Austin Lawyer, November 2016 by Austin Bar Association

austinbar.org NOVEMBER 2016 | VOLUME 25, NUMBER 9

Austin Adoption Day Celebrates Its 15th Anniversary

ovember is National Adoption Month, designed to raise awareness of the more than 100,000 children in foster care waiting for permanent and loving families. As of August 2016, there were 16,537 children in foster care in Texas, with 6,322 children waiting to be adopted. Of those, 195 of them reside in Travis County. On November 3, 2016, 53 children will be adopted into 31 families at the 15th Annual Austin Adoption Day. Finding their forever families has been a long process for these children, all of whom have been in foster care because of abuse and neglect. The Austin Bar Foundation and its partner organizations—CASA of Travis County, Partnerships for Children, Texas Department of Family and Protective Services, the Travis County Children’s Protective Services Board, the Travis County Juvenile Probation Department, and the Travis County Office of Child Representation—are proud to sponsor Austin Adoption Day. The event brings together attorneys, judges, case workers, CASA volunteers, and many others in the community to celebrate the creation of new families. Austin attorney Denise Hyde has chaired the Adoption Day Committee since its inception in 2001. The Austin Bar Foundation established the Denise Hyde Scholarship Fund in 2012 to help with school and living expenses for older

children being adopted or aging out of the foster care system. Hyde is a passionate advocate for fostering and adoption and was instrumental in establishing the Central Texas Adoption Day in 2011 for children in neighboring counties. The Austin Bar Adoption Day Committee is made up of more than 35 attorneys and judges who give their time and expertise to make the day a special one for the children and families involved. This year, one of those attorneys has more than a passing interest in fostering and adoption. Sheri Tolliver and her husband, Craig, both attorneys, were fostering a little girl seven years ago when they got a call from a caseworker who was trying to find a home for three sisters under the age of six. The caseworker made the right call. With the help of Denise Hyde as their attorney, the Tollivers brought the sisters home just six weeks later. Now ages nine, 10, and 13, the girls have had a profound impact on the Tolliver’s lives. Craig and Sheri met while attending Vanderbilt University Law School, where their eyes were first opened to the foster care system when they met several foster kids and parents while participating in a foster care clinic. After moving to Austin, Sheri volunteered at the Austin Children’s Shelter where she learned of the shortage of foster families in Austin. The time seemed right time for the couple to move forward and become foster parents. After adopting her three girls, Sheri

CLOCKWISE FROM TOP LEFT: Craig and Sheri Tolliver and their daughters; Judge Orlinda Naranjo and special guests at the 2015 Austin Adoption Day; Stuffed animals decorate the courtrooms at the Gardner Betts Juvenile Justice Center.

spent the early years at home caring for them. She returned to work parttime two years ago, handling mostly pro bono family law cases. Now, the opportunity to volunteer for Austin Adoption Day seems like the perfect way to give back. “While we didn’t adopt at Austin Adoption Day, the day we adopted our girls was a very special day in the life of our family,” said Tolliver. “It is something we still mark and celebrate every year as a family. I’m so happy to be a part of that for other families—whatever the journey has been for them. To be able to help them celebrate this day with their children, is so special. There is nothing like it when a new family is created.” While this will be Tolliver’s first time to participate in the Austin Adoption Day, she has heard about the Gardner Betts Juvenile Justice Center being decorated like “The Wizard of Oz,” with its theme “there’s no place like home,” and about the plethora of

stuffed animals decorating each courtroom. Each child is allowed to pick out a favorite stuffed animal to take home to mark the occasion. Tolliver recalled, “When we went to meet our daughters for the first time, we took each of them a stuffed animal. To this day, our daughter, who is now a teenager, takes that stuffed animal with her every time she visits a friend for a sleepover or goes anywhere. Those stuffed animals have a lot of meaning for the children. I am so happy to have the chance to make it a special day for these families.” Attorneys wishing to volunteer for next year’s Adoption Day should sign up for the Adoption Day Committee at austinbar.org. To find out more about fostering or adoption, contact Partnerships for LAWYER Children, AUSTIN partnershipsforchildren.org. AL AL

CONTENTS

AUSTINLAWYER NOVEMBER 2016 | VOLUME 25, NUMBER 9 AL A L INSIDE FEATURED ARTICLES 1

Austin Adoption Day Celebrates Its 15th Anniversary Fifty-three Children Will Find Their Forever Families on November 3, 2016

Featured Adoption Day Partner: The Heart Gallery of Central Texas Reveal Exhibit on November 10 at the Blanton Museum of Art

Austin’s “Fair Chance Hiring” Ordinance What Employers Need to Know

The Austin Bar/AYLA Leadership Academy A Past Participant’s Perspective

ONLINE

DEPARTMENTS 6 President’s Column 10 Briefs 11 Opening Statement 12 Minority Bar Spotlight 13 3rd Court of Appeals Criminal Update 14 3rd Court of Appeals Update 15 Federal Civil Court Update 16 Federal Criminal Court News 17 Legislative Update 18 AYLA 20 Social Media Savvy 21 Developing Your Practice 23 Classifieds /Ad Index

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

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NEWS & ANNOUNCEMENTS

EVENTS & MORE

Kyrgyz Republic Delegation Visits Austin

NOV 5

Group Studies Judicial Practices and Procedures for International Adoptions

Thank You Mamma Jamma Ride Supporters

Austin Bar’s Team Raises $3,823 for Those Facing Breast Cancer

Bar & Grill 24 Once Upon a Vote Scottish Rite Theater 8 p.m. Tickets: ayla.org

FOLLOW instagram.com/theaustinbar TEXT austinbar to 313131 for up-to-date news + info Message & data rates may apply.

2017 Jury Trial Schedule

Travis County Civil District Court Trial Schedule Available

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

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

EXECUTIVE OFFICES 816 Congress Ave., Suite 700 Austin, TX 78701-2665 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward........................... Executive Director Nancy Gray ................................ Managing Editor Debbie Kelly .............................. Director of AYLA Kennon Wooten ...................... Editor-in-Chief Kelli Horan ................................. Editorial Assistant Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 of the membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Suite 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Suite 700, Austin, Texas 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the 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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Featured Adoption Day Partner: The Heart Gallery of Central Texas

he Heart Gallery of Central Texas, a program of Partnerships for Children, is an art exhibit and community education/outreach initiative featuring children who are waiting for adoption. More than 50 professional photographers in the Austin community donate their time and talents to this project. The Heart Gallery is just one of many programs provided by Partnerships for Children, a non-profit organization providing critical resources to abused and neglected children who are in the care of Child Protective Services. Recent statistics show 85 percent of foster youth who age out of foster care will be homeless, incarcerated, or dead within the first few years. The mission of the Heart Gallery of Central Texas is to ensure this does not happen. The Heart Gallery focuses on older children, sibling groups, and children with special needs—often referred to as forgotten children. These are children who are living in foster care, many for extended periods of time, who are waiting for a permanent family and a life of stability and love. The Heart Gallery of Central Texas works to find forever families for children through outreach initiatives and direct recruitment and education of foster and adoptive families in Central Texas. At the core of this outreach is simply a picture. But there is nothing simple about it. The volunteer photog-

raphers truly capture a child’s spirit in every shot. These pictures speak louder than words: They say, “I’m here and I am special.” Each year they feature approximately 200 children in the Heart Gallery. The most staggering statistic regarding the impact of the program is the fact that 15 years ago, prior to the development of heart galleries nationwide, the chance of these forgotten children finding a forever family was less than 1 percent. Today, that number is just over 60 percent. Last year, 73 children from the Heart Gallery of Central Texas were placed in adoptive homes. Megan Ransom, Heart Gallery Coordinator for Partnerships for Children, is an active member of the Austin Bar’s Adoption Day Core Committee, which organizes the annual Austin Adoption Day event. Heart Gallery photographers donate their time at Adoption Day to provide family portraits to the newly created families. No stranger to Adoption Day herself, Megan and her husband, Josh, adopted their four-year-old son, Alpha, at the 2015 Austin Adoption Day. “Adopting was our first choice in starting our family,” said Megan. “I can’t imagine our life without him.” The Heart Gallery is hosting a Reveal exhibit of newly photographed children currently in the foster care system on Thursday, November 10, from 6:30 – 9 p.m. at the Blanton

