadership Academy was established, in part, to facilitate Austin-area lawyers in making a difference in their own community. This year is like no other. The Austin Bar/AYLA Leadership Academy class of 2020 initially set out to hold a fun community-wide fundraiser for the Austin Bar Foundation in early June. The plan was to hold a barbecue cookoff at Hilgers House because, as Texans, BBQ is a staple! The event was meant to appeal to attorneys’ competitive spirits by fostering good-natured rivalry among sections, firms, and groups of friends in the quest to find the best BBQ in the Bar. When the planning process started in February, the COVID-19 pandemic began hitting communities in the United States. Within weeks, most Americans faced a drastic change

AUSTINLAWYER | MAY 2020

in their normal routines and Austin residents were no exception. It became clear that planning a social networking event during a time of social distancing was not feasible, but the 2020 Leadership Academy class remained committed to their initial goal of giving back to the community. With that in mind, a new plan was formed. Lawyers have knowledge and expertise that can help others, especially during difficult times such as these. As such, the class decided to have each of its members spend a few hours each month from April through June (the remaining time frame of the Leadership Academy program) giving back to the community through remote and virtual pro bono work. The co-

chairs of the Leadership Academy Committee, Michael Roberts and Ayeola Williams, commented on this new plan: “Despite COVID19’s unprecedented disruption to the world around us, this year’s Leadership Academy class has risen to the challenge in ways that should inspire the Austin community, both lawyers and non-lawyers. This pandemic has affected all of us, but it exacerbated an already dire need for legal assistance. The class members’ dedication to using their time and skills to respond to that need in the midst of unparalleled uncertainty is a true example of what it means to be a leader.” Several members of the 2020 Leadership Academy class also expressed their thoughts. Natalie Tarnosky stated, “I think the members of this year’s Leadership Academy class originally came together to do something worthwhile for our community and we were determined not to let this situation stop us from accomplishing that goal. We’re hoping we’ve found a way to practice responsible social distancing during this critical time, while also providing much-needed services to those in need.” Further, Kristiana Butler explained, “Part of the reason I applied to the Leadership Academy was to meet other civic-minded attorneys who care about the legal community and

want to give back. Once the crisis hit, we realized that many pro bono organizations in town would suffer both financially and in terms of volunteers. It feels especially important to work together and give back to the community now, and I am glad the 2020 Leadership Academy class has the opportunity to help bridge that gap.” With several legal organizations in need of attorneys, members of the 2020 Leadership Academy class found themselves in demand, offering their pro bono services to organizations such Volunteer Legal Services of Central Texas, Texas RioGrande Legal Aid, Immigration Justice Campaign, VECINA, the Austin Bar’s Veterans Legal Assistance Program, and Texas Accountants and Lawyers for the Arts. The class goal is to collectively contribute over 100 hours of time to these organizations over the next few months. Theresa Golde remarked, “We know that our community is currently facing extraordinary challenges, and it is our hope that our ability to give back through pro bono work can help alleviate some hardship.” The Leadership Academy welcomes recommendations of legal organizations that need assistance. If you have a suggestion, please contact co-chairs AUSTINNatalie LAWYER Tarnosky or Theresa Golde. AL AL

The Austin Bar/AYLA Leadership Academy class of 2020 with Texas Supreme Court Justice Debra Lehrmann.

OPENING STATEMENT

Both Parallel and Pleasing Mastering Correlative Conjunctions BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

ave you ever given much thought to the pairs of words we use to create parallel constructions that make for pleasing prose? Like this: • The argument was not only long but also boring. and this: • Counsel may either agree with or oppose the decision.

The boldface words are called correlative conjunctions, and they come in pairs. Here are the most common: • both … and • either … or • neither … nor • not only … but also Those are the most commonly used correlative conjunctions, but there are others. Some sources add these: • if … then • just as … so [also] • whether … or Legal-writing expert Bryan Garner lists six more for a total of 13.1 Here I’ll focus on the four most common and address two rules professional legal writers follow when using correlative conjunctions. The most important rule is that the part of speech that follows the first conjunction must also follow the second. That is, if a verb follows the first conjunction in the pair, a verb must follow the second conjunction. So below, A and B must be the same part of speech: • both A … and B • either A … or B • neither A … nor B • not only A … but also B A and B must be syntactically identical: both nouns, both verbs, both prepositions, and so on. Some examples: Not this: Many lawyers are

The most important rule is that the part of speech that follows the first conjunction must also follow the second. That is, if a verb follows the first conjunction in the pair, a verb must follow the second conjunction. not only smart but also think creatively. • Smart (adjective) and think (verb) are not the same part of speech. But this: Many lawyers are not only smart but also creative. • Smart and creative are both adjectives. Another example: Not this: The court was neither willing to look at the owner’s acts in creating a hazard, nor at the dangers created when customers knocked items onto the floor. • The faulty correlative parallelism arises because neither precedes willing (verb) and nor precedes at (preposition). But this: The court was willing neither to look at the owner’s acts in creating a hazard, nor to consider the dangers created when customers knocked items onto the floor.

• The correlative conjunctions are now parallel: neither to look … nor to consider.

elements ….”2 So the sentence is preferably written this way: • The Court did not review the pleadings or discuss the arguments. This problem with nor goes away if you break the one sentence into two and are willing to begin with nor: • The Court did not review the pleadings. Nor did it discuss the arguments.

One more pointer. Don’t forget that with constructions using or Or this: The court was willing or nor, the verb agrees in number to look neither at the owner’s acts with the nearest subject—the in creating a hazard, nor at the one right before the verb. So dangers created when customers in the following examples, the knocked items onto the floor. verb check should agree with • The correlatives are parallel: husband: neither at … nor at. Not this: Every night, either the defendant or her husband On to the second rule. A minor check that the store alarm is set. writing error occurs when writers But this: Every night, either use nor for the second phrase the defendant or her husband or clause in a sentence that did checks that the store alarm is set. not begin with a phrase or clause Granted, the rules discussed using neither, like this: here are fine points, but profes• The Court did not review sional legal writers follow them the pleadings nor discuss the because they create parallel strucarguments. turesLAWYER that are clear and pleasing AUSTIN That example misuses nor. L AL to A read. Why? Bryan Garner says that in these constructions, “or is generally better than nor.” The initial negative—not in our example, “carries through to all the

Footnotes 1. Bryan A. Garner, Garner’s Modern English Usage 225 (4th ed. 2016). 2. Id. at 632.

