August 2017 Headnotes: Energy/Environmental Law by Jessica Smith

Dallas Bar Association

HEADNOTES August 2017 Volume 42 Number 8

DBA Dedicates 27th Habitat House

Focus

Focus Energy/Environmental Law

Energy/Environmental Law

Vapor Intrusion is in the Air by Michael Goldman

On July 8, DBA dedicated its 27th Habitat for Humanity home to the Loza family. (Left to Right) DBA President Rob Crain, the Loza Family, DBA Home Project Co-Chair David Fisk and his sons, Co-Chair Michael Bielby, Jr., K.C. Ashmore and Casey Fisk. To participate in the project for next year, contact Mr. Fisk at dfisk@krcl.com.

Mr. Crain turns the keys over to the Loza family.

Thank you to all the DBA members who put in time and labor on this year’s Habitat Home.

Inside 6 Equal Access to Justice Campaign Co-Chairs Named 8 DBA Recognized by State Bar 17 T exas Nuisance Law Clarified 21 R ecent Developments in Oil-and-Gas Law

Recent advancements in toxicological science have shown that exposure to certain vapors carries much greater health risks than had previously been anticipated. That in turn, is driving down the safe exposure limits set forth by federal and state environmental regulators. For instance, in Minnesota, the new longterm health exposure to fumes from dry-cleaning solvents has dropped ten-fold (20 to now only 2 parts per billion) from what was considered acceptable just a few years ago. The dramatic drop was based largely on a study which indicated that long-term exposure to certain solvents at even low concentrations can cause cancer as well as fetal developmental problems in pregnant women. The above phenomena—typically referred to as “vapor intrusion”—is becoming an emerging area of interest across the country to regulators, buyers, sellers, lenders, developers, environmentalists as well as homeowners who might be impacted by nearby operations. At least 40 states (excluding Texas) have or are in the process of developing guidance concerning vapor intrusion and many now have “emergency action” levels (e.g. evacuation) at values that were of no concern to regulators less than a decade ago. According to the EPA, vapor intrusion occurs when there is a migration of volatile organic compounds (VOCs) from any subsurface source such as contaminated soil or groundwater into an overlying building. Vapors move through the soil and seep through cracks in basements, foundations, sewer lines and other openings into buildings and homes. Typical VOCs which cause vapor intrusion include petroleum products like gasoline and diesel fuel, as well as chlorinated solvents like the dry-cleaning chemical tetrachloroethylene, also known as perchloroethylene (PCE) and the degreasing solvent trichloroethylene (TCE). Usually sites that are the source of vapor intrusion have been known about for years. Some have even been fully remediated to the satisfaction of state and federal regulators. However, in the past the regulators did not view contaminated sites in terms of their ability to contaminate indoor air. Instead, they were primarily concerned about impacts to groundwater and soil. Groundwater ordinarily does not need to be cleaned up unless it is the source of

drinking water. In Texas, the Municipal Setting Designation (MSD) has been a successful tool in limiting the need to clean up contaminated groundwater in this regard. In addition, some remedial approaches can allow contaminated soil to stay put if a concrete slab prevents its exposure to others. However, vapors are different. After all, one might prevent a person from drinking or ingesting contaminated groundwater or soil, but one cannot likewise prevent that same person from breathing air, contaminated or otherwise. Adding to the concern, the vapors are usually odorless, colorless and undetectable without special testing equipment. As a result, the vapors can build up to a point where the health of the residents or workers in those buildings are in jeopardy, like what occurred with radon in the 1980s. The above has led to a lot of anxiety in several parts of the country. For instance, Michigan estimates there could be as many as 4,000 sites across the state where vapor intrusion might be occurring. Minnesota’s vapor intrusion program regulator has said, “It’s like working on an engine while the car is driving down the road.” And New York and Massachusetts have even reopened several sites which were previously closed to re-evaluate them for potential vapor intrusion concerns— often at unsuspecting off-site properties whose owners were unaware there was even an issue. In addition, lawsuits have been filed which stem from vapor intrusion issues. For instance, in 2016 a class action suit was filed on behalf of several residents against Northrop Grumman Corporation in New York claiming its nearby steel operations led to vapor intrusion in their homes. The residents are seeking $500 million in damages. In 2015, a similar class action was filed against General Mills in Indiana claiming its operations led to vapor intrusion into residents’ nearby homes. Several cases have also been filed in Nevada, California and Wisconsin by property owners against dry cleaners and shopping centers claiming exposure to vapors from the dry-cleaning operations. Lawsuits in Texas have not yet followed suit with the rest of the country. However, due to the number of sites previously closed without consideration of their possible vapor intrusion impacts, it is conceivable that such HN litigation will soon follow. Michael Goldman is the founding partner of Goldman Law, PC. He can be reached at michael@goldmanlawpc.com

The 2017 DBA Membership Directory is now available in print & online. Check out the directory and legal resource guide used by Dallas attorneys! To view the Online Directory and Legal Resource & Expert Witness Guide, go to www.dallasbar.org/pictorial and login. To request a copy of the new directory, contact pictorial@dallasbar.org.

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Calendar August Events AUGUST 4-BELO Noon

FRIDAY CLINICS

“Trial Plans,” Mike Gruber. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.

AUGUST 11-NORTH DALLAS** Noon

“Disorder in the Court: Life as a Bipolar Lawyer,” Kelly Rentzel. (Ethics 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@ dallasbar.org. Co-sponsored by the CLE & Peer Assistance Committees.

AUGUST 18-BELO Noon

“Apples to Apples? A Comparison of International Arbitration to Domestic Litigation,” Nick Kennedy. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.

TUESDAY, AUGUST 1

Noon Corporate Counsel Section “A Guide to the Texas Lawyer’s Creed for In House Counsel,” Heath Cheek. (Ethics 1.00)* Tort & Insurance Practice Section “Cross-Examination,” Frank Branson. (MCLE 1.00)* 6:00 p.m.

DAYL Board of Directors Meeting

WEDNESDAY, AUGUST 2

MONDAY, AUGUST 7

Noon Tax Law Section “Texas State Tax Update,” Steve Moore. (MCLE 1.00)*

TUESDAY, AUGUST 8 No DBA Events Scheduled.

WEDNESDAY, AUGUST 9 Noon

Bench Bar Conference Committee

Noon Employee Benefits & Executive Compensation Section “Discovery and Privilege Issues Arising for Tax and Benefits Attorneys,” Mark L. Mathis. (Ethics 1.00)*

5:15 p.m. LegalLine. Volunteers needed. RSVP to sbush@dallasbar.org.

Solo & Small Firm Section “How to Effectively Use the Internet to Market a Law Firm Within the Boundaries of the State Bar Rules,” Chad Ruback. (MCLE 1.00, Ethics 0.50)*

8:00 a.m. Energy Law Section Seminar 32nd Annual Review of Oil & Gas Law. Two-day event. For more information, or to register, log on to www.reviewofoilandgaslaw.com.

Juvenile Justice Committee

Public Forum Committee

DAYL Judiciary Committee

5:30 p.m. Bankruptcy & Commercial Law Section “Espinosa and the Rise of the Sua Sponte Stealth Litigant,” Kees Burns and Hon. Mark X. Mullin. (MCLE 1.00)*

THURSDAY, AUGUST 3

Noon Construction Law Section “Case Law Update,” Jeffery Rusthoven. (MCLE 1.00)* Legal History Discussion Group “Stephen F. Austin’s Alcalde Codes: The Surprising Origin of Texas Law and Hatton Sumners and the Resolution of FDR’s Court-Packing Plan,” Hon. Jason Boatwright and Josiah Daniel, III. (MCLE 1.00)* JLTLA/DVAP CLE “Expunctions and Nondisclosures,” Remeko Edwards. (MCLE 1.00)*

Lawyer Referral Service Committee

FRIDAY, AUGUST 4

Noon Friday Clinic-Belo “Trial Plans,” Mike Gruber. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org

THURSDAY, AUGUST 10

Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

Trial Skills Section “Cross-Examining Experts: Taming the Lion,” Quentin Brogdon. (MCLE 1.00)*

DAYL Freedom Run Committee

MONDAY, AUGUST 14 Noon Alternative Dispute Resolutions Section “Recent Developments Impacting ADR in the Texas Legislature,” Mike Amis. (MCLE 1.00)* Securities Section “2016 Amendments to Regulation D and the ‘Modernized’ Rule 147 and New 147A,” Sarah Aboukhair and Katherine E. Geddes. (MCLE 1.00)*

Peer Assistance Committee

TUESDAY, AUGUST 15 Noon Blockchain Law Study Group “Blockchain’s Potential Role in Admissibility of Website Documents,” Kelce Wilson. (MCLE 1.00)* Franchise & Distribution Law Section “Prepare for the Worst: Drafting Franchise Agreements with Litigation in Mind,” Megan O’Laughlin and Kristen Zahnow. (MCLE 1.00)* DAYL Elder Law Committee

DAYL Moms in Law Special Interest Group “How to Seek and Serve Your Clients - Business Development Tips With an Emphasis on Women Attorneys.” (MCLE 1.00)* 6:00 p.m.

DAYL Aid to the Homeless Committee Dallas Hispanic Bar Association

Noon

CLE Committee

Publications Committee

Christian Lawyers Fellowship

WEDNESDAY, AUGUST 16

DAYL Pro Bono Partners Committee

6:00 p.m.

J.L. Turner Legal Association

FRIDAY, AUGUST 11

Noon Health Law Section “Practical and Strategic Considerations When Including Arbitration Clauses in Your Contracts,” Andrew Cookingham. (MCLE 1.00)*

8:00 a.m. Energy Law Section Seminar 32nd Annual Review of Oil & Gas Law. Two-day event. For more information, or to register, log on to www.reviewofoilandgaslaw.com.

Law in the Schools & Community Committee

Noon North Dallas Friday Clinic “Disorder in the Court: Life as a Bipolar Lawyer,” Kelly Rentzel. (Ethics 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org. Co-sponsored by the CLE & Peer Assistance Committees.

THURSDAY, AUGUST 17

5:15 p.m. LegalLine. Volunteers needed. RSVP to sbush@dallasbar.org.

Perspective,” Jordan Cowman. (MCLE 1.00)*

TUESDAY, AUGUST 22 Noon

American Immigration Lawyers Association

DAYL Lawyers Promoting Diversity

WEDNESDAY, AUGUST 23 9.00 a.m. Collaborative Law Section “How to Give (and Get) Honest Feedback in a Constructive Way,” Jodi Lazar. (MCLE 1.00, Ethics 0.50)* Entertainment, Art & Sports Law “FCC Indecency Regulation: The Seven Dirty Words You Still Can’t Say on Television?” Joel Timmer. (MCLE 1.00)* DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.

DAYL Foundation Board Meeting

DAYL Lunch & Learn CLE

Minority Participation Committee/SBOTTexas Minority Counsel Program (TMCP) “Panel Discussion: How Your Law Firm and/ or Corporation Can Get the Most out of TMCP.”