Museum of Art. The complimentary cocktail reception will celebrate the children in foster care who are waiting for forever families, and the community that supports them. RSVP to Megan

Ransom at megan@partnershipsforchildren.org. Contact her to learn more about the Heart Gallery and how you can host a traveling exhibit of AUSTIN LAWYER Heart Gallery portraits. AL AL

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NOVEMBER 2016 | AUSTINLAWYER

PRESIDENT’S COLUMN LESLIE DIPPEL, ASSISTANT TRAVIS COUNTY ATTORNEY

Living the Texas Lawyers Creed The Importance of Pro Bono THIS MONTH, as I read the Texas Lawyer’s Creed, I noticed these two sections: “I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.” “I commit myself to an adequate and effective pro bono program.” As an attorney at Brown McCarroll (now Husch Blackwell), we had a formal program that assigned pro bono cases to the lawyers with the assistance of Volunteer Legal Services. I know many law firms have similar programs. My supervising attorney at the time, Susan Burton of Graves Dougherty, was on the board of directors of VLS and made a memorable impression on me with her commitment to providing pro bono legal services. She is a well-respected, board certified employment lawyer who carried pro bono family law cases on her docket because it was a service she believed in. I watched her provide representation under those circumstances, and I saw the impact it had on her clients. They weren’t the only ones impacted—I think she would say it impacted her as well. Her example showed me how important it is to assist those who need legal services but lack resources to pay for them. Thank you, Susan, for being a positive example to me and countless others.

AUSTINLAWYER | NOVEMBER 2016

We have all certainly heard about the benefits of volunteering legal services. For some, it may seem like a big undertaking to take on full representation in a familylaw case or other legal matter. VLS makes volunteering easy. Did you know you will receive a free CLE course on handling a family law case if you agree to take two pro bono cases? Did you know there are experienced lawyers who are “oncall” to answer your questions if it is an area not in your traditional area of practice? Did you know that the Austin Bar Association has worked with the Travis County judiciary to provide assistance to selfrepresented litigants where you can

volunteer for as little as one hour to help make sure their forms are in order before they go to uncontested docket? Did you know that the Austin Bar Association assists veterans with their legal needs at a monthly clinic where you can sign up for time slots to answer their questions? Your call to service, as the Texas Lawyers Creed refers to it, can take the form of any time commitment level you are able to give. Won’t you answer the call? Contact Doug Lawrence at doug@ austinbar.org at the Austin Bar Association and get plugged into the Austin Bar’s pro bono projects. Join the hundreds of lawyers answering the commitment to help AUSTINLAWYER those in A need. L AL

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NOVEMBER 2016 | AUSTINLAWYER

Austin’s “Fair Chance Hiring” Ordinance What Employers Need to Know About the Use of Criminal Background Information in Hiring BY ANN PRICE

inding that it is unjust to deny employment to otherwise qualified individuals based on their criminal history, Austin became the first city in Texas to regulate private employers’ use of criminal background information. Austin employers must now delay asking about and considering criminal history until after extending conditional job offers. For staffing agencies, the ordinance allows criminal history inquiries following a conditional offer to place an individual in a pool from which workers are assigned to jobs with client companies. A conditional job offer may not be withdrawn based on criminal history unless the employer determines—after an individualized assessment—that the individual is unsuitable for the job. At a minimum, the employer must consider (1) the nature and gravity of the offense(s); (2) the length of time since the offense(s) and completion of any sentence; and (3) the nature and duties of the job. Employers may not publish information that implies criminal history is an automatic disqualifier, but they may provide a written explanation of the employer’s individualized assessment system. Employers must notify individuals in writing when adverse action is taken against them because of their criminal history.

on criminal history, such as certain jobs in the financial industry. Complaints may be filed with the City’s Equal Employment/ Fair Housing Office. Violations are punishable by a civil penalty of up to $500 beginning April 4, 2017. For first-time violations, the City may instead issue a warning if the employer attends required training. Employers who use criminal history information must also comply with existing state and federal laws. To avoid claims of disparate impact discrimination, employers should

A conditional job offer may not be withdrawn based on criminal history unless the employer determines—after an individualized assessment—that the individual is unsuitable for the job. The “fair chance hiring” ordinance became effective on April 4, 2016, and it extends beyond Austin-based employers. It covers employers with 15 or more employees whose primary work location is in Austin. The ordinance does not apply to jobs with legally mandated insurance or bonding requirements that disqualify individuals based 8

AUSTINLAWYER | NOVEMBER 2016

ensure that disqualifying applicants based on criminal history is job related for the position in question and consistent with business necessity. Appropriately conducting the individualized assessment required by the Austin ordinance will support this effort. In addition, employers should avoid the appearance of treating applicants differently based

on protected characteristics, such as race or national origin, in connection with the use of criminal history information to avoid disparate treatment discrimination claims. When employers use third party consumer reporting agencies to run criminal background checks, they must comply with the Fair Credit Reporting Act’s requirements of notice and authorization and pre-adverse action and adverse action notices. Pending a possible response from the Legislature next session, covered employers should take the following actions to comply with the ordinance and avoid claims of employment discrimination: • Remove questions about criminal history from job application forms; • Review positions to determine whether, and what type of, criminal conduct could potentially be disqualifying and develop guidelines; • Train recruiters and others involved in the hiring process to delay any inquiries about criminal history until after conditional job offers are extended; • Revise offer letters to explain the conditional nature of the offer; • Train decision-makers to conduct, and appropriately document, the required individualized

assessment of criminal history to screen out only those who are unsuitable for the job; • Apply policies and standards with consistency unless there is a legitimate, nondiscriminatory reason to deviate; and • Ensure that when conditional offers are withdrawn based on criminal history, the required AUSTIN LAWYER written noticed is provided. AL AL

Ann Abrams Price is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and is a partner in Boulette Golden & Marin L.L.P. She leverages her 25 years of experience representing employers to provide practical and costeffective solutions to prevent and address workplace problems.

The Austin Bar/AYLA Leadership Academy A Past Participant’s Perspective BY RACHAEL K. JONES, THE CARLSON LAW FIRM, P.C.

ave you ever wondered how to get more involved in the Austin Bar or AYLA but weren’t exactly sure where to start? Have you been looking for a chance to improve your leadership skills or opportunities to give back to the Austin community? Could you benefit from expanding your professional network? If you answered “yes” to any of these questions, you should consider applying for the Austin Bar/AYLA Leadership Academy. As a member of the Academy’s 2016 class, I can tell you from first-hand experience that it is an excellent professional development opportunity. In addition to knowledge and skills gained at formal training sessions (not to mention the corresponding CLE credit), the Academy provides fantastic opportunities to network and make connections across practice areas and in the Austin community. The Academy is also a great way to discover ways to get more involved with the Bar and other professional and civic organizations. The Academy runs from January to June and consists of a single-day

opening retreat, monthly meetings (typically midweek lunches featuring CLE presentations), a couple of happy hours, informal monthly “triad” groups, and a class project. Last year’s speakers included state and federal judges, Senator Kirk Watson, Austin Mayor Steve Adler, and former State Bar President Alan DuBois, as well as various Academy alumni. Each month, participants were randomly assigned to groups of three to meet informally on our own for lunch, breakfast, coffee, or happy hour. These “triads” allowed us to connect in smaller groups and more intimate settings to get to know each other better outside of our formal meetings. Among the most rewarding benefits of participation in the Academy are the lasting relationships (both personal and professional) that you develop with your classmates—other Austin lawyers whom you might not otherwise have had the chance to meet. Our class consisted of 21 attorneys whose experience levels ranged from less than a year to more than 10 years. Some of us work for big firms, some for small firms, some for the government, some for cor-

2016 Austin Bar/AYLA Leadership Academy

porations, and some for ourselves. Our practice areas include probate, criminal defense, business litigation, intellectual property, family, civil litigation, employment, real estate, personal injury, business transactions and formation, administrative law, appeals, and medical malpractice. Over the course of the Academy’s program, we learned more about each other and our respective practices, participated in classmates’ volunteer projects, introduced each other to helpful contacts and resources, and answered each other’s questions about unfamiliar areas of law. Even though we have now graduated from the program, the relationships that we have built will endure long into the future.