MAY 2020 | AUSTINLAWYER

American Inns of Court Now Accepting Applications

he Austin chapters of the American Inns of Court are accepting applications for the 2020-21 term. The American Inns of Court are designed to improve the skills, professionalism, and ethics of the bench and bar. ROBERT W. CALVERT INN OF COURT The Robert W. Calvert Inn of Court is accepting applications for the 2020-21 Inn year during the month of May. The Robert W. Calvert Inn of Court was 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. The application deadline is May 31, 2020. Anyone interested should submit a letter stating their interest in joining, a résumé, and

two letters of recommendation (preferably from members of the legal community) to Sherine Thomas. BARBARA JORDAN INN OF COURT To apply for the Barbara Jordan Inn of Court, please send a résumé, cover letter, and two letters of recommendation to barbarajordaninnofcourt@gmail. com by June 30, 2020. Barbara Jordan Inn of Court members include appellate justices, civil and criminal court trial judges, and attorneys in many practice areas, including civil litigation, criminal litigation, probate, immigration law, real estate, and family law. The Barbara Jordan Inn of Court strives for diversity both in its membership and in its practice areas. Monthly meetings are held September through April. At the monthly meetings, team members present one-hour programs after a social hour. Teams meet before their scheduled program to select,

prepare, and practice their presentations regarding legal issues. LLOYD C. LOCHRIDGE INN OF COURT To apply for the Lloyd C. Lochridge Inn of Court, submit a letter stating your interest in joining the Inn, a résumé, and two letters of recommendation from the legal community by May 29, 2020. Email your application documents to Ryan Botkin. Applications are welcome from any practicing litigation attorney or judge. Membership is limited to the number of available openings. Successful applicants are admitted as Associates (licensed less than 10 years), or Barristers (licensed 10 to 20 years). The Lochridge Inn meets monthly from September to April and fosters dialogue on legal issues, the art and science of trial advocacy, and discussion about high-profile cases. Contact Ryan Botkin at 512.960.4730 with any questions.

THE HONORABLE LEE YEAKEL INTELLECTUAL PROPERTY INN OF COURT The Honorable Lee Yeakel Intellectual Property Inn of Court is accepting applications for admission during the month of May. Applicants are admitted as student, associate, barrister, and master members. The Inn meets monthly from September to April. Each meeting includes a presentation by Inn members. Inn members earn CLE credit for presentations and attendance. Membership applications should be sent to Brian Nash and Darla Thomas. For tracking purposes, please include “Lee Yeakel IP Inn of Court” in the subject line. For new-member applications, please send a statement of interest, a résumé, and two letters of recommendation. Visit innsofcourt.org/inns/yeakelipinn AUSTINLAWYER AL AL for more information.

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AUSTINLAWYER | MAY 2020

Thirteenth Annual Color of Justice Program

he National Association of Women Judges (NAWJ), in partnership with the Travis County Women Lawyers’ Association (TCWLA), held the thirteenth annual Color of Justice Program at the UT School of Law’s Eidman Courtroom on Feb. 5, 2020. More than 70 middle- and high-school students from historically underserved communities were able to learn from lawyers and judges while having the opportunity to visit the UT campus. The Color of Justice Program emphasizes the rule of law and provides opportunities for students to have one-on-one conversations with judges and lawyers, with the goal of inspiring students to enter the legal profession. The event featured two panel discussions with speakers sharing their personal backgrounds, experiences, and areas of practice. They discussed the importance of personal commitment and perseverance, and the role lawyers and judges play in our society.

ABOVE: Attorney panel answering student questions (Sherine Thomas, Sung Je Lee, Kim Hidrogo, Aden Allen.)

The first panel, “Making a Difference,” featured judicial panelists. Panelists were Judge Brad Urrutia, of Travis County’s 450th Criminal District Court; Justices of the Peace Sylvia Holmes, Precinct 3, and Nick Chu, Precinct 5; and retired Hays County Court at Law Judge Linda Rodriguez. The judicial panel was moderated by NAWJ District 11 Director and Travis County Court at Law 6 Judge Brandy Mueller. The second panel, “Law as a Career: Preparing the Way,” featured Sung Je Lee, Dau Law Firm; Aden Allen, Wilson Sonsini; and Kim Hidrogo, Assistant Travis County Attorney. The panel was moderated by TCWLA board

member and Executive County Attorney for Travis County Sherine Thomas. NAWJ granted a $1,000 Access to Justice scholarship to TOP: (L-R) Judge Brandy Mueller, Access to Justice Scholarship Noorulanne recipient Noorulanne Jan, and Judge Orlinda Naranjo. Jan for her BOTTOM: Engaged students during presentation. demonstrated The Color of Justice Program commitment to the achievement would not be as successful withof equality of opportunity and out its sponsors, which include access to justice. She is a Mithoff the William Wayne Justice Center Pro Bono Scholar for Street Law, for Public Law, TCWLA, Austin has interned with the Texas AFLBlack Lawyers Association, the CIO and the Texas Legal Services Hispanic Bar Association AusCenter, and is president of the AUSTINof LAWYER tin, and the Morris Law Firm. Texas Law Muslim Legal Society. AL AL

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Texas Board of Legal Specialization Inducts 239 Attorneys Ceremony Marks 45 Years of Attorney Board Certifications in Texas

he Texas Board of Legal Specialization (TBLS) welcomed 239 attorneys and 29 paralegals to its board certification program at its annual induction ceremony on Friday, March 6, 2020, at the AT&T Executive Education and Conference Center in Austin. The ceremony marked 45 years since TBLS’ first attorneys were board certified in the state. The organization also honored the late Brian L. Webb with the John. F. Sheehy, Jr. Distinguished Attorney Award, while Troy McKinney received the Tom Garner Award for his dedicated service to the organization. “In 1975, TBLS swore in the first Texas board certified attorneys in history. I am proud that 45 years later the program has grown to be one of the biggest legal certification groups in the country,” said Leo Figueroa, TBLS executive director. “As the number of applicants, board certified attorneys and paralegals, and specialty areas have increased since then, so has the value of this special certification, and I am proud that TBLS’ newest specialists will be carrying on the legacy of this elite legal status well into the future.” The ceremony was attended by more than 400 Texas attorneys, paralegals, and family members from across the state, as well as Texas Supreme Court Justices and partnering organizations. New board certified attorneys and paralegals were sworn in by Texas Supreme Court Justice Jane Bland, who is board certified in Civil Appellate Law and Civil Trial Law and was also the program’s keynote speaker. There are more than 100,000 attorneys licensed to practice in Texas and only around 7,400 are board certified, which is a voluntary attainment. Board certified attorneys must be licensed for at least five years, devote a required percentage of their practice 20

AUSTINLAWYER | MAY 2020

ABOVE: TBLS Executive Director Leo Figueroa speaks to the audience before the swearing-in ceremony. RIGHT: Newly board-certified attorneys being sworn in.

