austinbar.org SEPTEMBER 2021 | VOLUME 30, NUMBER 7
Austin Bar Puts Members First Cultivating a Legal Community to Support You
A
“return to office” in 2021 means different things for many. For the Austin Bar Association, it’s a renewed focus on our most vital resource—YOU! Our members are at the forefront of everything we do. There’s no better time to get reacquainted with us and reinvigorated by taking advantage of our member benefits and participating in the many sections and events we offer. Continuing to engage members and recruiting new ones is a top priority. We’ve planned an exciting year of activities to do just that. Below (on page 8) is a brief list of some of our upcoming events. You’ll find information on these events and much more throughout this publication.
JOIN THE AUSTIN BAR FOR 2022; GET FULL MEMBERSHIP BENEFITS FOR THE REST OF 2021 FOR FREE
ONLINE MEMBER DIRECTORY
__ LAW SECTIONS
COURT RESOURCE GUIDE
ONLINE CLE
Now is the PERFECT time to join!
BAR CODE
Visit us online today.
AUSTINBAR.ORG
JURY TRIAL UPDATES AUSTIN LAWYER
PRO BONO PROGRAMS
DISCOUNTS & SERVICES
ABOVE: The Austin Bar Association and AYLA celebrate Debbie Kelly on her 20 years of service. AYLA past presidents and current board members gathered to show their appreciation. Pictured here are several AYLA past (and current) presidents. Standing: Jorge Padilla, Adam Schramek, Austin Kaplan, Judge Elisabeth Earle, Justice Chari Kelly, Amy Welborn, Rachael Jones, David Courreges. Sitting: Patricia V. Hayes, Amanda Arriaga, Debbie Kelly, Shannon Meroney, Katie Fillmore.
continued on page 8
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 SEPTEMBER 2021 | VOLUME 30, NUMBER 7 AL A L INSIDE FEATURED ARTICLES
DEPARTMENTS
CONNECTIONS
1
6
ONLINE austinbar.org
Austin Bar Puts Members First Cultivating a Legal Community to Support You
14
10 Join an Austin Bar Committee Today!
16
13 Join Austin Bar’s 100 Club for the 2021-22 Bar Year
20
15 Big Change Coming to the Travis County Courts
22
19
Facilitating Unity Through Inclusion and Service
and Clerks eFile System to be Delayed or Down Because of Conversion
25 26
17 Leading in Our Community
28 30
18 America’s “Newest” Holiday
President's Column Briefs Be Well Opening Statement Third Court of Appeals Civil Update Third Court of Appeals Criminal Update Federal Civil Court Update Criminal Court News AYLA Entre Nous
EMAIL sonta@austinbar.org MAIL Sonta Henderson, managing editor Austin Bar Association 712 W. 16th Street Austin, TX 78701 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar
ONLINE
austinbar.org
WATCH vimeo.com/austinbar
NEWS & ANNOUNCEMENTS
UPCOMING EVENTS
2022 Jury/Non-Jury Schedule For Travis County Civil District Courts The approved 2022 Jury/Non-Jury Schedule for Travis County Civil District Courts has been published
OCT 26 Bench Bar Conference
AYLA CASA Superhero Run Join the AYLA virtual team!
STREAM @AustinBarAssociation FOLLOW instagram.com/theaustinbar
Austin Country Club (with option to attend virtually) Registration opening soon at austinbar.org.
TEXT austinbar to 313131 for up-to-date news + info Message & data rates may apply.
SAVE THE DATE october 26, 2021
Bench Bar Conference: Emerging from the Pandemic Austin Country Club (with option to attend virtually) topics to include:
Transitioning to In-Person at the Courthouse Update on the New Family and Civil Courts Facility
Most insurance companies think with their wallet. We also use our heart. TLIE cares about its members. We support organizations that help them succeed and thrive. The BEST liability coverage for the BEST people.
#DoGoodATX
The Vaccination and the Law Meet the New Judges
FIND OUT MORE:
REGISTRATION WILL BE OPEN SOON AT AUSTINBAR.ORG
(512) 480-9074
TLIE.ORG or
SEPTEMBER 2021 | AUSTINLAWYER 3_62x3_62in_TLIE Ad Campaign 2020_AustinLawyer_113020v2.indd 4
3
12/1/20 11:52 AM
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 | SEPTEMBER 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
Homecoming
A
s many of you know, I grew up in China Spring, Texas. Though today my hometown is for every purpose a bedroom community, when I was kid China Spring was a farming town (technically a farming census-designated place). In my mind, it could have been the real-world setting of “The Last Picture Show,” if said title wasn’t already claimed by Archer City… and if it had a movie theater… or a stoplight. We did, however, have a post office, general store, and other fine establishments such as Bill and Bob’s World Famous Hamburgers, the Burger Doodle, and even a couple of gas stations that had burger counters as well. What we lacked in population and variance of cuisine we made up for in pride, and most of that pride was directed toward the finest public
6
AUSTINLAWYER | SEPTEMBER 2021
high school athletic program in all the county of McLennan: the China Spring Cougars! One of my earliest memories of Cougar pride occurred at around the age of four when my neighbor and babysitter, LaDell Leach (played, also in my movie version, by Cybill Shepherd), proudly showed me the largest flower I had ever seen. It was white, and decorated with “Cougar blue” and white ribbons, glitter, and other fabulousness. Her presentation included a monologue about how people were coming from far and wide that evening to cheer on the mighty Cougars, freshly off their recent Class 1A state championship, as they were to take on the lowly Clifton Cubs. She was excited to see everyone making their way back home. This was to be, and is, my first memory of both “homecoming” and the legendary Texas homecoming mum. The origin of the homecoming tradition is, I’m told, feverishly debated throughout the U.S. The University of Missouri claims that its 1911 event was the first, which is corroborated by the NCAA and even Jeopardy. They, however, conveniently ignore the Thanksgiving 1909 Homecoming hosted
No commentary on homecoming would be complete without home. Be it in person or virtually, I do hope you will come visit us at your Bar home as often as you can. in the China Spring suburb of Waco to celebrate the students and alumni of Baylor University, who decorated their vehicles and lapels with chrysanthemum indicum. The hosts of this historic event were three professors, who
simply called upon the graduates to return to campus to “renew former associations and friendships, and catch the Baylor spirit again.” A tradition was born. I am a sentimental person who loves history, thrives on
tradition, and blindly believes in the human spirit. Over the past year we have collectively made history and have been unceremoniously deprived of our traditions. We have all been in lands far away on what has often felt like a solitary journey yielding anxiety-laden adventures and tribulations caused by slow broadband connections and makeshift home offices. We have been tested a lot, but we have spirit! I am not suggesting that these unprecedented times are over. In fact, they’re still proving to be just as difficult of times as every single commercial reminded us last summer. The challenges, however, are changing and will require us to provide even more support for one another and our community than ever before. While I decline to ask you, my friends, to catch anything in this age of COVID, it is time that we come back home as we face yet another stage of what has been a great unknown. While there is no way to
While there is no way to predict how the upcoming bar year will unfold, we will be better equipped to face the challenges ahead of us if we honor our personal wellbeing, make a resolute effort to become and remain connected to one another, and continuously strive to live purposefully. predict how the upcoming bar year will unfold, we will be better equipped to face the challenges ahead of us if we honor our personal wellbeing, make a resolute effort to become and remain connected to one another, and continuously strive to live purposefully. This year the Austin Bar will provide an even greater focus on the physical and mental health of our members though the Lawyer Well-Being Committee. We will build upon the momentous efforts of the Equity Committee as we work together to ensure understanding and op-
portunity for all. In addition, we will honor our duty to our Austin Community through a renewed focus on the Law-Related Education Committee. We will also strive to provide mentorship, fellowship and relevant education through our prodigious CLE programming. Finally, we will continue to build an Austin Bar Association strong in both substance and number through the reactivation of the Membership Committee. All of this effort is in addition to dozens of truly phenomenal programs, committees, and sections that
make the Austin Bar Association the greatest Bar in the country, even better than the county of McLennan. No commentary on homecoming would be complete without home. As you are probably aware, at the onset of the pandemic we officially moved into the new home of the Austin Bar Association: the historic Hilgers House, located at 712 W. 16th Street. The house is nothing short of magnificent and is waiting patiently for you. Be it in person or virtually, I do hope you will come visit us at your Bar home as often as you can. We would love to have you. Fellow attorneys, paralegals, and law-student family, please consider this a formal invitation for you to join me, the board of directors, and staff, for a year-long celebration of professional association and friendship through your active participation and engagement in your Austin Bar Association. I invite you to your Homecoming. Mums are AUSTIN LAWYER optional, but encouraged. AL AL
SEPTEMBER 2021 | AUSTINLAWYER
7
Austin Bar Puts Members First Cultivating a Legal Community to Support You continued from cover
• Annual Bench Bar Conference: Oct. 26 at Austin Country Club Get the latest news on “what’s happening now” in the judicial system as a result of the pandemic. Learn how to prepare for your next move. • Membership Appreciation Coming Soon, October 2021 Enjoy a fun-filled week of activities focused on your learning, health, history, and more! From Taco & Tech Tuesday to FriYAY and more, there are multiple opportunities for prizes. Bring a friend who joins Austin Bar and you could win big! • CLE: Year-round Opportunities Stay on top of what’s happening in your area of expertise. Plus, take advantage of “members-only” access to our library with over 90 hours of videos. Be sure to check out Bar Code each week and our website for more details on these and other events that interest you. We’re constantly updating the Bar website with the latest information for you. We are excited to see as many members as possible in 2021. Let’s make it a great year! Remember, we are here for you and because of you. If you need assistance with your membership financials, please contact our director of membership, Carol Tobias, at carol@austinbar.org. She can discuss options to keep you moving forward as a valued AUSTIN LAWYER AL AL member.