The application deadline for the class of 2017 is December 2, 2016. Both self-applications and nominations of others are accepted. If you have any further questions about what it was like to participate in the 2016 Leadership Academy, please feel free to contact me at rkjones983@ gmail.com. For questions about the Academy generally, please contact Travis Plummer at travis.e.plummer@ gmail.com. Applications for the 2017 Leadership Academy are available at AUSTIN LAWYER austinbar.org. AL AL Rachael K. Jones is a litigation attorney at The Carlson Law Firm, P.C., a member of the AYLA Board of Directors, and a 2016 graduate of the Austin Bar/AYLA Leadership Academy.

NOVEMBER 2016 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Kirk Cesari Hill Cody Rachel Comeskey Katy Cox Allen Cummings Connie Ditto Bryan Fagan Alyson Furey TJ Harris Ryan Holland Robert Hugos Sammy Lucario Scott Morgan Daniel Riegel Andrew Rogers Alyson Rotunda Crystal Smith Shitong Sun Ashley Todd John Houston Tower Melissa Tran Gaines West Amy Wilson

Munck Wilson Mandala, Parsons, Reeves, Zaffirini, Jr.

AWARDS Jesse Butler was awarded the Elizabeth Garcia Hispanic Bar Association President’s Award at the 20th Annual Hispanic Heritage luncheon held on September 23, 2016 at the Omni Hotel. Paul Parsons has been named Lawyer of the Year in the practice area of Immigration Law by the Best Lawyers in America. He has practiced immigration law in Austin since 1978. Beverly Reeves, President of the Austin Bar Association in 19981999, was selected by the University of Texas School of Law for the 2016 Alumni Award – Honorary Order of the Coif.

The State Bar of Texas reappointed Terry Tottenham to the board of the Texas Access to Justice Foundation. The Texas Access to Justice Foundation announced Carlos M. Zaffirini, Jr. has been appointed to its board of directors by the Supreme Court of Texas for a twoyear term expiring in August 2018. Zaffirini is President and CEO of Adelanto HealthCare Ventures, LLC, a health care finance consulting company in Austin, Texas. Leadership Austin welcomes the 2017 Essential Class, including Marc Chavez (Travis County DA Office), Sareta Davis (Travis County DA Office), Nancy Gray (Austin Bar Association), Patricia Hayes (PVH

Consulting Group), Chari Kelly (Travis County DA Office), Brian O’Reilly (Locke Lord), and Lisa Pittman (Feldmann Nagel).

NEW TO THE OFFICE Law firm Munck Wilson Mandala has opened an office in Austin. The 50+ law firm’s new office will be led by Munck Wilson partner Michael Rodriguez along with two other partners, Jennifer Jasper and Michael Noe. Munck Wilson Mandala provides legal services in domestic and international patent protection and litigation, copyright and trademark enforcement, corporate law, and other legal services to benefit technology clients, entrepreneurs, and startups.

Family Law Specialist Tim Whitten has practiced in family law since 1992. He has been certified *Kimberly A. Edgington as a Family Law Specialist by the Texas Board of Legal Specialization. kim@whitten-law.com

ion

Creative Solutions to Family Law We help people resolve their family law issues in a way that protects their interests and preserves their family relationships. Most family law cases can be difficult both from an emotional and financial perspective. We believe in reducing the emotional and financial stress by offering our clients alternative options to resolve their disputes, such as collaborative law, mediation and limited scope representation. Our firm also believe that clients reach better results when they resolve disputes cooperatively. However, when that isn’t possible, we commit ourselves to the ethical resolution of adversarial litigation.

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AUSTINLAWYER | NOVEMBER 2016

OPENING STATEMENT

Improving Through Study: The Best New Books BY WAYNE SCHIESS, TEXAS LAW – LEGALWRITING.NET

n seeking to improve my own writing and in teaching legal writing to others, I’ve always understood the value of practice. You won’t get better at legal writing unless you do it and do it a lot. Yet another technique for improvement is often underestimated: Study. Granted, study—reading books on legal writing, for example— won’t improve your writing by itself; you have to practice what you’ve learned. Yet practice by itself won’t do much either: We tend to keep writing the way we always have. To make the most improvement in your legal writing, combine study and practice. Read what the experts say and then try out what you’ve learned. To help you study legal writing, I’ve summarized below three excellent new sources on legal writing.

“Deal Struck: The World’s Best Drafting Tips”

“Deal Struck: The World’s Best Drafting Tips” by Ross Guberman & Gary Karl

“The Lawyer’s Guide to Writing Well”

The authors have produced a usable, practical guide to improving the language of contracts and to becoming a better drafter. The book steers a middle course, distinguishing what the authors call the “must haves” from the “nice-tohaves.” On one hand are drafting guides and gurus who recommend a comprehensive overhaul of the often dysfunctional language in large transactional documents. On the other hand are busy lawyers, who feel pressure to keep client costs down and who must rely on oft-used forms. Deal Struck is a compromise: It acknowledges that lawyers will rarely have time or leeway to comprehensively modernize and streamline contract language. So it offers solid drafting recommendations busy lawyers can actually use. It includes chapters (all short) like Troublesome Language and Common Errors, Boilerplate Provisions, and Models and Precedent. I highly recommend the chapter called Checking It Twice, which

Study practice

by Ross Guberman & Gary Karl by Tom Goldstein & Jethro K. Lieberman

“The Science Behind the Art of Legal Writing” by Catherine J. Cameron & Lance N. Long offers 13 questions to ask yourself on every agreement.

• Getting to the Point • Revising for Clarity and Luster

“The Lawyer’s Guide to Writing Well” by Tom Goldstein & Jethro K. Lieberman

This four-part approach could be expressed like this: Legal writing has problems. Boy, does it ever. So first, here’s what good legal writers do as they tackle the challenges of legal writing. Now, here’s what you can do to improve your own writing.

This book changed my life. Well, my professional life. When I read the first edition of The Lawyer’s Guide in 1994, a stark reality struck me and stuck: As lawyers, we are professional writers, but we don’t act like it. That truth has informed my teaching and writing ever since. The book is now in its third edition. The authors issue the same challenge they did in the first two editions: Lawyers can write better, and here’s how. The Lawyer’s Guide is a motivational legal writing style guide divided into four parts: • Why Lawyers Write Poorly • The Practice of Writing

“The Science Behind the Art of Legal Writing” by Catherine J. Cameron & Lance N. Long The authors of this book are legal-writing teachers who decided to research whether the principles they were teaching their students could be validated scientifically. As it turns out, many of them can. For example, in chapter eight, “Does Correct Grammar Matter?” the authors report on studies showing that,

especially among educated readers, grammar errors cause readers to have a lower opinion of the writer. The book is also where I encountered research on outlining before you write, which I summarized in this column in October 2015. (In case you forgot, outlining before you write has been shown to reduce mechanical errors, speed composition time, and improve content.) The authors also report on a study of narrative approaches to writing (chapter 10). In the study, half the example briefs used a deliberate narrative approach while the other half did not. The result: “The majority of reviewers found the narrative briefs more persuasive [64% to 36%].”1 What else? Surprise, surprise: Readers tend to assume that writers who present well-organized arguments are more credible than those who present disorganized arguments. So start reading. If you have a book or other source you’d like to recommend, please reach me here: AUSTIN LAWYER AL AL wayne@legalwriting.net. Footnotes: 1. Catherine J. Cameron & Lance N. Long, The Science Behind the Art of Legal Writing 71 (2015).

