Dallas Bar Association
HEADNOTES
Focus Probate, Trusts & Estates Law
December 2015 Volume 40 Number 12
Payne Mitchell Law Group Supports Access to Justice with $25,000 Pledge Andy Payne and Jim Mitchell, of Payne Mitchell Law Group, have donated $25,000 to the 2016 Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program. Payne Mitchell Law Group, a personal injury law firm that specializes in products liability, commercial vehicles, medical malpractice, aviation, negligence, whistleblower, and business torts, has donated more than $175,000 to DVAP in the last nine years. Mr. Payne and Mr. Mitchell have helped many poor people through their donations to the Dallas Volunteer Attorney Program. With their financial support, the poor have received legal advice, guidance, and representation from volunteer attorneys—all of which are very hard to come by for the poor, not only in Dallas County but throughout the State of Texas and every state in the nation. In the United States, people accused of a crime are guaranteed the right to an attorney even if they cannot afford to pay for one. The United States Supreme Court’s unanimous, 1963 ruling in Gideon v. Wainwright changed our criminal justice system, providing defendants their opportunity to be heard, greater fairness in criminal courts, and arguably more of a chance for our justice system to be just. Today, it is difficult for anyone in our society to imagine anyone fighting criminal charges alone. The results, we presume, would be devastating—the loss of freedom without a chance to tell your side of the story and protect a person’s individual rights. But, in civil cases, people do just that—they go it alone. There is no equivalent Gideon v. Wainwright for those needing relief from the civil courts. Maybe it is because civil litigants don’t run the risk of prison that we are not collectively outraged or even dismayed. While very sad, it doesn’t seem shocking that a poor person might have to fight his mortgage company alone, or a mother fight for custody of her child alone, or a terrified victim of domestic violence have to face her abuser alone. And while loss of one’s freedom may not
Andy Payne and Jim Mitchell
be on the horizon, the results can be devastating and create a domino effect that tears families and our community apart. But, then we have hope in the form of donors, volunteers, and groups who support the cause of legal aid to the poor. We have Andy Payne and Jim Mitchell who believe in civil justice despite one’s economic circumstances. We have the many other Equal Access to Justice donors, both small and large, who invest in the concept of justice and the positive impact it has on the community. We have attorney, paralegal, law student, judicial, and courthouse volunteers who interview the clients, work the cases, and represent the individual clients. We have intake clinics, pro bono CLE programs, and mentors. We have the Dallas Bar Association and Legal Aid of NorthWest Texas, and their joint pro bono program, the Dallas Volunteer
Attorney Program. We have awards and accolades, and we keep moving forward, trying to do more, help more, and provide a fairer Dallas civil justice system. We have something to be proud of because the Dallas legal community is standing $600,000+ up with more volunteers and more donors all the time who $550,000 are working to provide more services to more clients every $500,000 day. Much has been done to provide access to justice, and $450,000 there is much more to do. In Dallas, thousands get legal help every year because of pro $400,000 bono service, but more people need help and more volunteers $350,000 are needed. In Dallas County, a county with over 16,000 lawyers, we still have people right $300,000 now who are preparing to go to court tomorrow alone. $250,000 The Dallas Volunteer Attorney Program is a joint pro $200,000 bono program of the Dallas Bar Association and Legal Aid of $150,000 NorthWest Texas. The Dallas Bar Association and Legal Aid $100,000 of NorthWest Texas co-sponsor the Equal Access to Justice $50,0000 Campaign, which benefits the Dallas Volunteer Attorney Program. For more information on the Campaign or the Dallas Volunteer Attorney Program, please contact Alicia Hernandez at (214) 220 HN 7499 or ahernandez@dallasbar.org.
To Give: www.dvapcampaign.org.
by Alicia Hernandez
Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at ahernandez@dallasbar.org.
THANK YOU TO OUR MAJOR DONORS | Equal Access to Justice Campaign Kicks Off The Dallas Bar Association and Legal Aid of NorthWest Texas kicked off their annual Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program. A number of Dallas firms, corporations, and friends have committed major support. Please join us in recognizing and thanking the following for their generous gifts to the Campaign*:
PRESIDENT’S COUNCIL ($30,000) Connatser Family Law Crain Lewis Brogdon, LLP
PLATINUM ($10,000) Andrews Kurth LLP Baker Botts LLP Exxon Mobil Corporation Fish & Richardson W. Gary Fowler Haynes and Boone, LLP Jackson Walker L.L.P. KASTL LAW, PC KoonsFuller, PC Locke Lord Mike McKool, Jr. Texas LawBook The Hartnett Law Firm Thompson & Knight Foundation Vinson & Elkins LLP
CHAIRMAN’S COUNCIL ($25,000) Anonymous Deborah Hankinson Payne Mitchell Law Group DIAMOND ($15,000) Jerry C. Alexander AT&T Services, Inc. *Donors as of press time.
GOLD ($5,100+) Anderson Tobin PLLC Barnes & Thornburg LLP Carrington, Coleman, Sloman & Blumenthal, L.L.P. Dallas Association of Young Bankruptcy Lawyers Dallas Association of Young Lawyers Energy Future Holdings Legal Department Laura Benitez Geisler Greenberg Traurig, LLP McKool Smith Lewis Sifford Texas Lawyer The Mike and Barbara Lynn Philanthropic Fund Jeff Tillotson Robert L. Tobey Victor & DeNette Vital Joel & Terilyn Winful
Law firms, corporations, and individuals wishing to make a pledge will be prominently recognized beginning at the $5,000 level each month through January. To donate, contact Alicia Hernandez, ahernandez@dallasbar.org. For more information about the Campaign see www.dallasbar.org/dvapcampaign.
Inside
10 Preserving the Family Vacation Home—and Family Harmony 15 Transfer On Death Deeds 17 Trusts: Spotting the Issues in Transactions and Litigation 19 You Have Been Named as Executor in a Will, Now What?
DBA MEMBER REMINDER
RENEWAL MUST BE RECEIVED BY DECEMBER 31, 2015! Renew your 2016 DBA Dues online TODAY! Go to the DBA website and under the Membership tab, click on Renew Membership. Or if you prefer to mail in your payment, log in and select the 2016 Dues Statement option to print and mail in your 2016 DBA DUES STATEMENT with payment. Your 2016 DBA DUES must be paid by December 31, 2015 in order to continue receiving ALL your member benefits. Need help with your renewal? Contact Kim Watson, kwatson@dallasbar.org or (214) 220-741 Thank you for your support of the Dallas Bar Association!
2 He a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2015
Calendar December Events DECEMBER 4-BELO Noon
FRIDAY CLINICS
““What I know as a Judge That I wish I Would Have Known as an Advocate: Practice Tips for Persuasive Arguments,” Hon. Ingrid Warren. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
TUESDAY, DECEMBER 1 Noon
Persuasive Arguments,” Hon. Ingrid Warren. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
Corporate Counsel Section “Tips from the Trenches: Delaware 2015,” Mark Morton. (MCLE 1.00)*
Tort & Insurance Practice Section Topic Not Yet Available
Dallas Bar Foundation Board Meeting
6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, DECEMBER 2 11:30 a.m. DAYL Foundation Fellows Luncheon. Tickets $35; Table of ten $350 at www.fellowsluncheon.eventbrite.com. Noon
Employee Benefits & Executive Compensation Law Section “Understanding the New Accounting Rules for Equity Compensation Under ASC 718,” James Deets. (MCLE 1.00)*
THURSDAY, DECEMBER 3
Collaborative Law Section “The Care, Feeding, and Discipline of Collaborative Practice Groups,” Kelli Hinson, Richard C. Price, Julie Quaid and Anne Shuttee, moderator. (MCLE 1.00, Ethics 0.50)* Voting Rights CLE “Voting Rights and the Courts,” Chad W. Dunn and Kevin Wiggins, moderator. (MCLE 1.00)* Commemorating the 50th Anniversary of the Voting Rights Act of 1965 Family Law Section Board Meeting St. Thomas More Society
DVAP Education Advocate CLE “How to Become an Education Advocate for a Child in Foster Care,” Patricia Hogue. (Ethics 1.00)* Co-sponsored by DVAP and Teas Lawyers for Children. RSVP to patricia. hogue@texaslawyersforchildren.org.
11:30 a.m. Dallas Hispanic Bar Association CLE Noon
Tax Law Section “Recent Developments Regarding the IRS’ Offshore Voluntary Disclosure Initiative and Additional IRS Controversy Developments,” Jason Freeman. (MCLE 1.00)* J.L. Turner Legal Association Presidential Series CLE
TUESDAY, DECEMBER 8 Noon
Business Litigation Section “Recovering Attorney Fees,” Trey Cox and Jason Dennis. (MCLE 1.00)*
Mergers & Acquisitions Section/ Professionalism Committee “Hot Topics in Joint Ventures,” Caitlin Calloway and Rob Little. (MCLE 1.00)*
Government Law Section
DAYL Lawyers Promoting Diversity
DAYL Operation Blue Shield. For more information, contact cherieh@ dayl.com.
6:00 p.m. Home Project Committee
FRIDAY, DECEMBER 4 Noon
Trial Skills Section “Problems Young Lawyers Face at the Courthouse,” Nnamdi Anozie, Leslie Chaggaris, Hon. Eric Moyé and Jonathan Childers, moderator. (MCLE 1.00)*
MONDAY, DECEMBER 7
Public Forum Committee
5:30 p.m. Bankruptcy & Commercial Law Section “Fireside Chat with the Judges,” Hon. Stacey Jernigan, Hon. Mark Mullin, Hon. Russell Nelms and Hon. Brenda Rhoades. (MCLE 1.00)*
Noon
Intellectual Property Law Section “Patent Trial and Appeal Board (PTAB) Year in Review,” Peter Ayers. (MCLE 1.00)*
Friday Clinic-Belo “What I know as a Judge That I wish I Would Have Known as an Advocate: Practice Tips for
WEDNESDAY, DECEMBER 9 7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. 9:00 a.m. Pictorial Directory Photographer at Belo 11:30 a.m. House Committee Walk Through 5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, DECEMBER 10 Noon
Environmental Law Section “EPA’s Priorities,” Ron Curry. (MCLE 1.00)*
CLE Committee
Publications Committee
Christian Lawyers Fellowship
DAYL Foundation Board of Directors Meeting
3:30 p.m. DBA Board of Directors Meeting
THURSDAY, DECEMBER 17 Noon
Appellate Law Section “Appellate Ethics in Reel/Real Life,” Kirsten M. Castaneda. (Ethics 1.00)*
Dallas Women Lawyers Association “Tips for Successful Advocacy,” Hon. Royal Furgeson and Hon. Catharina Haynes. (MCLE 1.00)*
DBA Community Service Fund Board Meeting
Christian Legal Society
DAYL Animal Welfare Committee
FRIDAY, DECEMBER 18
6:00 p.m. J.L. Turner Legal Association
No DBA Events Scheduled
FRIDAY, DECEMBER 11 9:00 a.m. Santa Brings A Suit Drive Drop Off – Circle Drive at Belo.
MONDAY, DECEMBER 14
MONDAY, DECEMBER 21 No DBA Events Scheduled
TUESDAY, DECEMBER 22
Noon
Real Property Law Section “The eMortgage … With Tech Trends & Tips,” Keith Mullen. (MCLE 1.00)*
Peer Assistance Committee
6:00 p.m. DBA Family Holiday Party Enjoy pictures with Santa, toy trains, facepainting, balloon animals, sing-alongs and more! Please bring an unwrapped toy to be donated to charity. For more information, contact rthornton@dallasbar.org.
TUESDAY, DECEMBER 15 Noon
Franchise & Distribution Law Section “International Franchising: Drafting Tips from LOI to Agreements,” Jason Adler and Joyce Mazero. (MCLE 1.00)*
International Law Section “A Legal Practitioner’s Guide to the European Debt Crisis,” Dr. Nikolaos Davrados, PhD. (MCLE 1.00)*
DAYL Elder Law Committee
No DBA Events Scheduled
WEDNESDAY, DECEMBER 23 No DBA Events Scheduled
THURSDAY, DECEMBER 24 DBA Offices Closed in Observance of Christmas Holiday
FRIDAY, DECEMBER 25 DBA Offices Closed in Observance of Christmas Holiday
MONDAY, DECEMBER 28 No DBA Events Scheduled
TUESDAY, DECEMBER 29
5:30 p.m. DVAP & J.L. Turner Legal Association “You’ve Just Passed the Bar, Now What? Handling Your First Probate Case.” (MCLE 1.00)* Sponsored by DVAP and the J.L. Turner Legal Association
No DBA Events Scheduled
6:00 p.m. Dallas Hispanic Bar Association
THURSDAY, DECEMBER 31
WEDNESDAY, DECEMBER 16
Monday, December 14 6:00 to 8:00 p.m. at the Belo Mansion
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Noon
Energy Law Section “PV10 does not equal FMV,” Gregory E. Scheig. (MCLE 1.00)*
DVAP New Lawyers Luncheon. For more information, contact reedbrownc@lanwt.org.
WEDNESDAY, DECEMBER 30 No DBA Events Scheduled
DBA Offices Close at 1:00 p.m. in Observance of New Year’s Holiday
FRIDAY, JANUARY 1 DBA Offices Closed in Observance of New Year’s Holiday
“How to Become the Best Trial Judge and Trial Lawyer — Lessons Learned from Mark Lanier” Speaker:
Enjoy pictures with Santa, toy trains, clown, magician, face-painting, tap dancing by Class Act, sing-alongs and more! Mark Lanier, The Lanier Law Firm Introductions by Lisa Blue & Hon. Martin Hoffman.