THURSDAY, AUGUST 24 Noon Criminal Law Section “Compliance With, and Implementation of, Articles 16.22 and 17.032 of the Texas Code of Criminal Procedure,” Michaela Himes, Michael Laughlin, and Lee Pierson. (MCLE 1.00)* Environmental Law Section “Case Law Update,” Katie Bennett Hobson. (MCLE 1.00)*

DVAP CLE Topic Not Yet Available

Christian Legal Society

FRIDAY, AUGUST 25 Noon Fireside Chat with Lesley Stahl “Advancing Women in the Legal Profession.” Tickets: $50/Table: $500. Register online at www.dallasbar.org. Hosted by DBA & DWLA. (MCLE 1.00)*

Noon

Christian Legal Society

DAYL Animal Welfare Committee

Intellectual Property Law Section “Top Ten Trademark Prosecution Mistakes,” Molly Richard. (MCLE 1.00, Ethics 0.50)*

Dallas LGBT Bar Association

DWLA Board of Directors Meeting

FRIDAY, AUGUST 18 Noon Friday Clinic-Belo “Apples to Apples? A Comparison of International Arbitration to Domestic Litigation,” Nick Kennedy. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org. 3rd Annual L.A. Bedford Awards Luncheon. Tickets: $35/Tables: $350. For more information, contact tatianaa1908@ yahoo.com or lori.hayward@hotmail.com. DAYL Lawyers Against Domestic Violence Committee

MONDAY, AUGUST 21

Noon Labor & Employment Law Section “Cutting Edge Cross-Border Employment Issues from the U.S. and International

DAYL Solo & Small Firm Committee

MONDAY, AUGUST 28 Noon

DAYL Membership Committee

TUESDAY, AUGUST 29 9.00 a.m. Intellectual Property Law Section “Anti-Counterfeiting and The Global Marketplace: How to Protect and Enforce IP While Expanding Trade,” Mary Boney Denison, Robert Haldeman, Jay Johnson, David Royce, Hope Shimabuku, and Michael Smith. (MCLE 5.50)*

WEDNESDAY, AUGUST 30 Noon

Municipal Justice Bar Association

THURSDAY, AUGUST 31 No DBA Events Scheduled

DAY OF CIVILITY & PROFESSIONALISM

Save the Date! Friday, October 20, 2017 at Belo 11:30 a.m.—1:30 p.m. Ethics 1.00, pending Sponsored by the DBA Morris Harrell Professionalism Committee

Civility is the hallmark of a professional

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Yedenia Hinojos at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.

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D al l as Bar A ssoci ati on l Headnotes 3

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President’s Column

Headnotes Published by: DALLAS BAR ASSOCIATION

Stronger Together BY ROB CRAIN

On August 25, Lesley Stahl of 60 Minutes will visit the Belo Mansion for a fireside chat at a luncheon commemorating Women’s Equality Day. The event is hosted by the Dallas Bar Association and Dallas Women Lawyers Association—(Big thanks to David McAtee at AT&T; Crain Lewis Brogdon, LLP; Estes Thorne & Carr; and Gardere Wynne Sewell, LLP for sponsoring the event. And also to Dena DeNooyer Stroh and Dawn Estes for organizing.) The occasion will also highlight the work of a committee led by Ms. Stroh, SMU Dedman School of Law Professor Joanna Grossman, Justice Liz Lang-Miers, Erica Bramer, Luis Zambrano, and Christy Jump. The committee is studying programs across the country that help women overcome challenges in the legal profession. Tables and tickets are available at dallasbar.org. The struggle for equal rights in the legal profession mirrors a lot of battles women have fought in our country’s history. Women had to fight for their right to practice in courts going back to our country’s colonial days. Margaret Brent, an English immigrant to the Colony of Maryland, is credited as the first woman to appear before an English North American court of common law. A historical figure, Ms. Brent was the first female landowner in the Colony of Maryland and was the executrix to the Estate of Leonard Calvert, the former Governor of the Maryland Colony. Ms. Brent was also appointed attorney-in-fact to manage the land holdings in Maryland of Lord Baltimore, who remained in England. Ms. Brent is thought to have appeared in courts more than 100 times involving these various holdings—her advocacy was known for being smart and energetic. In Colonial times, governance included local and/or state Assemblies. Votes in the Assemblies were limited to landowners. On January 21, 1648, Ms. Brent asked for two votes in the Maryland General Assembly, one as landowner and one as Lord Baltimore’s attorney. In her request to the Assembly, Ms. Brent said, “I’ve come to seek a voice in this assembly. And yet because I am a woman, forsooth I must stand idly by and not even have a voice in the framing of your laws.” The Governor refused her request. Ms. Brent protested the proceedings of the Assembly, but continued her advocacy as Lord Baltimore’s attorney. Among many other honors and recognitions, the Margaret Brent Women Lawyers of Achievement Award was established by the American Bar Association (ABA) to recognize women lawyers who have “achieved professional excellence” and who have paved the way to success for other women lawyers. Past recipients include Louise B. Raggio of Dallas. Following Ms. Brent, there is relatively little history of women advocating in courts until the mid-1800s, though a notable exception includes Pennsylvania frontierswoman Susana Wright who became a prothonotary (principal clerk of a court) in 1745. Following this ascension, she became a legal counselor to her mostly illiterate neighbors for wills, deeds, indentures and other contracts. She also served as an arbitrator in property disputes. Another notable exception is Lucy Terry Prince. Ms. Prince was born in Africa but stolen and placed into slavery in Rhode Island as an infant. Around the age of 26, she married a freed slave who purchased her freedom. Ms. Prince composed a ballad, “Bars Fight,” which is credited as the oldest known work of literature by an African American. She also presented argument in a land dispute on behalf of her and her husband in front of U.S. Supreme Court Justice Samuel Chase on circuit in Vermont. Though Ms. Prince had a lawyer, she chose to argue the case herself. She won, and Justice Chase stated her argument was better than any he had heard from any Vermont lawyer. She is thought to be the first African American woman to argue before a U.S. Supreme Court Justice. There remains debate as to whether Rebecca Brent was the first female lawyer in the United States, or whether it was Arabella Mansfield, who was admitted to the bar of Iowa in 1869. Some distinguish Ms. Brent as having acted as a party in her capacity as landowner, executrix, and attorney-in-fact rather than as a lawyer. Ms. Mansfield took the Iowa bar exam despite state law restricting the exam to males over the age of 21. She earned high scores and challenged Iowa’s restrictive law. She won. In 1869, Iowa became the first state in the Union to admit women to the practice of law. The National Association of

Women Lawyers (NAWL) named its most prestigious award after Ms. Mansfield. Charlotte E. Ray was the first African American woman lawyer. She applied for admission to the District of Columbia Bar in 1872 under the name C. E. Ray. She was admitted without controversy as the admissions committee thought she was a man. Women, however, continued to be denied admission to state bar associations. In 1872, Myra Bradwell was denied admission to the state bar by the Illinois Supreme Court. She appealed to the U.S. Supreme Court and lost. The Court ruled that the Immunities and Privileges Clause of the Fourteenth Amendment did not apply to the right to practice a profession. This set a precedent of noninterference by the federal government in state employment matters for decades. Though the majority opinion did not concern Ms. Bradwell’s sex as a basis of their opinion, three justices found it important. In a concurring opinion, Justice Joseph P. Bradley infamously opined, “the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life... [t]he domestic sphere...properly belongs to [women]...The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” The lone dissent came from Chief Justice Chase who was too infirm to write an opinion. Slowly, women were granted admission to law schools and bar associations while breaking through barriers at law schools and the courts. In 1897, Lutie A. Lytle becomes the first woman law professor in the nation. She is African American. In 1919, Barbara Armstrong becomes the first woman appointed to a tenure track position at an accredited law school—the University of California at Berkeley. In 1928 Genevieve Rose Cline becomes the first woman federal judge after appointment to the U.S. Customs Court. In 1934, Florence Ellinwood Allen becomes the first woman appointed to a federal appellate bench—Sixth Circuit Court of Appeals. In 1949 Burnita Shelton Matthews becomes the first woman appointed to a federal district court bench. Of course, Justice Sandra Day O’Connor was the first woman on the U.S. Supreme Court, appointed just 36 years ago. Today, women lawyers continue to break through barriers in a male dominated profession. Though women have been graduating from law schools in nearly equal numbers as men for more than two decades, women represent just 36 percent of the legal profession. According to multiple studies, women remain disproportionately behind in pay, partner status, firm leadership, retention in the profession and many other categories. Throughout the country there are numerous initiatives aimed at tackling these obstacles including those authored by the American Bar Association, the National Association of Women Lawyers, and the Center for Women in Law at The University of Texas School of Law (Hook’em!). Many law firms and corporations engage gender diversity initiatives. Corporations like AT&T, Toyota, and Walmart condition retention of outside law firms to measurable commitments to diversity, including gender diversity. If a firm is not mindful of diversity, these companies will not be mindful of hiring that firm. And many corporations are following their lead. Great strides have been made and should not be overlooked in the conversation, but ongoing mindfulness and action toward diversity, including gender diversity, is a commitment we should all make for our clients, our firms, our profession, our community, and our children. My four-year-old son goes to Pre-K with great women teachers and a lot of smart female students that he counts as his close friends. He was recently looking at a coffeetable book of all the U.S. Presidents and noted there were no women. He then said, “that is silly.” There is much silliness in our profession’s history toward gender diversity. There are also great examples of women and men changing history. We are fortunate to have law firms, corporations, and strong women leading us in a new direction. It is incumbent on the rest of us to make this direction our future history. Stronger Together HN Rob

Volunteer at the DBA Day of Service Saturday, October 21, 2017 A day of community service hosted by the DBA’s Community Involvement Committee.

For more information, visit www.dallasbar.org/dbacommunitydayofservice.

Save the Date! A Fireside Chat with Dallas Mayor Mike Rawlings Monday, October 30, 2017 Noon at Belo

Sponsored by the DBA Public Forum Committee

2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.

OFFICERS President: Rob D. Crain President-Elect: Michael K. Hurst First Vice President: Laura Benitez Geisler Second Vice President: Robert L. Tobey Secretary-Treasurer: Rocio Cristina Garcia Immediate Past President: Jerry C. Alexander Directors: A. Shonn Brown, Jonathan Childers, Dawn Estes, Sakina Foster, Stephanie Gause, Hon. Bonnie Goldstein (Judicial At-Large), Hon. Martin Hoffman, Christopher Kang (President, Dallas Asian American Bar Association), Krisi Kastl, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud (Vice Chair), Kate Morris, Cheryl Camin Murray, Erin Nowell, Paul Simon (President, Dallas Association of Young Lawyers), Tramaine Tinner (President, J.L. Turner Legal Association), Aaron Tobin (Chair), and Victor D. Vital Advisory Directors: Isaac Faz (President-Elect, Dallas Hispanic Bar Association), Ashlei Gradney (PresidentElect, J.L. Turner Legal Association), Shruti Krishnan (President-Elect, Dallas Asian American Bar Association), Stephanie Osteen (President-Elect, Dallas Women Lawyers Association), Jennifer Ryback (President-Elect, Dallas Association of Young Lawyers), and Dena DeNooyer Stroh (President, Dallas Women Lawyers Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, David Kent, Gregory Sampson, and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Josh Garza Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Alexander Farr and Keith Pillers Vice-Chairs: Andy Jones and Carl Roberts Members: Timothy Ackermann, Logan Adock, Wes Alost, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Amanda Brown, Paul Chappell, Charles Coleman, Shannon Conway, Rob Crain, James Deets, James Dockery, Maria Fernandez, Dawn Fowler, Andrew Gould, Susan Halpern, Meghan Hausler, Jeremy Hawpe, Beth Hearn, Lindsay Hedrick, Nicole Holland, Michael Hurst, Brad Jackson, Andrew Jones, Kristi Kautz, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravick, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jr., R. Sean McDonald, Kadie Michaelis, Terah Moxley, Jessica Nathan, Eugene Olshevskyy, Kirk Pittard, Laura Anne Pohli, Charles Price, Mark Rasmussen, Adam Reed, Kathy Roux, Joshua Sandler, Mary Scott, Jared Slade, Christopher Snyder, Thad Spalding, Shana Stein, John Stevenson, Scott Stolley, Amy Stowe, Adam Swartz, Ashely Swenson, Michael Tristan, Pryce Tucker, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karra Rybicki, Dominick Vallejo Program Assistant: Patsy Quinn Secretary: Debbie Starling Copyright Dallas Bar Association 2017. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

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D al l as Bar A ssoci ati on l Headnotes 5

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Equal Access to Justice Campaign Co-Chairs Named BY JESSICA D. SMITH