NOVEMBER 2016 | AUSTINLAWYER

MINORITY BAR SPOTLIGHT

HBBA Hosts 20th Annual Hispanic Heritage Luncheon

HBAA Foundation, received the honor in recognition of his years of commitment to HBAA and his tireless fundraising efforts for the HBAA Foundation. Judge Edward Prado of the U.S. Court of Appeals for the Fifth Circuit closed the event with his keynote speech, where he discussed the Fifth Circuit’s rich history in advancing civil rights and encouraged the audience to focus on the work that still needs to be done to increase diversity in the legal profession. For 20 years, the Hispanic Heritage Luncheon has served as the primary fundraising event for the HBAA Foundation, which awards scholarships to economically disadvantaged Hispanic students. This year, the luncheon

he Hispanic Bar Association of Austin (HBBA) celebrated its 20th Annual Hispanic Heritage Luncheon on September 23, 2016. Sebastien De La Cruz, a 14-year-old mariachi sensation, kicked off the event by serenading the crowd with popular hits. The festivities continued with an awards presentation as eight middle school students were recognized for winning HBAA’s annual essay competition. Jesse Butler, an equity partner at Hajjar Peters, received the Elizabeth Garcia HBAA President’s Award. This award honors an HBAA member who embodies HBAA’s values through outstanding service. Butler, a former HBAA president and former chair of the

Keynote speaker Judge Edward C. Prado of the U.S. Court of Appeals for the Fifth Circuit, and mariachi musician Sebastien De La Cruz.

raised more than $54,000, the highest total in the luncheon’s history. HBAA thanks all of the wonderful sponsors who helped

make the event such a success. For more information about the HBAA and its AUSTIN programs,LAWYER please visit hispanicbaraustin.com. AL AL

HONORING AWARD WINNERS Distinguished Lawyer Award David Hilgers & Martha Smiley

David H. Walter Community Excellence Award

Join us…

among the whisperings and the champagne and the stars

Jo Ann Merica

Joseph C. Parker Jr. Diversity Award Tony Nelson

Larry F. York Mentoring Award Dirk Jordan

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AUSTINLAWYER | NOVEMBER 2016

3 RD COURT OF APPEALS CRIMINAL UPDATE

The following summaries are selected criminal opinions issued by the Third Court of Appeals during June 2016. The summaries are intended as an overview; counsel are cautioned to review the complete opinion. Subsequent histories are current as of September 29, 2016. 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.

ERROR PRESERVATION: Defendant’s motion to suppress was untimely. Moore v. State, No. 03-1300792-CR (Tex. App.—Austin June 9, 2016, no pet.) (mem. op., not designated for publication). Following a traffic stop, appellant was arrested and subsequently questioned by law enforcement without being read her Miranda warnings. In response to the questioning, appellant produced drugs that were on her person. Appellant did not file a pretrial motion to suppress the evidence, nor did she object to the admissibility of the evidence when the arresting officer first provided testimony regarding the drugs that appellant had produced. Instead, appellant moved to suppress the evidence later, during the testimony of another officer. The district court denied the motion. The appellate court affirmed. Observing that a motion to suppress is a specialized objection to the admissibility of evidence and must meet all the requirements of an objection, “including that it be both timely and sufficiently specific to inform the trial court of the complaint,” the appellate court concluded that appellant should have objected when the officer first testified that appellant was not read her Miranda warnings upon her arrest: “At that time, if not earlier, the grounds for Moore’s Miranda-based objection should have been apparent.” The appellate court held that by failing to raise her objection at the “earliest possible opportunity,” appellant “failed to preserve error, if any, in the district court’s denial of her motion to suppress.” LACHES: Doctrine of laches did not bar defendant from pursuing out-of-time appeal. State v. Trevino, No. 03-15-00785-CR (Tex. App.—Austin June 22, 2016, no

officer smelled alcohol, “bent down pet.) (mem. op., not designated for and leaned forward, inserting his publication). The trial court granted head, upper torso, arms, and the the defendant an out-of-time appeal flashlight into the open passenger of a deferred-adjudication order. window while speaking with appelThe State appealed, arguing that lant.” Appellant was subsequently the doctrine of laches should have arrested for driving while intoxibarred the defendant from pursuing cated. Appellant filed a motion to the appeal. The appellate court suppress, arguing that the officer’s disagreed. The court observed that actions constituted an illegal search. “laches is a common-law principle The trial court denied the motion that prevents a party from assertto suppress. The appellate court afing a claim when there was an firmed, concluding that, because the unreasonable delay in presenting vehicle was stopped on the shoulder the claim and when the other party of a highway near an exit ramp, “it is prejudiced by the delay,” and was reasonable for the officer as that a court may reject the State’s part of his investigatory method, reliance on laches for a number of including to ensure the officer’s reasons, including that the “delay safety, to approach the vehicle on was not unreasonable because it the passenger side and bend down was due to a justifiable excuse or and insert parts of his upper body excusable neglect,” that “the State and his flashlight through the open would not be materially prejudiced passenger-side window to make as a result of the delay,” or that “the contactLAWYER and communicate with applicant is entitled to equitable AUSTIN appellant.” relief for other compelling reasons.” AL AL The appellate court concluded that the record supported findings by the trial court that “Trevino wanted to appeal the district court’s order deferring his adjudication,” that “Trevino’s lawyer informed Trevino and the court that he was actively pursuing an appeal,” that “Trevino did not discover that no appeal had been filed until after the deadline to file had run,” and that “Trevino hired an attorney to request an outof-time appeal when he was financially able to do so.” Additionally, the appellate court observed that the delay in this case was less than the delay in other cases in which laches had been applied, and that the State had not argued “that the delay would negatively impact its ability to pursue the case, that the evidence that the State would need has been compromised due to the delay, or that the memories of those involved have diminished.” The appellate court affirmed the trial court’s order. SEARCH AND SEIZURE: During traffic stop, officer may lawfully insert his head and upper body through passenger window to communicate with driver. Moreno v. State, No. 03-14-00596-CR (Tex. App.—Austin June 30, 2016, no pet.) (mem. op., not designated for publication). During a traffic stop, the officer approached the vehicle from the passenger side and knocked on the window. After appellant opened the window, the

Maitreya Tomlinson

Zak Hall is a staff attorney for the Third Court of Appeals.

D. Todd Smith

Laura P. Haley

Smith Law Group was founded by appellate specialist D. Todd Smith, Treasurer of the Austin Bar Association for 2016-2017 and a Life Fellow of the Austin Bar Foundation.

Handling Civil Appeals and Supporting Trial Counsel Statewide 512.439.3230 W W W. A P P E A L S P L U S .C O M NOVEMBER 2016 | AUSTINLAWYER

3 RD COURT OF APPEALS CIVIL UPDATE

The following are summaries of selected Third Court of Appeals’ civil opinions issued during September 2016. The summaries are intended as an overview; counsel are cautioned to review the complete opinion. Subsequent histories are current as of October 4, 2016.

