Austin Lawyer, November 2017 by Austin Bar Association

austinbar.org NOVEMBER 2017 | VOLUME 26, NUMBER 9

Free Legal Advice Clinic for Veterans Goes To The Dogs Love-a-Bull’s Pit Crew Provided Special Guests at Recent Clinic BY KELLEY DWYER, CHAIR OF THE AUSTIN BAR’S ANIMAL LAW SECTION

s a longtime volunteer at Austin Animal Center, Austin’s municipal animal shelter, I noticed a lot of young veterans visiting the shelter seeking to adopt dogs as unofficial emotional support dogs to help ease their transitions back to civilian life. As we walked through the kennels full of sweet homeless dogs, all eager to find their new best friends, and after we visited with dogs one-on-one,

the veterans would start to share some of their experiences. They shared their challenges and their hopes for the comfort and understanding they knew only the love of a good dog would provide. They all knew dogs don’t judge. They don’t ask rude probing questions. They don’t demand anything. They are happy with a small return of what they give— love and companionship. The calming effects of companion animals are well documented1.

Spending time with companion animals has been shown to double the amount of oxytocin, beta endorphins (the same chemicals that produce a “runners’ high”), and dopamine. A Bar Code notice of the latest monthly Free Legal Advice Clinic for Veterans made me think about how continued on page 6

“Remembering our Heroes” Campaign Honors Veterans and Raises Funds for Free Legal Services

he Texas Access to Justice Foundation (TAJF) announced a new campaign to benefit the Joe Jamail Endowment for Veteran Legal Services, an endowment fund that ensures Texas veterans have fair and equitable access to the justice system. The “Remembering Our Heroes” campaign

aims to recognize veterans and active-duty military personnel living or deceased, who have served or are currently serving in the U.S. military by allowing contributors to make a donation to the endowment in their name. As of result of their donation, TAJF will honor these service members through a series of events leading up to and sur-

NOV 13 and DEC 11 UPCOMING AUSTIN BAR VETERANS CLINICS AUSTIN VA OUTPATIENT CLINIC 1:30 – 3:30 p.m. CONTACT: Isabel Salazar, isabel@austinbar.org

rounding Veterans Day. Named in honor of Texas attorney Joe Jamail, a legend among the legal community and well-known for his philanthropic efforts, the Joe Jamail Endowment for Veteran Legal Services ensures that Texas veterans have access to the free legal help they need to successfully integrate

back into civilian life and secure the rights and benefits for which they risked their lives. “This campaign expands the endowment’s mission to continue the legacy of legal legend Joe Jamail by honoring the legacies of other veterans and providing funding for free legal assistance continued on page 7

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CONTENTS

AUSTINLAWYER NOVEMBER 2017 | VOLUME 26, NUMBER 9 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

Free Legal Advice Clinic for Veterans Goes To The Dogs

Opening Statement

“Remembering our Heroes” Campaign Honors Veterans and Raises Funds for Free Legal Services

Briefs

Third Court of Appeals Civil Update

Third Court of Appeals Criminal Update

Federal Criminal Court News

Spotlight on Austin Bar Foundation 2017 Grant Recipient

5 8

Apply Now for 2018 AYLA/Austin Bar Leadership Academy

#GivingTuesday – November 28, 2017

Austin Bar Serves the Community with Fee Dispute Committee

Federal Civil Court Update

Local Attorney Donates Books to the SAFE Alliance

Practice Pointers

CanLaw—Planing for the Future

AYLA

ONLINE

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Spotlight on Austin Bar Foundation 2017 Grant Recipient Texas Accountants and Lawyers for the Arts

he Austin Bar Foundation awarded seven grants in 2017 totaling close to $30,000. The Foundation has given $132,098 worth of grants to date. The 2017 grants were given to organizations working to provide legal-related services to members of the Central Texas community, including Texas Accountants and Lawyers for the Arts (TALA). TALA was formed in 1979 to meet the legal and accounting needs of artists and art nonprofits. Services include lawyer and accountant pro bono assistance for artists, patent pro bono assistance for inventors, dispute resolution services, and educational programs for the artistic and business communities. Programs are designed to help participants apply sound business practices to protect intellectual property, advance careers, and develop income. TALA’s pro bono legal and accounting services are offered to financially qualified, lowincome artists and arts nonprofits in all creative disciplines, including visual arts, music, theater, dance, film, gaming, and writing. TALA’s signature program is the facilitation of pro bono referrals to attorney and accountant volunteers for Texas artists and arts nonprofits. Individual artists must have

an annual household income below 300 percent of the federal poverty level. Arts nonprofits must have an annual budget of less than $200,000. Artists and nonprofit staff are matched with individual accountants and attorneys to obtain valuable advice and assistance. New to TALA is the Patent Pro Bono program, which launched in December 2016. Texas inventors are now eligible to receive assistance filing a non-provisional patent with the United States Patent and Trademark Office. Inventors must meet the same eligibility criteria as artists. Annual membership includes unlimited legal and accounting assistance on matters that fall within TALA assistance guidelines. In addition to the matching service, TALA offers free educational programming. During the past year, funds from the Foundation helped TALA present the following seminars that served more than 500 central Texas participants. • Copyright for Musicians • Copyright for Artists • Music Licensing and Fair Use • Legal Issues for Teaching Artists • Two Legal Clinics • Intellectual Property for the Artistic Business • Choosing a Business Entity for Your Creative Pursuit

CLOCKWISE: Trent Brough covers entity formation for creative enterprises, and Katie Wolters instructs entrepreneur artists about Texas sales tax during the Business Essentials class in September, 2017.

• • • •

Understanding the Sales Tax Recordkeeping for Artists Legal Issues for Songwriters Are You Missing Money from Your Songs? • Legal Issues for Graphic Design In September 2017, TALA presented a two-night, four-part, free workshop titled “Business Essentials for the Artist Entrepreneur.” Austin-based attorneys covered business entities, intellectual property, and sales tax, while an Austin CPA covered recordkeeping. More than 85 Austin-based artists attended. Adrian Resendez presented TALA’s seminar, “Copyright for Visual Artists,” at the Carver Museum and Cultural Center in October.

TALA will host a Holiday Mixer with Lawyer Referral Service and the Austin Bar’s Entertainment & Sports Law Section on November 30 at The Terrace at 816 Congress from 6 - 7:30 p.m. Attorneys interested in volunteering with TALA may register to receive a match list of available cases at www.tfaforms. com/351526. In addition to recruiting attorneys to provide pro bono assistance for artists and inventors, TALA is always looking for subject-matter experts in legal fields related to music, art, or patent to present educational programs. Find out more at AUSTIN LAWYER AL AL info@talarts.org.

