austinbar.org OCTOBER 2021 | VOLUME 30, NUMBER 8
Matters of Your Heart and Health Learning and Living Healthier for a Better You BY DAVID PLAUT
H
ey y’all! Save the date! Join the Austin Bar Association and help the American Heart Association with its mission to build better lives, free of cardiovascular diseases and stroke, by walking or running in the 2021 Heart Walk on Saturday, Oct. 16, 2021. Bring your friends and family and come out to help the American Heart Association. You’ll be helping a great organization and doing yourself a solid. Exercise—particularly cardio —is critically important to brain health. I’m writing this sitting at my desk, on a Sunday morning, preparing for a Zoom jury trial. The case is old and contentious and the lawyers want to be done with it, one way or the other. Handling most of my own tech and preparing everything for a Zoom presentation, including voir dire with a gallery of 48 potential jurors, has my stress levels nearing the red zone. And of course, things go crooked at the most inopportune times. Getting some exercise, despite the trial time suck, remains a priority. I try to ride my bike three or four days a week for an hour or so to keep the wolves at bay. I
OCT. 16 2021 HEART WALK Austin Bar Association & American Heart Association
I always feel smarter, more efficient, and engaged when I’m getting regular exercise.
Visit: http://ow.ly/7E8c50GdkVg
SATURDAY, OCTOBER 16, 2021
Long Center, 701 West Riverside Drive, Austin, TX 78704 ROUTE LENGTH: 5K
Festival Opens: 7 a.m. | Opening Ceremonies: 8 a.m. | Walk Begins: 8:15 a.m.
You can Heart Walk here, there, or anywhere. Choose our path with your fellow Austin Bar Association members or yours. Register at http://ow.ly/7E8c50GdkVg
used to ride bikes competitively, but now I’m riding mostly for fun and brain health. I always feel smarter, more efficient, and engaged when I’m getting regular exercise. Sure, work/life balance is difficult in a time of a continuing pandemic with all the stresses of family and the expectations and demands of others. Still, the
science on this is unequivocal: shows that increased cardio Folks who participate in moderreduces age-related cognitive ate or strenuous aerobic activity decline and impairment. at least four days (or seven hours) So find your regular cardio, a week have better brain health whether that’s walking, running, and cognitive performance, swimming, cycling, tennis, including memory and attention paddle-boarding—whatever—and span. Here’s the great truth, you come join us for the Heart Walk just can’t beat better blood flow on Oct. 16 as we walk in memory to the brain. This is important of former Austin Bar member for all of us, but it’s especially Alan Waldrop. AUSTIN LAWYERLet’s get moving AL AL true as we age. All the evidence together!
I love LawPay! I’m not sure why I waited so long to get it set up.
+
– Law Firm in Ohio
Member Benefit Provider
Trusted by more than 150,000 professionals, LawPay is a simple, secure solution that allows you to easily accept credit and eCheck payments online, in person, or through your favorite practice management tools. 22% increase in cash flow with online payments Vetted and approved by all 50 state bars, 70+ local and specialty bars, the ABA, and the ALA 62% of bills sent online are paid in 24 hours
YOUR FIRM LOGO HERE
Trust Payment IOLTA Deposit New Case Reference **** **** **** 9995
***
TOTAL: $1,500.00 POWERED BY
PAY ATTORNEY RNEY
Get started at lawpay.com/austinbar 888-491-9328
Data based on an average of firm accounts receivables increases using online billing solutions. LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA and Synovus Bank, Columbus, GA.
CONTENTS
AUSTINLAWYER OCTOBER 2021 | VOLUME 30, NUMBER 8 AL A L INSIDE FEATURED ARTICLES
DEPARTMENTS
CONNECTIONS
1
6
ONLINE austinbar.org
Matters of Your Heart and Health Learning and Living Healthier for a Better You
President's Column
12 Briefs
EMAIL sonta@austinbar.org
13 Be Well 15 Opening Statement 16 Third Court of Appeals
Civil Update
18 Third Court of Appeals
8
19 Federal Civil Court Update
Meet Austin Bar's New Director of Communications Get to Know Sonta Henderson
20 Criminal Court News
10 A History of the Hispanic Bar Association of Austin
22 AYLA
Shaping the Future through Service
ONLINE
Criminal Update
MAIL Sonta Henderson, Managing Editor Austin Bar Association 712 W. 16th Street Austin, TX 78701 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar STREAM @AustinBarAssociation
austinbar.org
NEWS & ANNOUNCEMENTS
UPCOMING EVENTS
District Clerk Outlines Changes Odyssey Software Update
OCT 1
Let's Get Wild Together Animal Law Section Seeks Help
FOLLOW instagram.com/theaustinbar
Fighting the Good Fight: Serve on VLS's Eviction Taskforce Use your talent to represent clients at JP Court Evictions. Register at austinbar.org.
TEXT austinbar to 313131 for up-to-date news + info Message & data rates may apply.
Since 1979, many have chosen TLIE. Including the State Bar. 40,483 lawyers insured. 7,920 malpractice claims reported. $611,539,578 paid for claims and defense costs.
#StateBarPreferred
Stay Safe!
FIND OUT MORE:
TLIE.ORG or
(512) 480-9074
OCTOBER 2021 | AUSTINLAWYER 3_62x3_62in_TLIE Ad Campaign 2020_AustinLawyer_120120.indd 1
12/7/20 9:45 AM
3
INTERESTED IN WRITING FOR AUSTIN LAWYER? Contributing authors sought for inclusion in Austin Lawyer. Articles on various legal-related topics are considered for publication monthly. Please limit submissions to between 500 and 750 words. Send articles to Sonta Henderson, Managing Editor, at sonta@austinbar.org. Submission is not a guarantee of publication.
AUSTINLAWYER
Responsive. Experienced. Professional. Your Austin source for reliable U.S. and Global Immigration expertise. EMPLOYERS
INVESTORS & STARTUPS
INDIVIDUALS & FAMILIES
Foster delivers a full suite of immigration enterprise solutions customized to meet the needs of your organization.
We are experienced in resolving complex immigration problems while taking into account the realities of investors, start-ups and entrepreneurs.
At Foster, we’re proud of our long history of service and advocacy on behalf of individuals and families.
Request a consultation: +1 512.852.4142
AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION
David Courreges ������������������ President Amanda Arriaga ������������������� President-Elect Justice Chari Kelly ��������������� Secretary Mary-Ellen King ������������������� Treasurer Kennon Wooten ������������������ Immediate Past President
AUSTIN YOUNG LAWYERS ASSOCIATION
Rachael K. Jones ������������������ President Blair Leake ����������������������������� President-Elect Sarah Harp ���������������������������� Treasurer Emily Morris �������������������������� Secretary David King ���������������������������� Immediate Past President
Austin Lawyer
©2021 Austin Bar Association; Austin Young Lawyers Association
EXECUTIVE OFFICES
712 W. 16th Street Austin, TX 78701 Email: austinbar@austinbar.org Website: austinbar.org Ph: 512.472.0279 | Fax: 512.473.2720 DeLaine Ward....................... Executive Director Debbie Kelly.......................... Director of AYLA and Associate Executive Director Sonta Henderson................. Managing Editor Jennifer Hopgood................. Co-Editor Rachael K. Jones................... Co-Editor Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 78701. Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors; legislation affecting Austin attorneys; and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the U.S. Western District of Texas Federal Court and the Texas Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities. The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement. Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published. Please send all correspondence to the address listed above. For editorial guidelines, visit austinbar.org in the “About Us” tab.
www.fosterglobal.com
4
AUSTINLAWYER | OCTOBER 2021
Serving Austin since 1999. 912 S Capital of Texas Hwy, Suite 450 Austin, TX 78746
PUBLISHED BY
Monarch Media & Consulting, Inc. Ph: 512.680.3989 | Fax: 866.328.7199 monarchmediainc.com Advertising inquiries call 512.293.9277.