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

ADMINISTRATIVE LAW: Board properly considered historical data in franchise modification. Sweeten Truck Center, L.C. v. Volvo Trucks N. America, No. 03-16-00068CV (Tex. App.—Austin Sept. 13, 2016, no. pet. h.) (mem. op.). Volvo sought to modify Sweeten’s franchise agreement and reduce Sweeten’s geographic area. DMV adopted ALJ’s recommendation to approve Volvo’s proposed modification. Sweeten sought judicial review. Volvo removed the proceeding from district court to the court of appeals under Occ. Code 2301.751(a)(2). Sweeten challenged 230.1455(a)’s language which requires DMV to

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consider “all existing circumstances.” Sweeten contended that the statute meant currently existing circumstances and not historical data. The court of appeals disagreed. The statute lists a number of factors to consider, all of which require considering historical data. The court further noted that DMV considered Sweeten’s most current data in its decision. The court affirmed. JUVENILE: Service defects did not defeat personal jurisdiction. In re C.P., No. 03-15-00276-CV (Tex. App.—Austin Sept. 14, 2016) (mem. op.). After the court revoked his probation and ordered him to TJJD, C.P. challenged the county court’s jurisdiction. According to C.P., the record failed to affirmatively show that his parent was properly served. The court of appeals observed that Family Code 53.06 requires the juvenile court to issue summons to the child and to the child’s parent, guardian, or custodian. The returns were switched: The return for C.P.’s mother was attached to his summons and his return to his mother’s summons. C.P.’s mother appeared at the hearing and thus waived service. Further, throughout several modification proceedings, C.P.’s mother signed her name using variations of her name, but C.P. never objected. The court rejected C.P.’s argument that the record showed his mother’s identity was false. The court affirmed. REAL PROPERTY: “Take nothing” summary judgment adjudicated grounds not raised in the motion. Aiken v. Naylor, No. 0314-00519-CV (Tex. App.—Austin Sept. 23, 2016) (mem. op.). Naylor and Aiken entered a lease agreement with an option for Aiken to purchase Naylor’s house. Aiken did not exercise his option to purchase, but remained in the house, making

lease payments until through July 2013. Naylor filed an eviction suit; Aiken sued to quiet title and for damages. The trial court granted summary judgment for Naylor, ordering that Aiken take nothing, that there was no title to quiet, and that the parties were only in a landlord-tenant relationship. The court of appeals noted that motions for summary judgment are limited to the grounds stated in the motion. By concluding that Aiken “take nothing,” the trial court adjudicated grounds that were not in Naylor’s motion, that is, all of Aiken’s damages claims. The court reversed the take nothing portion of the judgment and affirmed the remainder. TORT CLAIMS ACT: Official immunity bars suit against DPS trooper. Texas Dep’t of Public Safety v. Mirasol, No. 03-15-00300-CV (Tex. App.—Austin Sept. 29, 2016, no pet. h.) (mem. op.). Mirasol sued DPS for injuries after she collided with a trooper during a traffic stop. The trial court denied DPS’s plea to the jurisdiction. The court of appeals concluded that the trooper was entitled to official immunity because he was performing a discretionary act within the scope of his authority. The court next addressed whether the trooper acted in good faith. An officer acts in good faith if a reasonably prudent officer, under similar circumstances, could have believed the need to apprehend a suspect outweighed the risk of harm to the public. Need refers to the urgency of the circumstances requiring intervention, and risk assesses the safety to the public. The trooper testified to both factors and conclusively established that a reasonable officer in the same circumstances would have made the stop. Mirasol did not controvert the trooper’s good faith. The court AUSTIN LAWYER reversed and dismissed. AL AL

FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued by the U.S. District Court for the Western District of Texas during September 2016. These summaries are intended as an overview only, and counsel are cautioned to review the complete opinions.

ELECTION LAW: Remedial plan unnecessary to ensure State’s compliance with order enjoining enforcement of Election Code provisions related to assistance for limited English speakers. OCA-Greater Houston v. State of Texas, No. 1:15-cv-00679 (W.D. Tex. Sept. 2, 2016). Following summary judgment in favor of plaintiffs on grounds that enforcement of certain Texas Election Code provisions related to assistance for limited English speakers violated federal Voting Rights Act, plaintiffs sought permanent injunction and proposed specific remedial plan. Court reiterated that Voting Rights Act requires states to not limit voters’ rights to assistance by persons of their choice, but found requested relief largely mooted by defendants’

compliance efforts already in place. Further affirmative obligations to ensure defendants’ compliance were determined unnecessary because Voting Rights Act section 208 only creates negative obligation for states. Court held that although plaintiffs were entitled to injunctive relief, no additional relief was required at this juncture. Motion for permanent injunction denied without prejudice. EMPLOYMENT LAW: Specificity not required in pleading claim for overtime pay under Fair Labor Standards Act. Jones v. Warren Unilube, Inc., No. 5:16-cv-00264 (W.D. Tex. Sept. 1, 2016). Defendant moved to dismiss plaintiff’s individual FLSA claim on ground that other circuits require plaintiffs to plead existence of at least one specific workweek in which plaintiff worked more than 40 hours and was not paid overtime pay. Court held plaintiff’s claim was sufficiently pled because it put defendant on notice of relevant date range and approximate numbers of hours for which undercompensation was claimed. Motion to dismiss was de-

nied as to plaintiff’s individual claim. Defendant also moved to dismiss plaintiff’s collective action complaint for failure to state a claim. Court held plaintiff’s complaint did not provide defendant with fair notice of the putative class because it failed to identify any information regarding class members’ geographic locations or description of job duties, and also failed to allege that any putative class members worked more than 40 hours per week. Plaintiff’s collective action complaint was dismissed without prejudice. CIVIL PROCEDURE: No objectively reasonable basis for federal removal based on defense or counterclaim. The State of Texas v. Melton, No. 1:16-CV-00863 (W.D. Tex. Sept. 9, 2016). State sued to compel compliance with final administrative order issued by Texas Board of Professional Engineers. Pro se defendant removed case to federal court on ground that State’s claim was barred by federal antitrust law. State moved to remand. Court found defendant’s argument for removal was based on a defense or counterclaim, neither of

Rachael K. Jones is an attorney at The Carlson Law Firm and a member of the AYLA Board of Directors

which confers federal subject matter jurisdiction. Because no element of State’s claim arose under federal law and State’s right to relief did not depend on resolution of a substantial question of federal law, federal jurisdiction was not established. Court granted motion to remand and awarded attorney fees and costs to State because defendant lacked anyAUSTIN objectively reasonable basis for LAWYER AL AL seeking removal.

NOVEMBER 2016 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

The Vanishing Federal Criminal Jury Trial? DAN DWORIN, ATTORNEY AT LAW The views and opinions expressed are those of the author and do not necessarily reflect the views or opinions of the Austin Bar.

t’s hard for a criminal defense lawyer who practices primarily in state courts to imagine a judge complaining about not having enough criminal jury trials. But that is precisely what’s going on in New York City, of all places, according to a recent article in the New York Times. “It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested. Everything else is done behind closed doors.” Trial by Jury, a Hallowed American Right, Is Vanishing, Benjamin Weiser, New York Times, August 7, 2016. The article states the number of criminal trials in the Southern District of New York during 2015 was 50, the lowest total number of trials in that very populous district since 2004. Locally, in the year ending on September 30, 2015, there were 59 criminal jury trials in the Western District of Texas. There were 6,820 total defendants prosecuted during that time, 6,540 of whom entered guilty pleas.1 Perhaps bucking the trend, there have been six criminal jury trials so far in 2016 in the Austin Division of the Western District of Texas, up from three in 2015.2 Experts interviewed by the Times gave reasonable answers—the federal sentencing guidelines and mandatory minimum punishments imposed by Congress make trial too risky for most defendants. To a Texas defense lawyer, to whom the option of jury punishment is almost as sacred as jury trial itself, these answers— though accurate—were incomplete. In Texas state courts, a defendant has the right to elect jury punishment. The same jury is asked whether the state has proven its case beyond a reasonable doubt, and if so, they proceed to hear evidence concerning punishment, then render a verdict within the range provided in the court’s charge. For many serious offenses, only a jury can recommend 16