Jonathan Childers, Sakina Rasheed Foster, and Cheryl Camin Murray have been named Co-Chairs of the 2017-2018 Equal Access to Justice Campaign benefiting the Dallas Volunteer Attorney Program (DVAP). The equal access to justice campaign may be the most important collective effort we endeavor each year as lawyers,â&#x20AC;? said DBA President Rob Crain. â&#x20AC;&#x153;Our team of chairs and vice chairs represent some of the finest lawyers in our city; they also share a great passion for legal aid for the poor. As judge Merrill Hartman used to say, access to the courts starts with access to a lawyer. We cannot be in better hands for this yearâ&#x20AC;&#x2122;s campaign than this wonderful team led by Cheryl, Jonathan, and Sakina.â&#x20AC;? Mr. Childers, a Partner at Lynn Pinker Cox & Hurst, LLP, is an experienced trial lawyer whose practice focuses in the areas of business, employment, and energy litigation. A graduate of SMU Dedman School of Law, he is a long-time supporter of the Campaign for Equal Access to Justice. He has been active in the Dallas Bar Association for many years and currently serves on the Board of Directors, as a CoVice Chair of the Bench Bar Conference Committee, as Board Advisor to the Legal Ethics Committee and the Science & Technology Law Section, and as the Secretary of the Business Litigation Section. His community involvement is abundant and diverse. He is a past president of the Dallas Association of Young Lawyers, a Fellow of the Texas Bar Foundation and of the DAYL Foundation. He has served as Associate of the Patrick E. Higginbotham Inn of Court and currently serves as Barrister of the William â&#x20AC;&#x153;Macâ&#x20AC;? Taylor Inn of Court. In addition, he serves on the

Jonathan Childers

Sakina Rasheed Foster

Dedman College Executive Board and the Downtown Dallas YMCA Board of Management, and he is a member of the Dallas Aquatic Masters Swim Team and Highland Park Presbyterian Church. Mr. Childers has been named one of the â&#x20AC;&#x153;Top 20 Lawyers on the Riseâ&#x20AC;? by Texas Lawyer, listed as a â&#x20AC;&#x153;Best Lawyerâ&#x20AC;? by D Magazine, and designated as a â&#x20AC;&#x153;Rising Starâ&#x20AC;? by Texas Monthly and Law and Politics magazines. He is a 2005 graduate of SMU Dedman School of Law. â&#x20AC;&#x153;Justice is an American and Texas value,â&#x20AC;? said Mr. Childers. â&#x20AC;&#x153;But it does not happen automatically. Navigating through the civil legal system can be daunting to those unfamiliar with itâ&#x20AC;&#x201D; it costs money and requires experience and expertise. Funding for legal services is needed now more than ever, with proposed cuts to federal legal aid funding. The Equal Access to Justice Campaign helps Dallasites, including victims of domestic violence, children, veterans, low-income workers, and senior citizens. I am honored to work with Cheryl and Sakina to help people access justice.â&#x20AC;? Ms. Foster, a 2003 graduate of the University of Texas at Austin School of

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Find out more at www.dallasbar.org/dvapcampaign

Cheryl Camin Murray

Law, is a Partner at Haynes and Boone, LLP in the Finance Practice Group. Her practice focuses on the representation of financial institutions and borrowers in complex commercial loan transactions, as well as airlines and aviation matters. She has been recognized with numerous awards including Best Lawyer in Dallas by D Magazine, being listed among Up-and-Coming 50: Women Texas Rising Stars, Super Lawyers, Thomson Reuters 2017, was the 2015 recipient of the DAYL Outstanding Young Lawyer Award, the 2015 recipient of the Outstanding Mentor Award from the Asian Pacific Interest Section of the SBOT, and in 2013 was named to the Lawyers of Color â&#x20AC;&#x153;First Annual Hot Listâ&#x20AC;? by Lawyers of Color LLC. Ms. Foster is very active in the legal community, currently serving on the DBA Board of Directors, and as Board Advisor for the Minority Participation and Peer Assistance Committees and International Law Section. She has served as President of the Dallas Asian American Bar Association and as Secretary-Treasurer on the DBA Board of Directors. In addition, she was a member of the Leadership Dallas Class of 2016 and of the State Bar of Texas LeadershipSBOT Class of 20132014. She is Vice-Chair of the SBOT Lawyersâ&#x20AC;&#x2122; Assistance Program Committee and a former Advisory Director of the American Muslim Professionals of Dallas. She is a Fellow of the Dallas Bar Foundation and of the DAYL Foundation. â&#x20AC;&#x153;Dallas has the highest number of people living 185 percent below the poverty line of any American cityâ&#x20AC;&#x201D;and this directly affects our residentsâ&#x20AC;&#x2122; ability to access the justice system,â&#x20AC;? said Ms. Foster. â&#x20AC;&#x153;As lawyers, it is our duty to help those in need gain access to the legal help they needâ&#x20AC;&#x201D;and that is exactly the mission of the Equal Access to Justice Campaign. I am honored to serve alongside Cheryl and Jonathan to help this worthy cause.â&#x20AC;? Ms. Camin Murray, a Shareholder in Winsteadâ&#x20AC;&#x2122;s Healthcare Industry Group and the Corporate Securities/Mergers & Acquisitions Practice Group, focuses on healthcare matters, advising providers,

financial institutionsÂ and businesses on entity formation and structural, contractual and regulatory healthcare issues. A long-time supporter of the Equal Access to Justice Campaign and the DBA, she currently serves on the DBA Board of Directors and is Board Advisor to the Media Relations Committee, and the Antitrust & Trade Regulation and Health Law Sections. She is a co-founder of the DBA Public Forum Committee and has previously chaired the Law in the Community and Schools, Media Relations, and Transition to Law Committees. She is very active with the State Bar of Texas, having served as both a Texas Bar Foundation Nominating Committee Co-Chair and a Texas Young Lawyers Association Vice President, Director, and former President-Elect Candidate. In addition she is a member of the American Bar Associationâ&#x20AC;&#x2122;s Health Law Section and a World Justice Project former Rule of Law Conference Steering Committee Member, as well as serving in various practice groups in the American Health Lawyers Association. Ms. Camin Murray is a co-founder of the DAYL Freedom Run and has formerly served as the associationâ&#x20AC;&#x2122;s Secretary, Treasurer, and Director. Her community service ranges from being a Pro Bono Legal Counsel to CONTACT Crisis Line, to Chairmanâ&#x20AC;&#x2122;s Committee Member for the March of Dimes, to Director of the Woodrow Wilson High School Community Foundation, just to name a few. Ms. Camin Murray is a 1998 graduate of the University of Houston Law Center, and is a Fellow of the Dallas Bar Foundation and a Founding Fellow of the Dallas Association of Young Lawyers. â&#x20AC;&#x153;As lawyers we are privileged to have the education to help others seeking justice,â&#x20AC;? said Ms. Camin Murray. â&#x20AC;&#x153;Those less fortunate do not have the resources to hire someone to advocate for their legal rights.Â Imagine being in their shoes.Â Without the support of the Equal Access to Justice Campaign, these people would be mired in dire situations. I am delighted to be working with Sakina and Jonathan on this EAJ initiative, which benefits so many.â&#x20AC;? Vice Chairs for the Campaign include Krisi Kastl, of Kastl Law, P.C.; Dan Kelly, of Energy Future Holdings Corp.; Kathryne Morris, of Strasburger & Price, LLP; and Erin Nowell, of Simon Greenstone Panatier Bartlett, PC. The Campaign will culminate at the Inaugural of 2018 DBA President Michael K. Hurst on January 20, 2018. HN Jessica D. Smith is the Communications/Media Director of the Dallas Bar Association. She can be reached at jsmith@ dallasbar.org.

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D al l as Bar A ssoci ati on l Headnotes 7

8 He a d n o t e s l D a l l a s B a r A s s o ciation

A ugust 2017

DBA Recognized by State Bar BY JESSICA SMITH

At the State Bar of Texas Annual Meeting in June, the Dallas Bar Association accepted several awards for its programs and services. The DBA received the prestigious Award of Merit for outstanding services to its more than 11,000 members and to the community; Outstanding Partnership Award for Immediate Past President Jerry Alexander’s Mural Project at the George Allen Courthouse; and a Star of Achievement Award for its Day of Civility program. In addition, Headnotes received two awards including: • Best Substantive Law Series: Family Law articles, published September 2016: “Who’s Your…Parent?” by L. Bradley Johnson, of Bailey & Galyen; “Can My Mother-in-Law Fight Me for Custody,” by Lindsey Vanden Eykel, of KoonsFuller; and “Ensuring Divorce Doesn’t Cost Your Clients Down the Road,” by Adam Swartz, of The Swartz Law Firm & White, Jacobs & Associates • Best Series of General Interest Articles: Athletic Director Columns by Kenneth G. Raggio, of Raggio & Raggio, P.L.L.C. The Dallas Association of Young Lawyers and Dallas Women Lawyers Association received a Star of Achievement Award for their Mentoring Circles Project and J.L. Turner Legal Association received Best Overall Newsletter, Division II. Various DBA members received individual awards at the annual meeting, including: • Michelle Alden, of The Dallas Volunteer Attorney Program, received the Pro Bono Coordinator Award • Thomas Allen, of Jones Day,

The DBA received several awards at the State Bar of Texas Annual Meeting in June. Accepting the awards were (left to right) DBA Immediate Past President Jerry Alexander, SBOT President Frank Stevenson, DBA First Vice president Laura Benitez Geisler, DBA Executive Director Alicia Hernandez and Jessica Smith, DBA Communications/Media Director.

received an Impact Award from the SBOT Texas Poverty Law Section • Christina Melton Crain, of Christina Melton Crain, P.C., received a Presidential Citation • Britney Harrison Dieng, of Goranson Bain, PLLC, received Keith L. Krueger Leadership Award from the Texas Young Lawyers Association (TYLA) • Stephen W. Gwinn, of Suzanne I. Calvert & Associates, received the Nancy L. Garms Memorial Award from the SBOT Law-Related Education Department • Charlie Hodges, of the Law Office of Charlie Hodges, received the Dan Price Award presented by the SBOT Family Law Section • Lawrence R. Maxwell, Jr., of Max Maxwell Law Practice, P.C., and Anne

Shuttee, of the Law Office of Anne Shuttee, received a Service Award from the SBOT Collaborative Law Section • Justice Elizabeth Lang Miers, of the 5th District Court of Appeals, received the Samuel Pessarra Outstanding Jurist Award presented by the Texas Bar Foundation • Timothy Newman, of Haynes and Boone, received the Outstanding First Year Director Award presented by TYLA • Courtney Barksdale Perez, of Carter Scholer PLLC, received a TYLA President’s Award • Julie Pettit, of The Pettit Law Firm, received the Outstanding Young Lawyer of Texas Award from TYLA • Robin Phelan, of Robin Phelan Law, received the Banco Rotto Award from the SBOT Bankruptcy Law Section • Kenneth Raggio, of Raggio & Raggio PLLC, and Judge Emily Miskel, of the 470th District Court, received the Joseph W. Knight Best Family Law CLE Article from the SBOT Family Law Section

• Judith W. Ross, of Judith Ross P.C., received the Michelle A. Mendez Award of Excellence from the SBOT Bankruptcy Law Section • Ann M. Saegert, of Haynes and Boone LLP, received the Distinguished Texas Real Estate Attorney Lifetime Achievement Award from the SBOT Real Estate, Probate & Trust Law Section • Hope Shimabuku, of the U.S. Patent & Trademark Office, received the Champion of Diversity Award from the SBOT Asian Pacific Interest Section • Shelly L. Skeen, of Blume Faulkner & Skeen PLLC, received the Judge Norman W. Black Award from the SBOT LGBT Law Section • Edward V. Smith III, of StephensGuthrie PLLC, received an Outstanding 50-Year Lawyer Award from the Texas Bar Foundation • Pamela St. John, of AT&T Services Inc., received the Corporate Counsel Pro Bono Award from the Texas Access to Justice Commission • Meijken Westenskow, of Mosaic Family Services, received the Patrick Wiseman Award from the SBOT Individual Rights & Responsibilities Section • H. Ron White, of White & Wiggins, L.L.P., received an Outstanding Achievement Award from the SBOT African American Lawyers Section At the annual meeting, Tom Vick, of Weatherford, assumed the role as president of the State Bar, and Joe Longley, of Austin, was elected SBOT presidentelect. In addition, Jerry Alexander, of Passman & Jones, P.C., and David Kent, of Drinker Biddle & Reath, LLP were elected to the State Bar Board of HN Directors. Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.