to a specialty area for at least three years, attend continuing education seminars, be evaluated by fellow lawyers and judges, and pass a six-hour written examination. To remain certified in any of TBLS’ 25 law specialties, attorneys must apply for recertification every five years. For paralegals, board certification is also a voluntary program with certifications in eight specific areas of law. Board certified paralegals must satisfy experience requirements, attend continuing education seminars, and pass a four-hour written examination. To remain certified, paralegals must apply for recertification every five years. To learn more about board certification, visit tbls.org. Congratulations to the following AYLA and Austin Bar members on their board certifications: Jonathan Davis Stone (Administrative Law) Belinda Jean Roberts (Child Welfare Law)

Leigh Mathews Rodriguez (Child Welfare Law)

Ilana Rebecca Tanner (Family Law)

Jennifer Rene Brannen (Civil Appellate Law)

Robert Levering Spurck (Health Law)

Jason Patrick Gorman (Commercial Real Estate Law)

Adam Hugh Sencenbaugh (Labor and Employment Law)

Natalya S. Sheddan (Construction Law)

Austin Harris Kaplan (Labor and Employment Law)

Ellen Pearson Stewart (Estate Planning and Probate Law)

Robert Green Hargrove (Oil, Gas and Mineral Law)

Clair Dismoor East (Estate Planning and Probate Law)

Bryan David Lauer (Oil, Gas and Mineral Law)

Emily Rebecca Franco (Estate Planning and Probate Law)

Matthew Ryberg Morrison (Oil, Gas and Mineral Law)

John William Conner (Estate Planning and Probate Law) Carly Autumn GallagherMurray (Family Law)

Ryan Squires (Personal Injury AUSTIN LAWYER L AL TrialALaw)

THIRD COURT OF APPEALS CIVIL UPDATE The following are summaries of selected civil opinions issued by the Third Court of Appeals during March 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of April 6, 2020.

> MANDAMUS: Court grants mandamus relief in special-appearance discovery dispute. In re JANA Corp., No. 03-1900291-CV (Tex. App.—Austin Mar. 25, 2020, orig. proceeding) (mem. op.). Christian Air Conditioning sued JANA Corporation for providing defective pipes. JANA, a Canadian business, filed a special appearance. The trial court granted Christian’s motion to compel and ordered depositions that could cover a list of 30 topics. JANA sought mandamus relief. The court of appeals noted that until a plaintiff establishes

personal jurisdiction, discovery is limited to the jurisdictional question. Allowing discovery on the merits denies the protections of Rule 120a. The court concluded that only three of the topics related to personal jurisdiction. Discovery related to JANA’s testing and investigations related to the merits of the lawsuit. The court granted mandamus relief and limited the depositions to three topics. IMMUNITY: Board retains immunity against selective-enforcement claim. Fuentes v. Texas Appraiser Licensing & Certification Bd., No. 03-18-00660-CV (Tex. App.— Austin Mar. 20, 2020, no pet. h.) (mem. op.). Board revoked Fuentes’s residential-appraiser license for failing to comply with the Uniform Standards of Professional Appraiser Practice (USPAP). Fuentes filed suit for declaratory relief, contending that

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Board violated his constitutional equal-protection and due-process rights by selectively enforcing USPAP against him but not against its own investigators. The trial court granted Board’s plea to the jurisdiction on immunity grounds. The court of appeals noted that the UDJA provides for a limited waiver of immunity for challenges to a statute’s validity. Fuentes’s selective-enforcement claim, however, did not challenge a statute. Accordingly, immunity was not waived. Further, because Fuentes failed to allege facts showing the classification between private appraisers and investigator appraisers was unconstitutionally impermissible, he was not entitled to replead. The court affirmed. TCPA: Defamation lawsuit based on review posted on website dismissed. LMV-AL Ventures, LLC v. Hemphill, No. 03-19-00164-CV (Tex. App.—Austin Mar. 6, 2020, no pet. h.) (mem. op.). Hemphill’s brother lived at The Harbor, an assisted-living facility owned by LMV. After her brother’s health declined, Hemphill complained to The Harbor’s management and left a review of the facility on two websites, criticizing the level of care provided to her brother. LMV sued Hemphill for defamation and business disparagement. The trial court granted Hemphill’s TCPA motion to dismiss and awarded her fees and sanctions. The court of appeals concluded that the review was not “peculiarly harmful” to LMV’s reputation and was not defamation per se. The appellate court further concluded that LMV failed to present prima facie evidence of damages. The court affirmed. The concurrence concluded that Hemphill’s statements accusing LMV of failing to provide proper services is uniquely injurious to an assisted-living facility and thus was defamatory per se but concluded that LMV failed to establish that the statement was false.

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.

FAMILY LAW: Court upholds injunction restricting father’s girlfriend from having contact with his daughter. Jackson v. Jackson, No. 03-1900014-CV (Tex. App.—Austin Mar. 6, 2020, no pet. h.) (mem. op.). Divorce decree enjoined father from allowing his daughter to be in the presence of his girlfriend or his girlfriend’s child until daughter turned three. Father’s attorney did not object at trial to the injunction. The court of appeals, however, reached the issue as a legal sufficiency challenge to the evidence. The court noted that Family Code section 153.254(a) gives broad discretion to consider the impact and influence of individuals on a parent’s period of possession. The evidence established, through emails and texts, that girlfriend was a negative influence. The court affirmed the injunction to restrict girlfriend’s contact with daughter but reversed the injunction relating to girlfriend’s child’s contact, concluding there was no evidence to support that portion of the injunction. The concurrence/dissent concluded that there was evidence to support the injunction restricting contact AUSTIN LAWYER with girlfriend’s child. AL AL MAY 2020 | AUSTINLAWYER

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 November 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of April 1, 2020.

CHALLENGES FOR CAUSE– BIAS: Trial court did not abuse its discretion in granting State’s challenge for cause against veniremember who demonstrated bias against prosecution. Dixon v. State, No. 03-18-00058CR (Tex. App.—Austin Nov. 8, 2019, pet. ref’d) (mem. op., not designated for publication). Dixon was convicted of felony murder. During jury selection, one of the veniremembers expressed negative feelings about prosecuting attorneys and indicated that his feelings would elevate the State’s burden of proof to “higher” than beyond a reasonable doubt. Upon further questioning, the veniremember maintained that position, although he indicated that he “understood” and “could live with” the beyond-a-reasonable-doubt standard. The State challenged this veniremember for cause, and the trial court granted the request. 22