AUSTINLAWYER | NOVEMBER 2016

probation, and it’s not uncommon was 8 months’ imprisonment (with a for a defendant to go to trial solely mean of 14.5 months)—far less than on the issue of punishment.3 While the five-year mandatory minimum for the offense, and orders of magnitude no one can predict what a given jury below the guideline range of 262-327 might do, the parties at least know months. Judge Gwin sentenced the that the people most representative of defendant to the five-year mandatory the community, who know everything minimum, and the Sixth Circuit afabout the case and the defendant firmed his sentence as reasonable.10 that the court deemed relevant, will determine the punishment directly. It should be noted that the jury was In federal court, the judge assesses not selected based on their views on punishment (unless the government punishment (since in federal court seeks the death penalty, which is it would be pointless to put such extremely rare). The judge is required questions to a panel), nor did the jury by law to “consider” the United hear evidence from either side about States Sentencing Guidelines4, which the defendant other than what was offered to prove, or contest, his guilt. assign numerical levels to the offense Any defense lawyer who argues conduct, aggravating factors, and the about the guidelines with a federal defendant’s criminal history, to recomjudge is likely to hear some version mend a punishment range. Although of: “That’s a fine argument to make the United States Supreme Court has to Congress.” While that’s true held that the guidelines are “advisoenough, it’s interesting to see at least ry” in nature, the Court still requires one federal judge decided to seek sentencing judges to “give serious community input on sentencing and consideration to the extent of any applied it to something more than an departure from the Guidelines and . intellectual exercise, and his efforts . . explain [their] conclusion that an survived the government’s appeal.11 unusually lenient or unusually harsh sentence is appropriate in a particular If more judges were willing to do case.”5 The net effect of this is in something like this, and the circuit courts continued to affirm them, most cases, even under the “advisory” it would be interesting to see if it guideline scheme, sentences usually would change the number of federal fall within the guidelines, particularly defendants who choose to test the in the Fifth Circuit.6 government’s case—and the federal One section of the guidelines criminal justice system itself —with calls for a reduction of the “adjusted AUSTIN LAWYER L AL a juryAtrial. guideline level” based on “acceptance of responsibility.”7 Thus, a Footnotes: defendant is rewarded for waiving 1 uscourts.gov/statistics/table/d-7/ his or her right to trial. Of course, judicial-business/2015/09/30 “plea bargaining” certainly results 2 Information provided by the U.S. in the vast majority of state-court District Clerk for the Western defendants choosing not to go to trial District of Texas, Austin Division. as well, but in federal court there is 3 Tex. Code Crim. Pro. art. 37.07(2)(b). 4 The guidelines are promulgated an explicit, mathematical formula by the United States Sentencing applied which benefits only those Commission, an unelected body, who do so.8 under authorization of Congress, Judge James S. Gwin of the see 28 USC § 944(a). Northern District of Ohio, who 5 United States v. Gall, 128 S.Ct. 586, has written a law review article 594-595 (2007). questioning whether the guidelines 6 In 2015, according the US Sentencing Commission data, 63.8 in any way reflect the values of any percent of Fifth Circuit defendgiven community9, recently asked the ants were sentenced within the jurors who had convicted a defendant guideline range for their offense of possessing and distributing child (compared to 47.3 percent nationpornography what they thought a ally). ussc.gov/sites/default/files/ reasonable sentence would be, and pdf/research-and-publications/ used the results of that poll to inform annual-reports-and-sourcehis sentencing decision. Surprisingly, books/2015/TableN-5.pdf 7 USSG §3E1.1. More troubling the jurors’ median recommendation

10 11

from the defense perspective is the fact that the guideline level is determined initially by a federal probation officer, who receives information directly from the case agents, thus giving the prosecutor and their agents unfettered discretion in their presentation of the facts. Many federal sentencing proceedings involve lengthy objections to those calculations, and often require evidentiary hearings. Similarly, federal prosecutors can offer a plea to a charge which carries a lower guideline range, or that avoids a mandatory minimum prison sentence, which is common in large narcotics cases. Defendants can also earn the government’s “motion for downward departure” from the guideline range in exchange for their cooperation in the prosecution of others, see USSG §5K1.1. Judge James S. Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values? 4 Harv. Law & Pol’y Rev. 173, 185 (Winter 2010). In this fascinating article, Judge Gwin relates how he began sampling juror opinions after convictions, but not reading the results until after imposing a sentence. He found, invariably, that jurors recommended sentences well below the guideline range. United States v. Collins, ___ F.3d ___, 2016 WL 3583999 (6th Cir. 2016). For a complete summary of the Collins case, and how dramatically it could conceivably change appellate review of sentencing “reasonableness,” see Federal Corner: The Most Unbelievable Sentence Ever Imposed in a Child Pornography Case, Buck Files, Voice for the Defense (Texas Criminal Defense Lawyers’ Association), September 2016.

Dan Dworin is a criminal defense attorney who has practiced in Central Texas since 1995, and has been 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.

LEGISLATIVE UPDATE

In 2017, Litigation Will Drive Legislation BY ERIC WOOMER, CONGRESS AVENUE PARTNERS

s the 85th Texas Legislature looms, litigation on several high-profile topics will drive the legislature’s priorities for the next biennium. Here is a quick look:

CHILD PROTECTIVE SERVICES

The U.S. Supreme Court ruled this year that state restrictions place an undue burden on a woman’s right to an abortion, overturning provisions of 2013 law. Legislative leaders have already signaled their intention to pursue new legislation in 2017 to address the Court’s objections.

Long-term foster care in Texas is “broken” and routinely does serious harm to children, a federal judge ruled earlier this year, and later appointed a pair of special masters to oversee ordered reforms. The state believes the court overlooked improvements since the 2005 enactment of changes to Child Protective Services and the foster care overhaul that followed thereafter. The Texas budget includes more than $1.4 billion a year on Child Protective Services.

PUBLIC SCHOOL FINANCE

CLEAN POWER PLAN

While saying “our Byzantine school funding ‘system’ is undeniably imperfect,” the Texas Supreme Court nonetheless upheld the state’s public school funding system as constitutional. Despite that finding, the Court encouraged—but did not require—state lawmakers to implement “transformational, topto-bottom reforms.” House Speaker Joe Straus ordered representatives to recommend reforms before the 2017 legislative session, and examine the impact of laws allocating state money to school districts to offset mandated property tax cuts. A recent hearing on the topic lasted more than 10 hours.

The Obama administration’s energy policy includes a mandate to cut emissions from coal-fired electric power plants by 32 percent by 2030. Nearly half of the states, including Texas, are suing to stop implementation, and the plan has been temporarily blocked by the U.S. Supreme Court, pending appeals. A recent Senate hearing included testimony from state regulators that, if implemented, Texas household power bills will increase by more than 40 percent by 2020. However, many solar and wind power advocates say the electricity market was already evolving away from coal, because of the low cost of natural

ABORTION

gas.

TELEMEDICINE Telephonic healthcare provider Teladoc sued the Texas Medical Board in 2015, alleging antitrust violations because the Board is made up of doctors with a financial interest in blocking telemedicine. Recently, the U.S. Federal Trade Commission intervened on Teladoc’s behalf. Presently, the Fifth Circuit is weighing a ruling on whether to dismiss the case.

AFFORDABLE HOUSING The state is still struggling to comply with a 2015 U.S. Supreme Court ruling that policies segregating minorities in poor neighborhoods, even unintentionally, violate the Fair Housing Act. The Texas Department of Housing and Community Affairs faces challenges from well-to-do communities reluctant to allow low-income housing projects in their midst, as well as opposition from housing advocates who object to continued placement of housing developments in lower-income communities.

TRANSGENDER ISSUES This year, the Obama administration issued new directives regarding accommodation of transgender individuals in educational institutions, including Texas public schools, providing, among other rights, that transgender students may use their preferred bathrooms on campus. Texas filed suit, and said the federal government “usurped” the authority of states and schools. So far, the court has sided with Texas and the 12 other states challenging the rules, saying the status quo should remain in place for the time being.