We Can Do More. CRIMINAL DEFENSE • FAMILY LAW • PERSONAL INJURY
RICK COFER • Criminal and Juvenile Defense • Former Travis County prosecutor • Board Member, Austin Bar Foundation • 90% of felonies dismissed or reduced in 2020 • 87% of misdemeanors dismissed in 2020 • 2021 Rising Star - Super Lawyers • DWI Scholar Award - TCDLA • 100+ Criminal Trials
JEFFREY CONNELLY • Family and Personal Injury • Focusing on complex, high net worth divorce cases: Marital torts, Property tracing, Business valuations • Licensed in Georgia and Texas • Texas Bar College Member • Former prosecutor
BEST LAWYER coferconnelly.com 512-200-3801 1002 West Avenue, Austin, TX 78701 |
Cofer & Connelly, PLLC
PRESIDENT'S COLUMN DAVID COURREGES, UNIVERSITY FEDERAL CREDIT UNION
My Heroes Have Always Been Cowboys…
O
ne of my favorite songs as a child was “My Heroes Have Always Been Cowboys.” Written by Sharon Vaughn, and originally performed by Buddy Holly’s bassist and popularized by an encyclopedia salesman from Abbott, “Heroes” contrasts the celebration of the idyllic childhood hero with the harsh realities of actually living the life once dreamed. My heroes were, indeed, Cowboys… and Longhorns. More specifically: Tony Dorsett, Bob Lilly, Tom Landry, Roger Clemens, Eric Metcalf, Travis Mays, and Peter Gardere. These were all men whom I cheered without waiver, pretended to be, and wanted to be more than anything. Yes, they all had their flaws, but isn’t that
6
AUSTINLAWYER | OCTOBER 2021
what makes a good hero? Not necessarily. The classic definition of “hero” is derived from the Greek term “heros,” meaning demigod—someone who possesses great power but is not quite a god. However, the meaning of words evolve, and the term “hero” is no exception. There are now twelve traits that make up the modern definition of “hero.1” A hero: • is brave; • has moral integrity; • has unwavering conviction; • has courage (obviously my favorite); • sacrifices self; • protects others; • is honest; • is selfless; • is determined; • is a saver of lives; and • is an inspiration to others2. While Peter Gardere’s heralded four-and-0 record against the Sooners surely qualifies as admirable, it is not heroic. The same goes for Tony Dorsett’s 99-yard touchdown against the Minnesota Vikings, Roger Clemens’s seven Cy Young Awards, and post-childhood icon Vince Young’s nearly demi-god-like
My heroes have always been women—and they still are, it seems.
The meaning of words evolve, and the term “hero” is no exception. performances in his two Rose Bowl appearances. Nope! So who is a hero to me? A My hero is my mom, the woman who taught me what a first down was, why triple-doubles and no-hitters were magic, and who reminds me annually of The University of Oklahoma’s respiratory ineptitude while also telling me the time. She’s the woman who selflessly taught me,
provided for me, saved my life from countless knee scrapes and one significant chin gash, played catch with me for hours on end, and exhibited relentless determination in raising a highly spirited son as a single mother in a time and place where “equal pay for women” was simply not a thing. A My hero is Karen R. Johnson, a Texas legal legend and former Austin Bar Association
My hero is my mom, the woman who taught me what a first down was, and why triple-doubles and no-hitters were magic.
Senior District Judge
Stephen Yelenosky
president who enjoyed a 46-year courage, and determination career, which included being the throughout her career despite executive director of the State countless of her peers exhibiting Bar of Texas and president and otherwise. CEO of United Ways of Texas. A My hero is Barbara Jordan. Though she in no way was A My hero is Ann Richards. obligated to, she took the time to A My heroes are my wife, my teach me and many others how daughter, my nieces, my aunts, to be a human in a sea of lobbymy cousins, my friends, and my ists. She was honest, determined, colleagues who have all exhibited and a true inspiration. amazing, super-human feats, and A My hero is Senfronia continue to sacrifice so much not Thompson, a teacher turned lawonly for the benefit of themyer, who for nearly 50 years has selves, but also for all of us. fought for the rights of women, My heroes have always been children, and minorities as a AUSTIN women—and LAWYERthey still are, it AL AL member of the Texas House of seems. Representatives. She isn’t afraid Footnote to stand up to injustice, or point out when matters pertaining to minorities and woman are “just being kicked down the road.” She is someone who has exhibited the same steadfast integrity,
1. Kinsella EL, Ritchie TD, Igou ER. Zeroing in on heroes: a prototype analysis of hero features. J Pers Soc Psychol. 2015;108(1):114-27. doi:10.1037/a0038463 2. Id.
Mediator, Arbitrator, Special Judge and Litigation Consultant
syelenosky.com 512-444-2226 sy@syelenosky.com
OCTOBER 2021 | AUSTINLAWYER
7
Meet Austin Bar's New Director of Communications Get to Know Sonta Henderson A REVERSE INTERVIEW WITH SONTA HENDERSON Jennifer Hopgood, co-editor of Austin Lawyer, sat down with Sonta Henderson for a quick Q&A as Henderson begins her journey with the Austin Bar Association as director of communications. AUSTIN BAR: You must have some great stories from being a journalist. What are some memorable moments?
Sonta Henderson is an award-winning communications professional with more than 25 years of experience in broadcast, corporate, and digital communications. She worked at both KXAN and KVUE.
I
am Sonta Henderson, your new director of communications. I’m a sixth-generation Texan from Bastrop, Tex., a town named after Baron de Bastrop (known for his partnership with Stephen F. Austin). Word on the street is that “we” missed being the capital of Texas by one vote! I have 30 years of communications experience, working in broadcast television, for national corporations, and with the state. You may recognize me from my broadcast television days at KXAN and KVUE. During that time, I met many judges and attorneys while covering courts, city council, and more. My reports on court cases were awarded by the Texas Associated Press. Upon leaving my television career behind, I worked for AAA Texas and AAA New Mexico in the government affairs division, working with the Office of the Governor on transportation initiatives and legislators on motorist safety legislation, speechwriting, and collaborating with agencies for service-truck licensing. I’ve also worked for TxDOT on its executive communications team. My work there included executive speechwriting on subjects such as identifying human trafficking and preparing 8
AUSTINLAWYER | OCTOBER 2021
HENDERSON: There were so many stories, and I vividly remember most of them. For me, reporting stories was always about the people! So many different people with different views from different places. Some of the most memorable include stories about the contested “hanging chad” election between former President Bush and former Vice President Al Gore, covering 911 and its impact, an Austin serial killer case, the first arrests in the Yogurt Shop Murder Case, and an interview with a KKK member. Still “most memorable” does not always mean most enjoyable. I most enjoyed the stories showing people at their best and accomplishing great things despite obstacles. Many times after the stories aired, people would be so gracious and invite me to their homes, family reunions, and such. I’d have to remind them that I was a journalist and just doing my job. AUSTIN BAR: What are some of your goals as the new director of communications? HENDERSON: We’ve all heard the saying, “Don’t kill the messenger.” Well, I’ve always believed that how you present the message is what’s really important. To that end, I want to ensure I am identifying new and creative messaging for the Austin Bar and sharing our message in a way that benefits us. This includes working with our members and affinity groups for a greater perspective on issues of importance. I see so many amazing things being done by Austin Bar members (securing HILGERS HOUSE! Hello!). Attorneys are
executive staff videos and articles for a transportation magazine. In 2020, I won an international prize, the Communicator Award, for my online video. I’ve hosted events for congressional leaders including Rep. Lloyd Doggett and Rep. Maxine Waters, and celebrities such as Dr. Cornel West
doing great work in the community and giving of their time selflessly. I hope to highlight these good deeds. We know what we do, but so many others aren’t aware. Ensuring our work is seen helps not only our causes, but also our membership. So, I will utilize media to promote our messaging and garner attention for our activities. It’s vital we control our narrative. I see a great opportunity to do so. AUSTIN BAR: What are some goals for the Bar as a whole for helping to support lawyers? HENDERSON: The Austin Bar is such a unique group with an amazing reach in many areas of law. I hope to extend that reach even more. One of the groups I hope to gain traction with is criminal lawyers. We will work to gain more interest from that group. I challenge current members to engage fellow attorney nonmembers to join us. Also, as much as COVID allows, we’re looking to support attorneys by providing information and activities which broaden their scope. I particularly hope to keep members engaged with the Bar and continue igniting their interest in community service. AUSTIN BAR: Do you need attorneys to submit articles and content for the monthly magazine or website? HENDERSON: We are always looking for timely articles, especially on topics directly affecting our attorneys and the legal community. Attorneys interested in submitting can send an email with information on the subject matter to me at sonta@austinbar.org. Articles are due on the 1st of each month for the upcoming month. So, for example, if you’re writing for Dec. 2021 edition of Austin Lawyer, then the article is due Nov. 1, 2021. This allows us time to read, edit, and ensure all relevant information is captured for publication.