Join online today.
AUSTINBAR.ORG
MEMBERS RECEIVE A HOST OF BENEFITS THAT PROVIDE A SOLID RETURN ON THEIR INVESTMENT.
LAW FIRM, P.C. FAMILY LAW
We understand. We can help.
We’re Here. We’re Open. We’re Ready to Help. Video Conferencing and In-person Social Distancing Now Available
Divorce
Custody
Same-Sex Marriage Mediations
Arbitrations
Attorney Jimmy Vaught,
Board-Certified in Family Law and Civil Appellate Law by the Texas Board of Legal Specialization
AustinDivorceLawyer.com AUSTINLAWYER | SEPTEMBER 2021
Modifications
A Client-Centered Approach to Family Law
Attorney Erin Leake
8
Appeals
Attorney Jillian French
Board-Certified in Family Law by the Texas Board of Legal Specialization
512.605.0999
Join an Austin Bar Committee Today! Facilitating Unity Through Inclusion and Service
Y
ou are experienced! You are a subject-matter expert! Does this describe you? Then you should join one of our 13 active committees and help make an impact in our community. The work you do will help Austin-area families, promote wellness, explore history, promote preservation, nurture young minds, and more. Plus, you will share ideas with and get insight from other legal professionals. The Austin Bar Association is committed to sharing member expertise to uplift the community. Be a part of it! Go to austinbar.org, select the “For Attorneys” tab, and choose the committee page to see what interests you. You may also contact Membership Director Carol Tobias at carol@austinbar.org. Get involved today! AUSTIN ADOPTION DAY Chair: Denise Hyde. Coordinates the annual Adoption Day event, traditionally held on the first Thursday of November (Nov. 4, 2021). It's an inspiring, special day for families—save the date. BENCH BAR CONFERENCE Chairs: Justice Chari Kelly, Judge Karin Crump, Judge Brad Urrutia, Scott Brutocao, Maitreya Tomlinson, and Rob Frazer. Organizes and implements the annual conference for Travis County lawyers and judges. Committee members create the full-day conference program, including developing a theme, identifying topics, and recruiting speakers. CLE PROGRAMS Chairs: Patricia Hayes and Josh Crowley. Develops and organizes CLE opportunities to bring the most up-to-date topics and speakers to the membership, including the Members Only 4th Friday Free CLE. COMMUNICATIONS Chairs: Rachael Jones and Jennifer Hopgood. Creates and implements policies and procedures for Austin Lawyer, Bar Code, the Austin Bar website, and the use of social media. Also helps identify topics and recruit writers for articles, and serves as an advisory committee to the Austin Bar communications staff. DIVERSITY FELLOWSHIP PROGRAM Chairs: Tony Nelson and Leslie Dippel; Judicial Liaisons: Judge Lora Livingston and Judge Eric Shepperd. Manages the Diversity Fellowship
The Austin Bar Association is committed to sharing member expertise to uplift the community. Be a part of it! Choose the committee that interests you. Program, which offers summer internships to minority law school students. Participants intern for Travis County District Judges and for private law firms. EQUITY Chairs: Ayeola Williams and Mindy Gulati. Assists with an Austin Bar Equity Summit, book clubs focused on books and discussions designed to increase understanding and lead to inner and external change, networking focused on bridging social capital, compiling resources for people seeking guidance, and identifying Austin Lawyer authors and topics highlighting Austin’s diversity and history. FEE DISPUTE Chair: Stephen Moss. Mediates and/or arbitrates fee disputes submitted by clients, attorneys, the courts, and the District 9 Grievance Committee. HILGERS HOUSE PRESERVATION Chairs: Sara Saltmarsh and Laura Sharp. Performs duties to preserve Hilgers House, applies for preservation grants, researches the history of the house, and provides tours to the general public. Also serves as a resource for the Judges Hill neighborhood. LAWYER WELL-BEING Chairs: Diana Reinhart and Sam Colletti. Aims to educate, support, and connect our legal community to achieve more balanced, mindful, and joyful lives and practices. HISTORY & TRADITIONS Chair: Rev. Joseph C. Parker, Jr. Recruits and conducts oral history interviews of Austin attorneys and judges in order to preserve the history of the Austin Bar, the Austin legal community, and/or significant legal events in the Austin area. Plans and executes other relevant history projects as decided by the committee.
Introducing
NEW! INNOVATION COMMITTEE >> ADVANCING PRACTICE THROUGH TECHNOLOGY • Identifies potential new programming and resources supporting Austin Bar's effort to provide innovative service and resources to members and the Austin Legal Community • Supports industry through identifying technology and resources that enhance and promote practice needs, plus best practices for their utilization • Facilitates use of technological advancement to support industry best practices and the needs of your practice 10
AUSTINLAWYER | SEPTEMBER 2021
AUSTIN BAR MEMBER BENEFITS >> ONLINE CLE
>> ONLINE MEMBER DIRECTORY
More than 90 hours of free, on-demand video CLEs online
>> SUBSTANTIVE LAW SECTIONS
>> COURT RESOURCES GUIDE
25 law sections meet, conduct business and offer CLE.
>> DISCOUNTS & SERVICES
Available to the public at austinbar.org—it is searchable by name, firm, and areas of practice.
Office supplies, photography, CLEs, and more.
Contains information on area courts including questions answered by judges, contact information and local rules.
plus
and
>> COMMITTEES & PRO BONO OPPORTUNITIES Give back through the many pro bono programs and committees offering service to the community.
INNOVATION Chairs: TBA. Supports industry through identifying technology and resources that enhance and promote practice needs, plus best practices for their utilization. Identifies technology and resources used by industry to enhance and support growth in your practice. Facilitates use of technological advancement to support industry best practices and the needs of your practice. FOUNDATION GALA Chairs: Amanda Arriaga and Nadia Bettac. Plans and produces the Austin Bar’s biggest event, an annual gala to raise money for the Austin Bar Foundation and all of its charitable entities such as Adoption Day, the Self Represented Litigant Project, and the Free Legal Advice Clinic for Veterans.
>> BAR CODE / AUSTIN LAWYER Stay up to date on the latest news and events relating to Austin's legal community.
LAW-RELATED EDUCATION IN SCHOOLS Chair: Ann Greenberg. Supports the Akins Early College High School Law Practicum. This is the leading high school advocacy training program in the country. PRO BONO Chairs: Bill Christian, Caitlin Johnston, and Megan Johnson. Coordinates and plans Austin Bar pro bono programs and develops relationships with pro bono organizations in Austin such as AUSTIN VolunteerLAWYER Legal AL AL Services, American Gateways, and the Texas Civil Rights Project.
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
SEPTEMBER 2021 | AUSTINLAWYER
11
Mediation. Arbitration. Resolution.
ROSERESOLUTIONGROUP.COM Jeff@RoseResolutionGroup.com 512.637.0931
WHAT LAWYERS ARE SAYING... “You did an excellent job in a difficult situation. I will be back with you for sure!” “He was very effective at the mediation and stayed with us until we reached a deal.” “Appreciated his thoughtful, objective, and diligent approach” “I’m instantly putting you right in the mix for our “best of” mediators!”
Texas Board of Legal Specialization CIVIL TRIAL LAW
12
AUSTINLAWYER | SEPTEMBER 2021
Join Austin Bar’s 100 Club for the 2021-22 Bar Year
G
et the recognition you deserve! Become a member of our 100 Club. Firms and organizations of four or more attorneys with 100 percent participation in the Austin Bar Association are eligible. Members of our 100 Club are highlighted throughout the year in the following ways: • Names of firms published annually in the September issue of Austin Lawyer and distributed to every attorney in the Austin area. • Firms and organizations featured on the membership page of the Austin Bar website with links to the firms’ and organizations’ websites. • Each week 100 Club “Members of the Week” are listed on a rotating basis in Bar Code, which is emailed weekly to approximately 3,500 Austin Bar members.
Firms and organizations of four or more attorneys with 100 percent participation in the Austin Bar Association are eligible. Members of our 100 Club are highlighted throughout the year. Become a 100 Club member today! Contact Membership Director Carol Tobias at carol@ austinbar.org. Special thanks to the following Austin law firms for supporting the programs and practices of the Austin Bar Association with 100LAWYER percent participation AUSTIN AL AL in 2021-22.