VOTER IDENTIFICATION Earlier this year, the Fifth Circuit Court struck down a Texas voter ID law on the grounds that its “discriminatory” impact violated the Voting Rights Act of 1965. The lower district court is now re-evaluating whether the Texas legislators acted

Congress Avenue Partners is comprised of principals Eric Woomer (pictured above), Eric Wright, Buddy Garcia, and Gregg Knaupe. The firm offers strategic legislative advice and political counsel. The views and opinions expressed are those of the author and do not necessarily reflect the views or opinions of the Austin Bar Association.

in a purposefully discriminatory manner. Proponents of the law argued the change cracked down on voter fraud, preserving the integrity of the elections process.

FRANCHISE TAX A state appeals court ruled that a movie theater company can use a liberal standard to calculate its franchise tax. If it stands, it could cost the state more than a billion dollars annually in lost revenue, and refunds for taxes collected previously could exceed $6 billion. An earlier Texas Supreme Court ruling in a similar case relating to oil and gas drilling equipment already spared the state from having to issue billions of dollars in refunds. Clearly, rulings such as these by various courts have far-reaching ramifications in the legislative process. Lawmakers will not only wrestle with the outcomes of these cases, and others, but the energy devoted to discussing these issues can crowd out competing legislative priorities. In this climate, positioning a client’s legislative agenda becomes a critical challenge for even the most seasoned professional AUSTIN LAWYER advocate. AL AL NOVEMBER 2016 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN KATIE FILLMORE BUTLER SNOW

Making the Most of Your AYLA Membership

joined AYLA as soon as I started practicing in Austin, and I’ve been active in it ever since. When I first signed up, I only knew a few AYLA members. It was intimidating showing up at events not knowing anyone, but that is honestly the reason why I got to know so many people so quickly. Within half a year of joining, I ran for the board of directors and got elected. People frequently ask me my advice on how to get involved. The answer depends on each individual’s interest, but I believe the most important step is showing up. With our busy schedules, I understand sometimes cutting out extracurricular activities such as bar association events can be the easy choice. However, I truly believe the more you put into it, the more you will get out.

BUILDING A NETWORK AYLA provides members with opportunities to meet and connect with other young lawyers from various practice areas. Meeting other lawyers is essential for building your brand and reputation in the legal community, but younger lawyers sometimes do not consider this to be an immediate need. It is important to start building a network early in your career, and it is best to establish connections with people before you need something from them. The connection is then based on a genuine interest in getting to know each other. The prospect of networking can be daunting, especially when you are walking into a room full of busy 18

AUSTINLAWYER | NOVEMBER 2016

It is important to start building a network early in your career, and it is best to establish connections with people before you need something from them. The connection is then based on a genuine interest in getting to know each other. people. But once you make the first connection, the rest will follow. It is important to remember that everyone at a networking event is there to get to know others. Networking is about developing rapport and building relationships, but it doesn’t happen immediately. It is a process. Think of networking as an opportunity for learning and discovery. Try to find a common interest with those you meet and think about what you have to offer to others, including your gratitude. Once you’ve established connections in AYLA, don’t get stuck in a rut of always talking with the same people. Try to continue to expand your network and work the room. Be sure to reconnect with old friends, but also make an effort to make new contacts. If you are already well connected, you can provide value to the newcomers you meet. You can make introductions to others with similar interests or practice areas, and they will immediately be grateful. The follow-up from meeting a new contact is just as important. Networking is not as simple as exchanging business cards. What do you do with those business cards after the event? If you had a conversation about something interesting, try sending the new contact an email with additional information on the topic. Alternatively, add the contact as a connection on LinkedIn. Maintain the connection by establishing a line of continued communication.

FIND YOUR PROJECT Another great way to get to know AYLA members is to join a committee or volunteer for a project. Your involvement will provide you with an opportunity to get to know a smaller subset of members, which can be less intimidating. AYLA has a wide offering of projects for every interest. Do you like Longhorn sports? Volunteer for the AYLA Tailgate Fundraiser. Are you into fashion? Volunteer for the Runway for Justice Fashion Show. Do

you like theater? Participate in the Bar & Grill show. These are just a few examples of the opportunities AYLA offers. By getting involved in a project that interests you, you will likely find others who share your interest.

WHERE TO START In the upcoming months, we are planning various opportunities for you to get involved and meet new people. Additionally, I am excited to announce that AYLA just received a grant from the Texas Young Lawyers Association for a “how-to-network” program. In it, we plan to feature tips for networking with demonstrations and exercises to practice new skills. Details will be announced as it is developed. There is no time like the present to get started! Take the first step. Simply come to the next AYLA event and introduceAUSTIN yourself toLAWYER someone L AL new. You’ll be glad youAdid.

UPCOMING EVENTS SATURDAY, NOV. 5 Bar & Grill 8 p.m. to 10 p.m. Scottish Rite Theater, 207 W. 18th St. THURSDAY, NOV. 17 AYLA Docket Call 5:30 p.m. to 7 p.m. J. Blacks, 710-B W. 6th Street Sponsored by Avison Young SUNDAY, DEC. 11 Reindeer Games 1 p.m. to 3 p.m. Parque Zaragoza, 2608 Gonzales St. Email debbie@austinbar.org to volunteer

AUSTIN YOUNG LAWYERS ASSOCIATION

Judicial Reception a Success

n September 15, the Austin Young Lawyers Association held its annual Judicial Reception at the Four Seasons Hotel. The Judicial Reception provides AYLA members with an opportunity to share an evening of great food and even better conversation with local, state, and federal judges. This year was no exception. AYLA members who took advantage of this opportunity were treated to an entertaining evening with judges from courts of all levels. During the reception, the AYLA Alumnus Award was presented to Mike Golden, and the President’s Award of Merit was presented to Brittany Stanford. AYLA extends a special thanks to all of the judges who attended and to all of the event sponsors for

making this successful event possible. The event’s Benefactor-level sponsor was Scott Douglass & McConnico. Patron sponsors included: Bracewell; Howry Breen & Herman; McCullar Gilbreath; Norton Rose Fulbright; Vinson & Elkins; and Waller Lansden Dortch & Davis. Event sponsors included Baker Botts; Beckett Tackett & Jetel; Boulette Golden & Marin; Davis & Wright; Fee, Smith, Sharp & Vitullo; Gardere Wynne Sewell; Graves Dougherty Hearon & Moody; Hanna & Plaut; HSSK; Hunton & Williams; Kaplan Law Firm, Kim Tindall & Associates; Martens, Todd, Leonard, Taylor & Ahlrich; McKool Smith; Munsch Hardt Kopf & Harr; Noelke Maples St. Ledger Bryant; Reeves & Brightwell; and AUSTIN LAWYER ThompsonACoe. L AL

CLOCKWISE FROM TOP LEFT: Thanks to the many sponsors who supported the event; Justice Bob Pemberton, Sarah Sulak, and Judge Tim Sulak; Nick Chu, Judge Todd Wong, and Justice Cindy Olson Bourland.

Austin Young Lawyers Association Presents

Representing Attorneys

Gaines West

State-wide Practice State Bar of Texas

Grievance Oversight Committee Appointed by the Texas Supreme Court Chair, 2006-2010 Member, 2004-2010

Texas Board of Disciplinary Appeals

Appointed by the Texas Supreme Court Chairman, 2001-2003 Vice Chairman, 1994-1996, 1998-2000 Member, 1992-1996, 1997-2003

State Bar of Texas

Disciplinary Rules of Professional Conduct Committee Member, 1993-1996

Disciplinary Review Committee Member, 1991-1992

Texas Bar Foundation, Fellow State Bar of Texas, Member Brazos County Bar Association, Member Austin Bar Association, Member

Bar & Grill 24 November 5, 2016 at 8 pm Austin Scottish Rite Theater 207 W 18th Street Tickets www.ayla.org Once poster.indd 1

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NOVEMBER 2016 | AUSTINLAWYER

SOCIAL MEDIA SAVVY

Legal Ethics and Social Media, Part II BY RACHAEL K. JONES

his is the second of a three-part series which began in the October issue. Although lawyers may not realize it, legal ethics rules are just as applicable online as offline. To help avoid accidental violations of the Texas Disciplinary Rules of Professional Conduct (TDRPC)1 while using social media, here are a few

considerations to keep in mind.