NOVEMBER 2017 | AUSTINLAWYER

“Pit Crew” Visits Free Legal Advice Clinic for Veterans continued from cover

stressful it must be for veterans to go to these clinics and talk about their legal issues—most of which have been brewing for a long time—and how nice it would be for them to see a friendly, fuzzy face or two and decompress on their way into the clinic. This was a perfect opportunity for the Austin Bar Association’s Animal Law Section to help make this connection happen. The wonderful staff at the Austin Bar were very receptive to the idea. When they scheduled the most recent Free Legal Advice Clinic for Veterans, on October 2 at VFW Post 8787 in North Austin, they knew this would be the perfect opportunity to invite some canine friends along. The VFW Post is known for being a very dog-friendly venue, even hosting a weekly social meetup specifically for their members with service dogs. Our guests for the clinic were Love-A-Bull’s Pit Crew,2 an award-winning all pit bull and pit bull mixed-breed certified therapy dog program serving Austin and surrounding areas. The volunteers, along with their dogs Rita, Wink (a sweet dog with one eye), and Doggy Trejo (named after animal welfare advocate Danny Trego who met his doggy counterpart last year3), joined us in shifts to welcome everyone at the clinic. As anticipated, the dogs provided some much-needed comfort, along with kisses and levity, for everyone in attendance, including the veterans, law students and attorney volunteers, Austin Bar staff members, and the VFW members who were socializing at the post. As the dogs worked their magic, visitors opened up and shared how they had adopted rescue dogs and cats as their best friends. The Animal Law Section is grateful to the Austin 6

AUSTINLAWYER | NOVEMBER 2017

The dogs provided some much-needed comfort, along with kisses and levity, for everyone in attendance, including the veterans, law students and attorney volunteers, Austin Bar staff members, and the VFW members. Bar for being open to this idea. We are hoping to continue this effort at future Free Legal AdAUSTIN LAWYER AL AL vice Clinics for Veterans.

COVER: Photo of Tristan courtesy of Love-A-Bull. ABOVE: Volunteers with Love-A-Bull share their therapy dogs with law students volunteering at a recent Free Legal Advice Clinic for Veterans.

Footnotes 1. www.bostonglobe.com/lifestyle /2015/01/12/your-brain-pets/ geoJHAfFHxrwNS4OgWb7sO/ story.html

2. http://love-a-bull.org/programs/ the-pit-crew/ 3. www.facebook.com/ AustinAnimalCenter/photos/

Honoring Veterans with “Remembering our Heroes” Campaign continued from cover

to those who have fought for our freedom,” Terry Tottenham, chair of the endowment committee of the TAJF board of directors, said. Texas has the second-highest population of veterans in the nation. According to the Department of Veterans Affairs, legal issues account for five of the top 10 unmet needs of homeless veterans. Obtaining access to free legal services can be critical for veterans to get the benefits and support they need for themselves and their families.

The endowment was created by Houston attorney Richard Mithoff, a protégé of Jamail, to honor Jamail’s vision of access to justice for all. According to Mithoff, “The endowment honors Joe’s commitment to access to justice and to our veterans....” TAJF currently provides funding to 15 nonprofit organizations throughout the state that provide free legal services to low-income veterans. The organizations help with civil legal matters

including the denial of critical medical care, legal issues related to disabilities, family law, the denial of benefits, and other issues that may arise because of a veteran’s absence from home

during military service. Every year, these organizations provide free legal services to more than 8,000 Texas veterans. The endowment was created by Houston attorney Richard Mithoff, a protégé of Jamail, to honor Jamail’s vision of access to justice for all. According to Mithoff, “The endowment honors Joe’s commitment to access to justice and to our veterans. But he wasn’t alone in that cause. ‘Remembering Our Heroes’ will honor the continued AUSTIN LAWYER AL AL legacy of all veterans.”

SUZANNE COVINGTON Senior District Judge

SPECIAL JUDGE BY ASSIGNMENT Arbitration Mediation 512-923-8705 suzanne.covington@judgecovington.com www.judgecovington.com

Offices in Austin, Round Rock and Dallas NOVEMBER 2017 | AUSTINLAWYER

Apply Now for 2018 Austin Bar/AYLA Leadership Academy

pplications for the Austin Bar/ Austin Young Lawyers Association Leadership Academy class of 2018 are now being accepted. The deadline to apply is Friday, November 17, 2017. The Leadership Academy was established to assist local lawyers with making a difference and impacting the Austin community, serving local bar associations, and promoting professional development. The program brings together a diverse group of attorneys from a variety of practice areas, firm sizes and types, and levels of experience. The Leadership Academy kicks off with an all-day retreat on January 18, 2018, where participants learn more about the Leadership Academyâ&#x20AC;&#x2122;s purpose and upcoming sessions. Participants spend the day networking

AUSTINLAWYER | NOVEMBER 2017

Members of the 2017 AYLA/Austin Bar Leadership Academy at the Texas Supreme Court with Justice Debra Lehrmann.

with one another and meeting with AYLA and Austin Bar leaders. Following the retreat, the program offers a series of five lunch or evening presentations where participants engage and network with local leaders involved in public policy, government, the private sector, nonprofits, and bar associations. Past presenters have included Senator Kirk Watson, Mayor Steve Adler, State District Judge Karin Crump, and Travis County Judge Sarah Eckhardt.

The Leadership Academy also includes a class project in which participants seek to have an impact on or serve their community. The 2017 class project was ArtFest, which raised over $15,000 for The Arc of the Capital Area and Travis County #StrongerTogether. The program culminates with a graduation ceremony where local bar leaders provide information on next steps for community involvement. To access the application,

NOV 17 AUSTIN BAR /AYLA LEADERSHIP ACADEMY 2018 APPLICATIONS DUE To apply, visit: austinbar.org

please visit the Austin Bar website. Questions? Contact Emily Morris at Emily@morrisbusinesslaw.com, or Meghan Kempf at AUSTIN LAWYER AL AL meghan.kempf@gmail.com.

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AUSTINLAWYER | NOVEMBER 2017

OPENING STATEMENT

Beating Procrastination Seven Ways to Help Yourself Stop Stalling BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

e all procrastinate, right? I had planned to write on this topic last month. But procrastination is a serious problem for some legal writers. I’ve just finished a fascinating law-review article on the subject: David and Mehan Rasch’s Overcoming Writer’s Block and Procrastination for Attorneys, Law Students, and Law Professors.1 It’s a thorough treatment and showed me not only that some lawyers face career-threatening procrastination problems, but that my own problems aren’t all that bad. If you feel that yours are, I recommend the full article. I’ve summarized some of its main points in this column. Procrastination, like many other serious problems, has a typical cycle. Here are the key parts: First, when beginning a major project, procrastinators often set unrealistic goals for themselves, thinking, “This time it’s going to be different.” Soon, despite the goals and partly because of denial about the depth of the problem, the writer encounters fear, anxiety, and stress. These then cause delays in getting started. Delay leads to missed goals, causing worry and avoidance and leading to self-criticism. Now the deadline looms. The writer is overwhelmed, sometimes engaging in a frenzy of work. If the project goes unfinished, the writer is devastated; if the project is completed, the writer is disappointed with its quality. Ultimately, the failure leads to rationalizing and then re-commitment: “Next time is going to be different.” And the cycle continues. To break out of this cycle, the