Alexander Dubose & Jefferson
Flaherty Jones Thompson
Allensworth & Porter
Friday Milner Lambert Turner
Almanza, Blackburn, Dickie & Mitchell
Giordani Baker Grossman & Ripp
Andrews Myers
GoransonBain Ausley
Reeves & Brightwell
Graves, Dougherty, Hearon & Moody
Richards Rodriguez & Skeith Richie & Gueringer
Blazier, Christensen, Browder & Virr
Gray & Becker
Scott Douglass & McConnico
Bollier Ciccone
Greenberg Traurig
Shearman & Sterling
Hanna & Plaut
Slack Davis Sanger
Hawkins Parnell & Young
Soltero Sapire Murrell PLLC
Haynes and Boone
Streusand, Landon & Ozburn
Herring & Panzer
Supreme Court of Texas
Hopper Mikeska
Texas Comptroller of Public Accounts
Barnes Lipscomb Stewart & Ott Barron Adler Clough & Oddo
Boulette Golden & Marin Bracewell Branscomb Brim, Robinett Cantu & Brim Brink Bennett Pargaman & Atkins Burns Anderson Jury & Brenner Burnett Turner Butler Snow LLP Cain & Skarnulis Cantilo & Bennett Chamberlain ♦ McHaney City of Austin Law Department Coffin Renner
Gjerset & Lorenz
Howry Breen & Herman Jackson, Sjoberg & Townsend Kelly Hart Kirker Davis Kuperman, Orr & Albers Lloyd Gosselink Locke Lord Martens, Todd, Leonard & Ahlrich
Pillsbury Winthrop Shaw Pittman Potts Blacklock Senterfitt Reed, Claymon, Meeker & Hargett
Texas Department of Motor Vehicles Texas Rio Grande Legal Aid Texas Workforce Commission The Chapman Firm Third Court of Appeals Thompson & Knight Thompson Salinas & Londergan
Martin, Disiere, Jefferson & Wisdom
Travis County Attorney’s Office
Coldwell | Bowes Cook Brooks Johnson
McGinnis Lochridge
Travis County Criminal Courts
Cornell Smith Mierl Brutocao Burton
McKool Smith
Travis County District Attorney’s Office
Davis & Wright
Metcalfe Wolff Stuart & Williams
Dalrymple Shellhorse Ellis & Diamond Deats, Durst & Owen
McLean & Howard Minton, Burton, Bassett & Collins
DeShazo & Nesbitt
Mitchell Williams Selig Gates & Woodyard
DuBois, Bryant & Campbell
Munsch Hardt Kopf & Harr
Eichelbaum Wardell Hansen Powell & Mehl
Noelke Maples St.Leger Bryant
Enoch Kever
Osborne, Helman, Knebel & Scott
Travis County Civil Court
Travis County Office of Child Representation Travis County Probate Court Weisbart Springer Hayes Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham & Jacob Winstead Wright & Greenhill
SEPTEMBER 2021 | AUSTINLAWYER
13
BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Bailee Beilman Ryan Cantu Roslyn Dubberstein
Solomon, Wiewal
Erin Eckhoff Susana Naranjo-Padron
NEW TO THE OFFICE:
Zachary Wiewal has joined The Wiewal Law Firm as an associate attorney. He practices in the estate administration division of the firm. Wiewal graduated magna cum laude from Georgetown University Law Center in 2020 and received his LL.M.
(Tax) from New York University in 2021. He is also an Honors graduate of the Mays Business School at Texas A&M University.
more. Solomon has advocated for hundreds of Zinda clients over the last six years.
Neil Solomon is promoted as the fourth partner in Zinda Law Group. Solomon focuses his practice on catastrophic personal injury, wrongful deaths and
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.
L A W
F I R M
Bollier Ciccone LLP has moved to Westlake after outgrowing its downtown Austin office.
1101 S. Capital of Texas Hwy, Building G, Suite 200, Westlake Hills, TX 78746 512.477.5796 | BCLAWTX.COM
LLP
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.
14
AUSTINLAWYER | SEPTEMBER 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.
Available by video and in person
Big Change Coming to the Travis County Courts and Clerks eFile System to be Delayed or Down Because of Conversion BY VELVA PRICE, DISTRICT CLERK
From Sept. 27, 2021 until Oct. 10, 2021, the electronic filing system will be delayed or down due to Travis County’s conversion to a new case management system.
D Velva Price began serving as the Travis County District Clerk in January 2015. Price is a licensed attorney and began her second term in January 2019. One of her duties is to inform and prepare attorneys and the legal community of transitions in the District Clerk's Office that may affect their practice.
istrict and County Clerk and the Probate, County, and District Courts will be converting to a new case management system called Odyssey between Sept. 27, 2021 and Oct. 10, 2021. This system will apply to both criminal and civil cases. The transition will cause changes and delays in many of our business processes and procedures. Some of the changes that will affect the legal community include the following: • Acceptance of efiling will be delayed, but electronic filing is still encouraged.
Appeals and Trial Court Support
The change in systems will result in faster acceptance of documents, better indexing of parties, and one point access to case information from all the courts— Justices of the Peace, County Courts at Law, Probate Court, and District Courts. • Electronic files will not be available to the courts or the public until Oct. 6, 2021. • Financial payments will be handwritten and checks will take longer to clear. • Electronic payments will not be posted on the same day and will be delayed.
www.LaurieRatliffLaw.com 512-422-3946 laurie@laurieratlifflaw.com
If you have any questions about the change and how it affects you or your office, please send your questions to district.efile@traviscountytx.gov. Your patience duringLAWYER this tranAUSTIN AL AL sition is much appreciated.
Please make plans accordingly. The transition will be inconvenient but only temporary. The change in systems will result in faster acceptance of documents, better indexing of parties, and onepoint access to case information from all the courts—Justices of the Peace, County Courts at Law, Probate Court, and District Courts. SEPTEMBER 2021 | AUSTINLAWYER
15
BE WELL
The Importance of Learning When and How to Say “No” BY KAREN S. VLADECK, WITTLIFF CUTTER PLLC
Karen S. Vladeck is a partner at Wittliff Cutter PLLC practicing employment law and counseling. She co-hosts the podcast In Loco Parent(i)s with her husband Stephen, a law professor at the University of Texas. She can be reached at karen@wittliffcutter.com or on Twitter at @KSVesq.
I
n the first few years of my practice, I suffered from the same delusion that afflicts many of us: In order to be successful, lawyers need to work all the time; to the detriment of their mental health, well-being, and happiness. That feeling, if I wasn’t available 24/7 then I would not be successful, manifested in my inability to say no, even when I really wanted (and, perhaps, needed) to. A client wants to schedule a call for 7:00 p.m. even though I had a prescheduled dinner? Sure, I can be late. Working over a vacation instead of just asking if the project could come in a few days later? You bet. Attending a non-billable meeting instead of squeezing in a quick workout? The workout can wait, can’t it? As young lawyers, and especially some women lawyers, we feel the need to please everyone, which often times means saying yes even if we know we should be saying no. There is always the fear that saying no will cost us; 16
AUSTINLAWYER | SEPTEMBER 2021
whether in credibility with our colleagues, in our relationships with our clients, or in our own sense of whether we’re doing everything we can professionally. Junior lawyers can too easily prioritize their perceived professional health over their personal health and to assume that résumé care takes precedence over selfcare. This is a toxic mindset the legal profession does not do nearly enough to push back against. As my career progressed, though, I looked around and increasingly saw that the happiest, most well-adjusted lawyers in the profession seemed to share something in common: Unlike me, they knew when and how to say no. They had figured out that working constantly did not actually make them better or more successful as attorneys and, more importantly, had learned what they could and could not turn down. More than that, they had figured out not just when to say no, but how to do so artfully. The result was not just that they seemed happier in their jobs; they also seemed more able to triage effectively when necessary and to actually balance their work and personal commitments, versus subjugating the latter to the former. This is not to say that you should say no all the time. To the contrary, you need to be saying yes most of the time; that is how we all grow as attorneys and develop our practices. There will also always be emergencies that just cannot be ducked. But there are different ways to say yes to those things that are not emergencies that also won’t necessarily derail your personal life, which is where the art of saying no becomes important. Something I noticed a few years ago is that more senior lawyers, and in particular more senior male lawyers, never make excuses
In many cases, the right kind of “no” works out better for everyone than the wrong kind of “yes.” for why they’re not available at particular times. Instead, they say no, but follow it up with how they are also saying yes, thereby accommodating the requester. In many cases, the right kind of no works out better for everyone than the wrong kind of yes. For instance: • That 7:00 pm client call? “I can’t do 7:00, but I could do tomorrow morning at 9:00.” Yes, that usually works. • Working on vacation? “I am going to be out of pocket Monday and Tuesday. Can it wait until Thursday?” In general, that’s no problem. • Pushing working out for a non-billable meeting? “I can’t make the meeting. Can you send me bullet points of what I need to do?” Workout achieved. • It’s time-sensitive but I’m totally slammed. “I just don’t have the bandwidth right now, but [colleague or attorney at another firm] might. Can I connect the two of you?” I said
no while still being helpful. Belatedly, lawyers are finally beginning to pay real attention to mental health and to how our productivity in the workplace is correlated to our happiness out of the office. Saying yes to everything may seem like a good thing in the moment, but my experience is that saying yes too often increasingly redounds to the detriment of both work and our personal lives. You should still say yes to those things that you want or need to do but only on a timetable that works for you and the requester. And I promise that once you start to see the power of saying no, you will wonder, like I do, why on earthLAWYER you did not AUSTIN AL AL start doing it sooner.