UNAUTHORIZED COMMUNICATIONS ISSUE: Because social media allows lawyers to access information about and/or directly contact parties, witnesses, and jurors, it can be an invaluable research tool. However, there are also many ways in which such research may cross the line into

prohibited communications. While viewing publicly available information on a person’s2 social media profile is almost always fair game, beyond that, things start to get complicated. For example, “false friending” a person (i.e., sending someone a friend request for the sole purpose of obtaining access to the private portions of the person’s profile) may be considered deceptive conduct

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and/or misrepresentation in violation of TDRPC Rule 4.01. Furthermore, some social media platforms (e.g., LinkedIn Premium) automatically notify users with regard to who has viewed their profiles, and even this automatically generated notification has been held to constitute impermissible contact in some jurisdictions.3 Similarly, automatic or “batch” invitations generated from imported email contact lists may inadvertently result in improper contact.4 Lawyers are expressly prohibited from directing others (including staff, private investigators, and clients) to engage in conduct that would violate the ethics rules if engaged in by the lawyer. However, a lawyer may review information that a client has obtained from the client’s own direct communication with a third party (including a represented party), as long as the client did not engage in the communication at the lawyer’s direction. Unrepresented Persons. Pursuant to TDRPC Rule 4.03, when dealing with an unrepresented person, you may not state or imply that you are disinterested in the matter and must correct any apparent misunderstanding regarding your role. If you send a direct message or friend or follower request to an unrepresented person, you should ensure that the person is aware of the circumstances surrounding the message or request and of your role. Represented Persons. Direct communication between a lawyer and a represented person about the subject of the lawyer’s representation is strictly prohibited under TDRPC Rule 4.02. This prohibition extends to friend and follower requests on social media. Jurors. Lawyers may conduct a passive review of publicly available information on jurors’ social media profiles, but may not request access to any private information; any such request for non-public information would constitute a prohibited communication. Never instruct someone else to engage in any conduct on social continued on page 22

AUSTINLAWYER | NOVEMBER 2016

DEVELOPING YOUR PRACTICE

Keeping the Money Flowing Choosing Your Clients and Collecting Your Fees BY SAM COLLETTI

very lawyer wants to have “good clients.” Who are the good clients? Perhaps the ones who actually follow your advice, who respect personal boundaries, and who pay your bill on time. That last factor is critical to the success of your law practice. Understanding how and whether your fees will get paid is important in deciding whether to accept the case in the first place. Begin with the recognition that you do not have to take every case. The following questions are applicable to any lawyer’s decision about which clients to take and which ones to politely decline: • What is your gut feeling about this client? • Can you envision yourself standing up in court advocating for this person and enduring the hours of preparation with this person that trial will require? • How will this client afford to pay you a reasonable fee for your work? • Do you actually have time to give this case the attention it needs? • Do you have the skill and knowledge needed to handle this case correctly, or a sensible plan for obtaining such skill and knowledge? • Is this case likely to help you achieve or make progress toward specific career goals (e.g. fulfilling requirements for board certi-

fication, or developing experience in a subspecialty)? • Did this client come to you through an important referral source? • Is this case likely to be particularly profitable? • Is this case likely to generate favorable publicity? • Is this client likely to become a good referral source assuming all goes well? • How comfortable are you in the court where the case is or will be filed? • Who is on the other side (party and lawyer)? • If the case is not a perfect fit for you, could you do a favor for three people by making an excellent referral? Next, set yourself up for success by discussing fees honestly in the very first meeting with the client. The client expects to talk about money and how much the case will cost. Indeed it may be the threshold question for them about whether to proceed with the case and also which lawyer to hire. So begin with the assumption that the client not only needs to talk about money, but wants to do so. Of course, there is a balance to be found when discussing fees. On one hand, it is a crucial element of the attorney-client relationship, but on the other hand, you do not want to make the client feel as if the only thing you care about is making money off of him or her.

The best practice is to communicate clearly and matter-of-factly about your fees. Give the potential client your legal services contract, and encourage him or her to take it home and read it carefully. Ask the client to call you back with any questions about the contract. To the layperson, our legal services contracts can be overwhelming, and you want the client to feel comfortable knowing what he or she is signing. It is also a good idea for you, the lawyer, to know what the client is signing. Have you carefully read your own legal services contract lately? Could you explain it to your grandmother? If you have chosen your clients well and educated them about the process of working the case, then the wind is at your back—but you still have to finish the race. For attorneys who bill by the hour, no problem is more pervasive and more preventable than failing to accurately record all of your time. Recording your time is best done contemporaneously—i.e., you write down what you have done and how much time you spent on it immediately after completing the task. If you do not record the time immediately, you will forget, and some portion of your hard work will go unpaid. We all carry far too many thoughts in our heads at any given time to reasonably rely on our memory of that thing you did for three minutes sometime mid-morning-ish.

Sam Colletti

If you bill at $250 per hour, then each time you neglect to bill a .1 is the functional equivalent of someone reaching into your wallet and taking $25. There is no one to blame but yourself. Consistently collecting your fees is one of the best goals to work toward for career satisfaction and longevity. To make progress, you must take stock of where you are now, and decide where it is you want to go. Once you have defined the goal—that is, what you want your law practice to look like as far as collection rate—the next step is to start acting like you are already there. If your goal is to be able to charge for consultations, start charging for consultations. If your goal is to implement the evergreen retainer, do it today. Practice explaining it. Practice telling the client what is in it for them—that by keeping the money flowing, they ensure that the attorney’s attention is focused on the case, rather than AUSTIN LAWYER on the worry of not gettingApaid. L AL

THE LITIGATION, CO-COUNSEL TRIAL TEAM FOR SOLO AND SMALL FIRM PRACTITIONERS

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

NOVEMBER 2016 | AUSTINLAWYER

Legal Ethics and Social Media, Part II continued from page 20

media that would violate the ethical rules if engaged in by you personally as an attorney. • When viewing a person’s social media profile, be mindful of the fact that the person may be able to see that you have done so. • If you send a message or friend/ follower request to an unrepresented party or witness, always disclose the purpose of the communication and your role. • Do not send messages or friend/ follower requests to persons whom you know are represented by counsel. • Do not send messages or friend/ follower requests to potential jurors, and do not otherwise request any non-public information from a potential juror. • If you send automatic or “batch” invitations to a group of contacts generated from your email address book, be sure to carefully review the list of recipients before sending. Look for Part III of this series in the next issue of Austin Lawyer.

1. Publication Title

Do you have questions related to lawyers and social media, or a particular topic you’d like to see addressed? Please feel free to share yourAUSTIN thoughts LAWYER by emailing rkjones983@gmail.com. AL AL Footnotes: 1 The full text of the TDRPC can be found at legalethicstexas. com/Ethics-Resources/Rules/ Texas-Disciplinary-Rules-of-Professional-Conduct.aspx. 2 For purposes of this article, the term “person” includes organizational and other legal entities as well as individuals. 3 Texas is not currently included among these jurisdictions. It is also worth noting that the ABA disagrees with this position. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 466 (2014), available at americanbar. org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf. 4 Automatic and “batch” invitations can also implicate solicitation issues; see previous section.

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AUSTINLAWYER | NOVEMBER 2016

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4,674

184

236

4,229

4,363

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NOVEMBER 2016 | AUSTINLAWYER

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