Wednesday, December 9, Noon | Merrill Hartman Courtroom 8th Floor of George Allen Courthouse (600 Commerce Street) Seating is limited, first come first served. Brown bag luncheon. RSVP to kzack@dallasbar.org. MCLE 1.00 Co-Sponsored by the DBA and DAYL Judiciary Committees
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher 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 KZack@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
7/9/15 12:45 PM
4 He a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2015
Headnotes
President's Column
Reflections on a Memorable Year by Brad Weber
As I sit down to write my last President’s Column, the reality is starting to set in that a very memorable year is coming to an end. It started out in January with the DBA Presidential Inaugural. What a magical night! I was surrounded by close friends and family, including my parents, brother, and niece from Iowa, and my wife’s parents from Virginia. One of the many highlights of that evening was the beautiful invocation that was sung by my daughter Molly Weber and her friend Ashley Watson. We also announced the record breaking results of the Equal Access to Justice Campaign, which thanks to EAJ Campaign Chairs Laura Benitez Geisler and Robert Tobey, exceeded $1.1 million! February featured the DBA Board Retreat in Washington, D.C. Although the weather was cold and snowy, those who attended the retreat enjoyed a wonderful time together, including a private tour of the U.S. Supreme Court and an afternoon at the National Portrait Gallery. We also had fun testing the Board’s knowledge of the U.S. Presidents in a team trivia competition that was planned and directed by Retreat Chair Aaron Tobin and my son Ward Weber. In March the DBA once again hosted the Texas State High School Mock Trial Competition. Over 150 teams and more than 2,000 students from across the state participated in the competitions this year. The success of the High School Mock Trial Competition is due in large part to Steve Gwinn, who has been a member of the DBA’s High School Mock Trial Committee for more than 24 years and has served as an officer of the Committee, which he now Chairs, for the past 14 years. The month of April ended with the DBA’s Annual Pro Bono Golf Tournament at Brookhaven Country Club, the home course that Jordan Spieth played as a boy. This year the tournament was held on a beautiful afternoon a week after Jordan won the 2015 Masters Tournament, which added to the fun. For a $20 contribution to DVAP, I offered my putting “skills” to each group of golfers as I drove around the course in a golf cart with my wife Katie Weber and son Brody. David Kent and Tom Goranson chaired this year’s Golf Tournament Committee, which raised nearly $40,000 for pro bono legal services. May began with the DBA’s Annual Law Day Luncheon. Texas Supreme Court Justice Eva Guzman gave an inspiring keynote speech on the history and importance of the Magna Carta, and DBA Law Day Committee Chair Mandy Childs presented awards to the Dallas ISD students who won the lawrelated art and essay competitions. The luncheon was an important reminder of our great legal heritage and its foundations of liberty, justice, and equality. Bar None XXX: Obscenely Funny was held in June, and this year it raised a record breaking $107,290 for the Dallas Bar Foundation’s Sarah T. Hughes Diversity Scholarship. Led by Director Martha Hardwick Hofmeister and Producer Tom Mighell, the cast of Bar None performed an entertaining musical and comedy production that received standing ovations on four consecutive nights. Although I have attended Bar None many times in the past, this was the first year I actually performed in it. As a member of the cast, I was able to see firsthand how hard the Bar None Production Committee works in putting on this wonderful show, which during the past 30 years has raised over $1.7 million in scholarships for minority law students. July was highlighted with the 8th Annual Inspiring Women Luncheon. More than 550 members of the Dallas legal community attended this sold-out event, which featured Karen Gren Scholer as the moderator, and Monica Brown, Ophelia Camiña, Stacey Doré, Susan Hawk, Allyson Ho, and Margaret Keliher as panelists. These esteemed women lawyers shared with the audience their inspiring stories about themselves and their successful careers. Year after year this program continues to
sell out within hours of when the tickets go on sale. Law Jam 5 provided a great night of live music in August. This bi-annual fundraising event at the Granada Theater featured four terrific bands—Black Dirt Tango, Big Wheel, The Catdaddies, and Random Blue—each of which included at least one DBA member. The bands played a variety of songs from different musical genres, ranging from classic rock to 90s dance music. I particularly enjoyed The Catdaddies’ performance of I Will Survive, which featured a playful duet between Christina Melton Crain and my daughter Molly. This year Law Jam 5 raised nearly $18,000 for the Dallas Volunteer Attorney Program. September was a very busy month with several outstanding programs at the Belo Mansion, including “A Conversation with Dallas Police Chief David Brown” and the “Appealing to the Public Program,” which featured a live oral argument from a real case on appeal in the Fifth District Court of Appeals. For me, the highlight of September was the DBA Bench Bar Conference at Horseshoe Bay. The Bench Bar Committee was led by Katie Weber and Victor Vital, who planned and organized a superb assortment of CLE programs. The Conference also included the DBA’s Trial Lawyer of the Year Award dinner, which this year honored Dallas trial lawyer Rod Phelan. A busy September was followed by an even busier October. The 32nd Annual Stephen Philbin Awards Luncheon was one of the many programs in October, and it featured U.S. Ambassador Robert Jordan as the keynote speaker. DBA Media Relations Chair Cheryl Camin Murray also participated in the program and announced the winners of the various awards for excellence in legal reporting. Another outstanding event in October was the “Lunch with a Legal Legend” program featuring Harriet Miers, who was interviewed by her friend and law partner Karin Torgerson. Harriet provided candid and often humorous answers to questions about her legendary career, including her years in the White House as Counsel to the President. This program was planned and sponsored by the DBA’s Transition to Law Practice Committee and its exceptional Chair Kate Morris. As is our tradition, the DBA’s Annual Meeting was held on the first Friday in November. This year’s Annual Meeting had a number of special moments, including John Goren’s presentation of the memorial resolutions for forty DBA members who died during the past year, and Judge Royal Furgeson’s moving speech after he received the DBA’s Morris Harrell Professionalism Award. The DBA Officer and Director nominations were another highlight of the Annual Meeting. Congratulations to our new DBA President-Elect Rob Crain, First Vice President Michael Hurst, Second Vice President Laura Benitez Geisler, and Secretary-Treasurer Sakina Rasheed Foster. The DBA will be in good hands during 2016 with you and Jerry Alexander as our leaders! Looking ahead to December, I am excited about ABA President Paulette Brown’s planned visit to Dallas. Paulette is the first woman of color elected to the top post in the ABA’s 136year history. As ABA President, Paulette is promoting diversity and inclusion in the profession. She also recently spearheaded a new signature event, “And Justice for All: An ABA Day of Service,” designed to enhance and expand local efforts to increase meaningful pro bono service to low income individuals and groups. As I reflect back on all of the successful events and programs in 2015, I want to thank DBA Executive Director Cathy Maher and her amazingly helpful staff for all they have done to make this a very memorable year. I also want to thank my wife Katie and our kids for all of their love and support. Serving as the DBA President is a wonderful experience, but it takes a lot of time and effort. Having a supportive wife and family makes the HN job so much easier and better!
COME TO THE INAUGURAL OF Jerry C. Alexander Saturday, January 16, 2016 The Westin Hotel Galleria and bid on Packages from:
Bob’s Steak & Chop House
Perry’s Steakhouse & Grille
W Dallas-Victory
Hotel St. Germain
Time Ten Cellars
William Chris Vineyards
Café 43 George Bush Presidential Center Baylor Tom Landry Fitness Center Get your tickets now for the Inaugural at www.dallasbar.org.
Published by: DALLAS BAR ASSOCIATION 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: Bradley C. Weber President-Elect: Jerry C. Alexander First Vice President: Rob D. Crain Second Vice President: Michael K. Hurst Secretary-Treasurer: Victor D. Vital Immediate Past President: Scott M. McElhaney Directors: Wes Alost, A. Shonn Brown, Jonathan Childers (President, Dallas Association of Young Lawyers), Laura Benitez Geisler (Chair), Hon. Harlin “Cooter” Hale (Judicial At-Large), Hon. Martin Hoffman, Krisi Kastl, Michele Wong Krause, Monica Lira (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud, Cheryl Camin Murray (At-Large), Courtney Barksdale Perez (At-Large), Bill Richmond (President, Dallas Asian American Bar Association), Ebony Rivon (President, J.L. Turner Legal Association), Mary Scott, Diane M. Sumoski, Robert L. Tobey (Vice-Chair) and Aaron Tobin Advisory Directors: Stephanie Gause (President-Elect, Dallas Association of Young Lawyers), Rocio Cristina Garcia (President-Elect, Dallas Hispanic Bar Association), Emmanuel Obi (President-Elect, J.L. Turner Legal Association), and Monika Sanford (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Wm. Frank Carroll, Leon Carter, John Jansonius, Florentino A. Ramirez and Scott Stolley HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Annette Planey, Jessica D. Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Jared Slade and Meghan Hausler Vice-Chairs: Paul Clevenger and Keith Pillers Members: Timothy Ackermann, Jerry C. Alexander, Vincent Allen, Natalie Arbaugh, Jody Bishop, Lisa Tomiko Blackburn, Jillian Bliss, Jason Bloom, Andrew Botts, Lance Caughfield, Chhunny Chhean, Stephen Clarke, Shannon Conway, Joel Crouch, David Dummer, Christopher Elam, Alexander Farr, Daniel Felz, Dawn Fowler, Robin Ghio, Basheer Ghorayeb, Kimberly Gonzalez, Andrew Gould, Susan Halpern, Jeremy Hawpe, Zachary Hilton, Ezra Hood, Mary Louise Hopson, Michael K. Hurst, Ashley Johnson, Amanda Kelley, Sara Krumholz, Margaret Lyle, Thomas Maddrey, Orly Mazur, Jodi McShan, Ethan Minshull, Paige Montgomery, Jessica Nathan, Jeffrey Novel, Eugene Olshevskyy, Mason Parham, Aimee Pingenot, Kirk Pittard, Laura Anne Pohli, Lisa Prather, Michelle Reed, David Ritter, Carl Roberts, Lantis Roberts, Eugenie Robichaux, Joshua Sandler, Chandrika Shori, Micah Skidmore, Stefan Smith, Bradley Smyer, Thad Spalding, Elizabeth Stanley, John Stevenson, John Ting, Paul Tipton, Pryce Tucker, Peter Vogel, Tracey Wallace, Brad Weber, Philip Worley DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education Coordinator: Melissa Garcia Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Monique Scott, Zach Watkins Program Assistant: Patsy Quinn Secretary: Ellie Pope Copyright Dallas Bar Association 2015. 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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Focus
D al l as Bar A ssoci ati on l Headnotes 5
Probate, Trusts & Estates Law
Identifying and Solving Common Estate Planning Issues by Catherine E. Bright
How often do you prepare wills? Monthly? Annually? Less often? If you occasionally prepare wills for clients but do not consider yourself to be an expert, this article may help you identify a few important issues to keep in mind when helping clients with their estate planning.
Minor Children
Minors do not have the legal capacity to manage property, so assets generally should not be left directly to them unless one desires an expensive and burdensome guardianship proceeding. To avoid the need for guardianship, specify that inherited property should be held in an Uniform Transfer to Minors Act (UTMA) account, (if letting the child receive the property by age 21 is acceptable) or in a trust until the child reaches an appropriate age or meets other criteria specified by the client. Consider recommending to the client that the inheritance be distributed in phases to allow children to learn to handle money responsibly. Help the client designate UTMA accounts or trusts for the children as beneficiaries of the client’s nonprobate assets as appropriate. Name a trustee and successors in the will and provide a mechanism for others to be selected if the named trustees cannot serve. Do not forget to name the client’s choice of guardians of the persons and estates (in case property passes to minors despite the planning of the children).
Family Business
Clients often have difficulty making decisions how to handle a family business.. Numerous issues (more than can be mentioned here) arise that require careful planning before the business owner’s death to make sure that the client’s goals – whether tax-related, control-related, or otherwise – are achieved. Clients who own interests in S corporations and who use trusts in their wills should utilize QSST or ESBT provisions to avoid jeopardizing the S corporation election. Clients should consider including a devise of controlling/voting interests to (or a purchase option with financing provisions for) the heirs who the client wants to assume management of the business. Legal restrictions on who can own a business (e.g., a law or medical practice) should be addressed. Much of the planning for business owners extends beyond the will, so prepare for additional complexity! Review the governing documents (especially any buyout provisions) to avoid surprises. If the estate could incur a Federal or State estate tax, consider how recent tax cases on ownership of family businesses at death affect the planning and whether the estate will have any difficulty meeting tax burdens if the business is not sold (if so, plan for the necessary liquidity).
Nonprobate Assets
Nonprobate assets are sometimes overlooked in the planning process. It is necessary to include them because it is com-
Outstanding Court Staff Awards Luncheon The winners for the 2015 Outstanding Court Staff Awards will be announced and recognized at the DBA Judiciary Committee Luncheon on
Thursday, December 3 | Noon at Belo RSVP to kzack@dallabar.org.
mon for clients to have significant wealth in the nonprobate category and these assets do not pass under the terms of the client’s will. Common examples of assets in this category include IRAs, 401(k)s and other pensions, nonqualified plan assets, life insurance, annuities, joint tenancy, community property with rights of survivorship assets, POD and TOD accounts, and assets transferred during life to a living trust. Another example is property passing according to the new transfer on death deed (available in Texas as of September 1, 2015). Because the will provisions do not apply to these assets if a beneficiary designation is in place, be sure to help the client update beneficiary designations to align the disposition of these assets with the estate plan to the extent it makes sense to do so. It may make more sense for income tax reasons—and to make it easier to qualify for the marital deduction if that is important—to leave a qualified retirement asset to a surviving spouse outright rather than leave it in trust for the spouse, even if the will includes spousal trust plan-
ning. If nonprobate assets comprise a significant part of the estate and the estate could incur a Federal or State estate tax, make sure that the tax allocation clause in the will allocates the tax burden between the recipients of probate and nonprobate assets in the desired manner. Finally, if disclaimer of a nonprobate asset is likely, consider how that should affect the beneficiary designation form.