authors offer several tips. I’ve summarized some of them here. 1. Examine the reasons you write. To serve a client? To please a boss? Perhaps you seek justice or want to stimulate change. For some procrastinators, exploring their motivations helps them strengthen their commitment to getting started. 2. Identify your avoidance techniques. This means, first, admitting that you have a procrastination problem. Now figure out what you’re doing, and not doing, to sabotage your own ability to start and finish writing projects. In other words, identify the underlying behaviors. Develop steps to take when you know you’re avoiding. According to the authors, you’re “building the skill of continuing to write despite these feelings.”2 3. Be deliberate in deciding when and where you will write. Make a plan. Arrange times and places where distractions are minimal. When that time arrives, get started. 4. Schedule regular writing time—nearly universal advice for anyone who wants to write productively. Set aside 30 minutes, 60 minutes, or more at the same time each day—or on as many days as you can— and write. Needless to say, steps three and four could lead right back into the cycle, as you set goals and fail to meet them. Try setting lower thresholds for success. If you scheduled five times to write and you define success as 100 percent, then writing

on only three of those times is a failure. But if you define success as 60 percent, then you succeed by writing three times. It’s a small step— something to build on. 5. Break big projects into chunks. Most legal documents have parts, sections, or components you can tackle separately. Try to put the larger project out of your mind for a time and tackle one piece. For example, I set a goal to write a book, but it felt overwhelming. So I set a goal to write one chapter, then another, and so on. By focusing on one manageable piece at a time, I eventually finished the larger project. 6. Reward yourself when you’ve met a goal and, conversely, don’t indulge in a treat when you haven’t met the goal. The authors rightly point out that doing so rewards avoidance:

“If you love sweets and you head for the cookie jar when you should be writing . . . you are conditioning yourself to thwart your aspirations.”3 7. If procrastination is a big enough problem, seek professional help. I’m sure many of you have your own tricks and techniques for getting going on a project and for overcoming procrastination, so please tell me AUSTIN about them LAWYER AL AL here: wayne@legalwriting.net. Footnotes 1. David A. Rasch & Mehan Rasch, Overcoming Writer’s Block and Procrastination for Attorneys, Law Students, and Law Professors, 43 N.M.L. Rev. 193 (2013). 2. Id. at 226. 3. Id. at 230.

NOVEMBER 2017 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Allyson Albert Claudia Baellow ABOVE (from left): Albright, Bell, Dalrymp, Greene, Sheridan, Thomas, Thompson, and Villareal

Heather Beam Alexander Brown Melvn Burner Maris Chambers Margaret Cheu Kristine Devine Bryan Eggleston Janice Eggleston Tarron Gartner-Ilai Nicole Huang David Kultgen Tabytha Kuyendall Elizabeth Mark Sara McKinney Kimberly Miers Ashley Morgan Kelsey Paine Chris Soileau Randy Sorrels

AWARDS

Toya Cirica Bell was elected as the 2017-2018 Board chair for Leadership Austin. She is a graduate of the 2011 Essential Class. As an attorney, Toya currently serves as the deputy chief ethics officer for the Texas Health and Human Services System. Gerry Morris has become a Fellow of the American College of Trial Lawyers. Morris is a solo practitioner with the Law Office of E. G. Morris and has been practicing in Austin for 39 years. JoAl Cannon Sheridan was named one of the Top 50 lawyers in Central and West Texas by Texas Super Lawyers for 2017. In August, Sheridan was sworn in as president of the Texas Academy of Family Law Specialists. Sheridan is the senior partner at Sheridan Barrett Coble and Andrae, PLLC.

Austin Christian Legal Society Meeting Discussion, Debate and Discovery Seekers, Sinners, Cynics and Critics Welcome! The Wiewel Law Firm, 1601 Rio Grande, Suite 550

AUSTINLAWYER | NOVEMBER 2017

Gavin R. Villareal, of Baker Botts L.L.P., received the Elizabeth Garcia President’s Award from the Hispanic Bar Association of Austin at the annual Hispanic Heritage Luncheon in September 2017. The award is named after former HBAA president Elizabeth Garcia and recognizes an individual who has devoted significant time and effort to serving the local Hispanic community in Central Texas. NEW TO THE OFFICE

JoAnn Dalrymple has opened Dalrymple ADR, a new alternative dispute resolution practice providing arbitration and mediation services. Duane Morris is opening a new office in Austin with the addition of IP partner Bert Greene and energy sector partner Brad Thompson. Greene joins Duane Morris from Norton Rose Fulbright and Thompson from King & Spalding. Greene’s practice focuses on intellectual property rights, with a primary emphasis on patent litigation. Thompson focuses on energy matters and complex commercial issues.

Construction lawyer and mediator Jason Spencer has opened the Law Office of Jason C. Spencer. Spencer is a board-certified construction lawyer and mediator/arbitrator of construction disputes. MOVING ON UP

Alexander Dubose Jefferson & Townsend announced that civil prodedure expert Alexandra W. Albright is now a full-time partner after many years of dual service to the University of Texas School of Law and to the firm as of-counsel. She is Board Certified in civil appellate law and is respected by judges and practitioners in both federal and state courts throughout the country for her wealth of experience and pragmatic approach to litigation. Sherine Elizabeth Thomas was named executive assistant county attorney at the Travis County Attorney’s Office, assisting with implementation of office-wide policies, management, and budget while overseeing several civil litigation and transactional divisions of the office.

midnight in AUSTIN BAR FOUNDATION GALA SATURDAY, JANUARY 20, 2018

JW MARRIOTT, 110 E. 2ND ST. HONORING Distinguished Lawyer Award Betty Bali Torres, Clarke Heidrick, and Rev. Joseph C. Parker, Jr. David H. Walter Community Excellence Award Caitlin Haney Johnston and Randy Cubriel Larry F. York Mentoring Award Tracy McCormack Joseph C. Parker, Jr. Diversity Award Richard Pena

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(For Austin Bar Foundation Fellows and Life Fellows, and 2018 award winners and their table guests)

6:30 PM — COCKTAILS, RAFFLE 7:30 PM — DINNER, LIVE AUCTION 9 PM — CASINO GAMES AND DANCING TO THE GROOVES

FOR TICKETS, TABLES, AND SPONSORSHIP OPPORTUNITIES, VISIT AUSTINBAR.ORG/FOUNDATION/GALA NOVEMBER 2017 | AUSTINLAWYER

The Expert’s Expert. Randall Wilhite is Board Certiﬁed in Family Law by the Texas Board of Legal Specialization. He is also a Fellow in the American Academy of Matrimonial Lawyers as well as the International Academy of Family Lawyers. As a Certiﬁed Public Accountant and an Adjunct Professor of Law at the University of Texas School of Law, Randy serves as trial counsel and co-counsel throughout the State of Texas on issues of business valuation, characterization of assets, premarital agreements, tracing, business distributions and trusts. Randy is also one of the most accomplished and experienced mediators and expert witnesses in the State. He is regarded as one of the most distinguished family law attorneys in Texas.

