Dallas Bar Association
HEADNOTES
Focus Family Law
September 2017 Volume 42 Number 9
Dallas Bar Assoc
iation
Dear Association Memb
ers and Non-Members
: I would like to thank all of our current Dallas Bar Association (DBA) me support of our programs mbers for your ongoin and commitment to our g community! If you are not a curren t DBA member, I hope you enjoy this complim Headnotes publication entary issue of our mo and take advantage of nthly the following special me mbership offer! Newly joining members that join the DBA onl ine during the month over 30% on dues, wh of September will sav ich includes up to 16 e mo months. This special is available to attorneys who nths of membership for the price of 12 are not currently or rec ently a DBA member. Go to dallasbar.org and click on Join the DBA to sign up TODAY! You can see an extens ive list of our member ben efits on page 28, but a few important ones are : FREE CLE CREDIT HOURS – The Dallas Bar Association is the 2nd CLE courses in the sta largest provider of te of Texas (See Page 2 for CLE courses). MAKING A DIFFER ENCE – Join one of our ma ny Co to provide legal servic mmittees to work with es to the poor, volunt other lawyers eering within the commu and donate needed item nity to build homes, s and resources. DIVERSITY – Mento r and collaborate with lawyers of all ages and strengthen the fabric of backgrounds to our diverse legal commu COLLEGIALITY – nity. Network with other law yers who practice in Section meetings and your field at monthly attend CLE courses tha t relate directly to your practice. As a DBA Member, you will be able to take adv learn, network, and ma antage of these valuab ke a difference. To find le opportunities to member, please visit out more about the ben efits of being a DBA dallasbar.org, or con tact our Membership kwatson@dallasbar.org Director, Kim Watson, or (214) 220-7414. I hope you join today and look forward to seeing you at the Belo Mansio n, DBA headquarters! And again thank you to all our current DBA me mbers for your continu ed support! Stronger Together,
Left to right: Rob Crain, Chris Lewis, Quentin Brogdon
A Proud Tradition: Crain Lewis Brogdon Kicks Off 2018 EAJ Campaign by Michelle Alden
The Dallas Bar Association (DBA) is pleased to announce that Crain Lewis Brogdon, LLP is the kickoff donor for this year’s Equal Access to Justice Campaign, with a generous contribution of $30,000. The firm has a long and distinguished history of contributing to the Campaign. Including this gift, the firm has donated more than $160,000 to legal aid for the poor since 2004. The Equal Access to Justice Campaign is the annual fundraising campaign which supports the activities of the Dallas Volunteer Attorney Program (DVAP). The firm’s gift makes it possible for DVAP to continue to provide and enhance legal aid to the poor in Dallas, keeping the doors to the courthouse and our overall justice system open to many more people in our community. Since 1982, DVAP has provided, recruited, and trained pro bono lawyers to provide free legal aid to the poor in Dallas. Last year, a 15 member staff supported over 3,000 volunteers in their efforts to volunteer at legal clinics and advise and represent clients. The founding principles of Crain Lewis Brogdon dovetail quite nicely with DVAP’s goals. The firm specializes in the areas of personal injury and criminal defense, and was founded with the idea of representing people, not cases. As Rob Crain, partner in the firm and current DBA President, stated, “In our cases, regular people feel overwhelmed by a system that seems to ignore them. Our job as lawyers is to make sure that the client’s voice and story are heard clearly in court. Similarly, this is why DVAP is so important. Without DVAP, lowincome people face tremendous barriers in