Portability
Estate tax planning is generally beyond the scope of this article, but one “hot” estate tax topic worthy of discussion is how the recently “permanent” portability of Federal estate tax exemptions between spouses affects estate planning choices. Portability allows both spouses’ exemptions from Federal estate tax to be used without needing to include a so-called “bypass trust” in the will or living trust, though a complete Federal estate tax return (Form 706) must be filed to make the portability election. Assets held in a properly structured bypass trust cannot benefit from a second basis adjust-
ment at the later death of the surviving spouse, whereas qualifying assets that are included in the spouse’s taxable estate at death can. The capital gains tax avoidance opportunity provided by relying on portability rather than a bypass trust for estate tax planning—assuming the surviving spouse will still own at his/her death assets having a higher value at that time than they had at the death of his/her spouse—raises the question whether a bypass trust is still the optimal tax planning strategy for a married client. In addition, a decision must be made in the estate administration context whether to port a decedent’s unused exemption (if any) to the surviving spouse, even if a bypass trust is used. If you are not confident that you will identify, understand, and be able to address the key issues in your client’s estate plan, seek help from an expert who can mentor or serve as co-counsel with you. HN Catherine E. Bright is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. She can be reached at cbright@keyharrington.com.
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2015
Dallas Bar Elects 2016 Officers Rob Crain Elected President-Elect By Jessica D. Smith
Members of the Dallas Bar Association proudly elected its 2016 officers during the Annual Meeting on November 6. Rob Crain, of Crain Lewis Brogdon, LLP, was elected president-elect and will serve as the Association’s 108th president in 2017. Mr. Crain was elected to the DBA Board in 2007 and was elected Chair of the Board of Directors in 2013. He currently serves as the Chair of the Public Forum Committee, which he founded in 2006, and is Board Advisor to the Probate, Trusts & Estates Law Section, the Securities Section, the Admissions & Membership Committee, and the Memorial & History Committee. In addition, Mr. Crain was the Chair of the 2011-2012 Campaign for Equal Access to Justice and was co-founder of the DAYL Freedom Run, among other activities. He is a Sustaining Life Fellow of the Dallas Bar Foundation and the Texas Bar Foundation. Additionally, Mr. Crain is a Past Director of Big Brothers Big Sisters of North Texas and serves as a Director of the Texas Trial Lawyers Association. Other officers elected at the Annual Meeting were: Michael K. Hurst, of Gruber Hurst Elrod Johansen Hail Shank, elected first vice-president; Laura Benitez Geisler, of The Geisler Law Firm, elected second vice-president; and Sakina Rasheed, of Haynes and Boone, LLP, elected secretary-treasurer. Brad Weber, of Locke Lord LLP, will serve as immediate past president and Jerry Alexander, of Passman & Jones PC, will serve as president in 2016. Additionally, on November 12, ballots for director positions were sent to members and five of the following nominees will assume director positions in 2016: Jonathan Childers, Dawn Estes, Krisi Kastl, Audrey Moorehead, Cheryl Camin Murray, Bill Richmond, Mary Scott, Robert Tobey, Victor Vital and Tatiana Waits. Ballots were due back November 23 and results were not available at press time. The 2016 presidents and president-elects of the minority bar associations will also serve on the board. Each year, the Texas Center for Legal Ethics & Professionalism co-sponsors the presentation of the Morris Harrell Professionalism Award with the DBA. The award was created in 1999 in honor of DBA Past President Morris Harrell to recognize an attorney who best exemplifies, by
2016 Officers at the November 6 Annual Meeting include (left to right): Brad Weber, Immediate Past President; Sakina Rasheed Foster, Secretary/Treasurer; Jerry Alexander, President; Rob Crain, President-Elect, Michael Hurst, First Vice-President and Laura Benitez Geisler, Second Vice-President.
conduct and character, truly professional traits that others in the bar seek to emulate. This year’s Morris Harrell Professionalism Award recipient was Hon. Royal Furgeson, Dean of the UNT Dallas College of Law. Martha Hardwick Hofmeister, of Shackelford, Melton, McKinley & Norton, LLP, and Tom Mighell, of Contoural, Inc., Co-Chairs of the Bar None Production Company, received the Jo Anna Moreland Outstanding Committee Chair Award. The Intellectual Property Law Section, chaired by Scott Breedlove, of Vinson & Elkins LLP, and the International Law Section, chaired by James McCarthy, of Diamond McCarthy, LLP, received the Special Section Award. And, the Minority
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Bar Leader Award was presented to Erin Nowell, Simon Greenstone Panatier Bartlett, PC. Presidential Citations were also presented to behindthe-scenes members who have faithfully performed often time-consuming tasks for the association. This year’s recipients were Laura Benitez Geisler, of the Geisler Law Firm, and Robert Tobey, of Johnston Tovey, P.C., for their outstanding efforts in successfully raising a record-breaking $1.1 million for the Campaign for Equal HN Access to Justice benefiting DVAP. Jessica D. Smith serves as the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
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D e c e mb e r 2 0 15 â€
D al l as Bar A ssoci ati on l Headnotes 7
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8 He a d n o t e s l D a l l a s B a r A s s o ciation
Focus
D ecem ber 2015
Probate, Trusts & Estates Law
Capacity Issues in Estate Planning - Dealing With the Diminished Client by Brandy Baxter-Thompson
Lawyers have an ethical obligation to make a good faith effort to determine if a potential client has the requisite capacity to retain counsel as well as enter into the contemplated transaction. Assessment of the client’s capacity begins with the initial contact. The hallmarks of diminished capacity include memory loss, confusion, agitation, inappropriate dress, or grooming issues. For estate planners who have a long-term relationship with a client, this issue may not come up until many years into your representation. The ABA handbook on Assessment of Older Adults with Diminished Capacity discourages lawyers from utilizing clinical assessment tools, such as the Mini-Mental Status Exam (MMSE), because most lawyers are not trained to use or interpret these tools. Instead, you should engage a practical approach to assessing capacity. Make sure to ask open-ended questions, such as “What can I help you with today?” rather than those that require a “yes” or “no” response, such as “Do you want me to prepare a will?” It is imperative to establish that the client is able to communicate his desires effectively. In addition to looking for signs of
diminished capacity, make sure the client is not subject to the undue influence of another. Have the client fully explain what she needs and allow her the time to answer without prompting or interruption. Do not allow someone else to speak for the client, even a spouse. If you believe she has the requisite mental capacity and is not subject to undue influence, there are some practical steps you should take to protect the client’s estate plan: • Have the client mark up a prior will to show the desired changes. • Meet with the client alone, limit communication with any beneficiaries, and avoid including them in client meetings or during the will signing. • Do not serve as a witness or notary public to the will, thereby eliminating potential disinterested witnesses. • Consider using witnesses that know the testator and are willing to testify in a will contest. • Consider video taping the will signing ceremony. • Consider having the client write a letter to the family explaining the reason(s) for the estate plan changes. • Consider having the client undergo a mental examination to establish capacity.
• Make sure the client understands that a “no contest” clause is ineffective if a family member has been completely disinherited. • Consider consulting with a probate litigation attorney to develop a plan of action to assist in the future defense of the estate plan. While avoiding a will contest may not be possible, these suggestions can assist the litigator in defending the estate plan. Also, bear in mind that your estate planning file is discoverable and no longer protected by the lawyer-client privilege in a will or trust contest. See TRE 503(d)(2). If you believe that your client is incapacitated, Texas Disciplinary Rule of Professional Conduct 1.02(g) requires that a lawyer take “reasonable action to secure the appointment of a legal guardian or other representative” if necessary to protect the client. Rule 1.05(c)(4) authorizes the lawyer to reveal confidential information, which is defined to include both privileged and unprivileged communications, in order to comply with the Rules, including 1.02(g). Before seeking a guardianship to protect a client, you should attempt to locate an agent under previously prepared powers of attorney. If none is
available or appropriate to assist the client, you may file an Information Letter with the court that complies with Texas Estates Code Section 1102.003. Given the circumstances, it may become necessary to file an application for guardianship as the applicant. A lawyer is protected from civil liability for filing a guardianship application if it is done in order to comport with the duty prescribed by Texas Disciplinary Rule of Professional Conduct 1.02(g). Franks v. Roades, 310 S.W.3d 615 (Tex. App.–– Corpus Christi 2010, no pet.). If you believe that your client is the victim of elder abuse, either physical or financial, you have a duty to report the abuse and can held criminally liable for failing to do so. Tex. Hum. Res. Code Ann. § 48.051. You can make a report by calling Adult Protective Services at 1-800-252-5400 or using their secured website: www.txabusehotline.org. In addition to Adult Protective Services, which is a statewide agency, Dallas County has the Elder Financial Safety Center. To utilize the Safety Center’s services call (214)-525-6130 or (214) HN 823-5700. Brandy Baxter-Thompson, of Calloway, Norris, Burdette & Weber, PLLC, is Board Certified in Estate Planning and Probate. She can be reached at bbthompson@cnbwlaw.com.
All Atwitter About Social Media Ownership by John G. Browning
In today’s Digital Age, where 74 percent of all adult Americans have at least one social networking profile and Twitter processes roughly 1 billion tweets every 48 hours, corporate America is eager to burnish its social media presence with pleas to consumers to “like us on Facebook” and “follow us on Twitter.” While the actual monetary value of social media connections is all over the map, businesses invest real resources in enhancing their online selves. But what happens when the valued employee who has developed a business’s social media presence leaves for the greener pastures of a competitor? Can he or she abscond with the Twitter followers, the “likes,” and the passwords to the social media accounts? To borrow a phrase from Facebook itself, it’s complicated. Courts all over the country are confronting the thorny issue of ownership of social media assets. In the 2014 Florida federal court case of Mattocks v. Black Entertainment Television, for example, plaintiff Mattocks was so successful with her unofficial Facebook fan page for the BET network’s series “The Game” that BET eventually hired her to manage it officially. It featured BET logos and exclusive content, and under Mattocks’ stewardship, the page’s “likes” grew from around 2 million to over 6 million. Mat-
tocks and BET began negotiating over full-time employment, but when discussions broke down, Mattocks limited BET’s administrative access to the page. BET responded by getting Facebook to shut down Mattocks’ fan page after migrating the likes to an official, BET sponsored fan page. Mattocks sued for, among other claims, conversion and tortious interference, claiming that BET had converted a business interest she had in the fan page and that the many likes translated into business opportunities. The court disagreed with Mattocks, granted summary judgment for BET and held that “likes”—which could be revoked by individual users—are not the same as goodwill and other intangible business interests. A California federal court considered a similar situation in PhoneDog v. Kravitz. Kravitz was employed as a product reviewer and video blogger for PhoneDog, a mobile news and review site, and maintained the Twitter account “@ PhoneDog_Noah.” His posts soon gained over 17,000 followers. When Kravitz left for a competitor, he refused to relinquish use of the Twitter account and simply changed the handle to “@noahkravitz.” This time, it was the PhoneDog (the exemployer) claiming an “intangible property interest” in these Twitter followers, with Kravitz arguing that Twitter followers are not property but “human beings
Voting Rights and the Courts December 3 | Noon | Belo Mansion
who have the discretion to subscribe and/ or unsubscribe” to the account. Although the court denied Kravitz’s motion to dismiss, the parties later settled their dispute without any definitive ruling on whether Twitter followers could constitute a property interest. The 2011 New York federal case of Ardis Health v. Nankivell presents the kind of quandary that many businesses risk facing. Ardis hired Nankivell as a “social media producer” to develop the company’s social networking presence. Later, upon discovering that Nankivell was engaged in a job search, Ardis terminated her. But Nankivell refused to return access and password information for the social media accounts and websites, and counterclaimed for conversion of her property rights. Ultimately, the court dismissed Nankivell’s claims and ordered her to provide the access information to her former employer—in part because Ardis had the foresight to have Nankivell sign an employment agreement stipulating that her work was company property. Cases like these provide valuable lessons for Texas lawyers and the businesses they represent. It is a wise idea to think ahead and incorporate social media ownership provisions into employment agreements, as well as provisions requiring that social networking account information and passwords be returned to an employer
upon termination (just like mandating the return of all confidential information). While no Texas courts have weighed in on the issue of social media accounts as property in the employment context, a recent bankruptcy court decision from the Southern District of Texas demonstrates that social media accounts can give rise to a property interest. In April 2015, the Bankruptcy Court in In re CTLI, LLC held that Facebook and Twitter accounts can be “property of the estate” in the bankruptcy of a business (and thus belong to the business), even when the contents of such accounts are intermingled with personal content of managers and owners. The case featured a struggle between equity holders over the Facebook and Twitter accounts for Tactical Firearms, a gun store and shooting range business. Original managing shareholder Jeremy Alcede had used the social media accounts for personal purposes as well as business promotion, and despite the Chapter 11 filing had sought to retain control over those accounts. But the court disagreed, finding that even though the accounts may have functioned as “an extension of his personality,” the social media accounts were nevertheless property of the bankruptcy estate, just like HN customer or subscriber lists. John G. Browning is a shareholder at Passman & Jones. He can be reached at browningj@passmanjones.com.
The DBA Directory Photographer will available to take photos for the 2016 Directory on:
Wednesday, December 9, 9 a.m. - 3 p.m. at Belo
Speaker: Chad W. Dunn (Attorney in Veasey et al. vs. Abbott et al.)