Randall Wilhite Senior Partner; Family Law; Litigation; Arbitration; Complex Asset Division; Business Valuation P: 512.610.2335 | E: rwilhite@fullenweider.com

HOUSTON | AUSTIN

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#GivingTuesday – November 28, 2017 Austin Bar Foundation is joining the #GivingTuesday global giving movement

ach Tuesday following Thanksgiving is # GivingTuesday. This year, on Tuesday, November 28, the Austin Bar Foundation is joining the #GivingTuesday global giving movement built by individuals, families, organizations, businesses, and communities in all 50 states and in countries around the world. Millions of people come together on #GivingTuesday to support and champion the causes they believe in and the communities in which they live. There are two days for getting

deals—Black Friday and Cyber Monday. #GivingTuesday is a day for giving back. Together, people are creating a new ritual for our annual calendar. #GivingTuesday is the opening day of the giving season: a reminder of the “reason for the season.” Join together on #GivingTuesday to support two legal-aid projects funded by the Austin Bar Foundation: the Self-Represented Litigant Project and the Free Legal Advice Clinic for Veterans. Your tax-deductible contribution will allow these important legal resources to continue to benefit Central Texas veterans and their

#GivingTuesday would be an excellent time to become a Foundation Fellow by committing to contribute $200 per year for ten years.

families, and to serve the working poor of Travis County at the Travis County Law Library and Self Help Center. The patrons of the Self Help Center make too much to qualify for free legal aid, but can’t afford the services of an attorney. #GivingTuesday would be an excellent time to become a Foundation Fellow by committing to contribute $200 per year for 10 years. Life Fellows who

have completed their $2,000 contribution can participate in #GivingTuesday and contribute annually to become a Sustaining Fellow. Help kick off the giving season on November 28. Watch for an email or announcements on social media on how to make your #GivingTuesday donation to the Austin Bar Foundation. You may also donate at AUSTIN LAWYER AL AL austinbar.org.

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THIRD COURT OF APPEALS CIVIL UPDATE

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

The following are summaries of selected Third Court of Appeals’ civil opinions issued during September 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of October 13, 2017.

ADMINISTRATIVE LAW: School’s tuition-refund provision violates Occupations Code. Beauty Basics Inc. d/b/a Aveda Institute-Dallas v. Texas Dep’t of Licensing & Regulation, No. 03-17-00118-CV (Tex.

App.—Sept. 7, 2017, no pet. h.). A student was expelled from Institute after completing more than 70% of the program and paying 80% of the total program tuition. Institute demanded the remaining 20% of the tuition after expulsion. Student filed a complaint with Department. Department concluded Institute violated the Occupations Code tuition-refund provisions. Commission adopted the ALJ’s recommendation for an administrative penalty. The trial court affirmed. The court of appeals construed Occupations Code §1602.459 and concluded that the statute permits Institute to retain tuition already paid but not to collect any further tuition. The court concluded Institute’s policy violated the Occupations Code and affirmed. FAMILY LAW: Court reverses no-answer default divorce judgment. Rodgers v. Perez, No. 03-1600313-CV (Tex. App.—Austin Sept. 27, 2017, no pet. h.) (mem. op.). Husband filed suit for divorce. Wife was served but did not answer or appear. Four years later, only husband appeared and testified at a default hearing. The trial court signed a decree dividing the marital property, appointing husband sole managing conservator of children, and ordering wife to pay child support, retroactive

child support, and medical support. Wife appealed. The court of appeals noted that Family Code §6.701 provides that a petition may not be taken as confessed if the respondent does not file an answer. Thus, husband was required to provide evidence of the material allegations even though wife failed to answer. Further, the division of property must also be based on evidence. Husband failed to offer evidence of the parties’ community estate. Accordingly, the court reversed and remanded. ATTORNEY’S FEES: Contingency fee contract does not survive client’s death. Law Offices of John S. Young v. Deadman, No. 03-17-00148-CV (Tex. App.—Austin Sept. 13, 2017, no pet. h.). (mem. op.). Sullivan hired Young to represent him in a civil forfeiture proceeding on a contingency fee arrangement. The contract required client’s approval on any settlement. Sullivan died a few months later. The trial court signed an order admitting Sullivan’s holographic will as a muniment of title and decreeing Young as sole beneficiary. A month later, the district court signed an agreed final judgment in the forfeiture case. Young sued administrator of Sullivan’s estate to collect his contingency fee. The trial court granted summary judgment for adminis-

trator. The court of appeals observed that once Sullivan died, the attorney-client relationship terminated, thus terminating the contingency contract. The prior contingency contract did not carry over to Sullivan’s estate. The court affirmed. ADMINISTRATIVE LAW: Court concludes executive director’s actions are not ultra vires. Reagan Nat’l Adver. v. Bass, No. 03-16-00320-CV (Tex. App.—Austin Sept. 27, 2017, no pet. h.) (mem. op.). TxDOT denied Reagan’s sign permit application pursuant to its spacing restrictions. Reagan alleged that TxDOT violated its own regulations by granting a competitor’s permit in a nearby location. The trial court granted ED’s plea to the jurisdiction. Because no statute provides for judicial review of permit-application denials, Reagan challenged ED’s denial of its application as ultra vires. According to the court of appeals, whether a permit application complies with TxDOT’s rules is within the agency’s discretion. Reagan’s complaints relate to agency’s erroneous decision while acting within its authority. The court noted that errors by state officials acting within their authority are notLAWYER ultra vires. AUSTIN AL AL The court affirmed.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

The cases summarized are from April 2017 and subsequent histories are current as of October 3, 2017.

DOUBLE JEOPARDY: Prosecution in Comal County for fraudulent use or possession of identifying information not jeopardy-barred by previous conviction in Hays County for fraudulent use or possession of identifying information arising from same incident. State v. Donaldson, No. 03-1600085-CR (Tex. App.—Austin Apr. 20, 2017, no pet.) (op.). Donaldson was indicted in both Comal and Hays Counties for multiple offenses arising out of a single incident of theft— Donaldson had stolen Patricia Ross’s purse from her shopping cart while Ross was shopping in Comal County. Donaldson was later arrested in Hays County when he attempted to steal another woman’s purse. At the time of his arrest, Ross’s identifying information was found on Donaldson’s person. As a result, Donaldson was charged in Hays County for the offense of fraudulent use or possession of identifying information. He was later charged in Comal County for the same offense. The charges in Hays County were resolved first when Donaldson pleaded guilty and was sentenced to seven years’ imprisonment. Donaldson subsequently filed a motion to quash the Comal County indictment charging him with fraudulent use of identifying information, asserting that it violated his right to be free from double jeopardy because the indictments in Hays and Comal Counties alleged “factually the same criminal episode.” The trial court agreed and granted the motion to quash. On appeal, the appellate court reversed. The court began its analysis by examining the statute under which Donaldson had been charged, section 32.51 of the