and Divorce Court Judge Mablean Ephraim, just to name a few. Still, I’m most honored when using my skill to create opportunities and enlighten others. It may be teaching job interview skills to young adults, mentoring, giving speeches, or developing communications for my church.
Lastly, I enjoy watching TCM, NFL, UFC, and being on-set with my actor-daughter. She’s had a commercial shown during The Academy Awards and bit parts in Netflix and Amazon Prime movies. I am excited to collaborate with each ofLAWYER you. So give me a AUSTIN AL AL holler anytime!
A History of the Hispanic Bar Association of Austin Shaping the Future Through Service BY (RET.) JUDGE JIM CORONADO
(Ret.) Judge Jim Coronado served as district court judge of the 427th district court from 2009 to 2017. Judge Coronado is a past president of the Travis County/Austin Bar.
I
n celebration of a year of diversity and heritage, the Austin Bar Association has asked me to write a short history of the Hispanic Bar Association of Austin (HBAA). I was present at its formation and served as president of Capital Area Mexican American Lawyers (CAMAL)/HBAA for the 198687 term. Almost 40 years ago, CAMAL/HBAA, was the vision of our first president Richard Pena. Pena envisioned a professional organization of Hispanic lawyers dedicated to community service. Pena gathered a group of half a dozen likeminded lawyers. We were all in our early 30s and a cohesive and dedicated group. We shared a common vision that our small band could make a positive impact on Travis County and the State Bar of Texas (SBOT). Our objective was to form a collective voice for our local Hispanic legal community. We gathered in the back room of the law office of our friend and member Thomas Esparza. The original group included Esparza, Pena, David Mendez, Linda Acevedo, Xavier Medina, Robert 10
AUSTINLAWYER | OCTOBER 2021
Ramirez, and myself. We were fortunate to have the counsel of a senior lawyer, Simon Rodriquez, who as one of the few Austin Hispanic legal elders took an interest in our work. Rodriquez, through his friendship with Charlie Smith, then- president of the State Bar, was able to secure for most of us appointments to State Bar standing committees. We also began to serve on Travis County Bar Association (TCBA) committees. Thus began for us a deep involvement in the local and state bar. Pena had great success with the TCBA and in 1989 became the first Hispanic and person of color to become TCBA president. Pena rose to be the first Hispanic and person of color to become president of the State Bar in 2001. I dedicated myself initially to serving the Hispanic Bar of Texas, serving as chair of the Hispanic Issues Section of the State Bar, then president of the Texas Mexican American Bar Association (David Mendez served as the vice president), and ultimately vice president of the Hispanic National Bar Association. In
We shared a common vision that our small band could make a positive impact on Travis County and the State Bar of Texas. Our objective was to form a collective voice for our local Hispanic legal community. 2001, I followed in Pena’s path to become the second Hispanic president of the TCBA. Xavier Medina began his long service on our local grievance committee and on several state legal ethics panels. Linda Acevedo began a 33-year career with the State Bar and rose to chief disciplinary counsel of the SBOT. Mendez became one of the first Hispanic partners in a major law firm in Austin. Esparza, after serving as a justice of the peace, became one of the first Hispanic lawyers in Texas to become a board-certified immigration lawyer. Robert Ramirez unfortunately left Austin. The 80s and 90s were exciting times for our growing group. We
began to network with Hispanic lawyers across the state who were beginning to exert their collective influence in their communities. A very significant year for us was 1989; that was the year we collectively took on the challenge of transforming the State Bar of Texas. In 1989, the State Bar was at a critical point. It was a year of Sunset Review for the Bar in the Texas Legislature. Many were clamoring to remove self-governance from the State Bar and assign governance to the Texas Supreme Court. It was also a very fortuitous year for our group. In the Legislature, we in Austin were blessed in that our local political representatives, Senator
We insisted on the creation of an Office of Minority Affairs to assist minority and women lawyers to advance their professional goals and professional development. Gonzalo Barrientos and Representative Lena Guerrero, were leading the Sunset Review. Pena had advanced to president of the TCBA, and Mendez and I were leading Mexican-American Bar Association of Texas. Medina had become a leading voice in legal ethics reform in Texas. We were also blessed with State Bar leadership sympathetic to our issues. The SBOT had elected James Parsons of Palestine to be president. The new executive director was Karen Johnson, the first woman executive director of the SBOT and first woman president of the Travis County Bar Association. The new president of the Texas Young Lawyers Association was a young fellow from Austin, Kirk Watson. At the State Bar we had a great friend, Lulu
Flores, the first Hispanic woman to head a State Bar department. She had been hired to be the legislative director for the State Bar to guide it through Sunset. Our planets had aligned, and we were determined not to let the opportunity pass. We began to formulate a series of changes we believed were critical to improve the State Bar. Our first priority was to implement an annual census of the membership of the SBOT. In 1989, the State Bar had no idea how many minority lawyers of any race or ethnicity were members or where they were located. Without a baseline we could not begin to act to increase our numbers. We insisted on the creation of an Office of Minority Affairs to assist minority and women lawyers to advance their professional goals
and professional development. To of leadership of the Hispanic Bar immediately increase diversity in of Austin and Texas before she SBOT governance, we insisted that became president of the National two minority directors be appointWomen’s Political Caucus. ed to represent the underrepresentAs the 90s began, we had ed minority and women lawyers of accomplished many of our goals Texas. We asked that all standing to increase diversity within the SBOT committees be diversified SBOT. Our leadership shifted and that the State Bar local grievto a younger generation more ance committees be reflective of integrated into the legal commutheir communities’ diversity. nity than we had been. CAMAL We convinced the State Bar morphed into HBAA. The newer leadership to implement our generation sought to make a requests. It was a major change direct impact on Austin and the for the SBOT and its internal education and support of Hispanculture. Diversity began to be celic students. Under the leadership ebrated and supported. Minority of HBAA presidents Lulu Flores, achievements were recognized. Ray Bonilla, Rudy ColmeneThe census was initiated, and we ro, Elizabeth Garcia, and Pat began to understand the depth of Escobedo, the HBAA Foundation our challenge to increase diversity. was created. The Foundation has The Office of Minority Affairs was made and continues to make a created and began to actively assist lasting impact on the community. our work. Lulu Flores guided the I will rely on younger lawyers amendment of the State Bar Act, to tell HBAA’s history over the our first at-large director positions last 25 years. As for me, I take were created, and Gloria Leal of great pride in my cohort of colAustin and Antonio Alvarado of leagues who worked tirelessly to Laredo were appointed. Alvarado diversify and change the Texas later rose to be the first Hispanic legal profession. To those who executive director of the SBOT. nurtureLAWYER our flame, I salute you. AUSTIN AL AL Flores later served at every level ¡Adelante!