Leading in Our Community
T
his year, the Austin Bar/Austin Young Lawyers Association Leadership Class of DONATIONS OF $200+ 2021 solicited monetary donations, as well as books, games and Dorothy Butler Law Firm toys to supply the children’s playBloomquist Law rooms for the new Travis County Bustos Family Law Civil and Family Courts Facility Daniella Lyttle that is set to open in 2023. The Michael Robers Courthouse designed three separate playrooms based on age Law Office of Keiko Griffin for toddlers, kindergarteners and Vaught Law Firm elementary-aged children. Patrice Arnold When children are at court for Bradley Coldwell family or juvenile law cases, it can be scary; having playrooms where they can be entertained while children waiting at the courtthey wait to see the judge does house for family and juvenile law a great deal to help alleviate the cases would have a place to play. anxiety and fear associated with The response was overwhelming: an otherwise traumatic time. The Over $5,600 has been donated! ultimate goal of this year's class Donations of $100+ are project was to instill joy in a child recognized on the Austin Bar during the time that he or she is website and donations of $200+ at the courthouse. are recognized in Austin Lawyer Utilizing an Amazon Wish List, magazine. Thank you to all who the Leadership Class gathered AUSTIN LAWYER donated! AL AL donations to fill these rooms so
Thank you!
MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS
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 SEPTEMBER 2021 | AUSTINLAWYER
17
America’s “Newest” Holiday BY ANDREW TINGAN, BUTLER SNOW LLP
Andrew Tingan is an attorney at Butler Snow LLP. He is a member of the firm’s Commercial Litigation Group practicing in their Austin office.
H
olidays are a reflection of our collective values. As a society, we hope holidays signal what—and sometimes who—we, as a nation, should celebrate. Labor Day, for example, a holiday our nation began celebrating almost 130 years ago, recognizes the works and contributions of laborers in the development and success of the United States. As we observe this Labor Day, a pause to reflect on the struggles—and evolution— of our national holidays can add to a greater understanding of our country’s larger struggles, and—I hope—our collective progress. Prior to this past summer, the last addition of a federal holiday occurred in 1983 when President Ronald Reagan signed the bill to add MLK Day in recognition of Martin Luther King Jr.’s contributions to the civil rights movement. What is often lost is that this was a 15-year journey that began four days after King was assassinated in 1968—and the day wasn't actually observed officially until 1986. Even then, it still took nearly two more decades before all 50 states also recognized the holiday. Then, around this time last
18
AUSTINLAWYER | SEPTEMBER 2021
year, America was ensnared in a social and racial reckoning unlike any seen in recent history. As uncertain a time as it may have been, 2020 was also a time of immense growth and necessary vulnerability not only in the United States, but around the world. Ultimately, 2020 served as a resounding rallying call to simply do the right thing. For what seemed like the first time in a long time, people were inspired to change their perceptions, and the world was challenged to prioritize understanding over judgment—including the timely creation of a new federal holiday. As many of you may now know, “Juneteenth” commemorates the official end of slavery in the United States. The name stems from June 19, 1865, when Maj. Gen. Gordon Granger issued General Order No. 3 in Galveston, Texas, announcing that “all slaves are free” in accordance with the Emancipation Proclamation (issued some three years prior). This summer, America celebrated yet another important milestone. For the first time, Juneteenth was observed as an official federal holiday. For reference, there have only been four new holidays added to the national calendar in the past 100 years. Fortunately, much has changed since 1983. However, much of the work and healing leading up to Juneteenth’s observance was expedited by the racial and socioeconomic disparities highlighted by last year’s events. This past year’s events should serve as a reminder that our commitment towards a truly equal and equitable nation is just that: a commitment. In a time where corporate initiatives and well-intentioned pledges rooted in diversity are the norm, public displays of solidarity generally have an expiration date and are not easily sustainable. The main focus of
these efforts should not be on the acts themselves but the long-term impact these acts have on those within an organization’s sphere of influence. As members of a largely self-policed profession, the expectation for attorneys is no different. Let this new holiday of Juneteenth be a constant reminder that our responsibility to be kind to one another never ceases. In fact, kindness may be the most important charge we have as human beings. As a citizen, veteran, and African American, I am proud of the progress I have seen in just twelve short months. Nevertheless, reflection serves as a reminder that we as a country
still have far to go. Allies are still needed in spaces where the voices of diverse communities have historically not been heard. Until we all advocate in some capacity against overt, systemic, or subconscious injustices, we will all suffer as a result. The annual observance of Juneteenth can— and will— be the constant spark that ignites a renewed American spirit, and I am hopeful for the change and growth it will undoubtedly bring. Holidays are a reflection of what we value. This Labor Day, I am thankful that we as a nation have done the work to show the world just one more thing that we AUSTIN LAWYER AL AL value: progress.
Representing Attorneys
Gaines West
State-wide Practice State Bar of Texas
Grievance Oversight Committee Appointed by the Texas Supreme Court Chair, 2006-2010 Member, 2004-2010
Texas Board of Disciplinary Appeals
Appointed by the Texas Supreme Court Chairman, 2001-2003 Vice Chairman, 1994-1996, 1998-2000 Member, 1992-1996, 1997-2003
State Bar of Texas
Disciplinary Rules of Professional Conduct Committee Member, 1993-1996
Disciplinary Review Committee Member, 1991-1992
Texas Bar Foundation, Fellow State Bar of Texas, Member Brazos County Bar Association, Member Austin Bar Association, Member
Principal Office – 979.694.7000 1515 Emerald Plaza • College Station, TX 77845
Austin – By Appointment – 512.501.3617 1012 Rio Grande St. • Austin, TX 78701
westwebblaw.com
OPENING STATEMENT
Improving Through Study Four Recent Books on Legal Writing BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET
I
n seeking to improve my own writing and in teaching legal writing to others, I’ve always understood the value of practice. You won’t get better at legal writing unless you do it and do it a lot. Practicing your writing is virtually built into lawyering, so getting lots of practice is easy. But we often overlook another technique for improving legal writing: study. Granted, study—reading books on legal writing, for example— won’t improve your writing by itself; you have to practice what you’ve learned. At the same time, practice by itself doesn’t do much either: We tend to keep writing the way we always have. To make the most improvement in legal writing, the best legal writers combine study with practice. They read what the experts say and then practice what they’ve learned. To help you study legal writing, I’ve summarized below four excellent recent sources on legal writing.
and “Uselessly Accurate” (on the distracting legal-writer habit of including unnecessary details).
Barry, Patrick, Good with Words: Writing and Editing, (Mich. Publg. Servs. 2019)
Adams is the nation’s leading expert on contract-drafting language. His book is a comprehensive reference manual on best practices for the language of any kind of binding legal text: contracts, leases, user agreements, deeds, disclaimers, releases, and more. It’s likely that the content of any section, subsection, provision, or term in your contract has been exhaustively addressed in Adams’s Manual of Style. He also operates a website at adamsdrafting.com. Caution: His treatment of contract language is so exhaustive and exacting that if you implemented all his recommendations, you’d end up re-drafting your entire document from scratch. That may not be practical if the client won’t pay for it or if you’re
Barry, a law professor at the University of Michigan School of Law, is an emerging star in the legal-writing world, and he’s a prolific author on the subject. Good with Words is aimed at law students taking his course in advanced legal writing, but its content and insights will improve any lawyer’s writing. The book’s focus is persuasive writing, and it takes the subject to a nuanced, sophisticated level. There are chapters on “The Power of Grammar” (a mini-treatise on sentence structure, particularly subordination), “The Rule of Three” (on the rhetorical power of lists with three items),
Bacharach, Hon. Robert E., Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word (ABA 2020) Judge Bacharach’s book is exhaustively researched and supported by citations to hundreds of legal-writing experts and expert legal writers. It also relies on his eight years of experience as a judge on the Tenth Circuit Court of Appeals. He offers chapters on largescale topics such as Organization, Headings, and Facts Sections, as well as chapters on small-scale writing skills such as Diction (using words), Grammar, and Quoting. The text is highly readable and uses practical, real-world examples to illustrate its points. Adams, Kenneth A., A Manual of Style for Contract Drafting (ABA 4th ed. 2018)
To make the most improvement in legal writing, the best legal writers combine study with practice. They read what the experts say and then practice what they’ve learned. using a template that has worked for previous transactions. Still, as a go-to reference on your desk, it’s the best. Garner, Bryan A., Garner’s Guidelines for Drafting and Editing Contracts (West 2019)
two here at UT Law.) can use his text in a law-school course. Those four sources should get you started, whether you’re interested in writing mechanics, persuasive legal writing, or conAUSTINLAWYER AL AL tract drafting.