Penal Code, which provides that “[a] person commits an offense if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of identifying information of another person without the other person’s consent.” The court, observing that multiple “items of identifying information” were implicated by the statute, concluded that each “item” was a separate, allowable unit of prosecution. The court then compared the units of prosecution in each indictment and concluded that it could not determine from the record which item of identifying information formed the basis for Donaldson’s conviction in Hays County. Consequently, the court could not determine if the units of prosecution in each indictment were the same for double-jeopardy purposes. Because it was the defendant’s burden to prove that his prosecution was barred by double jeopardy, the court concluded that the trial court erred in quashing the indictment. DOUBLE JEOPARDY: Double-jeopardy violation not clearly apparent on face of record when appellant was convicted of kidnapping and interference with child custody. Llorens v. State, No. 03-1600257-CR (Tex. App.—Austin Apr. 21, 2017, pet. ref’d) (op.). Following her divorce from her husband, Llorens moved with their daughter to Mexico, where she remained until authorities found her 12 years later. Llorens was subsequently charged with kidnapping and interference with child custody, and she pleaded guilty to both offenses. For the first time on appeal, Llorens asserted that her convictions for both offenses violated her double-jeopardy guarantee against multiple punishments for the same offense. The appellate court disagreed. The court first noted that be-

cause this claim was not raised in the district court, the double-jeopardy violation needed to be “clearly apparent on the face of the record.” It was not, the court concluded, for multiple reasons. First, there was a 12year gap between the date of the kidnapping offense and the date of the interference offense, as alleged in the indictments. Second, the court observed that the two offenses contained different statutory elements as alleged. Zak Hall is a staff attorney for the Third As charged, the kidnapping Court of Appeals. The summaries repreoffense required an abduction, sent the views of the author alone and do not reflect the views of the Court or any whereas interference with child of the individual Justices on the Court. custody did not. Other factors weighing against a double-jeopardy violation included that the offenses were found in different statutory sections in the Penal Code, that the names of the offenses were not similar, that the punishment range for each offense was different, and that each offense had a different “gravamen” or focus. On the other hand, the court explained that the legislative history of the interference-with-child-custody statute suggested that the legislature might have intended for the two offenses to be treated as the same for double-jeopardy purposes. Also, the court acknowledged that it was possible that some of the elements that differ between the two offenses might be considered the same under an “imputed theory of liability.” However, the court noted that this concept had not been “widely explored in the caselaw.” In the end, the court determined that balancing the factors weighed against a conclusion that that there was a double-jeopardy violation present on the faceAUSTIN of the record LAWYER AL AL and affirmed both convictions.

NOVEMBER 2017 | AUSTINLAWYER

FEDERAL CRIMINAL COURT NEWS

A Face Behind the Raids: David’s Story BY DAVID PETERSON

avid was 27 when I met him. Now he’s 28. He was a client of mine, charged with illegal reentry after he was rounded up in February’s raids targeting Austin and other so-called sanctuary cities. He was pleasant and quiet, and he accepted with little complaint everything that happened to him. He was 15 when he first came to the U.S. He was 20 when he was convicted of a single misdemeanor DUI and deported. He was 27 when he was collaterally apprehended in an ICE raid that was supposedly intended to target Austin’s most “egregious” criminal immigrants in what was referred to as Operation Cross Check. On October 5, 2017, the Austin American Statesman published an article revealing federal law enforcement agents’ largely failed efforts to round up Austin’s most “egregious” criminal immigrants in February.1 In reality, the raids turned out to be less about targeting “egregious” criminals and more about targeting Austin and other cities that had versions of “sanctuary city policies.”2 The conduct of the raids, the nature of the protests, and even some of what happened to people after they were deported have been told numerous times, by the Statesman and various other news sources, so I won’t retell those stories here. But I will tell you about David, a client of mine who was rounded up in those raids and who has given me permission to tell his story. Most did not, so you can read between the lines to imagine what happened to them. Even though it was only months ago, at first I didn’t remember David’s name or the details of his story. But, that’s 18

AUSTINLAWYER | NOVEMBER 2017

life as a public defender, right? You meet someone whose entire life is changed during the brief months you know each other. He is in jail—and then, by the end, a different country. And you have moved on to deal with dozens, or hundreds, more like him in the following months. I scrolled through a folder containing hundreds of alphabetized names, until memory sparked and I recalled a young man who shares my name. That’s the view from my side of the criminal justice system. David’s uncle is a U.S. citizen who has lived in the Austin area since the late 70s. He got amnesty in 1986, became a legal permanent resident, and naturalized in the early 2000s. To naturalize, of course, one has to be squeaky clean. Other than that, David’s family is mostly in Mexico. By the time David came to the U.S. in 2004, everything had changed. There was no amnesty, and no way for David to get a visa, a work permit, or any other legal documentation. Even though he was only 15, he lived in Nacogdoches and worked in construction for five years. In 2009, when he was 19, he was arrested for DUI. I don’t know the facts of that case; I do know he didn’t have a lawyer. Eighteen days after he was arrested, 20-year old David pleaded guilty, without any advice from counsel and got the maximum allowable sentence under the law: six months. After that uncounseled conviction and maximum sentence, he was deported. When he went home, David worked construction down in Mexico too, but earned very little. Mexican wages are a pale shadow of even low-

wage construction work in the United States. In Zacatecas, his diabetic mother and arthritic father had few employment opportunities. In 2014, David fell in love with a woman named Alejandra. Alejandra had a 9-year-old daughter who David supported as his own. In 2015, to support Alejandra, her daughter, and his own unemployed parents, David and his brother came back to Austin. David just wanted to stay for a few years to earn enough money to start a business in Mexico. Neither David nor his brother Mario ever got into trouble here. They worked for the same construction company, building much-needed homes for Austinites. In the early morning hours of February 11, 2017, they were leaving for work. ICE agents were looking for someone else as David and Mario headed out of their apartment complex. The agents approached them, asked them if they were here illegally. They admitted they were. That was all it took. Mario, 21, was deported to Mexico that very same day. David, because of his 2009 deportation and DUI conviction, was brought into fed-

eral custody and charged with illegal reentry after deportation. I have other immigrant clients who have more troubled histories; others lived harder lives or met tragic fates. Yet David’s story is not uncommon. Because federal and state criminal justice debates revolve around people like him, I wanted to share the little I knowLAWYER of his story. His AUSTIN AL AL is just one of many. Footnotes 1. www.statesman.com/news/local/ emails-ice-whiffed-hunt-for-austinegregious-criminal-immigrants/ lEA795pPduNI8KYXz0sqjL/ 2. www.mystatesman.com/news/ judge-ice-said-austin-raidwas-because-sanctuary-policy/ dHWeSUd7nyp0XPJ6HcW8NP/

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

FEDERAL CIVIL COURT UPDATE

The following are summaries of selected civil opinions issued from the U.S. Court Of Appeals for the Fifth Circuit in August 2017 and September 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions.