AUSTINLAWYER | MAY 2020

The appellate court concluded that the trial court’s action was proper. The court explained that a challenge for cause may be made by either party if “the juror has a bias or prejudice in favor of or against the defendant,” and a bias against the prosecution is equivalent to a bias in favor of the defendant. The court added that even if the veniremember indicates he can set aside his bias, he should not serve on the jury. Thus, the trial court did not abuse its discretion in granting the State’s challenge. REASONABLE EXPECTATION OF PRIVACY– HOMELESSNESS: Defendant lacked standing to challenge search and seizure of personal belongings found in trashcan outside vacant building where defendant lived. Criner v. State, No. 03-1800528-CR (Tex. App.—Austin Nov. 15, 2019, pet. ref’d) (mem. op., not designated for publication). Criner was convicted of murdering a student at the University of Texas. At the time of the murder, Criner was experiencing homelessness and living inside a vacant building near the campus. The day after the murder, police and firefighters responded to a report of a fire at the building and found Criner inside. Police arranged for Criner to move to a shelter. Criner took some of his personal belongings with him, and police placed the remainder of Criner’s belongings inside a trashcan outside the building. After Criner became a suspect in the murder, police searched the trashcan and found evidence implicating Criner in the crime. During trial, Criner moved to suppress the items recovered from the trashcan, asserting that the warrantless search and seizure of those items violated his reasonable expectation of privacy. The district court denied the motion, and the appellate court affirmed. The court concluded that although Criner might have

had a subjective expectation of privacy in the building and its surrounding curtilage, this expectation was not objectively reasonable under the circumstances. Criner had no permission to be in the building, no ownership or possessory interest in the building, and no ability to exclude others from or exert control over the building. Thus, Criner had no standing to challenge the search and seizure of the evidence found in or around the building. LESSER-INCLUDED OFFENSES–SEXUAL ASSAULT: Offensive-contact assault not a lesser-included offense of sexual assault. Chabrier v. State, 592 S.W.3d 188 (Tex. App.—Austin 2019, no pet.). Chabrier was charged with sexual assault. At trial, defense counsel requested an instruction on the misdemeanor offense of offensive-contact assault, which counsel argued was a lesser-included offense of sexual assault. The district court denied Chabrier’s request, and the jury convicted Chabrier of attempted sexual assault. On appeal, Chabrier asserted that he was entitled to an

instruction on offensive-contact assault. Specifically, he claimed that nonconsensual sexual contact was “functionally equivalent” to offensive contact. The appellate court, relying on a series of cases involving similar offenses, disagreed, concluding that the elements of offensive-contact assault are not “functionally the same or less than those required to prove” sexual assault. A person commits offensive-contact assault if the person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. In contrast, to prove that Chabrier committed sexual assault as alleged in the indictment, the State was required to prove only that he penetrated the victim’s sexual organ without her consent. Thus, Chabrier could be guilty of sexual assault as alleged “even if there was no evidence presented as to his knowledge or belief that [the victim] would regard theLAWYER contact AUSTIN as offensive or provocative.” AL AL

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 April 6, 2020.

CLASS ACTIONS AND PERSONAL JURISDICTION: Defendant does not waive objection to personal jurisdiction concerning claims of putative class members by omitting those objections from Rule 12 motion before class is certified. Cruson v. Jackson Nat’l Life Ins. Co., No. 18-40605, 2020 WL 1443531 (5th Cir. Mar. 25, 2020) Cruson and other Texas residents brought a putative class action lawsuit against Jackson National Life Insurance Company, claiming Jackson overcharged them in breach of their annuities contracts. Jackson moved to dismiss the complaint under Rule 12(b)(1) and 12(b)(6) but did not raise lack of personal jurisdiction in its Rule 12 motion. After the district court denied Jackson’s motion to dismiss, Jackson asserted both in its answer and in its subsequent response to plaintiffs’ motion for class certification that the district court lacked personal jurisdiction over Jackson for claims of putative class members residing outside of Texas. Jackson also moved for summary judgment. The district court ruled that Jackson waived any personal jurisdiction defense by failing to raise the issue in its Rule 12 motion and, alternatively, by substantially litigating on the merits of plaintiffs’ claims. The district court also granted plaintiffs’ motion for class certification, certifying a nationwide class of persons who purchased certain annuity products. On interlocutory appeal, the Fifth Circuit reversed. Although omitting an “available” defense of lack of personal jurisdiction from a Rule 12 motion waives the defense, see Fed. R. Civ. P. 12(h)(1), the court held that Jackson’s objection

to personal jurisdiction was not “available” when Jackson filed its Rule 12 motion because Jackson’s objection concerned only unnamed class members and the district court had not yet certified the class. “What brings putative class members before the court is certification,” the court explained. “To rule that Jackson was required, on pain of waiver, to raise a personal jurisdiction objection against those putative class members would validate ‘the novel and surely erroneous argument that a nonnamed class member is a party to the class-action litigation before the class is certified’” (quoting Smith v. Bayer Corp., 564 U.S. 299, 313 (2011)). The Court also found error in the district court’s alternative ruling that Jackson waived its personal jurisdiction defense by substantially litigating the merits. The Fifth Circuit has “long held that a non-resident defendant may participate in litigation without submitting to the court’s jurisdiction so long as it maintains its objection to personal jurisdiction.” Nothing about Jackson’s post-answer litigation conduct— which included filing a motion for summary judgment on the named plaintiffs’ claims—was inconsistent with maintaining its objection to personal jurisdiction. Notably, the court reached this issue even though Jackson did not brief it. In a separate concurrence, Judge Clement explained that the court may exercise its discretion to deviate from its usual “rule of deeming unargued issues abandoned.” Deviating from that rule of discretion was justified, Judge Clement concluded, because “the district court’s error was so obvious that it needn’t be explained.” CONTRACTUAL CHOICE OF LAW: Choice-of-law provision does not apply when deciding question of contract formation concerning writing that contains provision. Edminster, Hinshaw, Russ & Assocs., Inc. v. Downe Twp., No. 1920176, 2020 WL 1291637 (5th Cir. Mar. 19, 2020). The mayor of New

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

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

Jersey’s Downe Township signed a professional services agreement with Houston-based engineering firm Edminster, Hinshaw, Russ and Associates (EHRA) to help Downe identify FEMA-compliant projects in the wake of Hurricane Sandy. The document contained a Texas choice-of-law provision and also stated that the mayor had the authority to bind the township. Downe’s governing body, the Township Committee, never approved the agreement. EHRA then assisted Downe with FEMA-related projects and billed the township close to $400,000. Downe never paid EHRA, leading EHRA to sue Downe for breach of contract. In defense of the suit, the township argued that the agreement was not binding on Downe. The district court disagreed and granted summary judgment in EHRA’s favor on the issue of contract liability. After a bench trial, the district court awarded EHRA close to $372,000 in damages and attorney’s fees on the breach of contract claim. The district court did not address EHRA’s claim for unjust enrichment. On appeal, the Fifth Circuit reversed and rendered judgment in Downe’s favor on the breach of contract claim. Under the New Jersey Local Public Contracts Law, a municipality like Downe can contract for professional services exceeding $17,500 only by resolution of the governing body. Purported contracts that a