Garner is the nation’s leading expert on legal writing generally, and he’s a widely esteemed authority on contract-drafting language. Two years ago, he published a contract-drafting style manual of his own—Garner’s Guidelines. It’s a great resource, and I recommend it. He’s just come out with a teacher’s manual, too. So now, contract-drafting professors (Do they really exist? Yes. We have SEPTEMBER 2021 | AUSTINLAWYER
19
THIRD COURT OF APPEALS CIVIL UPDATE ment. Further, the agreement stated that there could be no amendment or modification unless contained in a document signed by Fuller and Hospital. The court concluded that the arbitration agreement was a subsequent agreement that was not signed by Hospital. Thus, the court held that Hospital failed to show the parties entered into a valid arbitration agreement. The court affirmed. 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 June and July 2021. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of Aug. 1, 2021. ARBITRATION: Court affirms denial of motion to compel arbitration. St. David’s Healthcare P’ship, LP et al. v. Fuller, No. 03-1900820-CV (Tex. App.—Austin June 3, 3021, no pet. h.). During the hiring process, Fuller signed an employment agreement with Hospital that included a waiver of her right to a jury trial. The agreement did not require arbitration or other ADR. During employment orientation, Fuller signed a separate agreement that contained Hospital’s arbitration policy. After Hospital terminated her, Fuller sued, alleging wrongful termination. The trial court denied Hospital’s motion to compel arbitration. The court of appeals noted that the employment agreement did not mention arbitration and expressly stated that the agreement was the parties’ sole and entire agree20
AUSTINLAWYER | SEPTEMBER 2021
TRIAL PROCEDURE: Court affirms finding of capacity to bring survival action. City of Austin v. Lopez, No. 0319-00786-CV (Tex. App.—Austin June 24, 2021, no pet. h.). Membreno was killed on a construction project. Lopez sued City on behalf of her and Membreno’s child. The trial court signed a judgment on the jury’s verdict in favor of Lopez. On appeal, City contended Lopez lacked capacity to bring a survival claim because she did not establish that her child was Membreno’s legal heir in a probate proceeding. The general rule is that an estate’s personal representative has capacity to bring a survival action, but an heir may bring suit if filed within the four-year period to institute an estate administration and when there was no administration pending or necessary. Lopez argued that because she filed suit more than four years after Membreno’s death, she was not required to prove that no administration was pending or necessary. The court concluded that under Estates Code section 201.052(a) where paternity is adjudicated at trial, Lopez was not required to determine a right of inheritance in probate court or file a proceeding to adjudicate parentage. The court affirmed. SUPERSEDEAS: Court reduces supersedeas to actual time appeal remained pending. Adams v. Godhania, No. 03-2000115-CV (Tex. App.—Austin June 25, 2021, no pet. h.) (mem. op.). Appellees prevailed in their
suit to evict appellants. The trial court set the supersedeas bond at $168,000, using rental value and property taxes for 24 months, the estimated time for the appeal. The trial court ordered additional supersedeas after appellees filed a petition for review, but appellees never paid it. After the petition for review was denied, the trial court granted appellees’ motion to release the bond, and appellants appealed. The court of appeals noted that when a judgment is for the recovery of an interest in real property, the amount of security must at least be the value of the property’s rent or revenue, including property taxes. The court held that the trial court properly calculated the supersedeas amount. The court, however, concluded that the amount of recoverable supersedeas could not extend beyond the conclusion of the appeal and when appellants surrendered possession. Accordingly, the court reduced the recovery to the actual time the appeal remained pending. The court reversed and rendered judgment for appellees to recover $140,000 plus interest. ARBITRATION: Party fails to prove cost of arbitration was unconscionable. Lennar Homes of Tex. Inc. v. Alquicira, No. 03-21-00102-CV (Tex. App.—Austin June 30, 2021, no pet. h.) (mem. op.). Homeowners sued builder for defects in their home. Homeowners objected to builder’s motion to compel arbitration, contending that the agreement to arbitrate was unconscionable because of their inability to pay the arbitration fees. The trial court denied the motion to compel. According to the court of appeals, the excessive costs imposed by an arbitration agreement can render a contract unconscionable if the costs prevent a litigant’s vindication of her rights in an arbitral forum. Whether arbitration is an accessible substitute to litigation requires a comparison of the
costs of each. If the cost of arbitration is comparable to the total cost of litigation, then the arbitral forum is equally accessible. Homeowners failed to present any evidence of the costs of litigation and arbitration to support their claim that arbitration would be unconscionable. The court reversed and remanded. MANDAMUS: Court grants mandamus relief when trial court ordered vaccinations over mother’s objection. In re Zook, No. 03-21-00180-CV (Tex. App.—Austin July 15, 2021, orig. proceeding) (mem. op.). During a parental rights termination proceeding, the trial court granted the attorney ad litem’s request for temporary orders to authorize vaccination of mother’s five children without her consent. The court of appeals observed that Family Code section 32.101 governs who may consent to immunization if authorized under a court order. A person may not consent, however, if that person has actual knowledge that a parent has expressly refused to give consent to immunization. The ad litem knew the mother had refused to consent, thus the statute prohibited any party from consenting to immunization. The court rejected Department’s argument that mother was not currently the children’s conservator and did not provide a basis for her refusal to consent. The court held the trial court abused its discretion and granted mandamus relief. INSURANCE: Attorney’s fees are recoverable under UDJA for UIM claims. Mihal v. GEICO Advantage Ins. Co., No. 03-20-00169-CV (Tex. App.—Austin July 15, 2021, no pet. h.) (mem. op.). After a car accident, Mihal settled with the other driver’s liability carrier and filed a UDJA lawsuit against her carrier to declare the liability of the other driver and the amount of her damages. The trial court rendered judgment on
the jury verdict declaring over $600,000 in damages but denied her request for attorney’s fees. The trial court concluded that attorney’s fees were precluded as a matter of law. The court of appeals noted that recent Supreme Court authority held that a declaratory judgment action is the proper vehicle to resolve a contractual dispute abut UIM coverage and that the UDJA affords a discretionary award of reasonable attorney’s fees when equitable and just. The court reversed and remanded for an award of attorney’s fees. FEE AGREEMENTS: Court holds contingent-fee contract is unambiguous. Groba v. Loree & Lipscomb, No. 03-20-00137-CV (Tex. App.---Austin July 22, 2021, no pet. h.) (mem. op.). Law firm advised client to accept a settlement offer. Client refused and instructed firm to continue the litigation. Firm withdrew, as provided in the parties’
contingent-fee contract, and intervened in client’s cases, asserting its interest in fees and expenses. Client contended that the contingent-fee contract’s provision allowing firm to withdraw if client refused a reasonable settlement offer was ambiguous. The trial court granted summary judgment for firm. Contract provided that “unless otherwise provided herein,” if firm chooses to discontinue any litigation, client shall not be obligated to pay fees or expenses. The contract “otherwise provided” that if client rejects a reasonable settlement offer, client shall be obligated to reimburse costs and expenses and that firm retains a lien on the claim and a cause of action for fees. Accordingly, the court of appeals held that the fee contract was AUSTIN unambiguous as LAWYER a matter of law and affirmed. AL AL
Training Mediators since 1986 40-Hour Basic Mediation Training February - April - June September - November CLE & HR credits
30-Hour Family Mediation Training July
CLE credits
High-Quality Affordable ADR Services We Mediate All Types of Civil Disputes Attorney-Mediators Available Se Habla Español www.AustinDRC.org ● 512-371-0033 A Nonprofit Mediation Resource Since 1983
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
SEPTEMBER 2021 | AUSTINLAWYER
21
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 January 2021. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Aug. 1, 2021.
> EVIDENTIARY SUFFICIENCY – VARIANCES: Defendant acquitted on appeal because of material variance between pleading and proof. Smith v. State, No. 03-19-00099CR (Tex. App.—Austin Jan. 21, 2021, no pet.) (mem. op., not designated for publication). Smith was convicted of the offense of attempting to take a weapon from a
peace officer. On appeal, Smith argued that the evidence was insufficient to support his conviction, and the appellate court agreed. The court concluded that there was a statutory variance between the allegations in the indictment and the evidence presented at trial. The court observed that “a statutory variance occurs when ‘a statute specifies alternate methods by which an offense could be committed, the charging instrument pleads one of those alternate methods, but the State proves, instead, an unpled method.’” That is what occurred here. The court explained, “Section 38.14(b) makes it a criminal offense to take or attempt to take a weapon from certain persons related to or involved in law enforcement. Thus, the status of the targeted person as one of the persons specified by the statute is a substantive element of the offense.” In this case, the indictment alleged that Smith attempted to take a firearm from a “peace officer.” However, the evidence at trial showed that Smith attempted to take a firearm from a “commissioned security officer.” The State did not dispute that this created a variance. Instead, the State asserted that the variance was immaterial because an “officer” is an “officer” and because Smith was “able to prepare an adequate defense at trial” and “would not be subject to another prosecution under the same facts.” The court disagreed with the State, reasoning that “[t]he
with the possibility of deferred adjudication. In addition to the accomplice’s testimony, the jury considered the testimony of the police detective who had investigated the shooting. Over a hearsay objection, the detective testified to statements regarding the offense that the accomplice had made to him after his arrest but before his plea agreement with the State. These statements included that Veliz was armed with a rifle during the robbery and that Veliz had told the accomplice that he shot the rifle while inside the apartment. The jury convicted Veliz of murder. On appeal, Veliz argued that the accomplice’s statements to the police were inadmissible hearsay. The State argued in response that the statements were admissible as “prior consistent statements” of the witness. The appellate court HEARSAY – PRIOR CONSISagreed with the State. The court TENT STATEMENTS: Trial explained that for a statement to court did not abuse its discretion be admissible as a prior consistent in admitting accomplice witstatement, the defendant must ness’s statements to the police. go beyond merely attacking the Veliz v. State, No. 03-19-00481-CR credibility of the witness; he must (Tex. App.—Austin Jan. 27, 2021, suggest “recent fabrication or pet. ref’d) (mem. op., not designatimproper motive.” In this case, the ed for publication). Veliz and two record reflected that Veliz went accomplices stole drugs from a beyond attacking the accomplice’s dealer at an apartment, and Veliz credibility generally. Instead, Veliz allegedly shot and killed the dealer argued and suggested throughout on his way out the door. One of trial that the witness fabricated Veliz’s accomplices made a deal his testimony specifically because with the State to plead guilty to of his plea agreement with the the offense of aggravated robbery State, and the district court would and to testify truthfully against the not have abused its discretion in others in exchange for the State admitting the evidence for that AUSTIN LAWYER recommending a maximum senAL A L reason. tence of 15 years’ imprisonment statute does not define the offense as forcibly disarming or attempting to disarm ‘officers’; instead, the statute defines the offense as forcibly disarming or attempting to disarm certain persons, which includes both ‘peace officers’ and ‘commissioned security officers.’” The court further observed that “the fact that the terms are statutorily defined refutes the notion that they are generic interchangeable terms.” Because the officer’s status as “peace officer” is an essential element of the offense of forcibly attempting to take a firearm under Section 38.14 as charged in this case, the court concluded that the evidence was legally insufficient to support the judgment of conviction and acquitted Smith of the offense.