accessing justice and are often unable to obtain veterans’ benefits, divorces, or child support as they are not sure how to navigate court filings and processes on their own. The legal services provided make a world of difference in the lives of so many who are helped by DVAP.” Mr. Crain’s law partner of a decade, Chris Lewis, understands the importance of access to justice through his daily work as a criminal defense attorney. “I am really glad to see that DVAP is helping more clients obtain expunctions and non-disclosures of their criminal records. It can make all the difference when the person is trying to find a job, if they are no longer encumbered by an old criminal charge from decades ago.” The justice gap in Dallas County is daunting. In a country based on justice for all and access to our court system, over 25 percent of Dallas County residents live near the poverty level, and 42 percent have slim hope of being able to afford an attorney. With annual poverty incomes of $30,750 for a family of four, justice is a luxury for low and moderate income families. Quentin Brogdon, an attorney board certified in personal injury and civil trial advocacy, said, “We encourage lawyers to give time, money, or both. The Dallas legal community is a generous one, but there is so much more to be done to narrow the justice gap. Our firm is proud to be a part of increasing access to the justice system.” This year is an especially important one for legal aid funding due to several challenges on the horizon. Earlier this year, the administration proposed a federal budget continued on page 16
Rob Crain President Dallas Bar Association
2101 Ross Ave. ▪ Da
The keynote speaker at this year’s luncheon is David McCraw, Vice President The 34th Dallas Bar Association annual and Deputy General Counsel of The New Stephen Philbin Awards for Excellence York Times. Mr. McCraw has spent the last 15 years at The Times, where he in Legal Reporting will be held serves as the newspaper’s top Friday, October 13, at noon at newsroom lawyer. He has been the Belo Mansion. Winners in the lawyer behind virtually every various news categories will be major investigative story The announced at the luncheon. Times has done in recent years, The luncheon honors not including its Pulitzer Prize-winonly the local media, but also the ning stories on workers’ deaths memory of Stephen Philbin who at a Texas foundry, the lethal lost his battle with leukemia in aftermath of Hurricane Katrina 1982. A long-time member of the at a New Orleans hospital, and Dallas Bar Association and a partthe secret fortunes of China’s ner with Locke, Purnell, Boren, political elite. Laney & Neely, at the time of his David McCraw Mr. McCraw is among the nation’s most death, Mr. Philbin was a leading authority on media law in Texas. In honor of Mr. Philbin, prolific litigators of freedom-of-information his family, acting through the Dallas Bar Foundation, funds the awards each year. continued on page 30 by Jessica D. Smith
09 When Criminal & Family Law Interact 14 Premarital Agreements: Negotiating Love Since 1980 22 The Dangers of Not Using an ERISA Attorney 26 Trusts and Divorce: What You Should Know
(214) 220-7414
David McCraw to be Keynote Speaker at Philbin Awards
Inside 18 Celebrating 40 years at Belo
llas ▪ TX ▪ 75201 ▪
2018 DBA COMMITTEE PREFERENCES Please take a minute to submit your committee preferences online.
Submit your preferences by Friday, October 13. Please note, if you are on a 2017 Committee you must still sign up again if you wish to continue to serve on a Committee in 2018. You will not be automatically assigned to Committees. Sign up online here: https://goo.gl/2UT85L.
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2017
Calendar September Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
SEPTEMBER 1-BELO Noon
FRIDAY CLINICS
“Legal Ethics for Corporate Counsel,” Arthur Lambert. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.
SEPTEMBER 8-NORTH DALLAS** Noon
“Immigration 101,” Michelle Alonzo and Angela Lopez. (MCLE 1.00)*Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org.
SEPTEMBER 15-BELO Noon
“Understanding and Mastering the Rules of Evidence,” Victor Vital. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
FRIDAY, SEPTEMBER 1
Angela Lopez. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@ dallasbar.org.
Noon Friday Clinic-Belo “Legal Ethics for Corporate Counsel,” Arthur Lambert. (Ethics 1.00)*
MONDAY, SEPTEMBER 4 DBA Offices closed in observance of Labor Day
TUESDAY, SEPTEMBER 5
Noon Corporate Counsel Section “Panel Discussion - Managing Your In-House Career,” Paul Jolas, Jane McBride, Teilsa Schelin, and Steve Yeager. (MCLE 1.00)*
Morris Harrell Professionalism Committee
6:00 p.m.