North Dallas Clinic Presents: “Disorder in the Court: Life as a Bipolar Lawyer” Speaker: Kelly Rentzel, Texas Capital Bank, N.A. Ethics 1.00 | Friday, August 11, Noon Two Lincoln Centre (5420 LBJ Frwy, Ste. 240, Dallas) RSVP to yhinojos@dallasbar.org.

Jesus Ibarra, 2016 recipient of the Simon Greenstone Panatier Bartlett Scholarship at Communities Foundation of Texas

LE ARNING to HE A L The law ﬁrm Simon Greenstone Panatier Bartlett was established to provide a voice for those in need, says founding shareholder David Greenstone. “We have spent our careers ﬁghting on behalf of cancer victims and their families, and we know how devastating a cancer diagnosis can be,” he says. To expand the number of people they help, the partners established a scholarship fund at Communities Foundation of Texas, which awards multiple scholarships to Dallas County

Deep in the heart of giving™

students whose families have been impacted by cancer. Working with CFT at every stage of the process, the ﬁrm is awarding $50,000 in scholarships a year. “We’re so pleased to have CFT as our partners as we make a real difference in the lives of so many deserving kids,” Greenstone says.

Create your fund today. Call us at 214-750-4145, email giving@cftexas.org or visit www.CFTexas.org/GivingFund

Augu st 2 0 1 7

D al l as Bar A ssoci ati on l Headnotes 9

10 H e a d n o t e s l D a l l a s B a r A s s ociation

Focus

A ugust 2017

Energy/Environmental Law

Dam it: Environmental Law Implications Flow from New Reservoirs BY JAY PRZYBORSKI

The 2017 State Water Plan for Texas projects the state population will grow 70 percent between 2020 and 2070, from 29.5 to 51 million. As the primary strategy to confront the rising need for water, the Plan recommends construction of large reservoirs. When new reservoirs are proposed, the usual legal battles over water rights and eminent domain garner headlines, obscuring environmental impacts that remain unknown to most citizens and lawmakers. New reservoirs, typically constructed by damming a river or stream, can eliminate thousands of acres of wetlands, streams, and other aquatic resources. Impacts to the surrounding environment are less obvious, but can be ecologically catastrophic. Reservoirs fragment riverine ecosystems, halt sedimentation, and alter water temperature downstream. Amidst the panoply of state and federal legal hurdles confronting a new reservoir proposal, the National Environmental Policy Act, or “NEPA,” and the Clean Water Act create frameworks for federal review of environmental impacts. NEPA’s requirements are essentially procedural, obliging federal agencies to take a “hard look” at the environmental consequences of proposals for major federal actions significantly affecting the quality of the human environment. This proverbial “hard look” comes in the form of an Environmental Impact Statement, or “EIS,” wherein an agency (likely the Army Corps of Engineers for reservoir projects) reviews the impacts of the proposal, analyzes “reasonable” alternatives to the proposal that achieve the project

purpose, and identifies mitigation measures. The EIS process ensures an agency will have the environmental information needed to make its decision, while also informing the public via NEPA’s public notice requirements. The EPA plays a unique role in the NEPA process. Section 309 of the Clean Air Act requires EPA to comment on and rate other agencies’ EISs and refer to the Council on Environmental Quality any actions it deems environmentally unsatisfactory. EPA’s comments and ratings are only advisory, but they are closely monitored by project proponents and potential third party litigants. While NEPA dictates process, the Clean Water Act determines outcome. Section 404 of the Clean Water Act requires a permit for discharge of dredge or fill material into waters of the United States, including wetlands. The implementing regulations, known as the 404(b)(1) Guidelines, create a framework requiring the permit applicant to avoid and minimize environmental impacts and to mitigate those impacts that are unavoidable. The Clean Water Act assigns the Army Corps of Engineers sole authority to issue 404 permits, but also designates EPA with an oversight role and the authority to deny or restrict any permit that will have certain unacceptable adverse impacts. Similar to NEPA, the 404(b)(1) Guidelines require the Corps of Engineers to evaluate all “practicable” alternatives. Unlike NEPA, which merely requires identification of an environmentally preferred option, the Clean Water Act allows only the “least environmentally damaging practicable alternative,” or “LEDPA,” to

When the issue is Healthcare Fraud... You need a Healthcare Litigator on your team...

be permitted. Reservoirs may not be permitted if less environmentally damaging alternatives such as conservation measures, groundwater storage, or smaller reservoirs are both practicable and achieve the project purpose. Proposed reservoirs impacting “special aquatic sites” such as wetlands (a likely scenario in the eastern half of Texas) face two challenging regulatory assumptions: (1) if a proposal does not require access to or siting within a special aquatic site, sites that do not involve special aquatic sites are presumed available, and (2) all alternatives that do not involve discharges to special aquatic sites are presumed to be less environmentally damaging. If LEDPA analysis is the steepest regulatory hurdle for 404 permit applicants, compensatory mitigation can be the costliest. Born out of the longstanding national policy that there should be “no net loss” of wetlands, compensatory mitigation is the restoration, creation, enhancement, and preservation of wetlands, streams, and other aquatic resources to offset unavoidable impacts. The type of mitigation chosen and the ecological value of the impacted

aquatic resources, among other factors, influence the number of acres or mitigation credits required, but permittees should expect to mitigate at a 1:1 ratio or greater. Environmental impacts do not heavily influence how reservoir planners select or prioritize sites. Nevertheless, the tide is turning against surface storage as a preferred water supply strategy. As sites that can accommodate deep reservoirs become less available, shallow reservoirs with massive surface area are the remaining alternatives. Losses from evaporation make these water storage solutions inefficient. Meanwhile, new technologies will continue to make groundwater storage, water reuse, and conservation measures more financially viable. Until then, water planners would be wise to further incorporate environmental implications into HN planning. Jay Przyborski is an attorney with the U.S. Environmental Protection Agency and can be reached at przyborski.jay@ epa.gov. This article is not a product of the United States Government or the U.S. Environmental Protection Agency. The views expressed are his own and do not necessarily represent those of the United States or U.S. EPA.

The Dallas Bar Association 34th Annual Stephen Philbin Awards Luncheon Friday, October 13, 2017 Noon at the Belo Mansion Tickets: $45 ($450 for tables of 10) Purchase tickets by 9/22 to receive the early bird rate.

Direct ticket inquiries to Judi Smalling at jsmalling@dallasbar.org

Keynote Speaker David McCraw The New York Times

Recognizing Excellence in Legal Reporting

DVAP’s Finest Susan G. Morris Martin Merritt

Health Law and Healthcare Litigation

Connect on LinkedIn www.linkedin.com/in/martinmerritt/ mmerritt@fflawoffice.com 972.788.1400

Susan G. Morris began practicing estate planning and probate law in the Dallas area in 1983. In 2013, after forming her own firm, Susan began volunteering through DVAP at various Wills Clinics and the Veterans Clinic. Susan has enjoyed working with clients through these clinics. Susan has made estate planning presentations to various groups and enjoys serving as a probate mentor to DVAP staff and volunteers. In 2015, Susan was named the Ken Fuller Outstanding Mentor Attorney for her efforts. In 2016, Susan joined the Veterans Outreach Subcommittee of the Dallas Bar Association’s Pro Bono Activities Committee and continues to assist veterans with their estate planning and probate needs. Susan encourages others, especially members of the Probate, Trusts, and Estate Planning Section of the DBA, to become involved with DVAP and experience the pleasures of providing legal services to those in need. Thank you for all you do, Susan!

Pro Bono: It’s Like Billable Hours for Your Soul.

When all else fails... 5301 SPRING VALLEY ROAD SUITE 200 DALLAS, TEXAS 75254

www.fflawoffice.com

To volunteer or make a donation, call 214/748-1234, x2243.

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D al l as Bar A ssoci ati on l Headnotes 11

12 H e a d n o t e s l D a l l a s B a r A s s ociation

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First Naturalization Ceremony Held at Belo On June 29, the Dallas Bar Association hosted the first U.S. Naturalization Ceremony held at the Belo Mansion. Presiding Judge Hon. Barbara M.G. Lynn welcomed 50 candidates from 21 different countries. After the ceremony, the new citizens and their families were treated to lunch at Belo, courtesy of the Dallas Bar Association. The band Whiskey Pants provided entertainment at the luncheon.

A Fireside Chat with Lesley Stahl Women’s Equality Day Luncheon ®

Hosted by the Dallas Bar Association & Dallas Women Lawyers Association Advancing Women in the Legal Profession

Friday, August 25, 2017 – Noon The Belo Mansion – 2101 Ross Avenue Individual Tickets: $50 - Table for 10: $500 MCLE: 1 Hour www.DallasBar.org

Sponsored By: ™

Augu st 2 0 1 7

D al l as Bar A ssoci ati on l Headnotes 13

2017 DBA 100 CLUB MEMBERS – THANK YOU!

We are proud to recognize the following firms, organizations, corporate legal departments, government agencies and law schools for their 100% support of the Dallas Bar Association as members of the 2017 DBA 100 Club! The DBA 100 Club is a distinguished membership recognition category that reflects a commitment to the advancement of the legal profession and the betterment of the community. The DBA 100 Club consists of firms with two or more attorneys as well as corporate legal departments, organizations, laws schools, and government agencies that have 100% membership in the DBA. Recognition is free and given to the 2017 DBA 100 Club members in our Headnotes publication, at our Annual meeting in November and in the 2018 DBA Membership Directory. Please note that the DBA 100 Club is FREE recognition and open for renewal annually. We do not automatically renew an organization’s membership due to changes in attorney rosters each year. It is not too late to become a member of the 2017 DBA 100 Club! Please submit your request via email including a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your organization will be added to the 2017 DBA 100 Club!