Ken Davison Greg Bourgeois Eric Galton David Moore Kim Kovach Fred Hawkins Ben Cunningham Lynn Rubinett Lucious Bunton
OCTOBER 2021 | AUSTINLAWYER
11
BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Brett McKean Mark Anderson Brandon Spaur Alexa Chally
(from left) Atkins, Barth, Fleckman, King, McGlynn, and Pargaman
Ashley Fischer Cecilia Wood
MOVING ON UP
William D. “Bill” Pargaman and Sara H. Atkins, previously with Saunders, Norval, Pargaman & Atkins, are now partners at Brink Bennett Pargaman Atkins. Brophy and DeVaney, PLLC welcomes Marianne Barth to its firm.
Thompson Coe LLP names Mary-Ellen King as partner in the Insurance Coverage and Litigation Group. King also practices business and commercial litigation. The law firm of Munck Wilson Mandala, LLP added seven attorneys from Fleckman & McGlynn, PLLC. The new attorneys joining MWM include founding
principal Steven Fleckman and named partner Jessica McGlynn, partners John Cain, Melissa LaBauve, and Andrew McKeon, principal attorney Jason Blair, and of counsel Bill Raman.
SUBMIT A BRIEF If you are an Austin Bar member and you’ve moved, been promoted, hired an associate, taken on a partner, or received a promotion or award, we’d like to hear from you. Notices are printed at no cost, must be submitted in writing, and are subject to editing.
Available by video and in person
12
AUSTINLAWYER | OCTOBER 2021
Announcements should include all pertinent information including firm name, address, and contact numbers. Send submissions along with a high-resolution head shot to Austin Lawyer Managing Editor Sonta Henderon at sonta@austinbar.org.
BE WELL
Back to Basics: Well-Being During Crisis Fatigue BY CHRIS RITTER, PAST TLAP DIRECTOR
Chris Ritter, JD, MEd served as past director of the Texas Lawyers’ Assistance Program.
T
his past year has been a difficult time for lawyers. I have heard from colleagues who have spiraled into life-threatening depression. I have heard from many who have encountered paralyzing grief. Others have suffered from exhausting anxiety. The pandemic has caused us to rearrange our workplace and become online way more than we would consider healthy. Lawyers are being overwhelmed with Zoom, email, text messages, faxes, and phone calls. We are shackled to our practices by our smartphones. We are spending hours a day sorting through an average of 120 new emails and 94 text messages a day, looking at our smartphones 150 times per day, and navigating social media to boot. News is overwhelmingly negative and stressful. Our normal outlets for social fun and entertainment are often unavailable due to a rollercoaster of COVID-19 numbers. If there were ever a time to focus on simplifying our lives, it is now. Here are some things that lawyers are doing that help: Put the oxygen mask on
yourself first: Lawyers are so used to giving away all of their time to work and family that we most often leave little if any time for ourselves. In a year like this, neglect can be a big mistake. We need downtime and “fill back up” time. If you are not putting three hours of self-care per week on your calendar, you are giving yourself less than one percent of your life. If we don’t put the oxygen mask on ourselves first, we will become useless to our clients and families. Try to honor those you love by making your self-care time a priority. It will make a big difference. Express yourself: Most of us have lost our routines, boundaries, and many of our healthy outlets during this pandemic. We used to enjoy many things that helped replenish our spirits, such as meet-ups, group meetings, live music, shows, church, etc. Now that much of that is unavailable, many of us are struggling to find healthy outlets. Some of those, like Zoom, are growing repulsive to those of us connected to technology all day long. One strategy that has worked for thousands of therapists-in-training is a weekly session of expressing the hardships that they encounter by devoting an hour each week for their first 3,000 hours. I believe many of us have shared our hardships with our trusted friends at coffees, happy hours, docket calls, or lunches throughout our careers, but I encourage you to take the time to discuss the challenges in your life with someone weekly. If you can’t find a friend that is available, do not hesitate to use a therapist. Many are available remotely, and TLAP can help you locate one that meets your needs. Eat the elephant one bite at a time: When things get stressful, sometimes looking at the “big picture” can be overwhelming. I
HOW TO GET HELP If you are having a mental health crisis or are actively considering suicide, please call 911 or the National Suicide Prevention Lifeline: 1-800-273-TALK(8255). For online self-care resources, including group support, check out Texas Lawyers’ Assistance Program's Support Toolbox: texasbar.com/TLAPSupportToolbox
can get lost in projection about the future and regrets about the past, and feel useless in the present. In my recovery path, I have found that the “one day at a time” style effectively reduces anxiety. We can make one decision at a time, and limiting the scope of my thinking to what I can take care of today or this hour can relieve me of the anxiety of the “big picture.” I ask myself often, is there anything I can do about that now? If not, I refocus on the next task or step available. This not only helps me find an action to take but also keeps me out of the “weeds” of the many things beyond my
present control. As this complicated time continues, Texas Lawyers’ Assistance Program (TLAP) is here and we care. We are able to help connect struggling lawyers and law students with professional support, peer and group support, and even financial support for mental health or substance use disorder care by means of the Sheeran-Crowley Trust. We can be reached by phone or text at 1-800-343-TLAP (8527) and we are strictly confidential. If you or someone you know needs help, please consider us. We are confidential by statute and anonymous AUSTIN LAWYER AL AL calls are welcome. OCTOBER 2021 | AUSTINLAWYER
13
L A W
1101 S. Capital of Texas Hwy, Building G, Suite 200, Westlake Hills, TX 78746 512.477.5796 | BCLAWTX.COM
LLP
F I R M
Bollier Ciccone LLP has moved to Westlake after outgrowing its downtown Austin office.
MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS
BC Law's team of attorneys is purpose built for your difficult challenges. Our personalized, innovative strategies give a powerful edge to clients seeking Austin's best Family and Civil Law attorneys.
2016-PRESENT
Family Law Specialist
Edgington Whitten has practiced in family law since 1992. *Kimberly A.Tim kim@whitten-law.com He has been certified as a Family Law Specialist by
the Texas Board of Legal Specialization.
ion
Collaborative Divorce. Helping couples problem solve their way through divorce.
Adoption
Grandparent or Non-parent Rights
Collaborative Law
High-Asset Divorce
Modifications of Custody, Possession & Support
7500 Rialto Blvd, Bldg One, Suite 250, Austin, Texas 78735
whitten-law.com | info@whitten-law.com | (512) 478-1011 14
AUSTINLAWYER | OCTOBER 2021
OPENING STATEMENT
Email Memos, Part 1 Current Advice for Best Practices BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET
L
awyers use email a lot, and experts offer plenty of good advice for writing legal email messages effectively.1 Now we also have empirical research: In 2018-19, Brad Desnoyer, a legal-writing professor at Indiana University McKinney School of Law, gathered opinions from 113 lawyers on four sample email memos. He published the results in E-Memos 2.0: An Empirical Study of How Attorneys Write.2 The article is lengthy, but offers a great deal of excellent advice for writing analytical emails in law practice. This column summarizes the advice Professor Desnoyer found in his exhaustive review of the relevant literature—the current advice for best practices when writing legal analysis in email—regarding what he calls an e-memo.3 Start by restating the issue. This advice—nearly universal in the best guides to legal emails— rests on two valid premises: (1) the reader might forward your message to others, so restating the issue aids the secondary audience; and (2) the busy reader, swamped with email, may not remember what you were asked. Common advice here is to use the stock phrase, “You asked me ….” Don’t repeat the given facts. This advice troubles me just a bit. My day job is teaching first-year law students, so I know that requiring a beginning legal writer to restate the given facts is a useful way to ensure that the beginner correctly understands the facts. Not to mention that supervising attorneys are sometimes less than thorough in providing the facts. Still, given that e-memos should be short, the advice is fair.