Photo session is FREE, requires no reservation and only takes a few minutes. Photos may be purchased for personal use.
Commemorating the 50th Anniversary of the Voting Rights Act of 1965
Questions? Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.
D e c e mb e r 2 0 1 5
D al l as Bar A ssoci ati on l Headnotes 9
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
D ecem ber 2015
Probate, Trusts & Estates Law
Preserving the Family Vacation Home—and Family Harmony by Laurel Stephenson
Fortunate families may have a vacation home considered to be a “legacy” asset to be enjoyed by future generations. Of course, children and grandchildren may not always share the same affection for the family vacation home as parents. Consequently, the ideal first step in planning a transfer of the property to descendants is to determine whether they have any desire to receive it or whether they would prefer it be sold and the proceeds used for other purposes. If it is decided to retain the property, it is important for parents to consider the proper time and manner for the transfer. To promote family harmony, parents should also consider how to provide for the children’s coordinated use and the upkeep of the property. While it may be tempting to opt for the simplicity of transferring property
outright to children, conflicts relating to co-ownership of property invariably occur, often without a simple means of resolution. Instead, consider transferring property to children via a trust or limited liability company and incorporating provisions in the governing instrument designed to avoid those conflicts. Prior to the property’s transfer, consideration should be given to its potential to trigger a mortgage due-on-sale clause and its impact on existing title and property insurance policies, as well as the need to contact local counsel to coordinate the transfer of out-of-state property. Parents can transfer the vacation property either during life or at the survivor’s death. For a lifetime transfer, consider a qualified personal residence trust (QPRT), which provides the grantor with rent-free use of the residence for a term of years and the ability
Professionalism Tip I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility. –Excerpt from the Texas Lawyers Creed Find the complete Creed online at http://txbf.org/texas-lawyers-creed/.
to continue deducting related expenses during that period. The value of the grantor’s retained rent-free use of the property reduces the gift made in conjunction with its transfer to the QPRT. At the expiration of the term, the property typically passes to a trust for children providing them with its rent-free use in an equitable manner outlined in the instrument. As a caveat, QPRTs are more tax efficient when interest rates are higher. Parents must pay rent to their children’s trust for their continued use of the property to avoid its inclusion in their estates. If structured as a “grantor trust” for income tax purposes, the trust should not be required to pay income taxes on that rent. The parents may also in that event be able to continue deducting property taxes and mortgage interest, although there is no definitive authority. As a caveat, transferring mortgaged property and structuring the children’s trust as a grantor trust raise issues beyond this article’s scope. Similar results may be achieved by transferring property to an LLC and assigning membership interests to children or a children’s trust at a discounted value reflecting the lack of control and marketability associated with an LLC interest. A child should pay rent to the LLC for the property’s use, if preservation of the LLC’s creditor protection benefits and application of future valuation discounts is desired. Otherwise, forgoing rent may be acceptable. Regardless, the governing document should ensure the children will use the property in an equitable manner.
Ideally, parents will also contribute funds to the trust or LLC for use in paying property taxes, insurance premiums, and other maintenance expenses. The governing document should nevertheless address payment of expenses if contributed funds are insufficient, including whether the property may be rented to third parties or whether children will be required to contribute to the payment of expenses or risk forfeiting their rights to use the property. For a transfer at the survivor’s death, either a trust or LLC serves as an appropriate vehicle. Regardless of the transfer’s timing, use of the parents’ gift or estate tax exemption amounts will minimize or potentially avoid altogether payment of those taxes, as will application of a fractional interest valuation discount if spouses transfer undivided interests in property. Keep in mind the need to secure a qualified appraisal of any transferred property for tax reporting purposes. Of course, not every child may have an interest in or ability to enjoy the family vacation property. In that event, consider providing for that child to receive (ideally, in trust) an equalizing amount of other estate assets or designating the child as beneficiary of an insurance policy on one or both parents’ lives. The family vacation home can bring a family closer together. Thoughtful planning for its transfer to the next generation can help to ensure that togeth HN erness will be preserved. Laurel Stephenson is a partner at Davis Stephenson, PLLC. She can be reached at laurel@davisstephenson.com.
~ In Memoriam ~
Since 1875, the DBA has honored recently deceased members by passing resolutions of condolences. This tradition continues through the work of the DBA Memorial & History Committee. To view the Memorial Resolutions presented to the families of deceased members, visit www.dallasbar.org. William Alexander (1920-2015), a 1941 graduate of Southern Methodist University School of Law
Harry DeFord, II (1941-2015), a 1966 graduate of the Baylor University School of Law
Alton Oxley (1955-2015), a 1980 graduate of the University of Oklahoma College of Law
John Anthony, Jr. (1918-2015), a 1952 graduate of George Washington University School of Law
Cromwell Dyer, Jr. (1932-2015), a 1961 graduate of The University of Texas School of Law
Hon. Robert Price (1931-2015), a 1954 graduate of Southern Methodist University School of Law
Paul Ave (1933-2014), a 1959 graduate of Indiana University School of Law—Bloomington David Baxter (1950-2015), a 1975 graduate of Southern Methodist University School of Law Charles Bell (1954-2015), a 1980 graduate of Southern Methodist University School of Law Claude Bell, Jr. (1918-2014), a 1942 graduate of The University of Texas School of Law Doyle Berry (1926-2015), a 1958 graduate of Southern Methodist University School of Law John Blankenship (1929-2015), a 1954 graduate of Southern Methodist University School of Law Norman Brown (1929-2014), a 1969 graduate of Southern Methodist University School of Law Beverly Burlingame (1953-2014), a 1990 graduate of The University of Texas School of Law
Robert Edge (1933-2015), a 1965 graduate of Southern Methodist University School of Law Charles Greef (1949-2015), a 1974 graduate of The University of Texas School of Law Jess Hay (1931-2015), a 1955 graduate of Southern Methodist University School of Law James Klancnik (1942-2015), a 1967 graduate of University of Michigan Law School Hon. Donald Koons (1934-2015), a 1962 graduate of Southern Methodist University School of Law Bernard Malone (1935-2015), a 1963 graduate of Notre Dame Law School Hon. James Martin (1944-2015), a 1969 graduate of Southern Methodist University School of Law Thomas Martin, III (1951-2015), a 1977 graduate of Southern Methodist University School of Law
Benjamin Read (1958-2015), a 1986 graduate of Pepperdine University School of Law Frank Smith, Jr. (1929-2014), a 1954 graduate of Columbia Law School Hon. Cleophas R. Steele (1945-2015), a 1970 graduate of Southern Methodist University School of Law Lisa Stegall (1957-2015), a 1985 graduate of Southern Methodist University School of Law Wai Brenda Tso (1984-2015), a 2012 graduate of Southern Methodist University School of Law Nancy Underwood (1951-2015), a 1977 graduate of Emory University School of Law James Vetter, Jr. (1934-2015), a 1960 graduate of Creighton University School of Law
Tom Matthews, Jr. (1936-2015), a 1960 graduate of Southern Methodist University School of Law
Allen Weed (1938-2015), a 1967 graduate of Baylor University Law School
Janna Countryman (1936-2015), a 1986 graduate of Baylor Law School
Benjamin McElroy (1922-2015), a 1949 graduate of The University of Texas School of Law
Joel Williams, Jr. (1920-2015), a 1948 graduate of Southern Methodist University School of Law
James E. Day, Jr. (1926-2015), a 1951 graduate of Southern Methodist University School of Law
Richard McGary (1954-2015), a 1984 graduate of The University of Texas School of Law
James Wood, Jr. (1926-2015), a 1951 graduate of The University of Texas School of Law
Jacob Decker (1981-2015), a 2007 graduate of Oklahoma City University School of Law
Christopher Mims (1951-2015), a 1977 graduate of Southern Methodist University School of Law
Fletcher Yarbrough (1934-2014), a 1960 graduate of Harvard Law School
De c e mb e r 2 0 1 5 â€
Dal 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 o ciation
D ecem ber 2015
USPTO Opens Office in Dallas by Elisabeth Evert, Eve Henson, Dyan House and Elise Selinger
The Texas Regional Office of the United States Patent and Trademark Office opened in Dallas on November 9. Local, state, and federal officials welcomed the USPTO to Dallas with a multi-day celebration that included public roundtables and a ‘Celebration of Innovation’ at The Perot Museum of Nature and Science, co-chaired by Elisabeth Evert, of Hitchcock Evert LLP, and Bart Showalter, of Baker Botts L.L.P. The ribbon cutting ceremony at the Old Red Museum—across the street from the Texas Regional Office’s location in the Terminal Annex Federal Building—included remarks by Dallas Mayor Mike Rawlings and U.S. Congresspersons Eddie Bernice Johnson (30th District), Pete Sessions (32nd District), and Marc Veasey, (33rd District); and a written statement from Texas Governor Greg Abbott. Community leaders, the Commissioner for Pat-
ents, notable inventors and administrative patent judges spoke to the attendees as well. The pinnacle of the ceremony was when Under Secretary for Intellectual Property and USPTO Director Michelle K. Lee swore in two new Dallas-based Patent Trial & Appeal Board judges before cutting the ribbon to official open the Texas Regional Office. The Texas Regional Office will give inventors from Texas, Alabama, Arkansas, Louisiana, New Mexico, Oklahoma and Tennessee unprecedented access to the Patent Office. The Dallas site will provide space for applicants from the seven states served to conduct in-person interviews with patent examiners, house a Patent Trial and Appeal Board (PTAB) proceeding room, and provide remote access to PTAB proceedings at other USPTO facilities. The public, including inventors, entrepreneurs, startups, researchers, corporations and universities will have the opportunity to search the patent and trademark databases via dedicated workstations at the office. In addition, the office will
provide space for workshops, training, conferences, and roundtables for attorneys, examiners, inventors, and other professionals. The Texas Regional Office of the USPTO is the last of the four regional offices established in response to the America Invents Act’s mandate that at least three regional offices be established across the country. The other regional offices are located in Detroit, Michigan; Denver, Colorado; and San HN Jose, California. Elisabeth Evert, founding partner at Hitchcock Evert LLP, can be reached at eevert@hitchcockevert.com. Eve Henson, shareholder at HensonKettles PLLC, can be reached at eve@hensonkettles.com. Dyan House, partner at Carter Scholer Arnett Hamada & Mockler, PLLC, can be reached at dhouse@carterscholer.com. Elise Selinger, associate at Conley Rose, can be reached at eselinger@ dfw.conleyrose.com.
USPTO Director Michelle K. Lee addressed the crowd at the USPTO gala.
DVAP Presents: Avoiding Grievances & Honoring the Law Speaker: Robert Tobey Thursday, January 14, Noon at Belo | Ethics 1.00 To RSVP, contact reed-brownc@lanwt.org. The USPTO ribbon cutting ceremony at the Old Red Museum.
JAKE POLLACK FORMERLY OF KLEIN & POLLACK, L.L.P HAS JOINED HOLMES FIRM PC AS A SHAREHOLDER TO LEAD THE FIRM’S FAMILY WEALTH PLANNING PRACTICE GROUP *University of Texas, 1990 *St. Mary’s University School of Law, 1993 *State Bar of Texas, 1993 *Certified Mediator, 2006 *Chartered Advisor in Philanthropy®, 2012 *U.S. Tax Court, 2013 *Dallas Estate Planning Council *Children’s Medical Center Foundation, Board of Directors *Ronald McDonald House of Dallas, Endowment Trustee
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
Save the Date! January 22, 2016 | Noon-4:30 p.m. | Belo Mansion
Uncovering Implicit Bias and Understanding Its Effects MCLE 3.75, Ethics 1.00 | RSVP to ahernandez@dallasbar.org.