ARBITRATION: Parties may delegate the gateway issue of arbitrability to arbitration by agreement. IQ Products Co. v. WD-40 Co., No 16-20595 (Sept. 13, 2017): After prevailing in arbitration, WD-40 filed a motion to confirm its award. IQ filed a motion to vacate the award on the ground that the arbitrators had exceeded their authority because the claims were not arbitrable. The Court applied a two-step test to determine if the issue of arbitrability must be submitted to arbitration. First, the parties must “clearly and unmistakably” intend to delegate the power to decide arbitrability to an arbitrator. Second, the assertion of arbitrability must not be “wholly groundless.” Here, the parties entered into an arbitration agreement that contained a valid delegation clause. The assertion of arbitrability was not wholly groundless. Therefore, the arbitrability of a particular dispute between the parties should have been submitted to arbitration. The Court further found that the arbitrators acted within their authority in deciding that the dispute was arbitrable and the district court was correct to deny IQ’s motion to vacate the award. BANKRUPTCY: Notice of appeal in main bankruptcy proceeding could not serve as notice of appeal in adversary proceeding. Dorsey v. U.S. DOE; Educational CREDIT Management Corp., No. 16-31085 (Sept. 1, 2017): The failure to file a timely notice of appeal in a bankruptcy case

deprives both the district court and this court of jurisdiction. Appellant filed a notice of appeal in the main bankruptcy proceeding and an amended statement of issues and designation of record that referenced issues and documents arising in the adversary case. The Fifth Circuit found that the amended statement of issues and designation of record did not appeal the adversary proceeding. The main bankruptcy case and adversary proceeding must be treated as distinct for the purpose of appeal. They have separate docket numbers, separate issues, and separate parties. Citing precedent, the Court stated that a statement of issues is not adequate substitute for notice of appeal and that a new notice of appeal, rather than amended notice, was needed to appeal a new order. Thus, the Court affirmed that the district court correctly determined that it lacked jurisdiction to consider issues arising in the adversary case. EMPLOYMENT: District Court’s granting of summary judgment in the Fair Labor Standards Act (FLSA) misclassification action that the fluctuating-workweek method for determining the regular rate of pay applied as a matter of law was premature because there was a disputed issue as to the parties’ understanding of the employment arrangement. The question of whether an employer and employee agreed to a fixed weekly wage for fluctuating hours is a question of fact. Hills, Luke v. Entergy Operations, No. 16-30924 (Aug. 4, 2017): Nineteen Plaintiffs filed suit under the FLSA alleging that they were misclassified as exempt and therefore entitled to overtime pay. The district court entered summary judgment that the fluctuating-workweek method would apply to calculate the Plaintiffs’ regular rate of pay

for the purpose of determining their proper overtime rate of pay. (The remedy-related rulings had the combined effect of reducing possible recovery of two of the plaintiffs below zero, and the district court dismissed the two as presenting no justiciable case or controversy. Therefore, the interlocutory ruling became appealable.) Under the fluctuating-workweek method, the regular rate of pay is determined by examining each week individually and dividing the salary paid by the number of hours actually worked. The employee’s regular hourly rate thus varies from week to week, so the proper overtime compensation similarly varies from week to week. The parties’ initial understanding of the employment arrangement as well as the parties’ conduct during the period of employment must both be taken into account in determining whether the parties agreed that the employee would receive a fixed salary as compensation for all hours worked in a week, even though the number of hours may vary each week. Furthermore, salaried, but misclassified, employees may understand themselves not be to receiving overtime compensation. That does not alleviate liability under the FLSA, nor does it reduce the backpay they are owed if they are misclassified. That they understood they were not receiving overtime pay does not imply that they clearly understood their salary to compensate unlimited hours each week. The Fifth Circuit held that the underlying factual issue was based on what the employees understood, and therefore should be decided at trial. The Court therefore reversed the district court’s summary judgment that the fluctuating-workweek method applied as a matter of law.

Wilson Stoker is board-certified in Labor and Employment Law by the Texas Board of Legal Specialization and senior vice president and managing attorney with Welter Law.

for review of NLRB decision holding that employers’ class and collective action waiver violates Section 8(a)(1) of the National Labor Relations Act. Convergys Corp. v. NLRB, No. 15-60860 (Aug. 7, 2017): Requiring execution of class and collective action waivers by employees did not result in surrendering of a Section 7 right and did not amount to an unfair labor practice under Section 8(a)(1). Logisticare Soluctions, Inc. v NLRB, No. 16-60029 (Aug. 9, 2017): LogistiCare Solutions compelled its employees and applicants to waive their rights to be representatives or members of a collective or class action. The Court found that it addressed the “explicit” Section 8(a)(1) violation issue in Convergys Corporation and that its binding decision in D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344 (5th Cir. 2013) Section 7 does not create a substantive right to pursue class or collective actions defeated the Board’s argument of an explicit Section 8(a)(1) violation. The Court also rejected the NLRB’s holding that the waiver independently violated Section 8(a)(1). EmCLASS WAIVER: Fifth Circuit AUSTIN ployer’s petition for review was LAWYER AL AL grants two employers’ petitions granted. NOVEMBER 2017 | AUSTINLAWYER

Austin Bar Serves the Community with Fee Dispute Committee

he Austin Bar Fee Dispute Committee is composed of attorney and non-attorney volunteers who mediate and arbitrate fee disputes between lawyers and clients, as well as disputes between lawyers. Both parties must agree to meet and

residents of Travis County. The service is provided to the public free of charge. Members of the Fee Dispute Committee mediate and/or arbitrate fee disputes submitted by clients, attorneys, the courts, and the District 9 Grievance Committee. Committee mem-

The Austin Bar Fee Dispute Committee is composed of attorney and non-attorney volunteers who mediate and arbitrate fee disputes between lawyers and clients, as well as disputes between lawyers. discuss the fee dispute. The attorneys involved in the fee dispute must be members of the Austin Bar Association or

bers generally commit to one or two three-hour mediations per year. Information about the fee dispute process, along with the

appropriate forms for clients interested in pursuing a fee dispute, can be found at austinbar. org. Volunteers wishing to serve on the Fee Dispute Committee can contact committee chair Stephen Moss at sjonmoss@sbcglobal.net. It is recommended but not required that committee members have at least 40 hours of mediation training or experience. Thank you to these members of the Fee Dispute Committee for their dedication and service to the citizens of Travis County. Stephen Moss (chair) Patrice Arnold Jacqueline Childress Richard Clark Theodore Daniels Kelly Dawson

Robert Carson Fisk Bebe Gaines William C. George Diane M. Harvey Eric A. Hiduke Bradley L. Houston Candace E. Hunter Ira Thomas King Kathy Lenox Mike Macari Cheryl Major Tim Morgenthaler Stephen Jon Moss Ron Murray Jim Parker Nery Roman Steven S. Smith Anne Cook Stanford Mark Stanford LaKisha Thigpen Wilber Trivino AUSTIN LAWYER AL AL Max Westbrook

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

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AUSTINLAWYER | NOVEMBER 2017

Local Attorney Donates Books to the SAFE Alliance The Frank King Law Library is Born

residents aren’t the only people who have libraries named in their honor. The Frank King Law Library, named after Austin Bar member Frank King, now resides at the SAFE Alliance. The SAFE Alliance is a merger of Austin Children’s Shelter and SafePlace,

has gratefully dubbed the set of books the Frank King Law Library. Julia Spann, executive director of the SAFE Alliance said, “Frank King has made an unusual donation to ensure that SAFE lawyers have access to the newest editions of books essential to the practice of family law.