E-memos need to be short, and the best legal writers edit their e-memos for concision, just as they would a brief that needs to comply with a word limit. Rely more on explanatory parentheticals than on lengthy case illustrations. A traditional legal analysis not only states the legal standard but also gives examples of how that standard has been applied in prior cases. In the legal-writing field, those examples are called “case explanations” or “case illustrations.” Writing a concise yet thorough case explanation is a key skill all legal writers should master. And if the legal writer is a beginner, requiring case illustrations provides a way to be sure the writer understands the law. But no one wants to read a lengthy recitation of case law— especially not a busy attorney skimming an email. So it makes sense that the advice is to use explanatory parentheticals: They’re short.
Include an analysis of the law and its application to the facts. I feel like saying, “Duh.” But it’s possible that a writer could get stuck explaining abstract concepts and legal standards and never get around to the analysis—how those concepts and standards apply to this case. So it’s basic, but good, advice. Conclude with the writer’s recommendations. Again, this sensible advice could go without saying. It’s not really a memo—a piece of legal analysis—if it doesn’t offer a conclusion or recommendation. Keep the length to one to two traditional pages E-memos need to be short, and the best legal writers edit their e-memos for concision, just as
they would a brief that needs to comply with a word limit. Keep in mind that screen readers don’t want to scroll through a lengthy document—and some readers are reading e-memos on their phones. Ensure that the prose is concise and professional. In law practice, professional standards for writing still apply, even to email messages. You can’t write an e-memo that looks like a text message to a friend, or if you do, your credibility will suffer. For e-memos, standard capitalization, grammar, punctuation, and words usage are the norm. Next month: A summary of the data on e-memos Professor AUSTIN LAWYER AL AL Desnoyer gathered. Footnotes 1. E.g., Patricia T. O’Conner & Stewart Kellerman, You Send Me (2002); Dianna Booher, E-Writing: 21st-Century Tools for Effective Communication (2001); Kristen Tiscione, From Snail Mail to Email, 58 J. Legal Educ. 32 (2008). 2. Brad Desnoyer, E-Memos 2.0: An Empirical Study of How Attorneys Write, Legal Writing: J. Legal Writing Inst. 1 (2021). 3. Desnoyer, E-Memos 2.0, at 8-10.
OCTOBER 2021 | AUSTINLAWYER
15
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 an owner at Laurie Ratliff LLC.
>
The following are summaries of selected civil opinions issued by the Third Court of Appeals during August 2021. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of September 9, 2021. MANDAMUS: Court grants mandamus relief from interim attorney-fee award. In re O’Connor, No. 03-2100159-CV (Tex. App.—Austin Aug. 31, 2021, orig. proceeding) (mem. op.). Following a tem-
porary orders hearing, mother sought interim attorney fees. Father objected, contending mother failed to show the fees were necessary for the safety and welfare of the child as required by Family Code § 105.001. Mother argued the fees were requested as a sanction, and not under the Family Code. The trial court ordered father to pay $4,205 in attorney fees to mother’s attorney as the prevailing party. The court of appeals observed that an award of interim fees must be based on evidence that the fees are necessary for the safety and welfare of the child. The record did not show that the fees were awarded as a sanction. According to the court, the trial court lacks the inherent authority to award fees. The court held that the trial court abused its discretion and granted mandamus relief. ATTORNEY’S FEES: Court reverses attorney-fee award supported by heavily redacted invoices. Person v. MC-Simpsonville, SC1-UT, LLC, No. 03-20-00560-CV (Tex. App.—Austin Aug. 27, 2021, no pet. h.) (mem. op.). Person challenged a more than $250k attorney-fees award to MC-Simpsonville. The award was based on MC-Simpsonville’s heavily redacted invoices and its attorney’s testimony. According to the court of appeals, the redactions eliminated virtually all specificity
about the tasks performed, thus preventing a meaningful evaluation of their reasonableness and necessity. The court further concluded that the attorney’s testimony also lacked the requisite detail about the specifics of the work performed. The court held that the evidence was legally insufficient to support the award. The court reversed and remanded the fee award and affirmed the remainder of the judgment. BILL OF REVIEW: Court reverses bill of review that was based only on intrinsic fraud. Solla-Llorens v. Solla, No. 0320-00426-CV (Tex. App.—Austin Aug. 26, 2021, no pet. h.) (mem. op.). In their divorce, the parties signed an MSA regarding property division. Solla later filed a bill of review alleging fraud and seeking to redivide the marital property. The dispute was over a Hummer the parties owned in Brazil. After entering the MSA, Solla-Llorens shipped the vehicle back to the U.S. Solla contended that the parties agreed she would take possession of the Hummer in Brazil. Solla claimed that keeping the vehicle in Brazil was the reason she agreed to the property division. The trial court granted the bill of review and redivided the property. The court of appeals noted that neither the MSA nor the final decree mentioned leaving the Hummer in Brazil. The court characterized Solla’s
allegation that Solla-Llorens misrepresented where the vehicle would be delivered as intrinsic fraud. A bill of review can only be based on extrinsic fraud. The court reversed and rendered judgment, reinstating the original decree. ADMINISTRATIVE LAW: Court reverses judicial retirement-benefits award. Employees Retirement Sys. of Tex. v. Lowy, No. 03-20-00428CV (Tex. App.—Austin Aug. 19, 2021, no pet. h.). Lowy, a district judge with eight years on the bench and three years as a visiting judge after being defeated, sought retirement benefits. ERS denied the request. Lowy lost at the administrative level and sought judicial review. The trial court concluded that sitting by assignment constituted holding judicial office under the statute and ordered that Lowy was eligible for benefits. The court of appeals concluded that a former or retired judge sitting by assignment is not holding a judicial office for purposes of retirement benefits. Thus, Lowy could not receive retirement under a provision that permits retirement directly from an elected or appointed position on a bench. The court reversed and AUSTIN LAWYER AL AL rendered.
You’re busy looking out for your clients’ needs. Who’s looking out for yours? Jim Kaighin, Jr., CFP Financial Professional
3500 Oakmont Blvd., Suite 101 Austin, TX 78731
512-302-6051 kaighinjr@hilltopnetwork.com Member: FINRA/SIPC 16
AUSTINLAWYER | OCTOBER 2021
Is ItToTime To Grow? Is It Time Grow? Advertise in Advertise in Austin Lawyer Austin Lawyer
Is It Time To Grow?
Visit www.austinbar.org/advertise-with-us/ Visit www.austinbar.org/advertise-with-us/ Or call 512.293.9277
Or call 512.293.9277 Advertise in
Austin Lawyer
Visit austinbar.org/ advertise-with-us
Visit www.austinbar.org/advertise-with-us/ Or call 512.293.9277
Or call 512.293.9277
AUSTINLAWYER
Bill Love
Edward Fowler
Mitchell Walley
CPA, ABV, CFF Partner
CFA, ASA, MAFF Partner
CFA Manager
blove @bvccpa.com
edward.fowler @bvccpa.com
mitchell.walley @bvccpa.com
OCTOBER 2021 | AUSTINLAWYER
17
THIRD COURT OF APPEALS CRIMINAL UPDATE
Zak Hall is a staff attorney for the Third Court of Appeals. The summaries represent the views of the author alone and do not reflect the views of the court or any of the individual Justices on the court.