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Speakers: Hon. Bernice Donald, United States Court of Appeals, Sixth Circuit Professor Sarah Redfield, Professor Emeritus, University of New Hampshire Rhonda Hunter, ABA Diversity Center & DBA Past President Wei Wei Jeang, Partner, Grable Martin Fulton PLLC Sponsored by DBA, Dallas Minority Attorney Program, DBA Minority Participation Committee
De c e mb e r 2 0 1 5 â€
D al l as Bar A ssoci ati on l Headnotes 13
Strong Advocates – Creative Solutions to Complex Problems
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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
D ecem ber 2015
Ethics
Guardianship: Less Restrictive Alternatives and Supports & Services by Audrey Moorehead
According to Census.gov, the 2014 Dallas County population was 2,368,139. The percentage of persons over 65 in Dallas County was 9.7 percent. With almost 10 percent of the population in an aging demographic, Dallas is representative of aging trends across the state. The Texas Legislature made several changes in the area of Guardianship, one of the most significant of which was the addition of a fourth hour of training to the required Guardianship Certification course. The increased legislative attention to laws affecting senior citizens has been focused on protection of the elderly. We are now charged with a greater responsibility to be sure that guardianship is the last resort and is not being utilized to address issues that could be resolved with less restrictive alternatives. Texas Estate Code § 10001.001 requires the use of less restrictive alternatives. The legislature recognized that the definition of “Alternatives to Guardianship” in Texas Estate Code § 1002.0015 would be necessary for even the finest legal minds. Examples of “Alternatives” include: Medical Power of Attorney, Durable Power of Attorney, Declaration for Mental Health Treatment, Rep-
resentative Payees, Joint Bank Accounts, Guardianship Management Trusts, Specialized Trusts, Pre-Need Designation of Guardian, and Person Centered Decision Making. The role of the attorney, when approached by a potential client seeking guardianship of the person or estate is first to determine if there are avenues that would avoid guardianship. This article will discuss a few of the most utilized tools in the effort to avoid guardianship. Advanced Medical Directives and the Durable Power of Attorney are the documents most often used to avoid guardianship of the person and estate. Advanced Medical Directives include the Medical Power of Attorney. Historically known as the Statutory Durable Power of Attorney of Health Care, the Medical Power of Attorney, despite the name change, is still based on the statutes. The Medical Power of Attorney designates an agent to make medical decisions when the principal is unable to make or communicate a medical choice. It is important to note that the court may leave a Medical Power of Attorney in place even after the appointment of a guardian. Advanced Medical Directives also include the “Living Will,” which is formally known as a Directive to Physicians and
DAYL Foundation Fellows Luncheon Tuesday, December 2, 2015 | 11:30 a.m. – 1:00 p.m. Keynote address by David R. McAtee II, Senior Executive Vice President and General Counsel AT&T Inc. Tickets $35; Table of ten $350 Register at http://www.fellowsluncheon.eventbrite.com Recognizing the DAYL Foundation Award of Excellence Recipient: Chief Justice Carolyn Wright
2016 INAUGURAL OF Jerry C. alexander A T T HE W ESTIN G ALLERIA D ALLAS
ment of the less restrictive alternatives, the attorney must now be sure that “Supports and Services” have sufficiently been explored to ensure the potential ward has had access to formal and informal resources that would all the potential ward to maintain as much independence as possible. Supports and Services enable an individual to: 1. Meet the individual’s needs for food, clothing, or shelter; 2. Care for the individual’s physical or mental health; 3. Manage the individual’s financial affairs; or 4. Make personal decisions regarding residence, voting, operating a motor vehicle and marriage. 5. Supports and Services compliment Less Restrictive Alternatives in an effort to avoid or delay the necessity of guardianship. Protection of the proposed ward must ever be in the forefront in crafting a long term plan. We are uniquely situated in Dallas because we have an “Aging Network,” a network where agencies actually communicate with each other. We also have “211.” Anyone may access a myriad of services by calling #211 to access services and assistance. These issues are so important that a fourth hour has been added to the Guardian Ad Litem Certification Course that focuses entirely on least restrictive alternatives and supports and services. Uncertified attorneys may not represent a proposed ward at any stage of the proceeding including appeals. Sometimes we have to be attorneys and counselors of law to provide the best and most comprehensive service to our clients.
Family of Surrogates. This form allows an individual to choose among end of life treatment options. The Directive works with the Medical Power of Attorney because the principal is not to designate an agent on the Directive if the Medical Power of Attorney has been executed. Out of Hospital “Do Not Resuscitate” forms give instructions to emergency medical technicians or ambulance personnel to allow an individual to die upon presentment of the correctly executed form. Note that this form must be the official and original form printed by the Texas Department of Health. See www.tdh.state.tx.us./hcqs/ems/ index.htm#EMSRESOURCES. The Durable Power of Attorney designates an agent to perform any and all acts as if the principal had performed same. The principal and the principal’s successors in interest are bound without regard to the disability of the principal. The Durable Power of Attorney typically grants broad authority; however, some powers may be limited by the principal. Potential principals must be carefully advised to select a person worthy of the trust position in which they are being placed. Just as guardianships are increasing, so is the area fiduciary litigation and abuse of durable power of attorneys. Simple but high risk alternatives to Guardianship of the Estate are Convenience Accounts. These are bank accounts with cosigners, joint tenancy with right of survivorship, and other multi-party accounts. These accounts allows a trusted family member or friend to conduct financial business on behalf of the proposed ward. Sometimes the only thing convenient about the account is that it is convenient for someone to take the money. Once the attorney has made an assess-
Audrey Moorehead, of the Law Offices of Audrey Moorehead, may be reached at attorneyaudrey@gmail.com.
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Saturday, January 16, 2016 The Dallas Bar Association will inaugurate its 107th President, Jerry C. Alexander at the inaugural ball on Saturday, January 16. The black-tie ball will include dinner, dancing to music by the band New Ground and silent and live auctions.
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D e c e mb e r 2 0 1 5
Focus
Dal l as Bar A ssoci ati on l Headnotes 15
Probate, Trusts & Estates Law
Transfer On Death Deeds by Mark W. Sutherland
The recent legislature enacted a new Chapter 114 to the Texas Estates Code creating the Transfer On Death Deed (the TODD), a new tool for real estate and estate planning attorneys (and a potential thorn in their sides as well). Created as part of the Legislature’s access to justice initiative, a TODD provides a non-testamentary method for an owner of real property to convey title to that property at death. As a planning tool for attorneys, it may provide an efficient method for eliminating the need for any probate action in some smaller estates. For example, if Harold and Wanda own their residence as community property and Harold dies, the only asset of his estate that may require any probate action is that residence. If instead, Harold executes a TODD in favor of Wanda, that probate case may then be avoided altogether. The operation of a TODD is new to Texas. The Code defines the parties to a TODD as the “transferor” (the person owning the real property—essentially the grantor) and the “beneficiary” (the person receiving the real property— essentially the grantee). To be effective, the TODD must be recorded in deed records prior to the transferor’s death. However, unlike a traditional deed, the TODD remains fully revocable during the lifetime of the transferor (even if the TODD contains a provision to the contrary) and no interest at all vests in the beneficiary unless that transferor dies without having revoked the TODD. The Code provides a permissive form of a TODD along with a set of instructions to the transferor. To be effective, the
TODD must state that the transfer is to occur at the death of the transferor. No consideration is required, and no notice to or acceptance by the designated beneficiary is required. During the lifetime of the transferor, the TODD can be revoked in several different ways. The transferor can execute and file a written revocation of the TODD. The Code provides a permissive form for such a revocation. Further, a revocation occurs if the transferor subsequently records a new TODD or any other conveyance or encumbrance that is contrary to the TODD. However, a TODD cannot be revoked by a provision in the transferor’s will. The Senate Bill contains an array of additional operational provisions. Among them are the following: • The level of mental capacity required to execute a TODD is the same as that required for entering into a contract. • A TODD cannot be executed using a power of attorney. • If the beneficiary of a TODD is the transferor’s spouse, then upon the entry of a final judgment dissolving the marriage, the TODD is revoked if that judgment is recorded in the real property records of the applicable county before the transferor’s death. • Special rules apply if there are multiple transferors who hold title to the property as joint tenants with a right of survivorship. During the transferor’s lifetime, a TODD does not: • Affect any of the transferor’s interest or rights in the property, including the right to transfer or encumber the property or any homestead rights or any
applicable ad valorem tax exemptions. • Affect any interest or right of a transferee or any secured or unsecured creditors, with or without actual or constructive knowledge. • Affect the right of any transferor or beneficiary to receive public assistance, such as Medicaid benefits (subject to any contrary federal law). • Trigger a due on sale provision. • Create any legal or equitable interest in favor of the beneficiary or subject the property to the claims of the beneficiary’s creditors. • Contain a covenant of warranty of title even if the TODD contains such covenant. Although a TODD expressly creates a non-testamentary transfer: • The statute sets out presumptive rules regarding survival requirements and the percentage ownership among multiple beneficiaries, but these rules can be altered by the express provisions of the TODD. • The beneficiary takes title to the property subject to any liens or encumbrances in effect at the transferor’s death.
• The property remains subject to the secured creditor claims provisions of the Estates Code as if the transferor had made the transfer by a provision in the transferor’s will. • In certain circumstances, the personal representative of the transferor’s estate, creditors of the estate, or other affected parties can “claw back” the property to satisfy estate claims or tax obligations and to fund various probate allowances. Specific timetables are set for these claw back actions. This process is somewhat similar to the provisions found in Texas Estates Code 113.252 for enforcing claims against other non-testamentary assets. To date, few rules have been issued by title insurers or lenders regarding the impact of TODDs in those worlds. So whether we view the TODD as a new tool in the planning arsenal or as a source of many problems, we need to understand the TODD’s role and the HN applicable rules. Mark Sutherland, of Mark W. Sutherland, P.C., can be reached at mark@marksutherlandpc.com
Spanish for Lawyers: Sign Up Now! 10-Week Course Spring 2016 | Cost: $180 January 12-March 22, 2015 For more information, contact Yedenia Hinojos at yhinojos@dallasbar.org or (214) 220-7447
19TH ANNUAL SEMINAR FOR PROFESSIONAL ADVISORS
Retirement Accounts:
Planning Optimal Outcomes for Family and Charitable Objectives PRESENTED BY
Professor Christopher R. Hoyt
Friday, January 22, 2016 | 7:30 a.m. - 10:30 a.m. | Dallas Country Club
In this engaging and interactive session, Chris Hoyt will present: • A refresher course on Minimum Required Distributions • The overall tax environment for 2016 • The complications of naming a trust as a account beneficiary • Planning strategies for accounts in second marriages Individual tickets and table sponsorships are available. To view the availability of continuing education certification credits, or to purchase tickets, visit dallasfoundation.org or call 214.741.9898.
Christopher Hoyt is a Professor of Law at the University of Missouri-Kansas City School of Law, where he teaches courses in the area of federal income taxation and business organizations. He received an undergraduate degree in economics from Northwestern University and dual law and accounting degrees from the University of Wisconsin. Professor Hoyt has served as the chair of the American Bar Association’s Committee on Charitable Organizations (Section of Trusts and Estates). He is an ACTEC Fellow and has been designated by his peers as a “Best Lawyer.” He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils.
The Dallas Foundation, founded in 1929, is the oldest community foundation in Texas and serves as a resource for professional advisors, as well as a philanthropic partner for your clients.
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2015
Dallas Bar Foundation: Doing Good–Helping Others by Elizabeth Philipp
In 2015, Beverly Godbey, Chair of the Dallas Bar Foundation, was excited to announce at the Annual Fellows Luncheon that one student from each of the area law schools would be selected as a recipient of the Sarah T. Hughes Diversity Scholarship. This will bring the total amount of scholarships awarded since 1981 through the Sarah T. Hughes Diversity scholarship program to almost $2.1 million. Additionally, eight summer clerkships were awarded to 2L students through the Collins Clerkship program, bringing the total amount awarded since 1989 to more than $524,000. The DBF is pleased to have awarded $83,710 in grants for the 12-month period ending September 30, 2015. These grant awards are in addition to the other programs funded by the DBF including the Sarah T. Hughes Diversity Scholarships and the Collins Clerkships, the Justice James A. Baker Clerkship, the Donald C. McCleary Gardere Leadership Scholarship, and the Philbin Awards for excellence in legal reporting. The 2015 Grants Committee is chaired by Victor Corpuz, of Jackson Lewis LLP, with Scott McElhaney, of Jackson Walker L.L.P., serving as Vice Chair. They are joined on the committee by Kim Askew, of K&L Gates LLP, and Wei Wei Jeang, of Grable Martin Fulton PLLC. Each grant request is reviewed by the committee before being presented to the DBF Board of Trustees for final determination. Committee members review the requests to ensure the pro-
grams align with the DBF mission of supporting law related scholarships and education, charitable and legal aid for the indigent, law related forums for the furtherance of justice, and historical preservation and observances. The organizations must provide financial statements, a program budget, and a list of their board members which often include attorneys who are DBF Fellows. Of special significance this year is the coordination between three law schools to initiate the first Law Student Debt Program. This educational program was developed as a result of a recommendation made by the ABA in 2015 to provide debt management education to young and newly admitted lawyers. Throughout the year, selected grantee organizations are invited to attend a DBF Board meeting to report on the measurable difference the grant has brought to the beneficiaries of their programs. All grantees are asked to submit a written narrative on the results they have achieved from the initiatives described in their grant request. A partial list of grantees approved this past year include: • “Appealing to the Public,” a public
How to Recover Attorneys’ Fees in Texas
service program presented by the DBA in partnership with the Fifth District Court of Appeals at Dallas for DISD students and the public to enhance their understanding of the Court system and appeals process. An actual appeal is heard by the Court with 300 students in attendance. • Children At Risk summer clerkship for a 2L student to research legislation and programs to reduce trafficking of children in Texas. • F a m i l y Law Clinic at SMU Dedman School of Law, which provides pro bono legal services for complex family law cases and which also provides training for law students. • Dallas Bar Association educational program titled “Uncovering Implicit Bias and Understanding its Effects” which will be presented in January 2016. • DBA Law Student Debt Program which is the first program to be offered to law students on debt management. The program is being coordinated with the law schools at SMU, UNT, and Texas Tech. The DBA will be one of the first bar associations to offer such a program. • Dallas Urban Debate Alliance which provides debate instruction, debate competition, and attorney men-
tors to DISD students who would not otherwise have had an opportunity to participate on a debate team. • IGNITE, an after-school civics program for high school girls, which encourages their understanding of the political process, and the importance of having women involved in leadership positions as elected officials. • Innocence Project of Texas, which relocated to Dallas in 2015. • Law Jam 5 which raises funds for the pro bono legal services provided by the Dallas Volunteer Attorney Program. • Minority Attorney Program Committee of the DBA which provided a one day seminar for solo, small, and minority firms focusing on business development, marketing, office management, technology, guardian ad litem and court appointments. • Mosaic Family Services which provides legal assistance to a diverse and underserved immigrant population. • Texas High School Mock Trial program which is organized and supported by DBA members. Local attorneys and judges volunteer many hours each year to host and judge the state-wide high school competition. The winning school advances to the national competition. • Transition to Law Program which connects recent law graduates with experience lawyers for a year of oneon-one mentoring, networking, and HN CLE programs. Elizabeth Philipp is Executive Director of the Dallas Bar Foundation and can be reached at ephilipp@dallasbar.org.