DAYL Board of Directors Meeting
WEDNESDAY, SEPTEMBER 6 Noon Employee Benefits & Executive Compensation Section Topic Not Yet Available
Solo & Small Firm Section “Ethical Considerations for the Solo & Small Firm Practitioner,” Dan Boyd. (Ethics 1.00)*
Juvenile Justice Committee
Public Forum Committee
DAYL Judiciary Committee
5:30 p.m. Bankruptcy & Commercial Law Section “Life Boats for Clients Dealing with Sinking Ships: Legal and Practical Issues for Businesses Affected by a Shipping-Related Insolvency,” Nicole Hay. (MCLE 1.00)*
THURSDAY, SEPTEMBER 7
Noon Construction Law Section “Mediation and Arbitration Practice and Procedure Tips,” J. Paul Flores. (MCLE 1.00)* Trial Academy “The Evidence Rules You Need to Know, Prof. Fred Moss. (MCLE 2.00)*
Family Law Section Board Meeting
Judiciary Committee
St. Thomas More Society
FRIDAY, SEPTEMBER 8
Noon North Dallas Friday Clinic “Immigration 101,” Michelle Alonzo and
Government Law Section “Venue Projects: The Government Perspective,” Molly Shortall. (MCLE 1.00)* Immigration Law Section/Dallas Hispanic Bar Association “Special Immigrant Juvenile Status: Immigration Relief for Abused, Abandoned, and Neglected Children,” Marcela Evans, Patricia Freshwater, Mayra Jimenez, and Brandon Roche. (MCLE 4.00, Ethics 1.00)* Register at https://goo.gl/AaXXzE.
Tort & Insurance Practice Section Topic Not Yet Available
Courthouse Committee
Home Project Committee
Legal Ethics Committee
5:00 p.m. Jeff Coen Family Law Nuts & Bolts Live, Part I “2017 Family Law Updates.” Contact reed-brownc@lanwt.org to register. (MCLE 3.00, Ethics 1.00)* Sponsored by DVAP and DBA Family Law Section.
WEDNESDAY, SEPTEMBER 13 Noon Family Law Section “Dividing Small Businesses in Divorce,” Jere Hight and Michelle May O’Neil. (MCLE 1.00)* Transition to Law Practice Program “Interview with a Legal Legend,” Morris Harrell Professionalism recipient Al Ellis, interviewed by Audrey Moorehead. (Ethics 1.00)*
Admissions & Membership Committee
Bench Bar Conference Committee
Law in the Schools & Community Committee
Dallas Asian American Bar Association
5:00 p.m. Jeff Coen Family Law Nuts & Bolts Live, Part II “2017 Family Law Updates.” Contact reed-brownc@lanwt.org to register. (MCLE 3.00, Ethics 1.00)* Sponsored by DVAP and DBA Family Law Section.
6:00 p.m.
DAYL Aid to the Homeless Committee
Dallas Hispanic Bar Association
WEDNESDAY, SEPTEMBER 20 Noon
Energy Law Section Topic Not Yet Available
Health Law Section “Anatomy of a Federal Criminal Investigation,” Bob Webster. (MCLE 1.00)*
Pro Bono Activities Committee
Non-Profit Law Study Group
5:15 p.m. LegalLine. Volunteers needed. RSVP to sbush@dallasbar.org.
THURSDAY, SEPTEMBER 21 Noon South Dallas Clinic “Do’s & Don’ts of Engagement Letters,” Robert Tobey. (Ethics 1.00)* At UNT Dallas, 7400 University Hills Blvd, Dal 1, Room #262. Park in lot in front of 7400 University Hills Blvd. RSVP to yhinojos@dallasbar.org. Appellate Law Section “Scattershooting From My Side of the Bench: Thoughts on Appellate Advocacy,” Justice Bill Whitehill. (MCLE 1.00, Ethics 0.25)*
Media Relations Committee
Minority Participation Committee
Christian Legal Society
DAYL Animal Welfare Committee
Trial Skills Section “Intuition, Deliberation and Good Judgment: Why Good People Make Bad Decisions,” Prof. Jeffrey Rachlinski. (MCLE 1.00)*
5:15 p.m. LegalLine. Volunteers needed. RSVP to sbush@dallasbar.org.
Dallas LGBT Bar Association
Dallas Women Lawyers Association CLE
THURSDAY, SEPTEMBER 14
1:00 p.m.