Frank King has made an unusual donation to ensure that SAFE lawyers have access to the newest editions of books essential to the practice of family law. both human service agencies in Austin serving the survivors of child abuse, sexual assault and exploitation, and domestic violence. King recently donated a set of O’Connor’s law books to the legal staff at SAFE, who

Our lawyers will use these materials constantly to help victims of sexual abuse and exploitation, child abuse and neglect, and family violence in their legal cases. The SAFE Alliance is AUSTIN LAWYER AL AL very grateful to Mr. King!”

(from left) Julia Spann, executive director of the SAFE Alliance, with Frank King and two SAFE attorneys, proudly display the Frank King Law Library.

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AUSTINLAWYER | NOVEMBER 2017

PRACTICE POINTERS

Conflicts Involving Non-Lawyers BY SUE AYERS AND ANDREW MCKEON

he mere mention of a conflict often draws a visceral grimace with most practitioners. Conflicts are expensive to litigate and can potentially upset a relationship with a major client. Given the economic stakes and ever-increasing speed at which law firms consolidate, you should be keenly aware how non-lawyers and summer associates create conflicts of interest. The Rule. Texas courts recognize a distinction between lawyers and non-lawyers with respect to conflicts of interest, and have fashioned two sets of presumptions as a result. First, when a non-lawyer works on a matter, there is an irrebuttable presumption that (s)he obtained confidential information during representation.1 Second, when a non-lawyer changes firms and the new firm represents a party adverse to the former firm’s client in a “substantially related” matter, there is a rebuttable presumption that the non-lawyer shares the former client’s confidences with members of the new firm.2

the second firm must show that it both (i) instructed the non-lawyer “not to work on any matter on which the [non-lawyer] worked during the prior employment, or regarding which the [non-lawyer] has information relating to the former employer’s representation,” and (ii) took “reasonable steps” to screen the non-lawyer.4 Those “reasonable steps” must include, at “a minimum, formal, institutionalized screening measures that render the possibility of the non-lawyer having contact with the file less likely.”5 Texas courts have not clarified which “institutionalized screening measures” are sufficient, but you could consider implementing the following: • Distributing a written policy about conflicts of interest; • Providing written notice to the screened employee that (s)he is screened from the matter; • Providing written notice to the team working on the matter that the screened employee has a conflict; • Isolating the screened employee’s physical and elec-

Given the economic stakes and everincreasing speed at which law firms consolidate, you should be keenly aware how non-lawyers and summer associates create conflicts of interest. How do legal interns fit into this analysis? The Texas Supreme Court clarified in 2016 that conflicts involving legal interns (who later become lawyers) are analyzed using the same presumptions as conflicts involving non-lawyer professionals.3 Reasonable Steps. To rebut the second presumption,

tronic access to the screened matter’s files; and • Providing intermittent reminders of the conflict to the screened employee and the team working on the screened matter. Surprisingly, even when these screening measures fail, the second firm can still avoid disqualification. In such situations,

Sue Ayers is a partner in the trial section of Jackson Walker. She often represents condemning authorities that build electric transmission lines, pipelines, highways, and other public infrastructure.

courts balance six factors— called the Phoenix Founders factors—to determine whether disqualification is appropriate: “(1) the substantiality of the relationship between the former and current matters; (2) the time elapsing between the matters; (3) the size of the firm; (4) the number of individuals presumed to have confidential information; (5) the nature of their involvement in the former matter; and (6) the timing and features of any measures taken to reduce the danger of disclosure.”6 Depending on the facts, courts will attach more significance to some of these factors than others. If the balance favors continued representation, courts will decline to disqualify the second firm. Conclusion. All law firms, regardless of size, should commit to instituting screening measures involving every employee. Hopefully the suggested measures above prove helpful and become routine, so the next time you hire a paralegal or legal intern, you knowLAWYER exactly AUSTIN AL AL how to screen for conflict.

Andrew McKeon is an attorney with Fleckman & McGlynn, and has experience litigating a broad array of commercial disputes.

Footnotes 1. Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 833 (Tex. 1994) (orig. proceeding). 2. In re Guaranty Insurance Services, Inc., 343 S.W.3d 130 (Tex. 2011) (orig. proceeding). 3. See Comment 19 to Rule 1.06 of the Texas Disciplinary Rules of Professional Conduct. 4. In re Am. Home Prods. Corp., 985 S.W.2d 68, 74 (Tex.1998) (orig. proceeding) (quoting Phoenix Founders, 887 S.W.2d at 835). Even if the second firm takes reasonable steps to reduce the potential for misuse of client information, disqualification is mandatory in three circumstances: “(1) information related to the representation of an adverse client has in fact been disclosed, (2) screening would be ineffective or the non-lawyer necessarily would be required to work on the other side of a matter that is the same as or substantially related to a matter on which the paralegal has previously worked; or (3) the non-lawyer has actually performed work, including clerical work, on the matter at the lawyer’s directive if the lawyer reasonably should know about the conflict of interest.” In re Columbia Valley Healthcare System, 320 S.W.3d 819, 828 (Tex. 2010). 5. In re Columbia Valley Healthcare System, 320 S.W.3d at 826. 6. Phoenix Founders, 887 S.W.2d at 836.

NOVEMBER 2017 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN AUSTIN KAPLAN KAPLAN LAW FIRM

Bar & Grill Q & A

he Bar & Grill 25th Anniversary show is scheduled for November 18 at the Scottish Rite Theater. It promises to be the biggest and best show to date. I was lucky enough to recently interview co-chairs, Amanda Arriaga and Adam Schramek, about the show: Q: How long has it run? A: This is Bar & Grill’s 25th Anniversary, excluding the gap year, aka the Burning Man Bar & Grill Experience. Any child born during the first year of Bar & Grill would be old enough now to have graduated law school and joined the cast. Q: Why? A: As the legend goes, the first Bar & Grill began when UT Law students who had participated in the UT Law musical, “Assault & Flattery,” needed something to do after they graduated. Some St. Mary’s folks joined in the fun, too. Apparently, there are a lot of lawyers with more than just legal talent. And while the practice of law can be fulfilling, outside of “Cop Rock,” clients are often confused by singing and dancing as a legal counseling technique.1 Oh, and we raise money for things, too. Q: What’s the secret to your success? A: We have an energetic, dedicated group of lawyers who want to keep this tradition alive. 24