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New 2016 Edition
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Authors by attorneys’ fees experts Trey Cox and Jason Dennis, How to Recover Attorneys’ Fees in Texas is a complete, step-by-step guide for practicing attorneys to help them win and defeat attorneys’ fees claims at trial. What will you find is this book? • Requirements to recover fees • Pre-filing and pleading steps • 2015 Survey of cases • Examples, forms and checklists • Update of the Lodestar method of calculating fees • Direct examination outline • Sample transcript of attorneys’ fees trial
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New Orleans Jazz & Dining Package (Three-night stay at Hyatt French Quarter with airfare for 2) Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, Purchase raffle tickets online at https://www2.dallasbar.org/dbaweb/dvap/raffle.aspx or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201).
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Visit www.TexasLawyerBooks.com or call 1-800-756-8993.
Drawing will be held at the DBA Inaugural Ball on January 16, 2016. The winner need not be present to win. The winner is responsible for all taxes, title and licensing. Prize is non-transferable. No cash option is available.
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Dal l as Bar A ssoci ati on l Headnotes 17
Probate, Trusts & Estates Law
Trusts: Spotting the Issues in Transactions and Litigation by J. Brooks Durham
Historically, trusts have been used extensively for asset protection and estate tax planning. Their more recent use in business succession and employee retention planning has only added to their prevalence in all aspects of the law. The anticipated reduction in the unified gift and estate tax exemption at the end of 2012 resulted in the hasty creation and funding of many trusts near the end of the year, many of which are now appearing in due diligence files of transactional attorneys and discovery files of litigators. When a trust appears, it is important to identify any issues that may affect your client’s interests. In the context of a transaction, an important and often overlooked issue is whether the agreement to which the trust is a party will be enforceable. Section 802 of the Uniform Trust Code provides that in certain situations, a transaction that is affected by a conflict between the trustee’s fiduciary and personal interests is voidable by a beneficiary affected by the transaction. For example, many business owners form trusts for their children and fund these trusts with a portion of their business. If the trustee is a business associate of the trust settlor, future sales or business succession transactions may involve a conflict between that business associate’s roles as trustee of the trust and as employee/owner of the business. Depending on the laws of the applicable jurisdiction and the terms of the trust, these transactions may be voidable by the beneficiaries. If it is determined that a conflict may exist that would make the trans-
action voidable, it is imperative that steps be taken to ensure the agreement is enforceable. If all of the beneficiaries of the trust have capacity, they could consent to the trustee’s conduct and ratify the transaction. Alternatively, many trusts provide for trust committees or trust protectors that can appoint an independent trustee to negotiate the transaction on behalf of the trust. In the context of litigation and divorce, the issue is often whether the assets held in the trust are protected from creditors or spouses. This analysis will typically begin with three questions. First, how was the trust funded? With the exception of the self-settled asset protection trusts available in certain jurisdictions, there is no creditor protection for an individual who is both a settlor and beneficiary of a trust. In community property jurisdictions, it is also important that a beneficiary’s community property interest was not used to fund the trust. In addition, there are fraudulent conveyance statutes that allow the settlor’s creditors to access funds that were transferred to trusts under certain conditions. Second, what rights does the beneficiary have over the trust assets? Crummey withdrawal rights are often used to ensure gifts to trusts are eligible for the annual exclusion allowed by Internal Revenue Code Section 2503(b) (currently $14,000 per year). These withdrawal rights will typically lapse automatically after a stated time period, such as thirty days. However, Internal Revenue Code Sections 2041(b)(2) and 2514(e) provide for certain income tax consequences if the lapse of a withdrawal right exceeds $5,000 or 5 per-
cent of the total trust corpus. To address this, many trusts contain provisions for “hanging” withdrawal rights that prevent the lapse of a withdrawal right in any year to the extent it would exceed the so-called “5 and 5.” For trusts with a long history of annual gifting (such as many life insurance trusts), these hanging withdrawal rights may have accumulated, resulting in the beneficiary having the power to withdraw many thousands of dollars from the trust. Depending on the jurisdiction, this may partially negate the creditor protection for the beneficiary of the trust. Finally, have the required distributions been made? Some trusts require annual distribution of income, such as a trust owning stock in an S Cor-
poration that has made an election to become a Qualified Subchapter S Trust. If these income distributions have not been made, either due to administrative oversight or because trustee does not want the income to be available to the beneficiary’s creditors, creditors may be able to force these funds from the trust to the beneficiary. Whether as a transactional attorney or a litigator, the appearance of a trust requires an additional level of scrutiny. Prudence requires an investigation of the trust instrument and the circumstances surrounding the trust’s funding HN and operations. Brooks Durham is an attorney at Mincey-Carter, PC. He can be reached at bdurham@minceycarter.com.
High School Mock Trial Competition – Judges Needed! Help Judge the Texas High School Mock Trial Competitions for January, February and March 2016! A variety of dates and times are available. No experience necessary! Earn self-study CLE credit. For more details, visit www.dallasbar.org/mocktrialjudges or contact mgarcia@dallasbar.org
18 H e a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2015
Pirates in the Navy: A Retrospective on Law Firm Innovation By Billie J. Ellis and William T. Ellis
The Lean, Mean, Litigating Machine The latest trend for large American law firms is the desire for perpetual growth, primarily through mergers, allowing for vast expansion in practice areas and global presence. The intensity of this focus is readily apparent. Interesting to note that, every year, the American Lawyer magazine publishes a list of the 100 largest law firms, as opposed to a list of the 100 best. Easier to track the largest firms than to attempt a qualitative analysis of which firms are best and why. In the same vein, it is easier for law firms to focus on size than to undergo the creative and contemplative task of determining how to genuinely improve as an institution and legal service provider. In 1986, a lawyer named John Quinn began to lead his new firm in a different direction. Whereas most large firms looked to expand their practice areas to
garner more business, Quinn’s model was unique—only litigation, with an emphasis on even narrower niche—taking cases to trial. The status quo assumed that a large firm could never garner enough business with such a single-minded focus. Though the market for high stakes litigation and trial work was small compared to other lucrative fields like tax, real estate, and finance, Quinn was able to secure a wildly disproportionate share of the market he chose, and with much lower overhead. Quinn also created a highly unusual management model. Bureaucracy, a slow decision making process, and frustrating politicking over compensation bedeviled most large firms, as they do today. In the face of this problematic status quo, Quinn again made a radical choice: eliminate the bureaucracy. He decided the firm would have no executive committee, no management committee, no recruiting or compensation committees. In their place, the firm used a host of creative means to make decisions quickly, efficiently, and with
BECOME INVOLVED IN HIGH SCHOOL MOCK TRIAL
Help with competitions Become an advocate for mock trial
Help recruit compeƟƟon volunteers and conduct trainings to educate schools, students and teacher coaches on mock trial.
as little politics as possible. Finally, despite lacking the size and reputation of the established firms, Quinn boldly decided to target only the top students from the very top law schools. Many thought this project a fool’s errand, assuming that only the established large law firms could attract those students. To make it possible, the firm allowed summer associates to split their summer, working half the summer with the firm, half elsewhere. Although common today, most large firms at the time did not allow it. Second, the firm focused on a unique, unofficial strategy of marketing. A new generation of law students were graduating with different priorities than their baby boomer parents. The firm presented itself to this new breed of law student as a cool, hip, and meaningful place to work: low-key dress and a laid-back vibe, with promises of early responsibility and courtroom experience. The firm created a powerful brand, and by selling it, attracted talent no one thought it could get. These innovations worked. As of 2013, the firm’s profits per partner were the second highest in the world.
Moving Forward
For entrepreneurs and successful companies, the possibility and impera-
tive of innovation has become obvious. Yet law firms too often fear it or consider it impractical. The brief historical sketches presented in this series of articles aim to begin a discussion about the dynamics of successful law firm innovation. In these examples, an intimate relationship unfolded between a visionary law firm leader and the changing legal landscape of his times. Instead of mimicking what other firms did, they saw what other firms failed to do. In the process, they re-envisioned the meaning, purpose, and identity of the American law firm. As we move deeper into the 21st Century, the future of law firms is uncertain, yet one certainty lurks on the horizon: radical and unpredictable changes will again morph the legal landscape. The shift will maim many firms. Others it will raze to the ground. Some firms will discover rich opportunities—for themselves, the legal profession, and their clients—hiding within these changing winds. And perhaps a few, under visionary leadership, will not only successfully adapt to the changes, but help create them. This is the last in a 3-part series. HN Billie J. Ellis is a partner at Locke Lord and can be reached at bjellis@lockelord.com. William T. Ellis, of The Law Office of William T. Ellis, can be reached at will@willellislaw.com.
Suzanne Duvall – Outstanding Mediator
Tournament tabulators
Work behind the scenes at the compeƟƟon to help tabulate scores for the high school mock trial compeƟƟon.
Mock Trial Compe��on Dates: January 23‐30, February 6 and March 3‐5, 2016 See website for details: www.texashighschoolmocktrial.com To volunteer, or for more informa�on: mgarcia@dallasbar.org | (214) 220‐7484.
THANK YOU TO ALL WHO VOLUNTEERED & HELPED TO MAKE THE DBA DAY OF SERVICE A SUCCESS! Thanks to you we were able to provide 150+ volunteers to assist the following agencies: Mi Escuelita Bon Ton Farms New Hope Foundation—Elves in Disguise Old Red Courthouse The Lord's Hands & Hearts Ministries The North Texas Food Bank West Dallas Legal Clinic SPECIAL THANKS TO Boy Scouts Rowlett 2nd Ward/LDS Church Christian Legal Society Greenberg Traurig SMU Law School Texas Tech Law School UNT Law School
Wayne Meachum, TMCA Credentialed Distinguished Mediator (right), presented Suzanne M. Duvall (left), Dallas attorney-mediator, with the Texas Mediator Credentialing Association’s Outstanding Credentialed Mediator for 2015.
DVAP’s Finest Erik Hudak
As a sole practitioner, Erik Hudak focuses primarily on probate, family, and business law. Erik has been volunteering with DVAP since he was licensed in 2013, and has worked on various divorce and probate pro bono cases during that time. As a lawyer, Erik has benefitted from DVAP’s fantastic training programs and from the mentorship provided. “Working with DVAP is a no-lose proposition: you get to help appreciative clients who need access to justice, you get great opportunities to develop your skills, and you get to meet lawyers who truly are helping to give back to the community.” Thank you for all you do, Erik!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
De c e mb e r 2 0 1 5
Focus
Dal l as Bar A ssoci ati on l Headnotes 19
Probate, Trusts & Estates Law
You Have Been Named as Executor in a Will, Now What? by Donna J. Yarborough
You may have been named as the Executor in a family member or friend’s Last Will and Testament. At the time, you probably did not give it much thought. Now the funeral is over and the bereaved family members are looking to you to tell them about the Will. Now the day has come that you are in charge of that person’s estate. What does that mean for you and what are you now required to do? There are several factors you should consider before you decide whether to probate the will:
1. Are you required to probate a Will?
Actually no. Probating a Will is only necessary to transfer property (real or personal) that does not already have a beneficiary designated on a transfer document, like a deed or beneficiary designation form. A Will in and of itself does not transfer title. So if the Will is the vehicle that leaves the house or the fancy car to someone, then the Will must be probated. Probate is the procedural process that enables the Executor to execute deeds and other transfers. You do not, however, need to probate a Will if the testator has already put all of the property into a trust, transferred by joint tenancy with rights of survivorship, or other beneficiary designation forms. No assets? No probate. Only debt? No probate.
2. What is the time limit for filing a Will for probate? The time limit to file a Will for pro-
bate is on or before the fourth anniversary of the Testator’s death. The only exception to the four-year limitation is if the person who is trying to probate the Will is not in default for not coming forward sooner (meaning they knew the Will existed and did nothing). Even if the Court finds that the Applicant is not in default for not probating the Will prior to the time limit, the Estates Code is clear that neither the Applicant nor anyone else can serve as the Executor of the Estate after four years.
3. What is the first thing to do to probate a Will?
After you learn that the Testator died and you were named an Executor in the Will, you need to contact an attorney. Why? Because Dallas County Courts will not allow any pro se Applicants in an Estate proceeding. Your legal fees incurred as Executor can be paid out of the Estate funds. Your counsel will need to do the following: • First confirm that you have the final Will and that is has not been revoked. Also, try to get the original because the requirements for probating a copy of a Will are exceedingly difficult. Confirm whether there are any signed codicils that apply to the Will. • Your attorney will draft and file an Application to Probate Will and for Issuance of Letters Testamentary. • The Application has to sit for 10 days prior to it being considered “ripe” for probate. This is because citation has to be served on all interested persons and returned to the Court. Also, notice has to be posted.
WHY DONATE TO THE EQUAL ACCESS TO JUSTICE CAMPAIGN BENEFITTING DVAP?
• If the Will meets all the requirements of a valid will; meaning, it has been signed by the decedent, two witnesses and is notarized, then only the named Executor need appear to “proveup” the Will. The hearing should be brief. • Once the Court admits the Will and after taking the oath to probate the estate pursuant to the Texas Estates Code, the Clerk of the Probate Court will issue “Letters Testamentary.” The Letters give you the power to step into the Testator’s shoes so you can make and act on his or her behalf. • After you receive Letters, you are required to prepare and file three things: 1) within 90 days after receiving Letters, an Inventory of all the property that comes into your their possession must be filed, or you must file an affidavit in lieu of the Inventory; 2) you must give notice to the heirs who inherit under the will; and 3) you must give notice to creditors.
• Additionally, the Executor must obtain a federal income tax number (EIN) for the estate of the decedent from the IRS. This will be required to open an estate bank account and will be needed if the estate is required to file an income tax return. The Executor will also need to file a final Form 1040 individual income tax return for the Decedent. • Finally, unless the Estate is being litigated or there are numerous debts or creditors, the Executor shall distribute the property. An Estate is not required to be closed by the Court, so once the Executor has done the things listed above (and the Estate is not involved in litigation), her job is done. Probating a Will is not difficult, but there are many nuances that require that you have an attorney who is experienced HN in the field Probate Law. Donna J. Yarborough, attorney at law, can be reached at donna@djy-law.com.