>
The following are summaries of selected criminal opinions issued by the Third Court of Appeals from February 2021. The summaries are an overview; please review the entire opinions. RIGHT TO COUNSEL – WAIVER OF RIGHT: Defendant was denied his right to counsel when he did not clearly, unequivocally, and unconditionally assert his right to self-representation. Rucker v. State, No. 03-19-00493CR (Tex. App.—Austin Feb. 11, 2021, no pet.) (mem. op., not designated for publication). Rucker was charged with aggravated assault with a deadly weapon. The trial
court appointed counsel to represent Rucker. Prior to trial, Rucker informed the trial court that he and counsel had “irreconcilable differences” and that if he was “going to have an attorney, [he] would rather have a different attorney, an attorney of [his] choice.” Rucker also indicated that he “would be happy to go pro se.” The trial court proceeded to conduct a hearing to determine whether Rucker was knowingly and intelligently waiving his right to counsel. Rucker gave nonsensical answers to the trial court’s questions during the hearing. Nevertheless, the trial court granted Rucker’s earlier request to represent himself, even though Rucker refused to sign a written waiver of his right to counsel and told the trial court, “I’m not waiving my right to an attorney.” Rucker proceeded to represent himself throughout trial, and the jury convicted him. On appeal, Rucker, now represented by appellate counsel, argued that he was denied his right to counsel at trial. The appeals court agreed. The court explained that to be effective, “a defendant’s waiver of his right to counsel requires both a clear, unequivocal, and unconditional assertion of his right to self-representation, followed by the trial court’s admonishments as to the dangers and disadvantages of self-representation.” Here, Rucker’s request for self-representation was “conditioned upon the district court’s refusal to appoint him different counsel,” and he made several statements indicating
that he did not want to represent himself. “Considering the totality of the circumstances and indulging every reasonable presumption against waiver,” the court concluded that Rucker’s statements did not “amount to a clear, unequivocal, and unconditional assertion of his right to self-representation.” The court reversed Rucker’s conviction and remanded for a new trial.
court denied, instructions on the defenses of necessity, confinement as justifiable force, and protection of life or health. Gonzalez was convicted of unlawful restraint. A divided appeals court affirmed. The court explained that all the asserted defenses required “immediacy,” meaning that Gonzalez must have reasonably believed that his conduct was necessary in the moment to stop some harm. The UNLAWFUL RESTRAINT – court concluded that “there was no NECESSITY AND RELATED evidence Estrella would have been DEFENSES: Trial court did not at risk of ‘imminent’ or ‘immediate’ err in denying defendant his harm had she left the apartment requested jury-charge instrucwithout her keys or phone.” Nor tions on necessity, confinement was there any “evidence that there as justifiable force, and protecwould have been any ‘imminent’ tion of life or health. harm if she had recovered the keys while in the apartment or Gonzalez v. State, No. 03-19that [Gonzalez] could reasonably 00081-CR (Tex. App.—Austin Feb. have believed it necessary to keep 26, 2021, no pet.) (mem. op., not her in the apartment because she designated for publication). This had regained the keys or had some case arose from a violent altercaother means of driving.” However, tion between Gonzalez and his the dissenting justice believed girlfriend, Estrella. The evidence that Gonzalez was entitled to the at trial showed that on the night of requested instructions. Because of the incident, Gonzalez and Estrella Estrella’s level of intoxication and were drinking and arguing, and aggressive behavior, Gonzalez could Estrella tried to leave the aparthave reasonably believed that it was ment with her car keys. Gonzalez immediately necessary for him to attempted to prevent her from prevent Estrella from leaving the leaving by taking away her keys apartment and causing imminent and phone, grabbing her, pushing harm to herself or others. “Such a her onto the bed, and confining belief would not be ‘unreasonable her in their bedroom. Estrella as a matter of law,’” and “[w]hether fought back and continued trying Gonzalez reasonably believed his to leave, while Gonzalez continued actions were immediately necesto stop her. The police were called sary to avoid imminent harm was to the apartment and arrested a question of fact for the jury to AUSTIN LAWYER Gonzalez. At the conclusion of trial, AL A L decide.” Gonzalez requested, and the trial
Helping clients manage significant wealth Matt Rappaport, CFP®, CDFA®, CEPA® Financial Advisor 512-542-7507 matt.rappaport@ubs.com advisors.ubs.com/matt.rappaport
UBS Financial Services Inc. 98 San Jacinto Boulevard Suite 600 Austin, TX 78701
Certified Financial Planner Board of Standards Inc. owns the certification marks CFP® and Certified finanCial PlannerTM in the US. As a firm providing wealth management services to clients, UBS Financial Services Inc. offers investment advisory services in its capacity as an SEC-registered investment adviser and brokerage services in its capacity as an SEC-registered broker-dealer. Investment advisory services and brokerage services are separate and distinct, differ in material ways and are governed by different laws and separate arrangements. It is important that clients understand the ways in which we conduct business, that they carefully read the agreements and disclosures that we provide to them about the products or services we offer. For more information, please review the PDF document at ubs.com/relationshipsummary. © UBS 2021. All rights reserved. UBS Financial Services Inc. is a subsidiary of UBS AG. Member FINRA/SIPC. CJ-UBS-771682841 Exp.: 06/30/2022
18
AUSTINLAWYER | OCTOBER 2021
FEDERAL CIVIL COURT UPDATE The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are an overview; please review the entire opinions. Subsequent history, or the lack thereof, is current as of September 2, 2021.
> BUSINESS ORGANIZATIONS: In tort actions, plaintiffs may pierce an entity’s corporate veil by showing that an entity was operated as a sham to perpetuate a fraud, but the entity’s undercapitalization alone is insufficient to make such a showing. Ledford v. Keen, No. 20-50650, 2021 WL 3630005 (5th Cir. Aug. 17, 2021). Karen Ledford was run over by a barrel-racing horse at a Texas rodeo. She timely sued Kosse Roping Club, the rodeo operator, for negligence. She later added the club’s directors as defendants after the two-year statute of limitations expired. The directors moved for summary judgment, arguing that Ledford’s claims were time-barred. In response, Ledford argued that she could pierce the corporate veil and, thus, the limitations period for her claims against the directors was tolled upon the filing of her original complaint against the club because the directors
operated the club as a sham to perpetuate a fraud. The district court granted the directors’ motion, finding that Ledford waived her veil-piercing argument, and, in any event, the argument failed on the merits. Ledford appealed. On appeal, the Fifth Circuit held that Ledford did not waive her veil-piercing argument because she alleged in her amended complaint that the directors operated the club as a sham to perpetuate a fraud, which is a valid basis for piercing the corporate veil in tort cases under Texas law. The court went on to hold, however, that Ledford’s veil-piercing claim failed on the merits because the only evidence Ledford offered to show that the directors operated the club as a sham was the club’s undercapitalization. Because the Texas Supreme Court has not directly answered whether undercapitalization alone justifies veil-piercing, the Fifth Circuit made an Erie guess about how the supreme court would rule on that question, predicting that the supreme court would not conclude that undercapitalization alone is sufficient. CLASS ACTIONS: A party intervening as a defendant in a state court class action in which the party was not named as a defendant is nevertheless a “primary defendant” for purposes of the Class Action Fairness Act if the thrust of
Mediation. Arbitration. Resolution.
the suit is to gain access to that party’s pockets. Madison v. ADT, L.L.C., No. 2110837, 2021 WL 3732741 (5th Cir. Aug. 24, 2021). Telesforo Aviles was an employee of ADT LLC who installed home-security systems and used his access privileges to spy on customers in their homes, including Taylor Madison and Angie Dickson. Madison and Dickson sued Aviles on behalf of a class of similarly situated plaintiffs in Texas state court, seeking millions in damages. Although other plaintiffs had sued ADT in other class actions pending in federal court in Texas and Florida, Madison and Dickson did not sue ADT in their state court action. ADT intervened in the state court suit and then had the suit removed to federal court based on the Class Action Fairness Act (CAFA). The plaintiffs moved to remand based on the “homestate” exception to CAFA, which states that a federal court must abstain from exercising jurisdiction over a class action if two-thirds of the class members and “the primary defendants” are citizens of the state in which the action was originally filed. Finding that ADT was not a primary defendant and that the other requirements of the home-state exception were met, the district court granted the motion to remand. ADT sought permission to appeal under 28 U.S.C. § 1453(c).