DWLA Board of Directors Meeting
MONDAY, SEPTEMBER 11
All Day
North Texas Giving Day Donate to DVAP at www.dallasbar.org.
FRIDAY, SEPTEMBER 22
Noon Alternative Dispute Resolution Section “Top 10 Things Mediators Need to Know About Bankruptcy,” Frances Smith. (MCLE 1.00)*
Noon
CLE Committee
Publications Committee
Noon
Christian Lawyers Fellowship
3:30 p.m.
DBA Board of Directors
6:00 p.m.
J.L. Turner Legal Association
Real Property Law Section “You Might Get Caught: Reasons to Abide by Private Placement Rules,” Valerie Thomas. (MCLE 1.00)* Tax Law Section “Tax Reform - An International Tax Perspective,” Bill Blaylock, John Cohn, and Ben Vesely. (MCLE 1.00)*
Peer Assistance Committee
TUESDAY, SEPTEMBER 12
Noon Business Litigation Section “The Internet of Things,” John Ansbach. (MCLE 1.00)* Mergers & Acquisitions Section “M&A Auctions: The Art of the Non-Price Bid Sweetener.” (MCLE 1.00)*
FRIDAY, SEPTEMBER 15 Noon Friday Clinic-Belo “Understanding and Mastering the Rules of Evidence,” Victor Vital. (MCLE 1.00)*
DBA and DAYL Moms in Law
DAYL Lawyers Against Domestic Violence Committee
SATURDAY, SEPTEMBER 16 8:00 a.m.
DAYL Freedom Run Register online at www.freedomrun.com.
MONDAY, SEPTEMBER 18 Noon Blockchain Law Study Group “Know Your Customer, Anti-Money Laundering and Money Service Business Regulation of Digital Currencies,” Arnold Spencer. (MCLE 1.00)* Labor & Employment Law Section “Welcome to the Wild Wild West: Employment Law Meets the Anti-SLAPP Statute,” Robert Tobey. (MCLE 1.00, Ethics 0.25)* Senior Lawyers Committee “Legislative Update: What Hath the Legislature Wrought,” Jerry Bullard. (MCLE 1.00)*
TUESDAY, SEPTEMBER 19 Noon Antitrust & Trade Regulation Section “Topic Not Yet Available,” Jennifer Trulock. (MCLE 1.00)* International Law Section “European Privacy Law Developments and the Near-term Implications for U.S. Global Business,” John Ansbach, Justin Koplow, and Dana Nahlen. (MCLE 1.00)* Minority Participation Committee “The Spanish Laws of Texas,” Hon. Jason Boatright and Rebecca Greenan. (MCLE 1.00)* Co-Sponsored by the Dallas Hispanic Bar Association.
Intellectual Property Law Section Topic Not Yet Available
MONDAY, SEPTEMBER 25 Noon
Science & Technology Law Section Topic Not Yet Available
Securities Section “SEC Administrative Proceedings Post Dodd-Frank,” Ralph Janvey. (MCLE 1.00)*
DAYL Membership Committee
TUESDAY, SEPTEMBER 26 Noon Probate Trusts & Estates Law Section “The New Texas Durable Power of Attorney Act,” Lori Campbell, Lora Davis, and Donald Totusek. (MCLE 1.00)* DVAP CLE “Protective Orders,” Sharron Archie. (MCLE 1.00)*
American Immigration Lawyers Association
DAYL Lawyers Promoting Diversity
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.
WEDNESDAY, SEPTEMBER 27 Noon Entertainment, Art & Sports Law “The Digital Millennium Copyright Act: An Overview of a Law from the Analogue Age in the Digital Era,” Kevin Harrison. (MCLE 1.00)* DVAP New Lawyers Luncheon. For more information, contact reed-brownc@ lanwt.org.
Municipal Justice Bar Association
6:00 p.m. Criminal Law Section “The Assassin’s Assassin: a Case Study of the Jack Ruby Trial,” Hon. Brandon Birmingham and Toby Shook. (MCLE 1.50)* At the Sixth Floor Museum. Tickets: $20 at jfk.org.