New Jersey township’s governing body does not approve are not contracts. Because Downe’s governing body never approved the agreement that the mayor and EHRA signed, there was no contract between Downe and EHRA under New Jersey law. EHRA argued that New Jersey law on public contracts does not matter because the agreement contained a Texas choice-of-law clause. This argument presented, as the court put it, a chicken-or-the-egg question: Does the choice-of-law provision apply when deciding a question of contract formation? The court held that it does not. To form a contract, each party must have capacity, and a municipality that lacks legislative authority to enter into an agreement lacks capacity. Without capacity, there is no contract. And if there is no contract, there is no binding choice-of-law provision. The court concluded, then, that because Downe Township never entered into a contract with EHRA under New Jersey law, Downe cannot be liable for breaching such a contract. The court rendered judgment for Downe on the breach-ofcontract claim. As for the unjust enrichment claim that the district court never considered, the Fifth Circuit remanded for the district court to decide in the first instance, with the benefitAUSTIN of full briefing, LAWYER whether that claim is viable. AL AL MAY 2020 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

Federal Criminal Court News Criminal Justice in the Time of Covid-19 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.

y the time you read this, Travis County residents will have been under a stayat-home order for more than a month. The publication deadline for this magazine requires writers to submit their articles about 30 days before they are published, which makes writing on anything timely particularly risky since things may well change between submission and publication. I will risk looking like an April Fool in

early May because what happened in local criminal justice during the quarantine is worth noting for history, if nothing else. Travis County, like most major urban counties in Texas, recognized that the possibility of novel coronavirus transmission in the Travis County Jail could endanger the lives of both inmates and jail staff, and quickly began working towards reducing the jail population. The Travis County District Attorney’s office went so far as to review sentences that were handed down prior to the pandemic, in many cases working with defense counsel and the courts to modify sentences post-conviction so county jail inmates could be released sooner. Inmates whose cases could be resolved with pleas to misdemeanor “time served” were offered such plea bargains, and which most accepted. Travis County judges, unable to hold regular dockets or jury trials, instead focused their attention on resolving cases via “virtual dockets” using Zoom, with all paperwork processed and signed electronically and the need for attorneys, and even defendants, to physically appear in

court greatly reduced. Emphasis was placed on hearings that could result in the release of inmates. On March 29, 2020, Governor Greg Abbott issued an executive order purporting to limit the release on personal bond of any defendant accused, or previously convicted of, any crime of violence against a person.1 This order also purported to limit the authority of county sheriffs to award credit for good behavior (“good-time credit”) to inmates. In the order, the governor found that the release of potentially violent individuals (even those presumed innocent) was more dangerous than exposing inmates and jail staff to potentially life-threatening disease. Although “tough on crime” sentiment is common among elected officials in conservative states, the timing of the order was jarring. Just when it appeared that concern for human health would outweigh the usual thinking in criminal justice, the order sounded a screeching note of dissent. Obvious separationof-powers problems were quickly pointed out by defense attorneys and some judges. Should any judge specifically rely on that

order to deny a personal bond, a writ of habeas corpus to the Third Court of Appeals would follow quickly, with local and statewide defense attorneys working to draft forms and motions for such writs. Tellingly, defendants financially able to post bail in cash or pay the fees of a bail bondsman would be unaffected by the governor’s edict. Having practiced criminal defense law in Travis County since 1995, this writer has seen seismic shifts in attitudes towards incarceration, with tidal shifts back and forth between reform and punitive sentencing. It will be interesting to see what practices and policies change permanently--such as alternatives to incarceration and the discriminatory nature of cash bail—and continue to reflect changing public opinion about crime and AUSTIN LAWYER punishment. AL AL Footnote 1. Executive Order GA-13.

You’re busy looking out for your clients’ needs. Who’s looking out for yours? Jim Kaighin, Jr., CFP Financial Advisor

3500 Oakmont Blvd., Suite 101 Austin, TX 78731

512-302-6051 kaighinjr@hilltopnetwork.com Member: FINRA/SIPC 24

AUSTINLAWYER | MAY 2020

Deadline Extended for Regina Rogoff, Professionalism Award Nominations JUN. 1 REGINA ROGOFF AWARD AND PROFESIONALISM AWARD NOMINATIONS DEADLINE DETAILS: austinbar.org

he deadline for submitting nominations for the Regina Rogoff and Professionalism Awards has been extended to June 1, 2020. Email nominations to DeLaine Ward. The awards will be presented at the Bench Bar Conference, which has been rescheduled for Fri. Aug. 28 at the Austin Country Club.

REGINA ROGOFF AWARD PAST RECIPIENTS: 2002 – Regina Rogoff 2003 – Berry Crowley 2004 – Betty Balli Torres 2005 – Bree Buchanan 2006 – Fred Fuchs 2007 – Garth Corbett 2008 – Rod Nelson 2009 – Jeana Lungwitz 2010 – Ann Forman (posthumously) 2011 – Trish McAllister 2012 – Lori Duke 2013 – Randy Chapman 2014 – Ann Foster 2015 – David Escamilla 2016 – Susan Miller 2017 – Jeannie Rollo 2018 – Craig Moore 2019 – Leslie Hill

PROFESSIONALISM AWARD PAST RECIPIENTS: 2000 – Chuck Herring 2001 – Xavier Medina 2002 – Steve Zager 2003 – Tom Watkins 2004 – Larry Langley* 2005 – Mina Brees* 2006 – Mike McKetta 2007 – Claude Ducloux 2008 – Tim Sulak 2009 – Jeff Jury 2010 – Phil Friday 2011 – David Sheppard 2012 – Chip Brees 2013 – Senator Kirk Watson 2014 – Susan Burton 2015 – Martha Dickie 2016 – Jim McCormack 2017 – David Gonzalez 2018 – Patrick Keel 2019 AUSTIN – Judge Bea Ann LAWYER L AL SmithA(ret.) Deceased*

THE REGINA ROGOFF AWARD recognizes outstanding public sector service and serves as a lasting tribute to the career achievements of Regina Rogoff, Executive Director of Legal Aid of Central Texas. THE PROFESSIONALISM AWARD honors a lawyer who best exemplifies, by conduct and character, truly professional traits that others in the bar seek to emulate, and who all in the bar admire. Those selected for the award will truly be “role models” for the bar, particularly for younger or less experienced lawyers.