David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.
The Fifth Circuit granted permission to appeal and reversed the district court’s order. The court acknowledged that whether a party is vicariously liable is a relevant factor in determining whether that party is a “primary defendant,” but such facctor is not determinative. Rather, the emphasis should be on whether the party in question was the “real target” of the litigation. Here, the plaintiffs asserted claims only against the offending employee, who was imprisoned, but the court found that the “thrust” of the plaintiffs’ suit was to gain access to ADT’s deep pockets. As a result, the court held that ADT, having properly intervened, must be considered a primary defendant AUSTINLAWYER AL AL under CAFA.
Jeff Rose Mediation Arbitration Litigation Consulting Special Judge Proceedings Board Certified, Civil Trial Law Former: Chief Justice, 3rd Court of Appeals; District Judge; Deputy Attorney General
ROSERESOLUTIONGROUP.COM jeff@roseresolutiongroup.com 512.637.0931
Certified Mediator: Harvard Negotiation Program; Mediators and Arbitrators of America TEXAS SUPER LAWYER 2004, 2005, 2008, 2009
OCTOBER 2021 | AUSTINLAWYER
19
CRIMINAL COURT NEWS
“Constitutional Carry”: The Nuts and Bolts BY DAN DWORIN
D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.
O
ne of the most controversial of the Texas Legislature’s criminal-justice related bills that became law on Sept. 1, 2021 was the adoption of the so-called “Constitutional Carry” bill. The bill amends several sections of the Texas Penal Code and other statutes that regulate the carrying of handguns, specifically governing the carrying of a handgun by a person who is 21 years of age or older and not otherwise prohibited by state or federal law from possessing the firearm, and other provisions related to the carrying, possessing, transporting, or storing of a firearm or other weapon. For the most part, what used to be a general prohibition on carrying a handgun unless certain exceptions were met has changed into a blanket permission, with no licensing required, absent certain exceptions, to carry a holstered handgun. Texans can now, as before the bill, carry handguns openly or concealed in public, most state office buildings, and private businesses that do not prohibit handguns, but now do not have to obtain a permit. The state had already allowed the carrying of a long gun without a 20
AUSTINLAWYER | OCTOBER 2021
permit. Texas House Bill 1927 makes it a crime to openly carry a holstered handgun only if: • A person is prohibited from possessing a weapon based on a prior felony or family-violence conviction;1 • A person is intoxicated;2 • A person is carrying in certain places in which firearm possession is still restricted (hospitals, jails, courts, bars, schools, etc.); 3 • A person is in the course of committing an offense other than a Class C traffic offense;4 • A person is a member of a criminal gang;5 or • A person is younger than 21 years old.6 Law enforcement officers are given the authority to temporarily disarm a person during the course of an investigation, so long as they return the firearm to the suspect after determining that a crime was not committed by that person and that the person does not pose a threat to another.7 The prohibition that firearms not be openly displayed in a vehicle has been repealed; it is no longer illegal to openly carry a firearm within a vehicle. Fur-
One check does still remain in place: a firearm purchase through a licensed gun dealer still requires a background check. ther, it is not a crime to openly lature has directed much effort carry a firearm in view of the in the last couple of decades to public so long as the weapon is minimize almost all checks on holstered, and the person is not the purchasing and possession otherwise prohibited from possesof firearms. One check does sion of a firearm. still remain in place: A firearm One interesting provision purchase through a licensed gun offers an opportunity for those AUSTIN dealer still requires a background LAWYER AL AL convicted of Unlawfully Carrying check. a Weapon prior to the effective Footnotes date of this legislation to have their criminal record expunged, regardless of the circumstances of the conviction.8 This change is a major departure from the general rule that arrests resulting in a conviction cannot be expunged. Business establishments that want to restrict open-carry on their premises will have to use a sign or personal notification to an individual, who can then be charged with criminal trespass if they refuse to leave after receiving notification that firearm possession is prohibited.9 No matter what one’s personal feeling is about the contours of gun regulation, the Texas Legis-
1. Tex. Penal Code § 46.02(a)(2)(B). (Note: all statutory citations refer to new or amended provisions of their respective code, eff. Sept. 1, 2021). 2. Id. § 46.02(a-6)(1). 3. See id. § 46.035(a-1). 4. Id. § 46.02(a-1)(2). 5. Id. § 46.04(a-1) (making it unlawful for a person who is a member of a criminal street gang to carry a handgun while in a motor vehicle). 6. Id. § 46.02(a)(2)(A). 7. Tex. Code Crim. Proc. art. 14.03(h) (1). 8. Id. art. 55.01(a)(1)(C). 9. Tex. Penal Code § 30.05(c).
PATIENT
PRACTICAL
PERSISTENT
30 years of trial experience Now mediating all types of cases HargettMediation.com rhargett@rcmhlaw.com 512.660.5960
OOOOOOOO VVVVV CCCCCCCCCC MMMMMMMMMM
Rob Hargett
ADVERTISERS ADVERTISER . . . . . . . . . . . . . . . PAGE Apple Leasing . . . . . . . . . . . . . 6 Armbrust & Brown, PLLC . . . 14
LAW FIRM, P.C. FAMILY LAW
Bollier Ciccone LLP . . . . . . . . 14 Briggs & Veselka Co. . . . . . . . 17 Broadway Bank . . . . . . . . . . . 24
We understand. We can help.
Cofer & Connelly, PLLC . . . . . 5
We’re Here. We’re Open. We’re Ready to Help. Video Conferencing and In-person Social Distancing Now Available
Foster, LLP . . . . . . . . . . . . . . . 4 Hilltop Securities . . . . . . . . . . 16 Judge Stephen Yelenosky . . . 7 Knolle, Holcomb, Callahan & Taylor, P.C. . . . . . . . . . . . . . . 17
Divorce
Custody
Same-Sex Marriage Mediations
Appeals
Modifications
Lakeside Mediation Center . . 11 Law Office of Tim Whitten . . 14
Arbitrations
LawPay . . . . . . . . . . . . . . . . . . 2 Noelke Maples St. Leger Bryant, LLP . . . . . . . . . . . . . . . 7
A Client-Centered Approach to Family Law
Patrick Keel . . . . . . . . . . . . . . . 12 Reed, Claymon, Meeker & Hargett, PLLC . . . . . . . . . . . 21 Rose Resolution Group . . . . . 19 Texas Lawyer Insurance Exchange . . . . . . . . . . . . . . . . 3, 22 The Snell Law Firm, PLLC . . . 9 Thomas Esparza, Jr. P.C. . . . . 3 UBS Financial Services Inc. . . 18 UT Center for Professional Education . . . . . . . . . . . . . . . . 12 Attorney Erin Leake
Attorney Jimmy Vaught,
Board-Certified in Family Law and Civil Appellate Law by the Texas Board of Legal Specialization
AustinDivorceLawyer.com
Attorney Jillian French
Vaught Law Firm . . . . . . . . . . 21
Board-Certified in Family Law by the Texas Board of Legal Specialization
512.605.0999
OCTOBER 2021 | AUSTINLAWYER
21
AUSTIN YOUNG LAWYERS ASSOCIATION
AYLA Is Here to Help The Personal Crisis Assistance Program Is One Call Away
I
s your practice suffering because of a personal crisis? Are you enduring tough times but don’t know where to turn? The Personal Crisis Assistance Program is here to help in your time of need. PCAP was created in 1996 to support Austin-area attorneys who face an immediate need for temporary financial or practice assistance due to a personal crisis. The objective of this program, funded by the Austin Young Lawyers Association Foundation, is to serve as a protection for lawyers and their clients when personal emergencies harm a lawyer’s practice. PCAP is available to attorneys who work or reside in Travis County and who are eligible for regular membership in AYLA. PCAP includes two levels of
PCAP is available to attorneys who work or reside in Travis County and who are eligible for regular membership in AYLA. short-term assistance for lawyers in crisis: • FINANCIAL – PCAP provides limited grant funds of up to $1,500 to assist an attorney who is unable to fulfill certain practice-related financial obligations due to a personal crisis. • PRACTICE-RELATED – Attorney volunteers agree to handle professional matters
for the affected lawyer during the crisis. To apply confidentially for financial or practice assistance, please contact Debbie Kelly at 512-472-0279, x105 or by email at debbie@austinbar.org.