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 22
AUSTINLAWYER | SEPTEMBER 2021
Senior District Judge
Stephen Yelenosky
Mediator, Arbitrator, Special Judge and Litigation Consultant
syelenosky.com 512-444-2226 sy@syelenosky.com
200 STEPS TO THE CAPITOL THREE BLOCKS TO THE COURTHOUSE FIVE MINUTES TO WILLIE NELSON BLVD FIFTY MILES OF BREATHTAKING VIEWS SPACES AVAILABLE BEFORE SESSION Featuring unique contemporary design accompanied with full height glass, professional on-site management, building conference room, fitness center, tenant lounge and abundant surrounding amenities
CAPITOL CENTER For more information: Julia Taylor 512.476.0919 taylorj @mooreassociates.com
SEPTEMBER 2021 | AUSTINLAWYER
23
The Diocese of Austin
cordially invites the Legal Community to the 30th Annual
Red Mass Thursday, September 30, 2021, 6 p.m. at St. Mary Cathedral 203 E. 10th Street, Austin, Texas with Guest Speaker Rev. Doug Jeffers Associate Pastor, St. John Neumann Parish
The Mass will be livestreamed. For more information, visit www.austindiocese.org/red-mass.
SAVE THE DATE october 26, 2021
Bench Bar Conference: Emerging from the Pandemic Austin Country Club (with option to attend virtually) Transitioning from Zoom to In-Person at the Courthouse: What Will Stay and What Will Go
topics to include: Update on the New Family and Civil Courts Facility
Meet the New Judges
The Vaccination and the Law
New Rules
New Technology
REGISTRATION WILL BE OPEN SOON AT AUSTINBAR.ORG 24
AUSTINLAWYER | SEPTEMBER 2021
FEDERAL CIVIL COURT UPDATE
>
The following are summaries of selected civil opinions issued by the U.S. Supreme Court and Court of Appeals for the Fifth Circuit. The summaries are an overview; please review the entire opinions. Subsequent history of the Fifth Circuit opinion is current as of Aug. 3, 2021. STANDING: A plaintiff alleging a statutory violation has standing under Article III only if the defendant’s alleged statutory violation caused the plaintiff to suffer an injury that has a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts.
TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). A class of 8,185 consumers sued credit reporting agency TransUnion, alleging that TransUnion violated the Fair Credit Reporting Act (FCRA)—which requires credit reporting agencies to use reasonable procedures to ensure the accuracy of consumers’ credit files—by placing alerts on their credit files falsely stating that they were potential matches for individuals on an Office of Foreign Assets Control (OFAC) watch list. For 1,853 of the class members, TransUnion actually provided credit reports containing the false OFAC alerts to third-party businesses. The internal credit files of the other 6,332 class members were not provided to third-party businesses. The district court ruled that all 8,185 class members had standing under Article III of the constitution, and the jury awarded each class member $984 in statutory damages. The Ninth Circuit affirmed in relevant part. The Supreme Court granted certiorari. The Supreme Court held that only the 1,853 class members whose credit reports were provided to potential creditors had standing under Article III because only those class members
suffered a concrete injury due to TransUnion’s failure to adequately ensure the accuracy of credit files as required by the FCRA. In so holding, the Court reiterated that “[o]nly those plaintiffs who have been concretely harmed by a defendant’s statutory violation” have standing to sue in federal court, and “Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III.” That is, federal courts “cannot treat an injury as concrete for Article III purposes based only on Congress’s say-so.” Rather, to be concrete, an asserted injury must have a “close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts.” The 1,853 class members whose credit reports were provided to potential creditors suffered such an injury because their alleged harm—publication to a third party of reports bearing false OFAC alerts—bears a close relationship to the reputational harm traditionally recognized as providing the basis for the tort of defamation. The 6,332 class members whose reports were never disseminated, however, suffered no such harm because publication has long been essential to liability in a suit for defamation. The court also rejected those class members’ argument that the existence of false alerts in their credit files created a risk of future harm sufficient to constitute a concrete injury. Although the risk of future harm might constitute concrete harm in a suit for injunctive relief, the Court found persuasive TransUnion’s argument that the mere risk of future harm, standing alone, cannot qualify as a concrete harm in a suit for damages. In any event, the Court determined that the risk of harm those class members identified—the risk of dissemination to third parties—
was too speculative to support Article III standing. DECLARATORY JUDGMENT ACT: The Declaratory Judgment Act’s federal-tax exception is jurisdictional and, therefore, requires dismissal of a request for a declaratory judgment “with respect to federal taxes.” Rivero v. Fidelity Investments, Inc., 1 F.4th 340 (5th Cir. 2021). Carmela Rivero, a Mexican citizen and Texas resident, opened an individual brokerage account with Fidelity Brokerage Services, LLC in 2010. Two weeks later, she re-registered the account as a joint tenancy with right of survivorship, naming Jorge Diaz-Gonzalez Medrano, a citizen and resident of Mexico, as the joint tenant. Following Medrano’s death in 2016, Rivero attempted to re-register the account as an individual account, solely in her name. But Fidelity prevented her from doing so, asserting that Treasury Regulation § 20.6325-1 requires a transfer certificate, which Rivero did not provide, to “transfer stock registered in the name of a non-resident decedent,” such as Medrano. Rivero filed suit in federal district court seeking a declaratory judgment that a transfer certificate is not required because, according to her, at least one of two exceptions in the regulation applied. The Declaratory Judgment Act (DJA) states that “[i]n a case of actual controversy within its jurisdiction, except with respect to Federal taxes…any court of the United States…may declare the rights and other legal relations of any interested party seeking such declaration….” 28 U.S.C. § 2201(a) (emphasis added). The district court concluded that Rivero’s request for declaratory judgment involved a determination “with respect to Federal taxes” and dismissed Rivero’s complaint for lack of subject-matter jurisdiction. Rivero appealed the dismissal. On appeal, the Fifth Circuit
David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.
considered whether the federal-tax exception is a jurisdictional condition, requiring dismissal, or a non-jurisdictional condition, which may be waived. The court held that the exception is jurisdictional because it is an express limitation on the DJA’s grant of power to “any court of the United States” and, thus, speaks to the power of the court. The court found additional support for its holding in its precedent construing a similar statute, the Anti-Injunction Act. Because Rivero’s request for declaratory judgment necessarily involved a determination with respect to federal taxes, the court held that the request was within the exception and, thus, outside the subject-matter jurisdiction of the AUSTINLAWYER district court. AL AL
SEPTEMBER 2021 | AUSTINLAWYER
25
CRIMINAL COURT NEWS
U.S. Supreme Court to Decide Scope of “Forfeiture by Opening the Door” 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 closestwatched cases involving criminal procedure in the U.S. Supreme Court’s upcoming October 2021 term involves the question of whether a defendant can forfeit his right to be confronted with the witnesses against him by raising a defensive issue that “opens the door” to otherwise inadmissible hearsay. In Hemphill v. New York,1 the New York Court of Appeals held that a defendant can “open the door” to evidence which would otherwise violate the Sixth Amendment’s guarantee of confrontation. The facts of the case are as fol-
lows: Two groups of people were involved in a fight in the Bronx. A man returned to the scene of the fight later and fired shots from a 9-millimeter handgun, and one of the bullets struck and killed a two-year-old bystander. The defense in Hemphill had a fair amount to work with—the State had originally indicted and tried a different man for the murder, then after they were unable to secure a conviction they changed course and accused Hemphill.2 Hemphill’s attorneys of course attempted to elicit testimony that certain eyewitnesses had identified Morris (the man originally charged) as having been the shooter. One of those witnesses had previously testified to a grand jury that Morris had fired the fatal shots but changed her story at trial. Morris, meanwhile, had pleaded guilty to possession of a firearm to resolve his charges after his murder trial ended in a mistrial. The defense introduced evidence showing that Morris had, in fact, pled guilty to possession of a firearm in connection with the incident, thus strengthening its position that he was the shooter. The State was allowed
PATIENT
In Hemphill v. New York, the New York Court of Appeals held that a defendant can “open the door” to evidence which would otherwise violate the Sixth Amendment’s guarantee of confrontation. to introduce statements Morris made in his plea allocution (he did not testify at Hemphill’s trial) to show that he was pleading guilty to possessing a different caliber firearm than the one from which the fatal shot was fired to rebut the defense’s theory.3 A split among the circuit courts exists on this issue—not surprisingly to practitioners, the Fifth Circuit has previously ruled that otherwise inadmissible hearsay which violates the Confrontation Clause can be introduced if the defendant “opens the door” by eliciting testimony about part of the out-of-court statement.4 The Confrontation Clause has been strictly interpreted by the Supreme Court; evidence from an out-of-court witness said to be “testimonial’’ in nature, even if admissible under a hearsay exception, cannot be admitted over the defendant’s objection.5
PRACTICAL
The Hemphill case will give the high court an opportunity to affirm the special nature of the Confrontation Clause, or to strictly and potentially severely limit its application in cases where the defense has raised an issue that a trial judge rules “opens the door” to let out-of-court statements into evidence without the benefit of AUSTIN LAWYER AL AL cross-examination. References 1. People v. Hemphill, 150 N.E. 356 (New York 2020); pet. cert. granted April 19, 2021, -- S.Ct. ----, 2021 WL 1520786 (mem), 21 Cal. Daily Op. Serv. 3426, 2021 Daily Journal D.A.R. 3591. 2. Br. of Pet., No. 20-637. 3. Id. 4. United States v. Acosta, 475 F3d. 677 (5th Cir. 2007). 5. Crawford v. Washington, 124 S.Ct. 1354 (2004).