THANK YOU FOR YOUR SUPPORT OF THE DALLAS BAR ASSOCIATION! DBA 100 Club Members as of July 12, 2017 Law Firms with 2 to 5 Attorneys A. William Arnold III & Associates, P.C. Ackerman & Ramos, L.L.P. Adair, Morris & Osborn, P.C. Addison Law Firm P.C. Aldous \ Walker Alexander Dubose Jefferson & Townsend LLP Altaffer & Chen PLLC Anderson & Brocious P.C. Anderson Beakley, PLLC Andrews & Barth, PC Ashcraft Law Firm Atkins, O’Toole & Briner, L.L.C. Atwood Gameros LLP Bisignano Harrison Neuhoff LLP Blackwell & Duncan, PLLC Blackwell, Blackburn & Singer, LLP Blankenship, Wiland & O’Connor, P.C. Broden & Mickelsen Butler Snow LLP ByrdAdatto Calabrese Huff, P.C. Calloway Norris Burdette Weber & Baxter-Thompson, PLLC Campbell & Associates Law Firm, P.C. Carlock & Gormley Chen Dotson, PLLC Christiansen Davis LLC Clark Law Firm Clark, Malouf & White, LLC Coffin & Bailey, PLLC Cox Bower, LLP Curtis Law Group Darrell W. Cook & Associates PC Davenport & Epstein, P.C. Davis Stephenson, PLLC Duke Seth, PLLC Dunn Sheehan LLP Edison, McDowell & Hetherington LLP Edwards & de la Cerda, L.L.C. Elliott Thomason & Gibson, LLP Espinar Law, PLLC Fisher & Welch, P.C. Francis & Totusek, L.L.P. Franklin Hayward LLP Fuller Mediations Ganci, L.L.P. Gauntt, Koen, Binney, Woodall & Kidd, LLP Gillespie Sanford LLP Goldfarb PLLC Grogan & Brawner P.C. Grau Law Group, PLLC Gunnstaks Law Office Gussio Law Office Hahn Law Firm, P.C. Hamada Smith, PLLC Hamilton & Squibb, LLP

Hance Law Group Henley & Henley, P.C. Hernandez & Baggett, PLLC Herrera & Herrera Hitchcock Evert LLP Hollingsworth Walker Holman Robertson Eldridge P.C. Holmes Firm PC Horton & Archibald, P.C. Hunt | Ham, PLLC Hunter & Kalinke Iola Galerston, LLP Jameson & Powers, P.C. Jenkins & Watkins Johnston Tobey Baruch, P.C. Kabani & Kabani, PLLC Kellett & Bartholow PLLC Kelly, Durham & Pittard, LLP Kendall Law Group, LLP Kennedy Law, L.L.P. Kinser & Bates, L.L.P. Kizzia Johnson PLLC Koning Rubarts LLP Koons Real Estate Law Langley LLP Law Office of Andrew & Mark Cohn Law Office of Carmen S. Mitchell, LLP Law Offices of Maduforo & Osimiri Law Offices of Otstott & Jamison Law Offices of Richard A. Gump, Jr., P.C. Law Offices of Terrence G. Turzinski, P.C. Lawrence Law PLLC Lee & Braziel, LLP Lemons & Hallbauer, LLC Letteer & Mock, P.C. Leu & Peirce, PLLC Lidji Dorey & Hooper Lillard Wise Szygenda PLLC Lira Bravo Law, PLLC Little Pedersen Fankhauser LLP Madson Castello, PLLC Mahomes Bolden PC Malouf & Nockels LLP Maris & Lanier, P.C. Marshall & Kellow, LLP McElree | Smith McTaggart & Beasley, PLLC Miller Mentzer Walker, P.C. Mincey-Carter, PC MKim Legal Mosser Law PLLC Mullin Hoard & Brown, L.L.P. Musgrove Law Firm, P.C. Nesbitt, Vassar, & McCown, L.L.P. Orenstein Law Group, PC Owen & Fazio, P.C. Pace & Pace, L.L.P. Prager & Miller, P.C. Quaid Farish, LLC Raggio & Raggio, P.L.L.C. RegitzMauck PLLC

Richardson Koudelka, LLP Riney Packard PLLC Ritter Spencer PLLC Rogaliner Law Offices, P.C. Rose Walker, L.L.P. Rosenberg Paschall Johnson LLP Ross Barnes LLP Russell & Wright, PLLC Sawicki Law Schorr Law Firm, PC Schubert & Evans, P.C. Schuerenberg & Grimes, P.C. Seltzer Chadwick Soefje PLLC Sessions Fishman Nathan & Israel LLP Sheils Winnubst, PC Sherman & Yaquinto, L.L.P. Silverman Goodwin, LLP Simon | Paschal PLLC Skierski Jain PLLC Smith Hargrave Law Smith Kendall P.C. Smith, Stern, Friedman & Nelms, P.C. Spector & Johnson, PLLC Spencer Fane LLP Spencer Law, P.C. Steckler Gresham Cochran LLP Taherzadeh, PLLC Talcott Franklin PC The Bhatti Law Firm, PLLC The DeLoney Law Group, PLLC The Holmes Law Firm The Korn Diaz Firm, LLP The Law Office of Ray R. Singh The Perrin Law Firm The Pettit Law Firm The Richman Law Firm The Vermillion Law Firm, LLC Theirl Wilson PLLC Thomas, Cinclair & Beuttenmuller, PC Travis Law Group, P.C. Tremain Artaza PLLC Turton & Pinkerton, PLLC Van Wey Law, PLLC Walker & Long Warren | Rhoades LLP Webb Family Law Firm, P.C. Winn, Beaudry & Winn, L.L.P. Wisener Nunnally Roth LLP Withers & Withers, P.C. Wolfish & Newman, P.C. Woolley <> Wilson, LLP. Yarbrough & Elliott, P.C. Law Firms with 6 or More Attorneys Ackels & Ackels, L.L.P. Baker Botts, L.L.P. Bell Nunnally & Martin LLP Boyle & Lowry, L.L.P. Bragalone Conroy PC Brousseau Naftis & Massingill Brown Fox PLLC Buether Joe & Carpenter, LLC Burdette & Rice, PLLC

Burford & Ryburn, L.L.P. Canterbury, Gooch, Surratt, Shapiro, Stein & Gaswirth, P.C. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Carter Scholer PLLC Cavazos, Hendricks, Poirot & Smitham, P.C. Coats Rose Cobb Martinez Woodward PLLC Connatser Family Law Cooper & Scully, P.C. Cowles & Thompson, P.C. Cozen O’Connor Crain Lewis Brogdon, LLP Cunningham Swaim Cutler-Smith, P.C. Deans & Lyons, LLP DeHay & Elliston, L.L.P. Diamond McCarthy Duffee + Eitzen LLP Estes Thorne & Carr PLLC Fee, Smith, Sharp & Vitullo, L.L.P. Figari & Davenport, L.L.P Fletcher, Farley, Shipman & Salinas, LLP Fox Rothschild LLP Godwin Bowman & Martinez PC Goranson Bain, PLLC Griffith Bates Champion & Harper LLP Griffith Davison & Shurtleff, P.C. Guida, Slavich & Flores, P.C. Hall Render Killian Heath & Lyman Hankinson LLP Hedrick Kring, PLLC Hiersche, Hayward, Drakeley & Urbach, P.C. Higier Allen Lautin, P.C. Hoge & Gameros, L.L.P. Jones Carr McGoldrick L.L.P. Jordan Cresswell Monk Reber, PC Kessler Collins, P.C. Key Harrington Barnes PC KoonsFuller Lan Smith Sosolik, PLLC Lynn Pinker Cox & Hurst, LLP Macdonald Devin, P.C. Malouf Nakos Jackson & Swinson, P.C. McCathern, PLLC McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Mullin Law, PC Munsch Hardt Kopf & Harr, P.C. Orsinger, Nelson, Downing & Anderson L.L.P. Parsons McEntire McCleary & Clark PLLC Passman & Jones, P.C. Peckar & Abramson, P.C.

Rochelle McCullough LLP Sargent Law, P.C. Sayles Werbner, P.C. SettlePou Skiermont Derby LLP Sorrels, Udashen & Anton Stacy & Conder, L.L.P. Stanton LLP Staubus & Randall, L.L.P. Steed Dunnill Reynolds Bailey Stephenson LLP Stuber Cooper Voge, PLLC The Blum Firm, P.C. The Hartnett Law Firm The Law Offices of Frank L. Branson, P.C. Thiebaud Remington Thornton Bailey LLP Thomas, Feldman & Wilshusen, L.L.P. Thompson & Knight LLP Tollefson Bradley Mitchell & Melendi, LLP Touchstone Bernays Verner Brumley Mueller & Parker, PC Vincent Serafino Geary Waddell Jenevein, P.C. Vinson & Elkins LLP Winstead PC Zelle LLP Corporate Legal Departments Alon USA Energy Inc. Austin Industries, Inc. Borden Dairy Company Buckner International Capital Senior Living, Inc. Compatriot Capitol Inc. Dunhill Partners, Inc. Front Burner Restaurants, LP Gaedeke Group HighGround Advisors Klein Tools, Inc. LALA U.S., Inc. Neuberger Berman North Texas Tollway Authority PrimeLending, a PlainsCapital Company Tenaska, Inc. Government Agencies, Law Schools & Organizations Catholic Charities of Dallas, Inc. City of Irving Dallas Baptist University Dallas County Probate Court DII Industries, LLC Asbestos PI Trust Mosaic Family Services Inc. UNT Dallas College of Law Special Recognition Students of the UNT Dallas College of Law

14 H e a d n o t e s l D a l l a s B a r A s s o ciation

Column

A ugust 2017

Ethics

Sunset Legislation Changes the Disciplinary Landscape by Jerry R. Hall

Earlier this year, the Texas Legislature passed new legislation extending the operations of the State Bar of Texas until the year 2029, as required by the Texas Sunset Act. But this legislation also contains significant changes to the attorney disciplinary system. When Senate Bill 302 takes effect on September 1, it will establish a new committee to review the disciplinary rules, alter the process for proposing changes to those disciplinary rules, and modify the existing disciplinary process for alleged violations.

Rule Proposals

State Bill 302 will establish a Committee on Disciplinary Rules and Referenda. S.B. § 10, 15. This committee will consist of seven attorneys and two non-attorneys, appointed by the President of the State Bar or the Supreme Court of Texas. Id. This committee will consider requests for proposed revisions to the disciplinary rules. S.B. § 10. These requests may be submitted by the Bar’s board of directors, the Supreme Court of Texas, the Commission for Lawyer Discipline, the Texas Legislature, and petitions signed by at least 10 percent of the registered members of the Bar. Id. Notably, a petition signed by at least 20,000 people—any 20,000 people— may also request initiation of the rule proposal process, as long as “51 percent, or 10,200 or more,” are Texas residents. Id.

Any proposed disciplinary rule must be approved by the Committee on Disciplinary Rules and Referenda, the Bar’s board of directors, the Bar’s members, and the Supreme Court of Texas before adoption. Id.

Sanction Guidelines

The Chief Disciplinary Counsel will propose sanction guidelines for adoption by the Supreme Court of Texas. S.B. 302 § 9. These guidelines will associate specific rule violations with a range of appropriate sanctions, including potentially aggravating and mitigating factors. Id.

Increased Investigative Power

The Chief Disciplinary Counsel will now have subpoena power during the investigation of grievances. S.B. 302 § 9. The Bar will also be entitled to obtain criminal history record information maintained by the Department of Public Safety or obtained by the Board of Law Examiners. S.B. 302 § 12, 15; see also Tex. Gov’t Code § 411.001. The Bar will obtain such information for Bar members whose information is already on file. S.B. 302 § 15. In order to identify discipline imposed on members of the State Bar of Texas by other states (e.g., an attorney licensed in multiple states who is disciplined by another bar association), the Chief Disciplinary Counsel will begin regular searches of the National Lawyer Regulatory Data Bank as well. S.B. 302 § 9.

The Chief Disciplinary Counsel will provide guidelines on self-reporting criminal offenses and disciplinary actions by bar associations in other states. S.B. 302 § 9.

Mediation, Settlements, and Investigatory Hearings

Certain allegations of misconduct were previously eligible for resolution through a voluntary mediation and dispute process. Tex. Gov’t Code § 81.072(e). Under the new legislation, this voluntary mediation and dispute resolution procedure will be eligible for each “minor grievance” referred by the Chief Disciplinary Counsel. S.B. 302 § 7. The Chief Disciplinary Counsel will also develop a process for identifying complaints that are appropriate for settlement attempts or investigatory hearings prior to a trial request or placement on a hearing docket. S.B. § 9. The Chief Disciplinary Counsel will have statutory authority to “authorize a settlement at any time during the disciplinary process.” Id.

Public Sanctions Posted on Bar Profile Indefinitely

Previously, public disciplinary sanctions against an attorney would be displayed on the attorney’s profile on the

Bar’s website for ten years. Tex. Gov’t Code § 81.115(b)(5–6). Senate Bill 302 removes that ten-year cutoff. An attorney’s bar profile will not only display all public sanctions issued against an attorney, but provide links to the full text of the disciplinary judgment entering those sanctions. S.B. 302 § 11.