CIC Needs YOUR DONATIONS The DBA Community Involvement Committee is collecting gently used men and women’s suits, coats, dress clothes, and accessories (including dress shoes, shirts, belts and ties). Benefits the Dallas Life Foundation Drop off donations Friday, December 11, 9:00 a.m. to noon at Belo (circle drive). For more information, contact kzack@dallasbar.org.
Health Care Is Under a Microscope. Jody Rudman Has Seen It All.
1. Help provide legal aid to the poor. 2. Receive recognition in Headnotes, D Magazine, The Dallas Morning News and Texas Lawyer. 3. Receive recognition in the DBA’s weekly e-newsletter and on the DBA website and social media pages. 4. Be highlighted in press releases. 5. Be the subject of a feature Headnotes article on you, your
JODY RUDMAN
Health care providers need experienced legal counsel in responding to the increase in Accusations of regulatory and coding violations Fraud allegations Criminal investigations
firm or organization. 6. Receive complimentary tickets to the DBA Inaugural Ball. 7. Plus many more perks! Donate now to take advantage of these great benefits!
A former assistant AG and federal prosecutor, Jody Rudman is uniquely prepared to represent doctors and other clinicians in these critical legal challenges to their licenses and livelihoods. Our firm appreciates your referrals.
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|
214-744-3000
20 H e a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2015
Special Immigrant Juvenile Status for Foreign-Born Children
by Patricia Freshwater
1. Over 400 FREE CLE courses offered each year! Our 29 substantive law Sections present cutting edge CLE programs. Members meet monthly at Belo during lunch or in the evening. 2. DBA Headnotes monthly publication is full of substantive legal articles and weekly Dallas Bar Online enewsletter lists upcoming CLE programs and events. 3. Lawyer Referral Service panel is a great way to get connected with citizens who need legal help. 4. Get involved with various DBA Mentoring Programs that pair new lawyers with seasoned attorneys.
5. Post job openings, search resumes and jobs through our online DBA Career Center. Sign up on DBA website. 6. If you are accepting credit cards, trust your transactions to LawPay. DBA members can save up to 25% off credit card processing fees. For more information, call (866) 376-0950 or visit www.affiniscape.com/dallasbar. 7. You will be included in the DBA Pictorial Directory available in print and online to all DBA members. 8. Take advantage of ABA Publication Discounts as a DBA member. For a list of titles or to place an order, visit www.abanet.org/abastore.
9. The Dallas Volunteer Attorney Program offers lawyers
Pro Bono Opportunities to assist low-income residents through clinics, and provides free CLE training seminars. 10. DBA Committee Membership is a great way to perform community service and/or participate in the legal community. 11. Participate in social activities for great Networking Opportunities with lawyers from all areas of practice.
12. Discounts on Texas Rangers and Dallas Mavericks tickets available to all DBA members. 13. DBA members receive Clothing Discounts on Brooks Brothers and JoS. A. Bank clothing. For discount codes, send request to membership@dallasbar.org. 14. Members receive Hotel Discounts at many La Quinta Inns & Suites. Visit DBA website for more details. 15. Discounted Health Club Memberships are available at TELOS Fitness Center and The Texas Club. 16. DBA Members may rent the Belo Mansion for an event or special occasion or bring a guest to the daily buffet lunch. Questions? Contact Kim Watson, Membership Coordinator, (214) 220-7414 or kwatson@dallasbar.org
Between 2005 and 2014, more than 100,000 foreign-born children were placed in removal proceedings (often referred to informally as “deportation” proceedings) in Immigration Courts across the United States. Many of these children came to the United States fleeing violent conditions in their home countries of Mexico, El Salvador, Guatemala, and Honduras. Some came to the United States planning to apply for asylum because they had suffered domestic abuse or serious threats from organized criminal groups in their home countries. Very few of these children or their families had ever heard of Special Immigrant Juvenile Status, at least until they spoke to an immigration attorney or local non-profit organization. But over the last few years, attorneys in Dallas have assisted many of these foreign-born children with obtaining their permanent resident cards (often called “green cards”) through the Special Immigrant Juvenile Status (SIJS) program. The statutory basis for the law can be found in the Immigration and Nationality Act (INA) at § 203(b)(4), § 101(a)(27)(J), and § 245(h); together, these sections allocate visas to special immigrants, provide a definition of special immigrant juveniles, and detail the requirements for their applications for permanent resident status. Congress passed the first SIJS law in 1990. However, the eligibility requirements as initially enacted were very narrow and applied only to children who had been found eligible for long-term foster care due to abuse, abandonment, or neglect. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 subsequently made changes to the law, significantly broadening the eligibility requirements so as to provide humanitarian protection to a greater number of children. Under the law as it stands today, foreign-born juveniles in the United States may be eligible for SIJS if they have been abused, neglected or abandoned by one or both of their parents. For purposes of the federal immigration law, a juvenile is defined as an individual who is under the age of 21 and unmarried. The procedure for applying involves both the state courts and the federal immigration system. First, a U.S. state court with jurisdiction to make decisions about the custody and care of juveniles (in Texas, typically a family court), must issue an order making the following findings: (1) that the child is
dependent on the court or placed under the legal custody of a state agency or other individual appointed by the court; (2) that the child cannot be reunited with one or both parents because of abuse, abandonment, neglect or other similar basis under state law; and (3) that it is not in the best interests of the child to be returned to his or her country of nationality or last habitual residence. A finding that reunification with one or both parents is not viable does not require that parental rights be terminated. Although a short separation from parents probably would not meet the requirement, the possibility of reunification at some point in the future does not preclude eligibility so long as reunification is not currently viable. Furthermore, the “one or both” parents language of the statute makes clear that a child may be eligible for SIJS on the basis of the non-viability of reunification with one parent even while the child remains in the custody and care of the other parent. After the predicate order is issued by the state court, the next step of the process is to apply for both special immigrant juvenile status and permanent resident status through U.S. Citizenship and Immigration Services. Children are then called for an interview with the agency to verify their eligibility for lawful permanent resident status. Children who are in removal proceedings before an Immigration Judge may also apply for permanent resident status through the Immigration Court, after U.S. Citizenship and Immigration Services approves the special immigrant juvenile status petition. As a practical matter, however, the Immigration Judge will generally terminate removal proceedings to allow children who have demonstrated eligibility for the status to apply for their permanent resident cards through U.S. Citizenship & Immigration Services. Special Immigrant Juvenile Status, therefore, is a humanitarian program that offers two main protections to foreign-born children who have been abused, abandoned, or neglected. It provides an affirmative path to legal immigration status for these children, and it gives children in removal proceedings in Immigration Court a defense to being ordered removed from the United HN States. Patricia Freshwater is a partner at Schwamkrug, Freshwater & Lopez, PLLC and can be reached at freshwater@dfwvisa.com.
De c e mb e r 2 0 15
Focus
D al l as Bar A ssoci ati on l Headnotes 21
Probate, Trusts & Estates
Avoiding the Now Ubiquitous Will or Trust Contest by Christopher L. Carns
As the likelihood of litigation around estate planning continues to grow, prudent practitioners must be able to identify factors that lead to such contests and must know how to eliminate or reduce the likelihood of success of a will or trust contest. There are several factors practitioners should look for, including but not limited to blended families, late in life marriages, substantial separate property of one or both spouses, large charitable gifts, and what would appear to be an unnatural disposition of the estate. Of the factors listed, blended families, an unnatural disposition of the estate, and late in life marriages are very often the bases that lead to a will or trust contest. Moreover, the combination of two or more of the factors, such as a blended family arising from a late in life marriage that minimizes the inheritance of children of the decedent, very frequently results in a contest of the decedent’s estate planning. To eliminate or reduce the likelihood of success of a Will or Trust contest on the grounds of incapacity or undue influence, the two most common grounds, the following precautionary measures should be taken: • The client should visit his primary
care physician or a neurologist prior to and close in time to the signing of the will or trust. • The practitioner should assist the client and his physician by providing a form letter stating the legal elements of capacity to enter into a will or trust that seeks the physician’s signed affirmation of such capacity. • The client should be advised to come to the practitioner’s office alone, if possible, and if not, the party bringing him should not be a beneficiary under the estate planning documents. • Prior to and for a reasonable time thereafter, the practitioner should avoid any verbal, written, or electronic communication with any beneficiary under the estate planning documents related or incident to the client as oftentimes these parties assist with transportation and logistics for the elderly or disabled client. • The practitioner should only represent the client and not the spouse or other beneficiaries, or she should consider securing written waivers to the extent that they would be adequate under the circumstances. • If a likely contestant has been identified during or prior to the estate planning, the client should be advised to give the likely contestant a sizeable gift near the day of executing the estate
planning documents because acceptance of that gift is evidence of that party’s belief that the client had capacity to make a gift, which is very similar to the capacity needed to execute a will or trust. • The client, by and through the practitioner, should consider notifying the potentially disgruntled beneficiaries under the estate plan of its existence, along with a general description of its contents, in a letter enclosing the gift referenced above in order to immediately begin the running of the statute of limitations for a contest. • The practitioner should not be a witness or the notary for the documents, and his or her staff should follow the same procedures and “script” in all estate planning executions to ensure the manner of execution can be clearly and effectively communicated in the event the documents are the subject of a subsequent challenge. • At least one staff member should
be present in all meetings with the client to observe the client’s rationale and mannerisms memorialized in a written memo to the file immediately following the meeting. As estate planning practitioners, our primary objective and duty is to provide a plan that will ensure that our client’s wishes and intent are ultimately honored. Therefore, prudent practitioners must consider, recognize, and properly plan for a potential contest that could undermine, in whole or in part, the client’s intent and estate plan. Not only will a failure to properly plan for a contest result in a detriment to the client, but it will inevitably lead to countless hours spent by the practitioner and her staff in subsequent litigation, which may include a contest of the estate planning documents or a malpractice action HN against the practitioner. Christopher L. Carns is a senior associate at Dismuke & Waters, P.C. He can be reached at ccarns@dw-law.com.
You’ve Just Passed the Bar, Now What? Handling Your First Probate Case Tuesday, December 15, 5:30 p.m. at Belo | MCLE 1.00 To RSVP, contact reed-brownc@lanwt.org. Sponsored by DVAP and the J.L. Turner Legal Association
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22 H e a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2015
Caregiver Do’s and Don’ts by Christian S. Kelso
Most lawyers are familiar with fiduciary duties. Do not self-deal. Do exercise loyalty. Do not profit or benefit without express consent. Do avoid conflicts of interest. Do not fail to exercise due diligence. Do keep the principal informed. I could go on. These rules may be easy to recite on the bar exam, but how to they play out in practice? More importantly, what can a principal do to both care for a loved one and still avoid claims of breach? These are questions clients ask us (and we ask ourselves) with increasing frequency. Let us assume a client calls you. They feel responsible for the wellbeing of a family member, Grandma, who is declining mentally. Other family members are in the picture, but for whatever reason, your client feels responsible for taking care of Grandma. What do you tell them? Generally, clients in this position should focus on three goals: First, keep Grandma safe, then do your best to avoid litigation and, finally, try to preserve the principal’s estate. Sadly, however, these goals often conflict. Almost always, “taking care of grandma” means acting as her fiduciary, whether as a formal guardian, trustee, attorney-infact, or under some other arrangement. Thus, covering the legal basics of fiduciary conduct is a must. But if you want to go a step further, consider the list below of practical steps that your client may want to consider.
Column
1. DO put grandma’s needs ahead of your own. It may sound straightforward, but the single biggest problem that fiduciary clients tend to have is putting their own interests in the back seat. Taking care of grandma is not about the living in her house, driving her car, spending her money or protecting your interest in her estate. Taking care of Grandma is about making sure that she is able to live out her years in comfort and dignity. 2. DO NOT feel (or appear) entitled. Grandma’s property belongs to Grandma. Period. . Grandma’s move to a nursing home is NOT an opportunity for you to get some new furniture or china. Remember that, despite your best intentions, family may perceive your actions as entitled. If Grandma’s belongings must be moved because she cannot take them, address the situation equitably and be the first one to get the short end of the stick. 3. DO know what you are getting into. Taking care of Grandma is going to be hard and take a tremendous amount of time and energy to get right. Your work and family life will suffer. Grandma may not appreciate or understand your hard work and she may become unpleasant to be around. You will need to keep impeccable records to show what a good job you have done, so if you are not detail-oriented, you may want to let someone else take the reins. 4. DO NOT go it alone. There are quite a few professionals available
to help you help Grandma. It goes without saying that good attorneys, accountants and financial advisors are an absolute necessity. Another very important advisor to find is a good “care manager” who can help you navigate the world in which you have landed and help with day-to-day tasks.. If you are moving Grandma, be sure to consult with a competent senior care placement specialist, preferably someone local. Often, nurses, therapists, hospice providers, religious advisors or other persons will be involved, so use these people as additional “eyes and ears on the ground” to help you monitor facility staff, family members living with Grandma, or anyone else who might be in contact with her. If they will agree to communicate with you via email, all the better because this will provide you with a written record of your effort. 5. Do consider a well-drafted trust. Put simply, holding legal title to assets is a better way to manage assets than as an agent under a power of attorney. Banks and other institutions impose fewer limitations on trustees than they do on agents. Also, if Grandma has capacity to be involved, you and she can each be co-trustees initially. As Grandma’s capacity declines over time, control will often transition naturally to you alone without Grandma’s feeling threatened or jarred by an abrupt and overwhelming change in circumstances. 6. Do not withhold contact or information without good reason. Keeping family members away from Grandma
is a huge red flag. Obviously, any legitimate threat to Grandma’s physical, mental or financial well-being must be mitigated, but access to Grandma should generally be allowed. Likewise, information about Grandma, and in particular, her estate, should generally be shared with both family, as well as Grandma herself. 7. Do establish clear goals and discuss them with family. Should Grandma’s care be restorative or merely palliative? Are Grandma’s assets reasonably sufficient to provide for her care through the end of her life? If another family member is dependent on Grandma, what, if any, arrangements can be made to continue such care and should they be implemented? What expectations do other family members have with regard to Grandma’s care and the maintenance of her estate? At the end of the day, each of these rules may or may not apply in a particular case. Or, each may only apply after some modification. Clients may also resist the advice you give them or they may not see a problem looming on the horizon. As their attorney and counselor, however, the lawyer’s job to guide clients through this particularly precarious minefield, and these pointers will go a long way towards helping them get through it unscathed. HN
Anderson, LLP, has a new office at 2591 Dallas Parkway, Suite 302, Frisco, TX. Open by appointment only. Phone: (972) 963-5459.