PERSISTENT
30 years of trial experience Now mediating all types of cases HargettMediation.com rhargett@rcmhlaw.com 512.660.5960
OOOOOOOO VVVVV CCCCCCCCCC MMMMMMMMMM 26
AUSTINLAWYER | SEPTEMBER 2021
Rob Hargett
Ken Davison Greg Bourgeois Eric Galton David Moore Kim Kovach Fred Hawkins Ben Cunningham Lynn Rubinett Lucious Bunton
Divorce and Child Custody Surveillance ~ Undercover Background Checks Computer and Cell Phone Forensics Corporate Invessgaaons Insurance Fraud Expert Tessmony “Informaaon is power, the not knowing is devastaang”
STRICTLY CONFIDENTIAL Anji Maddox
Offices in Austin, Round Rock and Dallas
ADVERTISERS ADVERTISER . . . . . . . . . . . . . . . PAGE Apple Leasing . . . . . . . . . . . . . . 6 Armbrust & Brown, PLLC . . . . 17 Bollier Ciccone LLP . . . . . . . . . 14 Briggs & Veselka Co. . . . . . . . . 21 Broadway Bank . . . . . . . . . . . . 32 Cofer & Connelly, PLLC . . . . . . 5 Constable 5 . . . . . . . . . . . . . . . 23 Dispute Resolution Center . . . 21 Foster, LLP . . . . . . . . . . . . . . . . 4
Granstaff, Gaedke & Edgmon, PC . . . . . . . . . . . . . . . 31
Noelke Maples St. Leger Bryant, LLP . . . . . . . . . . . . . . . . 7
Hilltop Securities . . . . . . . . . . . 22
Patrick Keel . . . . . . . . . . . . . . . . 14
Judge Stephen Yelenosky . . . . 23
Reed, Claymon, Meeker & Hargett, PLLC . . . . . . . . . . . . 26
Knolle, Holcomb, Callahan & Taylor, P.C. . . . . . . . . . . . . . . . 24
Rose Resolution Group . . . . . . 12
Lakeside Mediation Center . . . 27
She Spies Private Eye, Inc. . . . 27
Laurie Ratliff LLC . . . . . . . . . . . 15
Texas Lawyer Insurance Exchange . . . . . . . . . . . . . . . . . 3
Law Office of Tim Whitten . . . 17 LawPay . . . . . . . . . . . . . . . . . . . 2, 28 Moore & Associates, Inc. . . . . . 23
The Snell Law Firm, PLLC . . . . 9 Thomas Esparza, Jr. P.C. . . . . . 31 UBS Financial Services Inc. . . . 11 UT Austin Center for Professional Education . . . . . . 12 Vaught Law Firm . . . . . . . . . . . 8 West, Webb, Allbritton & Gentry, P.C. . . . . . . . . . . . . . . 18
The Diocese of Austin – Red Mass . . . . . . . . . . . . . . . . . 24 SEPTEMBER 2021 | AUSTINLAWYER
27
AUSTIN YOUNG LAWYERS ASSOCIATION
AY LA PRESIDENT’S COLUMN RACHAEL K. JONES, EIGHTH DISTRICT COURT OF APPEALS (REMOTE)
Rising to the Challenge
O
n behalf of AYLA, welcome to a new bar year! The 2020-21 bar year was certainly one for the books, in many ways. AYLA has done a remarkable job of rising to face the unique challenges with which it’s been presented, finding new
and creative ways to stay true to its mission of promoting justice through service to the legal profession and the greater Austin community. I am honored to serve as your AYLA president as we continue to navigate through whatever the future may bring. Although this year has proven so far to be interesting in its own way, we still remain cautiously optimistic about a safe return to in-person events, including AYLA’s signature programming such as our Docket Calls, Community Service Days, Judicial Reception, Runway for Justice, and more. We can’t wait to see you! In the meantime, please don’t forget
that AYLA is here to serve and support you in any way we can. Along with the rest of the AYLA board, I’m looking forward to another great year. We will continue working diligently to bring you the most impactful programming possible. Whether it’s community service, networking, or CLE, my goal is for your experience with AYLA to be one of opportunity and growth. To that end, if you have any ideas for potential events or programs, whether virtual or in-person—or if you simply just want to reach out—please feel free to contact me any time. You can reach me via my personal email, rkjones983@gmail.com.
Without a doubt, the last year and a half (or so) has put many of us to the test, both professionally and personally. Many of us have had to dig deep to find strength we didn’t know we had. But in the wise words of Franklin D. Roosevelt, “a smooth sea never made a skilled sailor.” We hope you will continue to share your skills—both longstanding and newfound—with AYLA. If you’re looking for ways to get more involved, please consider joining one of our excellent committees. You can sign up for an AYLA committee on our website at austinbar.org/young-lawyers/projects/. We look forward to AUSTIN LAWYER seeingAyou! L AL
SPONSORED CONTENT 3 Reasons Your Law Firm Should Use QR Codes for Payments This content originally appeared on the LawPay blog and has been edited for Austin Lawyer.
To support the healthiest, most reliable cash flow, your law firm’s billing and payments process must include three technologies. An online payment solution, so you can easily and securely accept credit and eCheck payments from clients. A mobile payment app and Bluetooth reader/swiper so you can manage payments on the go. And a QR code connected to a custom, secure payment page. When your client scans the QR code, their phone automatically prompts them to open a secure page to complete payment. In addition to driving revenue, QR codes can offer your firm some major advantages. Faster, Easier Payments Giving clients the option to pay with QR codes makes it easier for them to submit payment, which means you get paid faster. You can display your QR code in your office so that when a meeting ends, the client can scan the QR code and pay before they leave the office. For clients who prefer invoices, you can include a QR code on the printed bill, allowing them to pay electronically without having to type out a URL. QR codes can also encourage clients who are still paying by check to make the switch to electronic payments.
Upgraded Payment Experience According to a Mastercard global study, almost 80 percent of consumers report using contactless payments, citing safety, cleanliness, and convenience as the primary drivers of their decision. In short, not only does allowing clients to pay with QR codes help you get paid faster, it also enables you to accommodate the preferences of your clients and offer a more modern, client-focused payment experience. Increased Security and PCI Compliance Accepting payments via QR codes is also more secure. When your client scans a LawPay QR code, they are sent to your custom, mobileoptimized payment page that is hosted on our secure server. The client then enters their payment details, which are encrypted, sent directly to our system, and never stored locally. Neither you nor your staff handles the client’s payment information, reducing security risks and minimizing your PCI (Payment Card Industry) liability.
The next evolution in legal payment processing is here! Don’t miss out on all the advantages QR codes can offer. To learn more about LawPay’s QR code payment feature and our full suite of innovative payment tools, visit lawpay.com/austinbar.
www.LawPay.com 28
AUSTINLAWYER | SEPTEMBER 2021
AUSTIN YOUNG LAWYERS ASSOCIATION
AYLA Receives Awards from Texas Young Lawyers Association
C
ongratulations to the Austin Young Lawyers Association for its outstanding programming during the 202021 bar year. TYLA AWARDS • Third Place, Large City Service to the Public: Community Service Days • Third Place, Large City Service to the Bar: Cooking Class • Third Place, Large City Comprehensive Award
JOIN AN AYLA COMMITTEE TODAY! AYLA has 11 committees to give members a chance to get involved with the legal and local community. Sign up for one or more of the committees listed below at austinbar.org/young-lawyers/ projects/ • Runway for Justice Fundraiser • Bar & Grill • Bench Bar • Community Service Days • Continuing Legal Education • MLK Day of Service
• Docket Call • Holiday Programs • Law-Related Education • JudicialAUSTIN Reception LAWYER AL AL • Tailgate Fundraiser
AYLA Member Spotlight: Miranda Fields AYLA: Tell us a little bit about yourself and your law practice. Fields: After law school graduation, I moved from Oklahoma to Austin and have been practicing in Austin for almost two years. I’m originally from Oklahoma, and I didn’t have a job lined up, nor had I interned in Austin before I made the move. So I basically decided that I wanted to be in Austin, made the move, took the Texas bar exam in the summer of 2019, and haven’t looked back. It was a big leap, but it has also turned out to be one of the best decisions I have ever made. I am currently an attorney at the Weichert Law Firm, where my practice areas are mainly real estate and contract law. I feel like I’ve been extremely fortunate. I love the firm and the area of law and look forward to going to work each day. AYLA: How long have you been involved in AYLA, and what’s been your best AYLA experience so far? Fields: I have been a member of AYLA since I moved to Austin in 2019. Initially, I was a student
member. I think the best part of AYLA is always knowing that there is a group of local attorneys who are also new to the practice of law and in the same boat that you are. I also really appreciate the opportunity to meet members of the judiciary in an informal setting. AYLA: What was your childhood dream job?