MAY 2020 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN SANDY BAYNE, BAYNE LAW

Community Has Never Been More Important

his President’s Column is challenging to write because as I sit here today, we are going into our third week of quarantine. I have no clue what Austin, our country, or the world will look like when this article is published. While I was mentally gearing up for normal life to resume in midApril, President Trump extended the social distancing guidelines through the end of April. My hope is that, as you read this article, everything is back to “normal.” However, I don’t think our “normal” will ever be quite the same. I am in awe of how our local communities have come together, especially our international community. We have come together as humans—across race, ethnicity, age, and political affiliation—-to support and uplift each other through this pandemic. There have been so many moving ways in which we have come together like never before. Musicians posting free online concerts from their living rooms; amazing performing arts companies like Cirque du Soleil streaming shows for families to watch from their sofas; physical trainers and exercise studios posting free workouts and yoga sequences to keep us moving and mentally stable; volunteers shopping for elderly strangers; schools donating lunches to at-risk youth who count on going to school to eat during the day;

AUSTINLAWYER | MAY 2020

humorous posts making us laugh during these trying and frightening times; free online CLE and extensions to CLE completion deadlines—the list is endless. The main takeaway for me is that we are all one and all in this together. Typically, we are used to atrocities that affect us at the country, state, or (at most) city level, but to experience a pandemic that affects every human in the world truly unites us like nothing we’ve experienced before. If you didn’t know what Zoom was before now, you most certainly have become well acquainted with it. Our local judges have been working tirelessly to ensure that at-risk youth and those who need access to our courts aren’t deprived of the opportunity despite the quarantine. Our children have been spending hours online seeing their classmates for some semblance of normalcy and an effort to continue their education without too much interruption. The Austin Bar, along with our esteemed colleagues at the State Bar of Texas, have been diligently posting relevant free CLEs to keep us all informed and engaged. Despite the hardships we have experienced in acquainting ourselves with our new normal, I believe that there are some valuable silver linings. Predominately, I can think of two: the value of community and appreciation of the little things. As I look out from my balcony onto beautiful downtown Austin, I see American flags hanging outside of many of my neighbors’ balconies. It almost brings me to tears. I have never before seen so much solidarity and a feeling of togetherness. I also believe we have learned that we don’t need that much to

move forward. As long as we have family, friends, food, and water (and, apparently for some, hundreds of Costco-sized toilet paper rolls), we have all we need. I hope that going forward we have a greater sense of appreciation for what we do have. I hope we realize and appreciate that, generally, we have what we need. And, as it turns out, we can get by without a lot of the superfluous and materialistic things that we previously thought we couldn’t live without. I urge us all to keep up the spirit of helping each other as we move into our new normal. We have all done such a good job supporting each other through social media, phone calls, FaceTime, and emails. Let’s keep this momentum going! In our community, there are many ways to help, but two in particular have spoken to me. First, I had the privilege to volunteer as an attorney ad litem through Judge Amy Clark Meachum’s Travis County pro bono wheel, where I was able to help a woman divorce her abusive husband. It took years for the divorce to become final because it was difficult to appoint an ad litem to the case. From the date I was appointed, it took a few months and the divorce was finalized. The look of relief and appreciation when the divorce was granted will forever leave an impression on my heart. I urge you to get involved in this wonderful opportunity to serve as an attorney ad litem through the Travis County pro bono wheel.

Another area where there is a huge need is in providing mentors for foster children. Partnerships for Children has an established monthly curriculum for foster children in Central Texas; they simply need mentors. 8,625 foster care youth in Texas are between the ages of 14 and 18 and each year, roughly 1,200 of them age out of the foster care system.1 Several judges have mentioned that, despite recommending mentors be appointed for children, many go months—if not years—without being assigned a much-needed mentor. I encourage you to look into Partnerships for Children, where mentors can make a huge difference in a child’s life. I hope we all go into the summer feeling inspired in our oneness and our desire to continue to help each other. Through this pandemic, we have all been privy to many moving quotes, photos, and videos. I’d like to share one of my favorites with you: “It isn’t the end of the world. It is the most remarkable act of global solidarity we may ever AUSTIN LAWYER AL AL witness.” ~ Anonymous Footnote 1. www.partnershipsforchildren.org/yes.

AUSTIN YOUNG LAWYERS ASSOCIATION

Solo Practice and Working Remotely in the Time of Corona BY JESSICA MACCARTY

f you had told me a year ago that not only would I open my own law firm, but I would also do so in the midst of a life-altering, societyschisming pandemic, I would’ve asked how much you’d had to drink. I would’ve said I had no interest in opening a firm, and besides, who would be crazy enough to do such a thing in the middle of an almost-global quarantine? As it turns out, the answer to my own hypothetical question is me. Opening a law firm in general, particularly alone, is a monumental task. It’s a terrifying, expensive endeavor even at the best of times. Attempting to open one as COVID-19 scorches its way across the world has been an experience all its own, full of particular challenges as everyone attempts to conduct business as usual while abiding by the social distancing rules. I’d therefore like to take a moment to share with you my tips

and tricks for maintaining at least the faintest shred of sanity while operating as a solo practitioner or working from home during a literal plague. CHECKLISTS ARE YOUR NEW BEST FRIENDS Organization is critical for all attorneys, particularly for solo practitioners or those working from home. However, when forced to sit in your house all day devoid of interaction with the outside world, checklists and schedules become critical for organizing your day and continuing to build forward momentum. When you have no client meetings, no depositions, and no networking events to attend, it can be tempting to simply sit around the house in your sweatpants and drown yourself in Netflix. Organization-—and checklists in particular—provide a mechanism to re-center on what needs to be accomplished while providing that dopamine hit of satisfaction when

Use this time in isolation to learn how to work with new platforms and applications as they become critical to functioning in the dawn of a new legal era.

a task has been completed. A WHOLE NEW (TECHNOLOGICAL) WORLD As someone who is convinced that computers run on fairy dust, technology for me can be a bit intimidating. However, trying to build a law practice while shuttered inside all day has taught me I’m going to have to figure it out because remote practicing is here and will only expand in the future. Discussions on how to handle mediations via Zoom, attend hearings by conference call, and set up video depositions when no one can be within six feet of one another have dominated most of the conversations between attorneys online. When this virus fades from the public sphere, attorneys and courts will have made huge strides in updating their technology and troubleshooting how to conduct business remotely out of necessity, and the chances that we return to the “old” way of doing things are slim. It is therefore imperative to use this time in isolation to learn how to work with new platforms and applications as they become critical to functioning in the dawn of a new legal era.

Jessica MacCarty is the founder of the MacCarty Law Firm which specializes in workers’ compensation, personal injury, and civil appellate cases. She has practiced in Austin for more than eight years and is board certified in workers’ compensation.

platform and advertise your firm anywhere you can. Join Facebook groups and other online hubs where you can ask questions and promote your availability for referrals. Ask people you know for the phone numbers of other attorneys in your practice area and call them for advice. And continue to harass your friends and drive them to the brink of insanity with your never-ending business planning and plotting. Because the friends who remotely lose their minds together, stay together.