Thomas Maddrey has founded Maddrey PLLC located at 501 Elm Street, Suite 450, Dallas, TX 75202. (214) 702-9862.
Christian S. Kelso is an estate planning attorney at FarrowGillespie and Heath, LLP. He may be reached at christian.kelso@ fghlaw.net.
In the News
FROM THE DAIS
Laura O’Rourke and Kimberly Rich, of Baker & McKenzie LLP, presented at the Association of Corporate Counsel DFW Chapter’s annual meeting. Robert Albaral, Guy Birkenmeier, Heiko Burow, Jorge Gonzalez, Bart Rankin, Michael Santa Maria, and Todd Schroeder spoke at the firm’s annual Doing Business Globally conference. Ann Hurwitz participated on a panel “Careers in International Law, and the Many Roads to Those Careers.” Brent Kugler and Tom Kulik, of Scheef & Stone, L.L.P., gave presentations at the Direct Selling Association’s Global Strategies Summit in Washington D.C. Shawn Tuma, of the firm, gave a presentation at the SMU Science and Technology Law Review Cybersecurity Symposium.
KUDOS
Dilen Kumar, of Weil, Gotshal & Manges LLP, has been selected by the Business Council for the Arts (BCA) for its 201516 Leadership Arts Institute. Ben L. Mesches, of Haynes and Boone, LLP, has been sworn in for a one-year term as president of the Texas Supreme Court Historical Society. Clint Brown, Jennifer Gurevitz, and Ashley Johnston, of Gray Reed & McGraw, P.C., have been promoted to Shareholders.
John H. Martin, of Thompson & Knight LLP, was elected as this year’s recipient of the Louis B. Potter Lifetime Professional Service Award from DRI – The Voice of the Defense Bar (“DRI”). Rust E. Reid, of the firm, was honored with the 2015 Each Moment Matters Award from Presbyterian Communities and Services Foundation. Robert P. Franke, of Strasburger & Price, LLP, has been promoted to Partner-inCharge.
ON THE MOVE
Thomas G. Woolsey III has joined Schiff Hardin LLP as Associate. Victor Vital and Douglas Haloftis have joined Barnes & Thornburg LLP as Partners. Macy Melton has joined Asiatico Law, PLLC. Jordan M. Lewis has joined Cavazos, Hendricks, Poirot & Smitham, P.C. Chad Baruch has joined Johnston+ Tobey, P.C. as a Shareholder. Lauren E. Melhart has joined Kinser & Bates, LLP as Associate. Amanda N. Harvey has joined Wilson Elser Moskowitz Edelman & Dicker LLP as Of Counsel. Orsinger,
Nelson,
Downing
&
ABA Publication Discount For DBA Members Dallas Bar members can purchase ABA books at a 15% discounted rate. For a complete list of titles or to place an order, visit www.ababooks.org. Enter code “PAB7EDBA” upon checkout and the 15% discount will be automatically applied to your order. Discount does not apply to ABA-CLE iPod products.
For assistance, call (312) 988-6112.
Mauri Miller has joined Winstead PC as Associate. Joel A. Richmond has joined the firm of Stacy & Conder, LLP as Associate. Chelsie N. Spencer has joined Kennedy Law, P.C. as Senior Associate. Wendy B Mills has opened the firm WB Mills, PLLC located at 3102 Maple Ave., Suite 400, Dallas, Texas 75201. (214) 969-5995.
Margaret Mead has joined Lewis Brisbois Bisgaard & Smith LLP as Partner. Marilea Lewis has joined Orsinger, Nelson, Downing and Anderson, LLP as Of Counsel. Priya Patel and Sabena S. Talati have joined Chamblee, Ryan, Kershaw & Anderson, PC. Amy LaValle has joined Wick Phillips as Partner.
Eric C. Willis has joined Ferguson, Braswell & Fraser, P.C. as Shareholder.
Christopher Beinecke has joined Haynes and Boone, LLP as Of Counsel.
W. Michael Bonesio has moved his office to Law Office of W. Michael Bonesio to 8150 N. Central Expressway, 10th Floor, Dallas, Texas 75206.
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
De c e mb e r 2 0 15
Classifieds
D al l as Bar A ssoci ati on l Headnotes 23
December
EXPERT WITNESS
Economic Damages Experts - Thomas Roney has more than twenty five 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, business valuation, credit damage and divorce 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) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” Mexican Law Expert - Attorney, former law professor testifying since 1997 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) 222-9494. dlopez @pulmanlaw.com
OFFICE SPACE
Downtown Dallas – KATY Building. Office available, located in the historic KATY Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, Wi-Fi, fax and copier available for tenants use. No lease required. Please inquire at (214) 748-1948. Sublease at Campbell Centre I - Central Expressway & Northwest Highway area. Nice window office space ($1,900/ month) with separate space for assistant (additional $500/month); 12th floor. Space includes shared use of three conference rooms, kitchen, and covered parking garage spaces. Amenities include shared receptionist, phone system, copier, scanner, and fax. Please contact Mr. Hall at (214) 691-7781. Downtown Dallas – Close to Federal and State Courts. Ready To Practice Law “Like A Boss”? No Law Firm Required. Independent business attorneys and litigators need a professional, secure place to work, meet clients, and network - NOT just another executive suite, sublease, home office or coffee shop. VENUE is a “working clubhouse” built BY attorneys, exclusively FOR attorneys. Occupying two top floors in a landmark downtown building, VENUE provides the resources, training and support attorneys need to launch their firms and accelerate their practices. In addition to workspaces and offices, VENUE members will have access to: 30+ hours CLE & management/development training annually, exclusive networking & social events, and an elite network of 100+ local partner-level peers. VENUE is the “Practice of Law Made Perfect.” For info or to schedule a tour: www.attorneyvenue.com. McKinney Avenue furnished single office - with secretarial space available if needed within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, furniture, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $850.00. Call (214) 520-0600. North Dallas/Farmers Branch - Law firm has several offices for lease. $400/month. Includes use of furniture, Internet, fax, parking, conference rooms, and kitchen. Convenient location. No lease required. Please contact Ilene Smoger at (972) 243-5297 or ilene@texasinjurylaw.com.
Uptown Dallas. 1200 square foot four office suite with conference room and reception area in well maintained small office building one block from Crescent with high ceilings, wood floors, large windows and other amenities. Contact Owner @ (214) 855-0127 or jackcirwin@ earthlink.net. Lemmon Avenue – Affordable unique three level office space for lease on Lemmon Avenue next to Buzz Brews Kitchen. Up to five offices, reception, kitchen, copy/file room, parking garage. For more information call Mike A. Thomas at (214) 728-5808 or email mthomas@ lawyerthomas.com. Austin - 816 Congress Avenue - Sublease law firm space; approximately 1845 RSF to 4125 RSF. Class A building with security. Two blocks from, and outstanding views of, Capitol. Fitness center with lockers and showers. Parking available. Sublease space or executive-suite arrangement (e.g., telecom, fax, copier, furnished office(s)). (512) 474-1492 or email: AustinCongressAveSubLeaseSpace@ gmail.com. Galleria Tower – Law firm has a window office available immediately, in a newly renovated space. Amenities include: access to law library, large and small conference rooms, kitchen, copy room, high speed color copier, phone, phone service, Internet, and file room. Free garage parking and 24/7 access. For additional information, please call Diana at (972) 9344110 or Diana@travislaw.com. North Dallas - Lincoln Centre. Law firm located at Lincoln Centre has one partner size office and cubicle available. Located at LBJ and the Tollway; two conference rooms; break room/kitchen; copier; Email: dallasipfirm@gmail.com for more information. Turtle Creek Blvd - Upscale law firm has class A office space available with high-end decor. Located at 3811 Turtle Creek, high floor, Office is 240 sq. ft., and rents for $1600.00 a month. Garage Parking, gym, and access to conference room available. Please inquire to Heather at hwoodard@baronandblue.com. North Dallas - LBJ Freeway. Law Firm – North Dallas - For Lease: Professional office space, 7616 LBJ Freeway, offers conference room, receptionist, Internet service, lobby kitchen, parking. Available 12.15.2015. Email Amy at arobinson@ englishpllc.com or (214) 528-4300. Walnut Glen Tower (Walnut Hill/Central). Great Deal! Beautiful offices in elegant Class A building near NorthPark with views of downtown over lake with fountains. Convenient access to DART station. Terrific, central location whether you go downtown or elsewhere in the Metroplex. Practice in a relaxed yet professional environment which includes administrative stations, conference room, kitchen, copier, phones, reserved garage parking, on-site restaurant and other amenities. All this AND reasonably priced. Flexible arrangement based on what type of office/working space you would like. Why not have quality of life while you practice? Please call (214) 7501600 for details. Richardson – Campbell and US 75. Private office space for lease. Amegy/ Reef Building. Kitchen and conference rooms. Underground parking. Amegy Bank in building. For additional information please e-mail George S. McKearin at gsmmed1@airmail.net, or James E. Shepherd at Jim@JShepherdLaw.com.
Excellent Oak Lawn location, 2501 Oak Lawn, 3rd floor. 2 offices available for rent. Interior; 15’ x 11’ 2” and exterior; 15’ x 9’ 8”. Interior $1,000.00 a month. Exterior window office $1,250.00 a month. Rent includes, phones, Internet, copies, secure underground parking, access to a conference room and kitchen. Email charles@waterburylawpc.com or call (214) 630-4554.
POSITIONS AVAILABLE
Experienced Paralegal. Uptown Dallas boutique firm with a sophisticated corporate and real estate transactional practice seeks experienced paralegal with a minimum of 3 years law firm (or equivalent) work. Thorough knowledge of Windows 8, Microsoft Word and Outlook is required. Candidate will work closely with attorneys to draft and proof documents, handle filings, manage closings, and perform title and survey review. Must have strong ability to learn and work independently. Excellent salary commensurate with experience. Please send resumes to aoppliger@exallwood.com. Civil Litigation Attorney. Business litigation firm in Turtle Creek seeks attorney with 5-10 years’ civil litigation experience. Strong academic record and writing skills required. Salary negotiable. Send cover letter and resume in confidence to oaklawnfirm@aol.com. Deans & Lyons is hiring a full-time Legal Receptionist that has great presence, a great voice, and has strong fastpaced and friendly customer service skills. Candidate must be professional, extremely organized, must be able to multitask quickly and think on your feet, and must be able to work independently and show initiative. Requirements are, but not limited to, working knowledge of Outlook, Excel &, Word; Ability to operate a desktop computer, multi-line phone system, copier and scanner. Interested candidate should send questions and resumes to Robin Zornes, our Office Manager, at rzornes@deanslyons.com. Harness Dickey & Pierce, an established intellectual property law firm ranked among the top five patent law firms in the US, has an opening for an associate attorney in its Frisco, Texas office. Qualified candidates will have an undergraduate degree and technical experience in the mechanical engineering arts, state bar and United States Patent Office registration, 2-5 years’ patent preparation and prosecution experience and familiarity with U.S. patent laws. We offer competitive compensation and benefits. Please submit resume and transcripts in confidence to Lynette Barrett, Harness, Dickey & Pierce, 5445 Corporate Drive, Suite 200, Troy, MI 48098, lbarrett@hdp.com. Attorney – Medical Malpractice Defense. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire a 3-5 year attorney with medical malpractice defense experience. Send your resume to Christine Santosuosso, Adm. Mgr., Thiebaud Remington Thornton Bailey LLP, 4849 Greenville
Ave., Suite 1150, Dallas, TX 75206, or email to csantosuosso@trtblaw.com or fax to (214) 754-0999. Attorney with 3+ Years’ Experience. Seeking qualified applicants for a position in our legal department. Ideal candidate will have 3+ years’ of experience, preferably in litigation, and be seeking a relaxed, yet professional, atmosphere. The position requires a critical thinker who is detail-oriented, highly organized, and self-motivated. Excellent writing, analytical, research, and presentation skills are a must. The office is located in North Dallas and offers a standard Monday through Friday work schedule, competitive compensation, and an attractive benefits package. Please forward resumes to: scoston@diiasbestostrust.org. Legal Aid of NorthWest Texas (“LANWT”) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org.
SERVICES
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. 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 Brenda at 1-800760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Trial Preparation Stress Relief: Licensed litigation attorney (20 years) available for hourly projects: court appearances, trial preparation, drafting pleadings/discovery/ motions, attending depositions, mediations. Large firm and complex litigation experience, first and second chair trials and arbitrations, law review. (972) 665-9834. 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. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
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
24 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
D ecem ber 2015