Barratry Analysis in Annual Report The annual report from the Commission for Lawyer Discipline will now require information specifically relating to barratry and improper solicitation of clients. S.B. 302 § 8. This may lead to increased focus on those issues. Some of these changes may aid in the resolution of some disciplinary matters. Other changes, such as the removal of the ten-year cutoff for displaying public sanctions on bar profiles, may not be welcomed by those individuals most directly affected. But the full effects of these statutory changes should continue to become apparent as the required processes are implemented. HN Jerry R. Hall, an associate with Campbell & Associates Law Firm, P.C., currently serves on the DBA Legal Ethics Committee. He can be reached at jhall@cllegal.com.

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September 12-13, 5:00-8:00 p.m., at Belo MCLE 6.00, Ethics 2.00 Dallas Family Law Judges and some of Dallas’ most experienced family law attorneys will be speaking. Training materials and forms will be provided on a CD or thumb drive. To register, email reed-brownc@lanwt.org or vallejod@lanwt.org.

Augu st 2 0 1 7

Focus

D al l as Bar A ssoci ati on l Headnotes 15

Energy/Environmental Law

Environmental Crimes: Search Warrant Basics BY WALTER D. JAMES III

A search warrant issued for an environmental criminal investigation is just like a search warrant issued in every other criminal case; except it is different. Law enforcement is authorized to conduct a search only if there is a warrant or if there is consent. In federal matters, the Federal Rules of Criminal Procedure, Rule 41 (and of course case law), provides the starting point for search and seizure. A search warrant is issued usually based upon a written affidavit setting forth the probable cause that a crime has been committed and that evidence of the crime will be found within the premises to be searched (the search warrant may also be issued on oral testimony under Rule 41(c)(2)). If by affidavit, the affidavit is almost always sealed by the court when the search warrant is issued and will rarely be unsealed (until and unless a criminal prosecution actually takes place or case is declined). All that means is that your client may never know the “probable cause” for the search and may only know it at a much later date.

Rule 41 allows the search and seizure of property, contraband and persons. The agent must present proper identification and keep the identification in plain view at all times. Most importantly, the search must be conducted in strict accordance with the search warrant. Rule 41 also provides the basis for a later challenge to the search warrant. For instance: “The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.” Fed. R. Crim. P. 41(f)(1)(c). So how is your client to know that the search was done in strict accordance to the search warrant? The first thing you should do is help your client to prepare well before a search warrant is ever issued. For clients regulated by the United States Environmental Protection Agency, they should: 1. Know and understand the agency’s enforcement priorities, including policies and procedures. 2. Identify and designate appropriate company officials to deal with search warrants.

practice of the USEPA CID is to not provide split samples, even when asked. Furthermore, the USEPA CID agents will not be the ones taking the samples, but will instead usually leave the sampling to a trained technician. Your client should watch what the agents and the technicians do, take careful notes about the sample location and how the sample was collected by either the agent or the technician, the type of testing that will be conducted (i.e. what USEPA method of analysis) and then attempt to replicate the samples. Your client should also consider videotaping and/or photographing the sample site and the sampling event. Even if your client has someone on staff that has been trained to take samples, it is a better practice to retain an outside consultant for your client (to maintain privileges) to take similar samples from the same locations and have the same analysis run on the samples. HN Walter D James III is the founder and managing partner of James PLLC. He can reached at walter.james@jamespllc.com.

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3. Prepare a detailed plan on what to do, how to do it and how to followup. 4. When the search warrant is presented, Get a Copy of It! 5. Read the Search Warrant. 6. Identify the precise areas/premises to be searched – it must be specified in the search warrant. 7. Accompany the agent at all times as best able, Without Obstructing the Search. 8. Take notes. 9. Get a complete detailed inventory for everything taken under the search warrant. You should also advise your client Not to Destroy documents or advise employees to destroy documents. A search warrant executed by the USEPA Criminal Investigation Division may authorize the taking of samples. When this occurs, your client should always ask for split samples. Agents may or may not be willing to provide split samples and you should advise your client that the current

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16 H e a d n o t e s l D a l l a s B a r A s s ociation

A ugust 2017

Best Practices for Pleading and Proving Attorney’s Fees BY JADD MASSO AND ELIZABETH GRIFFIN

Recovery of attorney’s fees in Texas state courts has seen significant developments in recent years, with appellate courts requiring increasingly detailed evidence to uphold both summary judgment and trial awards. Since attorney’s fees can be a significant part of a client’s recovery, sometimes exceeding the amount of damages, litigators should take care to ensure compliance with the evolving pleading and evidentiary standards. Below are a collection of best practices developed from the latest rulings.

Pleadings A party must affirmatively plead for attorney’s fees. But a general prayer for attorney’s fees may not provide adequate notice. A party must plead sufficient detail of the legal basis for fees to enable responding parties to determine what evidence may be relevant.

So a party should not only plead that it is entitled to attorney’s fees, but also why. However, the level of specificity in pleading a basis for fees can raise a conundrum of sorts. If a pleading is too vague, it may not provide fair notice of the basis for recovery. But if it is too specific, it may limit the party’s grounds for recovery by barring recovery on grounds not specifically pleaded. One court has held that so long as a pleading alleges facts that would entitle the party to the relief sought, it need not specifically name the applicable statute. Regardless, the best practice is to identify any legal bases for attorney’s fees in your pleading and allege adequate facts to support them.

Evidence Remember to lay the proper foundation for your expert’s opinion. A party must show the expert is qualified to opine on the reasonableness and neces-

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sity of the fees. An expert’s testimony should begin by discussing the expert’s background and experience. Next, the testimony should establish that the expert’s analysis and opinions are based on a thorough review of the contemporaneous time and billing records and the expert’s familiarity with the case. If the expert is also trial counsel, she should prove-up these records. If not, the expert should explain what she did to gain knowledge of the case. After establishing a solid foundation, the expert should testify regarding the work performed on the case. For each attorney who worked on the case, the expert should identify the attorney’s: • Name; • Basic qualifications including their title, years of experience, specialty area, etc.; • Hourly rate; • Number of hours billed to the file; and • Role or focus in the case, such as discovery, motion briefing, trial support, etc. The expert should opine as to (1) whether each attorney’s hourly rates are reasonable for the case based on their training and experience, and (2) whether the number of hours worked in the case were reasonable and necessary, explaining how much time the work required. The expert should discuss the nature and extent of legal services performed by each attorney and when. The expert should also provide the basis for an opinion regarding the amount of recoverable fees that were necessary and reasonable, discussing the Arthur Anderson (Arthur Anderson & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997) factors.

Expert testimony should also include the amount of expenses incurred by the attorneys, briefly describing the types of expenses involved and whether they are reasonable and necessary. If contingent appellate fees are sought, the expert should not only opine on likely appellate fees and expenses, but also identify the attorneys who would be involved and discuss their qualifications, rates, and an estimate of potential hours for each. Remember to address each phase of appellate proceedings: appeal to the court of appeals, petition for review to the Texas Supreme Court, merits briefing, and oral argument. If the case involves claims for which attorney’s fees are recoverable and claims for which they are not, the expert must testify regarding segregation of fees. Rather than specifically stating a number of hours or dollars, the expert may testify to the percentage of total fees that are recoverable. In a jury trial, the party should ensure the jury question on attorney’s fees is appropriately tailored to the recoverable claim. Finally, a party should make sure to present evidence to satisfy any particular requirements of statutes authorizing attorney’s fees awards. For example, for fee claims under Chapter 38 of the Civil Practice & Remedies Code, issues may arise about whether the defendant is in fact a “corporation” or whether the claiming party adequately “presented” its claim. If those issues are disputed, a jury finding may be necessary. HN Jadd Masso is partner at Strasburger & Price, LLP. Elizabeth Griffin is an associate at at the firm. They can be reached at jadd.masso@strasburger.com and elizabeth.griffin@ strasburger.com, respectively.

3rd Annual L.A. Bedford, Jr. Awards Luncheon Friday, August 18, Noon at Belo Honorees include: • L.A. Bedford, Jr. Distinguished Jurist Award: Hon. Louis Sturns • Hon. Sam A. Lindsay Professionalism and Ethics Award: Ambassador Ron Kirk • C.B. Bunkley Community Service Award: Rev. Zan W. Holmes, Jr. • Hon. Cleo R. Steele Committed Mentor Award: District Attorney Faith Johnson Tickets: $35; Table: $350; Title Sponsorship: $1,500 To purchase tickets, or for more information, contact tatianaa1908@yahoo.com or lori.hayward@hotmail.com.

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D al l as Bar A ssoci ati on l Headnotes 17

Energy/Environmental Law

Texas Nuisance Law Clariﬁed BY CHARLES W. SARTAIN

In Gardiner v. Crosstex North Texas Pipeline LLC, the Supreme Court of Texas clarified and reshaped Texas nuisance law after decades of confusion by courts and commentators. As a result of Gardiner: • “Nuisance” now refers to a type of legal injury involving interference with the use and enjoyment of real property. Nuisance does not, as it had in past jurisprudence, refer to a defendant’s conduct, a legal claim or cause of action, an event or activity that is the “cause or source of a harm”, the harm itself, or liability that results from the harm. • Nuisance now refers to a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it. The interference must be substantial. To paraphrase Prosser and Keaton, the law does not concern itself with trifles or seek to remedy petty disturbances, even from conduct committed with knowledge that annoyance and inconvenience will result. Whether an interference is substantial or merely a trifle necessarily depends on the particular facts at issue, including, for example, the nature and extent of the interference and how long it lasts or how often it recurs. The effect must be unreasonable. Substantial interference is not a nuisance unless the effect on those who otherwise use and enjoy their land is “unreasonable”, based on an objective standard of persons of ordinary

sensibilities, not the subjective response of any particular plaintiff. It’s the effect, not the conduct. The plaintiff must establish that the plaintiff’s discomfort or annoyance is unreasonable, not that the defendant’s conduct or land use was unreasonable. It concerns the reasonable expectations of a normal person occupying the plaintiff’s land. The effects of the defendant’s conduct or land use must be such that would disturb and annoy persons of ordinary sensibilities and ordinary tastes and habits. Let us count the factors. The court identified at least ten factors that could determine whether the defendant’s interference with the plaintiff’s use and enjoyment of the land is substantial and whether any particular effect of that interference is unreasonable. These factors range from the general (the interests of the community and public at large) to the specific (the magnitude, extent, degree, frequency, or duration of the interference and resulting harm). The court recognized the fact-intensive nature of a nuisance case and made it clear that these are questions to be resolved by a jury. Damages can vary. The condition may interfere with a variety of the plaintiff’s interests in the property. There can be physical damage to the plaintiff’s property, economic harm to the property’s market value, harm to the plaintiff’s health, or psychological harm to the plaintiff’s peace of mind. Actionable nuisance is still divided into three classifications. Each requires some degree of culpability, although illegal or unlawful activity is not required. Intentional nuisance. “Intent” here means that the actor desires to cause a

consequence of the act or believes that the consequences are substantially certain to result from it. An intent to inflict injury or desire to do harm is not required. Intent is measured by a subjective standard: The defendant must have actually desired or intended to create the interference or must have actually known or believed that the interference would result. The evidence must establish that the defendant intentionally caused the interference that constitutes the nuisance, not just that the defendant intentionally engaged in the conduct that caused the interference. The plaintiff need not separately establish that the defendant’s conduct was also “unreasonable”. Negligent nuisance. Nuisance not limited to intentional interferences. A claim of nuisance is appropriate so long as it refers solely to the alleged legal injury. If the allegation is negligent nuisance, the rules of ordinary negligence apply.

Strict liability. Any activity which involves an unusual hazard or risk could result in strict liability nuisance. The premise of strict liability is that the defendant was engaged in some kind of activity exposing others to a risk of harm from accidental invasion under circumstances that justify allocating certain losses from such risk to the defendant. That the defendant acted with reasonable care does not matter. In Gardiner the court found no evidence that a compressor station is abnormally dangerous. Conclusion. Gardiner doesn’t address every issue likely to arise (limitations, for example) but it is a must-read for every practitioner about to tackle a nuisance case, whether as a plaintiff or a defendant. HN Charles Sartain is partner and head of the litigation section of the Dallas ofﬁce of Gray Reed & McGraw. He can be reached at csartain@grayreed.com.