AUSTINLAWYER | NOVEMBER 2017

It takes several weeks of writing, deleting drafts, staring hopelessly into the void, and more writing. Then we have five to six weeks of rehearsal for three nights per week, plus dance, video, and band rehearsals on weekends. And then of course there’s Debbie Kelly. Nothing happens for AYLA without her. Q: What can fans expect to see this year? A: Last year’s show was held the weekend before the 2016 election. Now, Cher and a lot of other people wish they could turn back time. Others wish the train had gotten here sooner. In honor of our 25th Anniversary show, those groups will go forward to the past to take back our future. And the Guardians of Democracy will join them back in 1992 to protect the laws of Texas and the integrity of the space-time continuum. Q: What will happen to the handful of attorneys who miss the show? A: We have proposed an Austin Bar resolution that they be placed in stocks in the Wooldridge Park bandstand. This sentence would be commuted upon payment of sponsorship funds. Q: Are there free drinks again this year? A: Last year was the first time we had an open bar throughout the show. It turns out some audience members find us much funnier and more talented after a few drinks. So, free drinks again! Q: Will Claude be there? A: While his world travels are increasing (thanks in no small part to that Law Pay corporate jet he gets to use when Trump cabinet members aren’t renting

it on the public’s dime), it appears Claude, a founder of the show, will be helping us celebrate its silver anniversary. Q: How do you plan to fit in the mind-boggling number of current events that deserve to be roasted? A: By talking like the Micromachines Man. Q: If space aliens attack Austin before the show, are the tickets refundable? A: Yes, however, you must seek reimbursement from our successors, who will likely be giant mutant cockroaches. Q: I’m an employment attorney. Shouldn’t this level of talent be paid, and paid handsomely?

A: Just like celebrity contestants on game shows, all proceeds go to a good cause. Specifically, the Austin Young Lawyers Foundation, which supports great events like Reindeer Games and Women’s Resource Fair. Bar & Grill: good fun for a good cause. AUSTIN Get your LAWYER tickets AL AL today, and see you there! 1. President’s note: Cop Rock was never given the chance it deserved.

UPCOMING EVENTS THURSDAY, NOVEMBER 16 AYLA Docket Call 5:30 – 7 p.m. FIRMSPACE, 500 W. 2nd Street, 19th Floor Sponsored by: FIRMSPACE SATURDAY, NOVEMBER 18 Bar & Grill 8 p.m. Austin Scottish Rite Theater, 207 W. 18th Street Purchase your tickets today at www.ayla.org. SUNDAY, DECEMBER 10 Reindeer Games 1 – 3 p.m. Parque Zaragoza, 2608 Gonzales St. Email Debbie@austinbar.org to volunteer.

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Awarded Grant Grant to Assist UT School of Law Trans Name and Gender Marker Project BY CASEY KELLY

n October 16, 2017, the Austin Young Lawyer’s Association joined forces with students at The University of Texas School of Law and the Mithoff Pro Bono Program for The Trans Name and Gender Marker Project. The project occurs twice a year and connects UT Law students with transgender individuals for the purpose of legally correcting their names and gender markers. The students, under the leadership of seasoned attorneys, explain the name and gender marker correction process to the individuals in attendance, draft petitions and orders, and guide them through the procedure to

legally change their names and correct their genders. The need for transgender people to legally correct their gender markers has been highlighted in recent years as a result of the introduction of so-called “bathroom bills” in state legislatures. The language of these bills often requires people to use restrooms and locker rooms in public spaces that correspond to the sex on their birth certificates. According to LGBT activists, these bills, in effect, prevent transgender people from being active in the public sphere. Essentially, activists say, fear of criminal prosecution for simply using the restroom that corresponds to their gender

identity can prevent transgender people from venturing out into public at all. While LGBT activists, along with the business community, continue to oppose legislation that prevents transgender people from using restrooms that correspond with their gender identity, the lawyers at the Trans Name and Gender Marker Project endeavor to legally correct the gender markers of their clients. Such corrections may require the Texas Department of State Health Services to issue a new birth certificate with the client’s corrected gender. Not only does a corrected birth certificate bring an emotional benefit, it

also brings the practical benefit of a layer of protection from prosecution if one of the “bathroom bills” become law. This year, AYLA secured a $1,000 grant from the Texas Young Lawyers Association to assist the Mithoff Program and UT Law with the project. The grant will assist with providing written materials, signage, and food for attorney volunteers. AYLA hopes to continue the partnership to provide this service to transgenAUSTIN LAWYER AL AL der individuals in the future. Casey Kelly is the managing attorney of Casey Kelly Law and the Austin LGBT Bar Association liaison to AYLA.

Judicial Reception a Success

he Austin Young Lawyers Association held its 19th annual Evening with the Judiciary at the Four Seasons Hotel on Thursday, September 21. The 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. During the reception, the AYLA Alumnus Award was presented to David Courreges. AYLA extends a special “thank you” to all of the judges who attended and to all event sponsors for makingLAWYER this sucAUSTIN AL AL cessful event possible.

(from left) AYLA President Austin Kaplan, Judge Eric Shepperd, AYLA Alumnus Award Recipient David Courreges, Edward Garris, and Kennon Wooten enjoying the annual Judicial Reception. NOVEMBER 2017 | AUSTINLAWYER

CanLaw – Planning for the Future Thank You CanLaw Clinic Volunteers

he second Austin Bar CanLaw Clinic held on September 23, 2017 was a huge success. The clinic for the cancer community was held at the American Cancer Society in North Austin. With eight individual appointments scheduled in advance and eight appointment walk-ins on the day of the clinic, the volunteer attorneys and paralegals were able to provide estate planning documents for 20 cancer patients and their spouses. This was double the number of people served in the first clinic. Clients ranged in age from their early thirties to their seventies and were diagnosed with a wide range of cancers in various stages. Plans are underway for a third clinic to be held in the spring. A special “thank you” goes to

Austin Bar members and cancer survivors Caitlin Haney and Randy Cubriel for creating and organizing the CanLaw Clinic. Thanks, too, to all the lawyers and paralegals listed below who gave of their time on a Saturday afternoon to provide free estate planning services for members of Austin’s cancer community. Sandra Bonham Bryan Brashers Carli Collins Erin Crump Cassandra Cuellar Simi Denson Alice Duerr Emily Franco Joe Gagen Terry Garrett Twyla Grace Alexandra Gullet Amber Haney Susan Haney

Patrick

Keel Former District Judge

Mediator Arbitrator

patrickkeel.com (512) 293-0300 26

AUSTINLAWYER | NOVEMBER 2017

Attorney volunteers help cancer patients by providing free estate planning services at the recent CanLaw clinic.

Hailey Hobren Clay Hummer Drew Johnston Lynn Latombe Nicole Martinez Laura Messina Melissa Stone Myers Robin Orlowski

Janus Pan Gail Papermaster Brittany Posadas Francesca Romans Chuck Ruesink Christyne Harris Schultz Maggie Simoneaux-Cuaso AUSTINLAWYER AL AL

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