Regardless of how overwhelming the problem may seem, help is available. You have worked hard to build your career. PCAP is hereLAWYER to help you get back on AUSTIN L AL yourAfeet.
SPONSORED CONTENT 5 STEPS TO AVOID MALPRACTICE CLAIMS FOR PLAINTIFFS’ LAWYERS This content originally appeared on tlie.org and has been edited for Austin Lawyer. While none of us are infallible, malpractice claims can be avoided in most situations. Below are some of the most common ways that plaintiff’s attorneys can find themselves in hot water and how to steer clear of a legal malpractice claim. Read the full article on tlie.org. 1. PROPERLY CALENDAR EVERYTHING AND ACT WELL BEFORE DEADLINES Missed deadlines may be the most common source of malpractice claims. Don’t wait until the last minute to complete tasks and file documents. Calendaring errors are another common cause of malpractice claims. This may result from failing to enter a key deadline in the calendar system, simple (and easily avoidable) clerical errors, not using a back-up calendar, waiting until the last minute to file documents, or failing to check the work of your staff. 2. DOCUMENT WHO IS (AND WHO IS NOT) THE CLIENT Plaintiffs’ attorneys run the risk of a claim from non-clients by failing to properly document who is, in fact, the client. Use engagement letters and contracts. Specify who is and who isn’t the client. Many malpractice claims also stem from situations where an attorney has decided not to take a case but fails to send a letter documenting that fact. Any time you decline to represent a potential client, send a declination letter right away.
22
AUSTINLAWYER | OCTOBER 2021
3. REPRESENT ONE CLIENT PER LAWSUIT Another common way to face a malpractice claim is by representing more than one client in the same matter. One client may think you favored another client’s interest client. Or, if there are limited funds to recover in a personal injury claim, these injured parties could have conflicting interests. 4. RESIST THE URGE TO SUE YOUR CLIENT FOR FEES Of course, you should be paid for your work, but suing a client for fees is an invitation for a legal malpractice claim. More often than not, however, suits for fees are not worth the risk. Keep in mind that a legal malpractice claim is a compulsory counterclaim to an attorney’s suit for fees. When initiating a suit for fees, the client will scrutinize your work to identify any possible mistake to support a claim for malpractice. 5. MANAGE CLIENT EXPECTATIONS Never guarantee a particular result in a case. Doing so could provide the basis for a breach of contract action, where the client does not need to hire an expert witness to establish the lawyer acted below the standard of care. Rather, the client could simply offer evidence that the attorney promised a particular result but failed to make good on that promise. Discuss potential issues that may arise in the case, and document it in writing. Ensure your standard retainer agreement includes a “no guarantee of success” provision.
AUSTIN YOUNG LAWYERS ASSOCIATION
Member Spotlight: Stephanie Eberhardt the AYLA virtual yoga classes. Everyone has been very kind and welcoming. I’m looking forward to meeting AYLA members in person!
COMING SOON!
AYLA: What was your childhood dream job? Eberhardt: In elementary school, I wanted to be a pianist. Then, a professional swimmer. Neither panned out! By high school, I was pretty set on being a lawyer. AYLA: Tell us a little bit about yourself and your law practice.
AYLA: What’s your favorite moment of your career so far?
Eberhardt: I am an Assistant Attorney General with the Consumer Protection Division at the Office of the Attorney General. My practice involves investigating and litigating against individuals and businesses for violations of the Texas Deceptive Trade Practices—Consumer Protection Act and other consumer protection statutes. I have worked on cases involving debt collection, high school diploma mills, the sale of synthetic marijuana in retail establishments, price gouging, opioids, and disaster scams. I started in the Houston office of CPD in 2014 and transferred to the Austin office in 2020.
Eberhardt: When I was a baby lawyer at the AG’s Office, I started helping out on a debt collection case. The lawyer whose case this was told me I could sit second chair if this case went to trial. About three years later, this case went to trial, and I sat second chair. My favorite moment of my career was getting the jury verdict in that case—the jury found in the State’s favor, found all the violations, and awarded almost $26 million in penalties.
AYLA: How long have you been involved in AYLA and what’s been your best AYLA experience so far? Eberhardt: I moved to Austin at the beginning of the pandemic, and I didn’t know anyone outside of work. Also, everything was very locked down. I was involved in the Houston Young Lawyers Association, so I signed up for AYLA as soon as possible. I think my first event was a virtual trivia night. I didn’t know anyone, but I showed up and asked if any teams needed an extra person. And, I had a great time! I’ve also liked
AYLA: What are some of the things you enjoy most about living in Austin? Eberhardt: The trails and parks are beautiful. I also like trying out all the tacos. AYLA: What’s your best piece of advice for fellow young attorneys? Eberhardt: Get involved in bar associations! It can be challenging to go to events and meetings with everything else going on in your life, but we don’t practice law in a vacuum. It’s good to meet people and learn about legal developments outside of the scope of your day-to-day practice. And if that’s showingAUSTIN up even LAWYER once a month to something, A doL it! AL
bar & grill
bar & grill Dallas Bar Association
Austin Young Lawyers Association
UPCOMING EVENTS SAT., OCT. 2 Support We Are Blood at the AYLA October Community Service Days Blood Drive 9 a.m.– 1 p.m. Bloodmobile Bus at Austin Bar Association Hilgers House 712 W. 16th Street Visit: http://ow.ly/Dmen50GfXjz, email cwellborn@weareblood.org, or call 512.206.1316 to schedule your appointment.
OCTOBER 2021 | AUSTINLAWYER
23
Each client is unique. Just like our solutions. As a Private Banking client, you will get a team of banking professionals who focus on creating unique solutions to help you achieve both your business and personal financial goals. Broadway Bank’s Private Banking team provides concierge banking services specifically curated for your needs. Customized Lending • Private Access Account • Credit Cards • Professional Mortgage Program Revolving Line of Credit • Wealth Management Advisory Services
broadway.bank • (512) 465-7803 Membership qualifications to Private Banking at Broadway Bank apply. All loans are subject to credit approval. Term and Conditions are subject to change without notice. Other Conditions may apply. The creditor and issuer of these credit cards is Elan Financial Services. Member FDIC. Rev. 02/21 / #634628375
Wealth Management Advisory Services: NOT FDIC INSURED • NOT A DEPOSIT NOT INSURED BY ANY FEDERAL GOVERNMENT AGENCY • NOT BANK GUARANTEED • MAY LOSE VALUE