THURSDAY, SEPTEMBER 28 Noon Environmental Law Section “Topic Not Yet Available,” Bryan W. Shaw. (MCLE 1.00)*
Community Involvement Committee
Christian Legal Society
Entertainment Committee
Dallas Bar Foundation Board of Directors
FRIDAY, SEPTEMBER 29
DAYL Elder Law Committee
Noon
DAYL Solo & Small Firm Committee
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Yedenia Hinojos at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
Sept e mb e r 2 0 1 7 †KM_HN 2017 May bride.pdf
D al l as Bar A ssoci ati on l Headnotes 3 1
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4 He a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2017
President’s Column
Headnotes
Stronger Together by Rob Crain
I was first introduced to the Belo Mansion as a young lawyer. I assumed every major bar association across the country had a similar headquarters. I honestly did not give it further thought until joining the DBA Board of Directors and attending conferences with other bar associations. I learned the Belo is unlike any bar headquarters in the country. It is unique in architecture and location. It provides ample meeting spaces often hosting thousands of guests in a single day. It houses a branch of one of the world’s best food and beverage operations, Culinaire, who provides our meals and hospitality to the public. We are blessed. On September 15, 1977, the Dallas Bar Association closed on the purchase of The Belo Mansion. A few days later the DBA closed on adjacent parcels of land; these parcels acted as a parking lot for many years and is now the site of the Pavilion and underground parking garage. This year we are celebrating the 40th Anniversary of the purchase of the Belo Mansion. You can see an 11-minute documentary on its history at www.dallasbar.org. We are also hosting a celebration at the Belo Mansion at 5:30 PM on Thursday September 14 with many of the individuals who made this acquisition a reality. In preparation for this year, I had the privilege of interviewing Jerry Jordan, Harriet Miers, Nick LaBranche (Belo Engineer), Bob & Gail Thomas, and several others to learn the history of the Belo purchase. Cathy Maher, our recently retired Executive Director, continues to collect history on the Belo Family and Belo Mansion. A big thank you to all of them for helping us memorialize this history—and it is quite a story—much too involved to fit in this space, but here is a sampling. The DBA was founded in 1873. The de facto headquarters of the Association were the offices of whoever was the current bar President. In 1937, the bar secured a 15-foot cubicle under the stairs of the Old Red Courthouse. In 1955, Henry Strasburger was President of the DBA. He believed lawyers should have a regular meeting place. Bob Thomas recalls Henry frequently quoting Shakespeare’s line in “Taming of the Shrew”, “…do as adversaries do in law, strive mightily, but eat and drink as friends.” According to Bob, Henry felt so strongly about securing a location for lawyers to meet and socialize, he silenced those with concerns about costs by personally advancing the first year of rent for space in the Adolphus Hotel. He was right. Lawyers flocked to the new gathering place. Membership grew, and by the 1970s the Association had outgrown their space. Chuck Storey, President of the DBA in 1975, was a particularly strong advocate for a move to larger space. After much deliberation, a tentative agreement was reached to develop meeting and dining space on the third floor of the new First National Bank Building. A fundraising campaign commenced but continuing cost escalations soured the Association on the bank building. At the time, the Belo Mansion sat vacant. The Loudermilk-Sparkman Funeral Home had moved out of the mansion due to expansion of Pearl Street but remained obligated under a lease agreement with Helen Belo Morrison, Colonel A. H. Belo’s granddaughter. Mr. Sparkman hired the firm of Turner, Rodgers, Winn, Scurlock & Terry to help them find relief from the lease. Jerry Jordan was an attorney with the firm and also served as Vice President of the DBA. Jerry believed the Belo could be an option for the new headquarters. In 1976, at the Inauguration of incoming DBA President Waller Collie, Jr., Jerry was seated next to Gail Thomas, wife of Bob Thomas. Gail is a person who gets things done. Jerry knew that if he could sell Gail on the idea of the Belo as the Bar’s headquarters, “the battle was more than half won.” When hearing the suggestion, Gail recalls, “sparks went off, and it just felt like dynamite.” That year’s Board of Directors’ retreat was at Tanglewood Lodge on Lake Texoma. The idea of the Belo Mansion as a headquarters was discussed. A group of several, including Jerry, Bob, Gail, and Waller visited the mansion together; Jerry unlocking the door and Waller following him inside.