REMOTE NETWORKING: KEEP YOUR FRIENDS CLOSE… BUT NOT TOO JUST DO IT CLOSE Fun fact: There is no perfect When I started tinkering with time to shift to a solo practice the idea of going solo, I cornered or a remote-based system. There everyone I’ve ever known who will always be complications, and started a firm and picked their whether they’re on a global, local, brains incessantly. The tenet they or individual scale, the outcome all repeated was that networking is the same—you just have to do it. is critical and having people who Do your due diligence, outline as will refer cases to you in the bemany new operating procedures ginning is paramount. Networkand processes as possible, and ing is hard enough in person, but when the time comes, embrace attempting to do it while under the ever-changing seas of life with compulsory house arrest is a open arms and enthusiasm. whole different ballgame. Just don’t actually embrace The solution I’ve devised is AUSTINanyone—you LAWYER don’t want to get to ask for help on every possible Asick. L AL MAY 2020 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Honors Award Winners

he AYLA Board has recognized members of our community for three prestigious awards. These local winners will be submitted to TYLA as nominees for statewide awards. The Outstanding Young Lawyer Award recognizes a young lawyer who has demonstrated professional proficiency, service to the profession, and service to the community. This year’s winner is Travis County Associate Judge Aurora Martinez Jones. The Mentor Award recognizes an attorney who has consistently demonstrated a commitment to mentoring young lawyers in her legal community. This year’s winner is Leslie Boykin. The Liberty Bell Award recognizes an outstanding non-lawyer in Texas who has made the most selfless contribution to her

Martinez Jones

Boykin

Jimenez

AYLA honors and congratulates Judge Aurora Martinez Jones for the Outstanding Young Lawyer Award; Leslie Boykin for the Mentor Award; and Laura Jimenez for the Liberty Bell Award. community to strengthen the effectiveness of the American system of justice by instilling better understanding and appreciation

of the law. This year’s winner is Travis County District Clerk Executive Assistant Laura Jimenez. Thank you to everyone who

submitted a nomination and to those who serve our community, whether you areAUSTIN loudly recogLAWYER nized or quietly appreciated. AL AL

March Community Service Days

YLA extends a heartfelt thank you to everyone who got their hands dirty volunteering with the Green Corn Project (GCP) in March. Special thanks to those who organized the event. It may have been organic, but that doesn’t mean it happened without planning. This was the second time AYLA has volunteered with the GCP at Langford Elementary School. The volunteers helped students learn about gardening and the students were able to take the vegetables home after they were grown. The GCP is a grassroots, volunteer-run organization dedicated to helping Central Texans in need grow their own organic vegetables. AYLA is proud to partner with the GCP and help them achieve their vision to 28

AUSTINLAWYER | MAY 2020

(L-R) Meghan Kempf, Lena Proft, Blair Leake, and Jenna Reblin Malsbary volunteering with the Green Corn Project.

ensure Central Texans have nutritious, affordable food grown

in ways that conserve natural resources, promote self-reliance,

AUSTINLAWYER AL AL and strengthen communities.

Working at Home (Somewhat) Productively with Pets BY KELLEY DWYER, CHAIR, AUSTIN BAR ANIMAL LAW SECTION

n the midst of a public health emergency, productivity is not, and should not be, our top priority. Health and safety rightly come first. However, our clients and our community need us to function in some capacity while we navigate how best to work from home for the foreseeable future. In normal times, our companion animals provide us with entertainment and unconditional love during our off-work hours. Their shenanigans can be less than desirable when trying to maintain a professional presence in online meetings or during conference calls. Pets enrich our lives. They lower our blood pressure, increase our happiness, and help us become more compassionate humans. It is no accident that many pet dogs and cats moonlight as therapy animals and provide comfort to those in hospitals, courtrooms, schools, and long-term care facilities. Many recent social media posts show pets hijacking their owner’s online meetings, and most end with the meeting attendees having a good chuckle, sharing stories or cameos of their own pets, and then continuing business with everyone feeling more at ease. Pets allow us to temporarily forget about our worries. They make us laugh and reset our mood. We can cast off our “workface” formality and get on with the business of the day in a more

relaxed fashion. Pets (at least those I have known) do not understand what a work meeting is. They only know you are talking and therefore you must be talking to them. As someone who has worked primarily from home for over a decade, and with a cast of rescue/ shelter animals milling about, I hope I can provide some helpful tips and guidance. A TIRED PET IS A GOOD PET. If you have a conference call or online meeting scheduled, take your dog for a nice long walk first. If you have a cat, it’s laser pointer time inside. Let your pet get their ‘zoomies’ out. This will also force you to get some exercise, fresh air, and a change of scenery. Once your pet is tired out, and if it is near their regular mealtime, try feeding them a bit early so they take a nap while you attend your meeting. I do not recommend letting dogs spend time in fenced backyards unattended. I have seen too many dogs end up going over, under, or through fences. THE CRATE ESCAPE. If your pet is already crate-trained, then the crate is a wonderful place for them to hang out and nap while you are participating in a work call or meeting. If your pet is not already crate-trained, you can work on crate training, but I do not recommend doing so while inter-

facing with the public, especially if your pet is not fond of its crate. JUST SHUT THE DOOR? Just putting your pet in another room and shutting the door seems like a simple solution. If your pet is amenable to this method, go for it (you lucky soul), but for most pets it will generate more disruption (barking, whining, meowing, scratching at the door) when they cannot see you. GIVE THEM A PROJECT. For dogs, especially larger dogs, a Kong or similar durable toy stuffed with a few bits of kibble, some peanut butter at the opening of the toy, and a biscuit garnish on top is a great way to occupy their mind, mouth, and paws while you work. Another dog project could be tennis balls in a muffin tin, with bits of kibble placed underneath the tennis balls. For cats, you might consider a stuffed mouse toy, with or without a catnip chaser, depending on your cat’s past responses to catnip. PAY ATTENTION TO THEM. If you can pet your dog or cat while attending your meeting, please do. A gentle pat is often enough to satisfy your pet. I do not recommend bribing your pet by throwing them treats when they interrupt you. That’s called positive reinforcement training. You are teaching them that when they interrupt you, they get rewarded. HAVE A SENSE OF HUMOR. Despite employing all of the suggestions above, sometimes my animals do not react the way I expect them to and they do something ridiculous or embarrassing. If this happens, do your best to laugh it off. I usually tell clients I am working at home with pets when I start a call or online meeting, especially if the topic is an especially serious one, and I apologize in advance for any interruptions

Kelley Dwyer is an attorney and sole member of the Law Office of Kelley J. Dwyer, PLLC, an Austin law firm focusing on business law and estate planning. She is a founding and current chair of the Austin Bar’s Animal Law Section.