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Together We Dine On Tuesday, June 20, Project Unity partnered with the Dallas Bar Association and Highland Park United Methodist Church to host a Together We Dine event. More than 160 culturally diverse people from across Dallas, including facilitators from the DBA, St. Paul UMC, and Highland Park UMC participated in this thought-provoking dinner event. Open conversations about race, religion, and politics were held during the evening and participants agreed that â&#x20AC;&#x153;there is a strong desire to change race relations in America, and that we need to listen to others and speak up for what is right.â&#x20AC;? Another Together We Dine event will be held in the Fall. If are interested in participating, please contact President Rob Crain at rcrain@crainlewis.com.

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A ugust 2017

Augu st 2 0 1 7

Focus

D al l as Bar A ssoci ati on l Headnotes 19

Energy/Environmental Law

Wards of the State: Abandoned Oil and Gas Wells in Texas BY ROBERT W. ROLL

The roster of abandoned wells maintained by the Texas Railroad Commission (RRC) typically expands during extended commodity-price downturns. Many wells drilled in a higher-price environment are shut-in, and some operators struggle for survival. As this down-cycle surge intensifies, it is important to have an understanding of Texas’ regulatory process for abandoned wells and how to avoid being left with one. The end-of-life process for Texas wells is initiated when a well becomes inactive. An inactive well is an unplugged well with no reported production for at least one year. As of April 2017, about 27 percent of the wells in Texas were inactive—approximately 118,000 wells. From September 2015 to August 2016, operators plugged 9,296 wells without dipping into the industry-funded Oil and Gas Regulatory and Cleanup Fund (OGRC Fund). Private industry plugs the vast majority of inactive wells without RRC intervention—consistently around 95 percent of all wells plugged. If not addressed, however, a growing list of inactive wells is a millstone for a Texas operator. RRC rules require every operator to annually renew its organization report—its license to operate. Operators must plug inactive wells or obtain plugging extensions prior to the report-renewal date. Most operators avoid well-specific extensions by complying with the RRC’s operator-level, blanket-extension requirements—for example, by plugging or restoring to production ten-percent of their inactive wells from the prior compliance year. But, without an extension, the RRC cannot renew an operator’s organization

report, resulting in suspension of all the operator’s activities in Texas. A delinquent operator’s inactive wells are re-classified as orphaned wells. As of April 2017, there were approximately 8,300 orphaned Texas wells. Orphaned wells are often abandoned and become plugging liabilities of the State by insolvent or unlocateable operators. The RRC plugged 544 orphaned wells in its 2016 fiscal year, and it is projected to plug more than 1,000 this year. When the RRC oversees plugging, the State takes a first lien on any wellsite equipment and seeks reimbursement of plugging expenses from the record operator. If the record operator is insolvent or unlocateable, the non-operator owners of an orphaned well—even those who went “non-consent” in the well—may be held accountable for plugging expenses. Likewise, a prior operator may incur unexpected plugging liability if an operatorship transfer is botched, even if a noworphaned well was in compliance when the transfer was attempted. The obligation to plug an inactive well is transferred to a new operator only when the transfer is approved by the RRC. Transfer of operatorship is initiated by preparing a Certificate of Compliance (P-4) and filing it with the RRC. Upon approval, the RRC sends a written notification to both operators. P-4s approved after September 1, 1997, definitively establish record operatorship. Earlier P-4s create a rebuttable presumption that may be difficult to overcome due to passage of time. Either way, a transfer is only valid upon approval by the RRC. Plugging is never the royalty owner’s obli-

gation. Of course, this is little consolation if an abandoned well is left behind with no one around to plug it. At every stage of mineral development, landowners may take precautions to avoid this outcome. One practical safeguard is the selection of an operator-lessee having the financial wherewithal to carry out plugging. Another is to negotiate a contractual plugging covenant in the oil and gas lease. For example, the lease may include a monetary penalty for failure to plug an inactive well prior to a certain date or a recurring monthly charge payable to the mineral owner for each month that passes before a non-productive well is plugged. In addition, by monitoring the status of inactive wells, a landowner may prevent a well from sitting inactive for too long, thereby reducing the risk of operator absence or insolvency. Online records available at

the RRC’s website are a vital resource, but equally important is an investigation (if one can be safely conducted) of the wellsite’s physical condition. Ultimately, if a well is leaking oil, gas or a hazardous substance, it should be plugged promptly by the RRC, which triages plugging priority based on the threat a well poses to the environment and public safety. If all else fails, surface owners can take matters into their own hands. By statute, a surface owner has the right to coordinate plugging of an abandoned well by hiring an RRC-approved plugging contractor. Upon successful completion of plugging operations, the RRC reimburses the owner for up to fifty percent of the plugging costs out of the OGRC Fund. HN Robert W. Roll, of Hoge & Gameros, LLP, is Board Certiﬁed in Oil, Gas & Mineral Law. He can be reached at rroll@legaltexas.com.

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A ugust 2017

DBA Presents Third Annual Day of Service BY BETH HEARN

In 2015, inspired by other community organizations’ days of service, the DBA Community Involvement Committee decided to start a lawyer-led day to encourage volunteering and to promote good relations among lawyers in the Dallas community. The result was the DBA Community Day of Service. The Day of Service provides the

opportunity to participate collectively as the Dallas legal community and to encourage positive relationships between attorneys and those in the Dallas community. Volunteering is good for the community, and it is good for YOU! Volunteering can: • reduce stress by helping you focus on others’ needs; • make you healthier, happier, and give you a feeling of control;

• provide valuable community services so money can be spent on local improvements; • give you a new perspective and teach you new skills; • strengthen the community by improving families and schools, supporting youth, and beautifying the community; and • provide you a sense of accomplishment by giving you an opportunity to give back to the community.

Involvement Committee is inviting you to get involved and volunteer through the DBA’s 3rd Annual Day of Service. This year, the event is scheduled for Saturday, October 21, 2017 and will include volunteer opportunities with: • Bonton Farms; • Dallas Animal Services; • Dallas Arboretum • DVAP East Dallas Clinic (on Thursday October 19);

According to a 2013 study by United Health Group, there are four key benefits of volunteering that make a positive impact on people’s health: • Health: volunteers say that they feel better—physically, mentally and emotionally; • Stress: volunteering helps people manage and lower their stress levels; • Purpose: volunteers feel a deeper connection to communities and to others; • Engagement: volunteers are more informed health care consumers, and more engaged and involved in managing their health. Additionally, volunteering through the DBA Community Involvement Committee will give you an opportunity to interact with fellow DBA lawyers and judges outside of the typical work or CLE environment. This is why the DBA Community

• Dallas Area Habitat for Humanity; • North Texas Food Bank; and • The Senior Source/C.C. Young Memorial Home. Bring your spouses, children, friends, and neighbors and join the DBA Community Involvement Committee, the Christian Lawyers Association, the Dallas Asian American Bar Association, Texas Tech School of Law, and UNT Dallas College of Law for the 3rd Annual DBA Day of Service on Saturday, October 21, 2017. To sign up or to get more information, log on to www.dallasbar.org/ dbacommunitydayofservice or contact the committee’s chair, Claude Smith, at csmith@chfirm.com, or Kathryn Zack at HN kzack@dallasbar.org. Beth Hearn, attorney at law, is a member of the DBA Community Involvement Committee and can be reached at beth@bethmhearn.com.

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D al l as Bar A ssoci ati on l Headnotes 21

Energy/Environmental Law

Recent Developments in Oil-and-Gas Law BY THOMAS G. CIARLONE, JR.

The first six months of 2017 have been chock full of major developments in the law surrounding oil and gas in Texas. In summary format, this article brings together a convenient digest of everything important that has happened so far this year. Davis v. Mueller, No. 16-0155 (Tex. May 26, 2017). Here, the Texas Supreme Court considered an appeal that challenged, as ambiguous, a mineral conveyance that had been made on a county-wide basis (in other words, a mineral deed providing for the transfer of all the seller’s oil-and-gas interests in a specific county). Industry insiders had been closely monitoring the case. After all, to the extent it were held that all-encompassing, county-wide conveyances are invalid as a matter of law, the floodgates would open and unleash a torrent of mineral title litigation. Mercifully, the Texas Supreme Court ruled that county-wide mineral deeds are valid and enforceable. Leaving no room for doubt, Chief Justice Nathan Hecht wrote that, on its face, a county-wide conveyance “could not be clearer.” Justice Hecht then added, simply enough, that “all means all.” Lightening Oil Co. v. Anadarko E&P Onshore, LLC, No. 15-0910 (Tex. May 19, 2017). In this case, the Texas Supreme Court decided whether drilling through a mineral estate— one which is not under lease by the driller—to access a reservoir beneath a bordering tract constitutes a form of trespass. The operator, Anadarko Petroleum, secured permission from the surface owner (of a tract adjacent to the company’s leasehold) to spud a well and drill directionally into the mineral estate “next door.” The owner

of the mineral rights under the surface of the spud site, Lightning Oil, argued that Anadarko trespassed when it bored through Lightning’s mineral estate. The Texas high court affirmed decisions from the appellate and trial courts that had rejected Lightning’s claims. As the Texas Supreme Court sees it, the surface owner is presumptively the master of “the mass of earth undergirding the surface.” The Court did acknowledge that the appropriate test is nevertheless fact intensive, involving a careful balancing of the competing interests of all the involved parties. The fundamental inquiry is the extent to which the horizontal drilling will cause the unleased mineral owner to suffer a loss of oil and gas. In Lightning’s case, only a “small amount of minerals [was] lost through that process,” and, according to the justices, this is not enough to rise to the level of mineral trespass. Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, Ltd., No. 15-0225 (Tex. Jan. 6, 2017). The Denbury Court clarified the standards under which a pipeline company can qualify as a common carrier for purposes of exercising eminent domain powers to seize private property to build a gas pipeline. Historically, a pipeline company would qualify as a common carrier simply by self-identifying on a Texas Railroad Commission form. That all changed in 2012, when the Texas Supreme Court handed down an opinion involving a Denbury Resources affiliate and a landowner defendant, Texas Riceland Partners. At that time, the Court held that “unadorned assertions of public use are constitutionally insufficient”; so, for example, the Court explained that merely registering as a common carrier does not conclusively convey the extraordinary power of eminent

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domain. The complicating factor with the 2012 decision was that the Court did not go so far as to articulate, affirmatively, the kind of conduct that would, in fact, allow a pipeline company to identify itself as a common carrier for purposes of condemnation. Fast forward to 2017, and Denbury and Texas Riceland again found themselves in front of the Texas Supreme Court on the same issue. This time around, however, the justices did articulate a positive test for the kind of evidence that would allow a pipeline company to rise to the level of a common carrier in the context of exercising eminent domain powers. In particular, the Court concluded that the essential hurdle is whether the pipeline can show that it would serve the public interest by transporting gas “for one or

more customers who will either retain ownership of their own gas or sell it parties other than the carrier.” It is important to note that in its 2017 decision, the Texas Supreme Court was clear that a pipeline company can make the required evidentiary showing after condemning private land and after constructing a gas pipeline. Put another way, the required showing of a public interest does not have to occur prior to the exercise of eminent domain powers, but can instead take place afterward—self-evidently a very positive development for the industry. HN Tom Ciarlone, Jr. is a litigation partner at Kane Russell Coleman Logan PC. He can be reached at tciarlone@ krcl.com.