AYLA: What’s your best piece of advice for fellow young attorneys? Fields: I would say the best piece of advice I have is not to be afraid to ask questions, whether it is a more experienced attorney at your firm or a more experienced attorney in your AUSTINLAWYER L AL practice A area.
Fields: Large-animal veterinarian. AYLA: What’s your favorite moment of your career so far? Fields: My favorite moments of my career as an attorney thus far have been when cases conclude, and I know I was able to help someone who really needed it and make a long-term positive impact on their life. AYLA: What are some of the things you enjoy most about living in Austin? Fields: Definitely the availability of outdoor activities, great food, and the live music scene. Austin is a city that really lends itself to an active lifestyle.
UPCOMING EVENTS WED., SEPT. 22 AYLA Bar Year Kickoff Docket Call 5:30 – 7:00 p.m. Hilgers House 712 W. 16th St. THUR., OCT. 7 AYLA Judicial Reception 5:30– 7:30 p.m. The Austin Club 110 E. 9th St. SEPTEMBER 2021 | AUSTINLAWYER
29
ENTRE NOUS
HOW TO GIVE BAD ADVICE
BY CLAUDE DUCLOUX
S
ome things just come naturally to many of us. But that doesn’t mean we’ll do that thing well. How many singers whose warbling frightens cats and makes babies cry are convinced they should have been professional vocalists? How many lawyers think that the path to fame and glory is simply to sound smart, guess at answers, and lie when necessary? Quite a few, unfortunately. Of course, every profession has its deceivers and con artists, taking advantage of customers’ lack of knowledge or experience. Opportunists like this recent expert advising me. As you know, the “Snow-pocalypse” last February had disastrous effects on our plants and trees. When it appeared the tips of many of my oak trees were dead, I waited several months, and then hired an expensive tree service. “Bob’s” company charged me a 30
AUSTINLAWYER | SEPTEMBER 2021
rather breathtaking price to trim my trees in July, but he failed to take out many dead limbs, and I brought him back to discuss. The excuses I received for the crew’s failure to prune the lofty but clearly dead limbs off were almost like a Mel Brooks skit: TREE GUY: “Sir, I have to consider soil compaction, and the minerals available in subsoil strata.” ME: “Really, you need to consider subsoil to cut a dead branch 30 feet up?” TREE GUY: “Well, you don’t want to stress the phytophthora or the fusarium, do you?” ME: “Uh … aren’t those actually two root fungi?” TREE GUY: “How’d you know that?” ME: “Prune the dead branches, Bob.” Sadly, Bob didn’t know how many grievances I’ve handled— and that I’ve known Dicky Grigg
Like a good medical diagnostician, experienced disciplinary counsel can trace problems to several key areas, and you don’t need to be a forensic psychologist to connect these causes to their effects. so long—that I’m immune to most categories of B.S. But I had really good training, too. As most of you know, I started my career as a grievance attorney for the State Bar back in 1978. I was one of four so-called “Assistant General Counsel” for that office. The General Counsel’s office, then under Davis Grant, had all the typical duties of a true general counsel—contract review, advising the board and departments on a multitude of business and legislative issues, but we also operated the grievance system, advising 30 different grievance
committees, and handling disciplinary litigation (always filed in the home county of the accused lawyer). My experiences in that area of law have now been part of my practice for over 40 years. Needless to say, every profession has bad apples, and word gets around to others in that trade. If your mechanic needs to “adjust the points” on an electronic ignition, stay away. And some professions do our dirty work. A plumber might have to “clear the lines” when outgoing effluent piles up, and sadly, disciplinary counsel sees
exactly the same “stuff.” But our effluent usually is the toxic result of bad advice. Like a good medical diagnostician, experienced disciplinary counsel can trace problems to several key areas, and you don’t need to be a forensic psychologist to connect these causes to their effects. Here’s a primer on how to give bad advice. FIRST: ALWAYS BE THINKING ABOUT THE FEE Too many lawyers do not see a client walking in the door, but rather, a “piece of business.” How do I goad this “mark” into emptying his pockets? Clearly, it’s easier with family law clients, who are often frightened and stressed. This constant gambit to harvest more fees leads to this classic advice: “You got here just in time. There’s no time to waste, and we need to protect your assets, and secure your rights. By filing first, we have the advantage. Sign here, and we take cash, check, or credit. And you’ll need to refresh this retainer every 72 hours.” If the client asks how much it will cost, have reliable standby answers. “As much as it takes to secure
justice! That’s what you deserve.” It doesn’t matter that the client only hired you for a traffic ticket. SECOND: TREAT THE CLIENT LIKE AN IDIOT “You know, Ms. Jones, we need a complete audit of accounts, and to depose everyone you have spoken to since the Reagan administration. Can you give us a list?” If she asks, “Why?” you say, “We need to be fully prepared. And I’ll need to upgrade my computer to handle all your records, too.” When she asks, “Uh, what records?” you say, “We’re required by law nowadays to keep metadata. It has to be kept in a magnesium separator. And datestamped. Just leave that to me.” THIRD: TREAT THE DISCIPLINARY RULES AS MERE SUGGESTIONS When confronted by a motion to disqualify you because you represented the opposing party in a related matter, spend 25 hours drafting a vigorous response (on the client’s nickel), complete with cases from an out-of-state court, defending your right to engage in conflicts. Oh, and don’t forget to keep the client
in the dark until the judge rules against you. He shouldn’t worry about this, after all. Duty? Shmooty. I’m way too busy to answer your call. The oldest daily lies bad lawyers tell relate to how busy they are. Now, most clients are aware that since March 2020, that old standby excuse, that “he/she is in court today,” is a lie. You should at least change it to, “He’s on a Zoom.” Yet, the number one grievance in America is, “My lawyer won’t communicate with me.” Just remember that communication is the most important word in the practice of law. Doing it proactively and honestly makes you a better lawyer. Using an excuse is temporary, and only digs you into a deeper hole. FIFTH: BLAME THE JUDGE, THE OTHER ATTORNEY, AND YOUR SECRETARY When you’ve pursued a case strategy which predictably fails, never take responsibility. Just go ahead and blame the judge. I’m sure (a) it will never get back to her; and (b) she won’t mind. And besides, you always have that dastardly opposing counsel to dump on. And your paralegal was frighteningly slow
transcribing that brief you dictated 20 minutes before the filing deadline. Explain to your clients how they should all be punished. FINALLY: MAKE SURE TO GO INTO AREAS OF LAW THAT YOU’RE INCOMPETENT TO HANDLE While learning new areas of law is admirable and appropriate, don’t dive in without a lifeguard. If you do, you’ll end up giving advice like this: “Sure, I think we can charge 25% APR on that personal promissory note.” “My research [none] shows you don’t have to pay taxes on that income. And the IRS won’t ever find out anyway.” “I’m pretty sure the statute of limitations on contract is… like… five years or something. We've still got time.” “This contract is under the law of Louisiana. It’s probably just like Texas.” “Here’s an email of all your passwords, in case you forgot.”
So, be a smart lawyer. Give honest advice. And, of course, make sure your magnesium separator is up LAWYER to date. AUSTIN L AL –Keep the A faith.
Job Opportunity - Associate Lawyer San Antonio/Hill Country AV Rated Nine Lawyer Estate Planning and Probate Law Firm seeking an associate lawyer with substantial probate experience (preferably 5 years or more) to head up the firm’s probate division. The well-established firm has an extensive list of clients and a strong referral base. The firm has a substantial Hill Country practice with a satellite office in Kerrville. The ideal candidate will be a self-starter with strong communication and organizational skills. He or she should be technically proficient in probate, trust law, with experience in real property law. The position offers competitive compensation commensurate with experience, retirement and health insurance benefits as well as reasonable billable hour requirements. This is an excellent opportunity for someone interested in living in a wonderful and growing part of Texas while advancing his or her career. Interested candidates should submit a resume to ggaedke@caglaw.net. SEPTEMBER 2021 | AUSTINLAWYER
31
W E A LT H M A N A G E M E N T
Intelligent giving strategies to build a philanthropic legacy. Sharing your financial success to help support those in need can be one of life’s greatest rewards. At Broadway Bank Wealth Management, our highly knowledgeable team can help ensure that your charitable giving plan is fully executed, allowing your designated charities to receive the benefits of your generosity. Whether it be establishing a trust, maintaining a grant program or planning for life-long contributions, we will advise you on intelligent giving strategies to fulfill your philanthropic spirit while keeping an eye on your wealth. Let us help you maximize the benefits of giving. broadway.bank/wealth • (512) 465-7801 Investments products are:
Not FDIC insured Not guaranteed by the bank Not a deposit Not insured by a federal government agency May lose value
Rev. 07/21 / #636872508