or odd noises we may encounter during our time together. AT LEAST THERE ARE EXCELLENT ACOUSTICS. If you live in a rural area, one simple solution is to take your calls outside. For most Austin attorneys, neighbors or passers-by are never far away, so all calls must take place indoors. (Note: The advice to take calls outside applies to audio-only meetings, and is not recommended for any meeting with video.) As a last resort, if you cannot take a call outdoors and your pet is acting out, take your phone or laptop and escape to the bathroom or garage. If you can still hear your pet, get in your vehicle. Your pets are used to seeing you go to these places for a while and then come back, so they will hopefully lose interest and let you have your meeting in peace. I predict that many of you will find working around your animals increases your creativity and helps you relate in a much more meaningful way with your clients and colleagues. If you do not already have a pet, or your pet needs a friend, please consider fostering and/or adopting from one of our wonderful Austin shelAUSTIN LAWYER AL AL ters or rescue organizations. MAY 2020 | AUSTINLAWYER

PRACTICE POINTERS

Practicing from the Home Office BY STEFANIE SCOTT SHAH

Stefanie Scott Shah is the founding member of Scott Shah Law. Her practice includes complex commercial, patent, and employment litigation. Additionally, Shah acts as outside general counsel for growing businesses, handling all their legal needs. She can be contacted at stefanie@scottshah.com.

OVID-19 has brought about unprecedented changes to our lives. The virus has impacted virtually every industry, including, of course, the practice of law. Due to stay-at-home orders, working remotely has become the norm rather than the exception. Fortunately, attorneys can work just about anywhere—as long as we have a computer (with a webcam), noise-cancelling headphones, and the software discussed below.

GOING DIGITAL Attorneys and law firms that have not converted to a paperless office will have the most challenges working remotely. If you fall into this camp, you will need to digitize your files. The easiest and fastest way to do this is to use a scanner. People swear by the Fujitsu ScanSnap iX1500. It is expensive but fast. If you already have a paperless practice, there is no dire need to invest in a digital scanner. There are countless applications that allow you to take a photo of a document and convert to PDF. The Adobe Acrobat Pro DC subscription (mentioned below) provides this functionality. Of course, this practice would be prohibitively slow if you are digitizing an entire office. 30

AUSTINLAWYER | MAY 2020

CLOUD-BASED FILE MANAGEMENT Many firms have systems in place to allow their attorneys to work remotely (e.g., by logging into their desktop computer through a VPN). If that is the case, you are all set to go. If your firm does not currently have a way to access files remotely, you can easily and cheaply use cloud-based software to organize and manage files. The most common options include Dropbox, Box, and Microsoft OneDrive. Box is a corporate and law firm favorite. The application can be installed on both your work and home computers, and all documents saved to the relevant folders are automatically uploaded to the cloud and synced with both—allowing the user to seamlessly work between the two computers. CLOUD-BASED PRACTICE MANAGEMENT AND BILLING Your firm’s practice management and billing software might be out of your control. But, if you have a choice, I highly recommend a cloud-based version, as it simplifies the process of tracking and billing time remotely. The most popular of these is Clio, which has an incredibly user-friendly interface, helpful telephone support, and is accessed via the internet (i.e., any computer, anywhere). PDF SOFTWARE There are numerous options to create and edit PDF documents, but Adobe Acrobat Pro DC is the most popular. With a subscription to this cloud-based software, you can easily OCR, substantively edit, Bates-label, sign, password-protect, combine documents, add headers, convert PDFs to Word documents (and vice versa), organize pages, and compare files.

GROUP CHAT If you can’t run down the hall to ask a colleague a question, you’ll need an efficient way to stay in touch and compensate for the lack of facetime. Email (which can be difficult to organize and search) is inferior to chat technology such as Slack, the forerunner in this field. In Slack, you can set up various “channels” with specified descriptions/goals (e.g., conflicts-checks, matter-specific, etc.), which can be accessed by designated people. Alternatively, you can direct message one or multiple user(s). The software can be installed on your computer, phone, and/or tablet and is easily searchable.

being used to conduct mediations and depositions. Without it, many aspects of litigation would be impossible to do from the (required) comfort of our own homes. Skype has been around the longest, but Zoom is the fan-favorite in videoconferencing. SOCIAL NETWORKING With all the pressures of work and home, it is easy to overlook the social aspect of our jobs. But socializing with your colleagues is important for firm morale and mental health. Although we cannot meet in person, my firm has been hosting virtual coffee breaks, where we discuss life events (no work talk). I have heard of others who have organized virtual happy hours. All socializing can be conducted over Zoom.

VIDEO CONFERENCING The biggest shift in working remotely is collaborating via CONCLUSION videoconference. It is often much As we enter our second month more efficient to talk through abiding by Austin’s “Stay Home— an issue than to send a flurry of Work Safe Order,” you and emails or messages. The phone is your firm have probably begun always an option, but—in a world adapting and using some of this where we are staying home 90 technology already. If not, I hope percent of the day—it is somethese tips will serve as a useful times nice to see another face guide on how to get there without (even if all participants are wear- AUSTIN too much hassle or need to leave LAWYER ing sweatpants and/or shushing AL AL the house. a child in the background). More importantly, videoconferencing is

LGBT Law Student Scholarship Applications Due May 30 Two Scholarships Will Be Awarded to Law Students in Texas

he Austin Bar Foundation and the LGBT Law Section of the Austin Bar Association are honored to announce the Foundation’s fifth annual LGBT Law Student Scholarship. The Foundation will award $3,000 scholarships to two current students (including 2020 graduates) enrolled at a Texas law school.

The award is intended to help defray expenses of pursuing a law-school education. Eligible students must be enrolled at a public or private law school located in the State of Texas and have demonstrated some commitment or contribution to the LGBT community or LGBT legal issues. This criterion will be broadly construed to include

activities consistent with the financial need. Austin Bar’s LGBT Law Section’s Applications and instructions purposes of promoting education on applying can be found on issues relating to LGBT law, at austinbar.org. For more raising the profile and acceptance information please email Lindsey of LGBT individuals within the Dionne or Denise Hernandez. legal community, and promoting Applications must be postmarked LGBT equality. The selection by May 30, 2020. The Foundation committee will also consider will announce recipients in June. AUSTINLAWYER each applicant’s academic record,AL AL educational debt burden, and

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1/9/20 1:55 PM

Austin Lawyer, May 2020

Articles inside

AYLA: Solo Practice and Working Remotely in the Time of Corona

What Lawyers Can Do About Worrying During the COVID-19 Pandemic

We Are All in This Together

Best Practices for Zoom Court Proceedings

Adapting in a Time of Crisis

Legal Aid in the Age of COVID-19

Working at Home (Somewhat) Productively with Pets

Practicing from the Home Office

AYLA: Community Has Never Been More Important

Austin Bar/AYLA Leadership Academy Class of 2020 Announces Class Pro Bono Project