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In the News August FROM THE DAIS Rogge Dunn, of Clouse Dunn, spoke at the In House Counsel Summit. David Colmenero, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke at the East Texas Chapter/TSCPA CPE Spring Expo. in Tyler, at the Texas Association of CPAs, he spoke for the North Texas Chapter of the American Academy of Attorney-CPAs, and for the Wichita Falls Chapter/TSCPA. Josh Ungerman, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the East Texas Chapter/TSCPA CPE Spring Expo in Tyler, for the Dallas CPA Meeting of the Texas Association of CPAs, he spoke at the Texas Bank and Trust at their annual Taxation and Estate Planning Update for Professionals seminars in Tyler and in Longview, he spoke at the Tax Alliance Conference in Plano, and for the NYU 9th Annual Tax Controversy Forum in New York, NY. Mike Villa, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the East Texas Chapter/ TSCPA Spring CE Expo in Tyler, for the American Society of Tax Problems Solvers in San Antonio, and for TE/GE Councils in Dallas. Joel Crouch, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the Strafford Webinar, for Texas Bank and Trust at their annual Taxation and Estate Planning Update for Professionals seminar in Tyler and in Longview, at Convergence 2017 sponsored by the Dallas CPA Society, at the

North American Petroleum Accounting Conference in Dallas, he spoke for the Texas Federal Tax Institute in San Antonio, at the Sea Conference sponsored by the Houston Chapter/ TSCPA by CPE in Galveston, and also for the Texas Forum on International Tax-Biannual Luncheon in Dallas. Eric Marchand, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke at the Texas Association of CPAs in Dallas CPA Meeting and for the State Bar of Texas Annual Meeting - Tax Section in Dallas. Anthony Daddino, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the Texas Association of CPAs Dallas CPA Meeting and for the State Bar of Texas Annual Meeting - Taxation Section in Dallas.

Sarah Wirskye, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke in Austin at the New Fraud & Enterprise Risk Conference sponsored by the Texas Society of CPAs Jerry Selinger, of Patterson & Sheridan, LLP, presented at the 2017 Electronic and Computer Patent Law Summit in Toronto, Canada.

KUDOS Ken Raggio, of Raggio & Raggio PLLC, placed 3rd in the country at the 2017 National Senior Games, Mens’ Track & Field 800 meter. Neil Orleans, of Law Offices of Judith W. Ross, was elected Vice-PresidentFinance and member of the Executive Committee of the Richardson Symphony Orchestra.

Matt Beard, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the Dallas CPA Meeting of the Texas Association of CPAs, for the Taxation and Estate Planning Update for Professionals Texas Bank and Trust in Dallas and for the Taxation and Estate Planning Update for Professionals Texas Bank and Trust in Longview, for the North Texas Chapter of the American Academy of AttorneyCPAs in Dallas, and for the Wichita Falls Chapter/TSCPA CPE.

Hilda C. Galvan, Partner-in-Charge of the Dallas Office of Jones Day, accepted the 2017 W. Frank Newton Award which recognizes the pro bono contributions of a law firm whose members have made outstanding contributions in providing legal services to the poor. The award was presented at the State Bar of Texas Annual Convention.

Trey Cousins, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the Taxation and Estate Planning Update for Professionals Texas Bank and Trust in Tyler and also in Longview.

Meloney Perry, of Perry Law P.C., has been elected as the 2017-18 Chair of the Insurance Law Section of the State Bar of Texas.

William Elliott, of Elliott, Thomason & Gibson, LLP, was honored by the State Bar of Texas Section of Taxation as 2017 Texas Tax Lawyer of the Year.

The William “Mac” Taylor Inn of

Court has elected new officers. Steve Gwinn, President, Nicole LeBoeuf is the Counselor, and Chad Ruback is the Secretary-Treasurer. The immediate past president is Justice Elizabeth Lang-Miers. Ann Massey Badmus, of Scheef & Stone, LLP, was selected as a recipient of the University of Delaware’s 2017 Alumni Wall of Fame Award. Jere Hight, of O’Neil Wysocki, PC, has been promoted to Partner.

ON THE MOVE Will Cage has joined Holland & Knight LLP as Associate. Thomas Moses has joined Stacy Conder Allen LLP. Jacob Lewis has joined Gray Reed & McGraw LLP as Associate. Catherine Bright Haws has joined Carrington, Coleman, Sloman & Blumenthal, LLP, as Of Counsel. Nikki Fanous and Seth Sloan have joined Kane Russell Coleman Logan PC as Senior Counsel and Associate, respectively. Jonathan Nowlin joined Children’s Health System of Texas as Assistant General Counsel. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org

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The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/dallaslawyer-referral-service or call (214) 220-7499.

Augu st 2 0 1 7

Classifieds

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August

EXPERT WITNESS

Economic Damages Experts – HSNO is the Forensics Firm. The Dallas office of HSNO has six CPA testifying experts who specialize in the calculation of economic damages in areas such as commercial lost profits, personal lost earnings, business valuations, property damage, insurance litigation, intellectual properties, commercial litigation, contract disputes, bankruptcy, and fraud. HSNO is qualified in most industries including, but not limited to; energy (offshore and onshore), manufacturing, hospitality, service, insurance, transportation, entertainment, product liability and construction. HSNO has 17 U.S. offices and an office in London. Contact Peter Hagen or Karl Weisheit at (972) 980.5060 or go to HSNO.com. Mexican Law Expert - Attorney, former law professor testifying for 20 years in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/ defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 602-9895. dlopez88@rocketmail.com. Economic Damages Experts - Thomas Roney has more than thirty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 6659458 or Houston (713) 513-7113. troney@ thomasroneyllc.com. “We Count.”

OFFICE SPACE

Downtown Dallas – Two window offices with included secretarial space available, in the historic KATY Building overlooking the Old Red Courthouse and Kennedy Memorial. Receptionist, notary, phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at (214) 748-1948. Downtown Dallas - Office Sharing, Law firm seeking attorney with transaction, litigation, family law and/or probate law background. Furnished (or unfurnished) office with or without a window, near Court House and public transportation. Case referrals are possible. Will provide conference room, kitchen/break area, receptionist, notary, phone system, Wi-Fi, fax, and copier. 1-year lease preferred, but will consider month-to-month for right fit. (parking & postage extra) Additional services available for fee. If interested, call JJ at (214) 389-1170. Lee Park Area - executive office space available for lease in a professional, legal environment. Two large executive window offices available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas

available for assistants or paraprofessionals. Three bench seat spaces available for daily or short-term use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, Wi-Fi, notary, conference room, kitchen area, covered visitor parking, and free secured office parking. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 7405033 for a tour and information. Campbell Center I: AV rated law firm has a window office (15x15) for sublease in Class A Bldg. Space has exceptional finish out and elevator exposure. All amenities included. $850/month. Call Joy (214) 361-1262. Virtual Office – Available Immediately! Contemporary office space, 12222 Merit Drive, Suite 1200, offers five conference rooms, receptionist, Internet service, mail service, parking, fully equipped breakroom. $300 monthly fee – competitive rates! Email Amy at arobinson@ englishpllc.com or (214) 528-4300. Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference room. 2619/2608 Hibernia St 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & Internet. Phone (214) 987-8240. North Dallas - Hillcrest/LBJ Office share opportunity: Monthly rate includes electricity, phone and Internet. Building has reserved underground parking, 24/7 security, and free visitor parking. Suite has receptionist, large conference rooms, fully-equipped mediator’s office, Law Library, secure filing area, kitchen and copier. Contact Hicks at (214) 697-3537 or hicks@morganmediations.com. North Dallas. Law Firm – Merit Tower Office Space - For Lease: Contemporary office space, 12222 Merit Drive, offers five conference rooms, receptionist, Internet service, lobby, library, fully equipped breakroom, parking, workout facilities. Available 5/1/17. Email Amy at arobinson@englishpllc.com or (214) 528-4300. McKinney Avenue. Office with secretarial area available at 4054 McKinney Avenue. Shared conference room, break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $800.00 for the furnished or unfurnished large office and $300.00 for the furnished secretarial office. Call (214) 520-0600 Uptown. 4054 McKinney Avenue has available one office suite with 1550 sq. ft. and one suite with 2500 sq. ft. Each space has three of more offices with reception and secretarial space. Located across from Cole Park with surface parking. One year terms with flat rates are available. Call (214) 520-0600. Frisco-Hall Park. Law firm with fully-furnished, premier lobby offices. Seeks officeshare. Possible cross-referrals. Lake views. Large conference room, three available offices, secretarial desk, kitchen, Internet, covered parking. Terms negotiable. Call (972) 922-8866.

Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee

Walnut Glen Tower (Walnut Hill/Central). Great Deal! Terrific offices in Class A building near NorthPark with views of downtown over lake with fountains. Convenient access to DART station. Prized, central location wherever you need to go in the Metroplex. Do business in a relaxed yet professional environment which includes administrative stations, conference room, kitchen, copier, phones, reserved garage parking, on-site restaurant and other amenities. A larger executive office and/or smaller offices/flex space for as little as $500/month. A fully furnished office is an option. Why not have a professional location for your business and quality of life at work? Please call (214) 373-0404 for details. Downtown Dallas - Arts District. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. Downtown Dallas. Beautiful office space available near Arts District. Amenities include conference room, kitchen, Wi-Fi. Furnished offices, with or without downtown view. Located near DART rail. Notary and mail service. Parking available. Virtual space $300/month. Office space $1000-1250. Call (214) 624-9803.

POSITIONS AVAILABLE

Experienced Civil Litigator. Boutique construction law firm seeks experienced civil litigator with trial experience. Strong writing skills required. Compensation negotiable. Send cover letter and resume in confidence to oaklawnfirm@ aol.com Downtown Defense Firm – Experienced Associate. Downtown mid-sized defense litigation firm looking for associate with 5+ years’ experience. Practice areas include overall defense litigation, premises liability, automobile, trucking and subrogation (both workers’ compensation and ERISA). Must have good communication skills, solid writing ability, be able to work independently and with others, and have experience working with insurance companies. Great opportunity for a motivated, self-starting individual. Please submit resume and salary requirements to dwoodard@downsstanford.com. Dallas Firm Seeks Litigation Attorney. Small, AV rated, downtown insurance defense litigation firm seeks a full-time attorney with a minimum of 1 - 2 years of litigation experience. Personal injury and first party bad faith experience required.

Applicant should be highly motivated, a team player, Computer literate, work well without supervision, and possess excellent research and writing skills. Fax resume and salary requirements to Administrator at (214) 748-1421 or email to jtbdal@ tx.rr.com. Medical Malpractice Defense Attorney. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire an attorney with 3-5 years’ experience. Medical malpractice defense experience preferred. Send your resume to Christine Santosuosso, Adm. Mgr., Thiebaud Remington Thornton Bailey, 4849 Greenville Ave., Suite 1150, Dallas TX 75206 or e-mail to: csantosuosso@ trtblaw.com or fax to (214) 754-0999. Fort Worth Real Estate Firm near downtown in need of an associate attorney with 3-5 years’ experience. Please forward resumes with salary requirements to asincleair@bamolaw.com.

SERVICES

Energy Acquisition(s): I buy any size royalty(ies), mineral(s), working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/years. E-mail to bleitch@prodigy.net or call Kirk Leitch or Brenda Phillips at 1-800760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www. ProfessionalAncestryResearch.com. Wanda Smith, (972) 836-9091. Mediation Dispute Resolution ServiceMediation Center. Mediations at affordable rates. Please visit our website at www. mediatewithme.com. (469) 213-0940; (214) 932-3495. To place an affordable classified ad here, contact Judi Smalling at (214) 2207452 or email jsmalling@dallasbar.org.

August Friday Clinics Friday, August 4, Noon at Belo “Trial Plans,” Mike Gruber | MCLE 1.00 Friday, August 11, Noon at Two Lincoln Centre (5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240) “Disorder in the Court: Life as a Bipolar Lawyer,” Kelly Rentzel | Ethics 1.00 Sponsored by the CLE & Peer Assistance Committees. Thank you to our sponsor Fox Rothschild LLP. Friday, August 18, Noon at Belo “Apples to Apples? A Comparison of International Arbitration to Domestic Litigation,” Nick Kennedy | MCLE 1.00 RSVP to yhinojos@dallasbar.org.

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