All remember Waller taking his first looks inside the home and saying words to the effect of, “This is what a bar headquarters should look like!” Momentum quickly built behind the idea but several hurdles remained. First, they had to convince Helen Belo Morrison to sell them the house in which she was born. Then they had to get the money to buy and refurbish the old home. Overcoming the first challenge was aided by good luck. Bob and Gail, along with Waller and Elaine Collie, organized a trip to North Carolina to meet with Ms. Morrison. The night before the trip, Bob and Gail dropped off their kids with Bob’s parents. When conversation turned to the reason for the trip, Bob’s mother said to tell Ms. Morrison “hello” for her. Bob stopped and asked, “You know Helen Belo?” She answered, “Yes, of course I do, I went to her 12th birthday party at the Belo Mansion…she wore a blue velvet dress with a white rose point lace collar, prettiest dress I ever saw.” This came in handy as Ms. Morrison felt passionately about her childhood home. She wanted the home to go to caring people who would maintain its integrity for years to come. When the DBA contingency met Ms. Morison in her North Carolina home, initially things did not go well. The atmosphere was frosty until Bob remembered to tell Ms. Morrison “hello” from his mother. He also retold her account of the beautiful blue dress. Whatever chill was in the air quickly disappeared. Turns out, the dress was Ms. Morrison’s “favorite dress of all time.” Her parents had bought it for her in Paris. She also remembered Bob’s mother. All of a sudden, the DBA was family. Shortly thereafter, the DBA secured an option to buy the Belo Mansion, but financing remained a significant obstacle. Some money had been raised for the proposed move to the First National Bank Building, but much more was needed to purchase and remodel the mansion. Jerry and Bob made unique connections with Republic Bank who provided financing. DBA members got to work raising funds, including Jerry Buchmeyer, Harriet Miers, John Estes, Jerry, Bob, and many others. Many of the rooms at the Belo are named after firms who dug deep for the cause. On the third Thursday in September, 1977, the DBA exercised their option and closed on the purchase of the new headquarters. Hard work followed. Members worked weekends, scraping layers of paint off the walls until the original colors were discovered. Detail was taken to return the home to its original condition. What is now Belo Hall, was a chapel erected by the funeral home for services. The DBA built an atrium to connect the home and chapel. If you go to the documentary on the website, you will hear a great story from Bob about workers discovering a certain illegal plant being grown where the atrium now exists. On August 1, 1979, the Belo opened and Helen Belo Morrison was present. She proclaimed the home was just as she remembered. She was proud. She donated the portraits of Colonel Belo and Mr. Belo, Jr. which hang above the settees near the front door—benches where as young women, she and her sister would wait on their dates. Membership of the DBA expanded rapidly, as did functions at the Association’s headquarters. Jerry Jordan’s daughter, Jill, was the first to be married at the Belo. After years of growth, the DBA set upon expanding the Belo, adding the Pavilion in 2003. The Belo Mansion now hosts approximately 400 CLE events every year, hundreds of social and charitable events, and remains an historical anchor in the Dallas Arts District. The structure is one of few Dallas landmarks listed on the National Register of Historic Places. More importantly, as Gail Thomas reflected, “…people come here, they feel at home here. There’s a base here, it’s solid. It has integrity. It has honor. It has dignity.” The Belo Mansion was completed 117 years ago to be a home, for people to gather, grow closer, and to help one another. Thanks to pioneers 40 years ago, a home it remains. Stronger Together HN Rob
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: Rob D. Crain President-Elect: Michael K. Hurst First Vice President: Laura Benitez Geisler Second Vice President: Robert L. Tobey Secretary-Treasurer: Rocio Cristina Garcia Immediate Past President: Jerry C. Alexander Directors: A. Shonn Brown, Jonathan Childers, Dawn Estes, Sakina Foster, Stephanie Gause, Hon. Bonnie Goldstein (Judicial At-Large), Hon. Martin Hoffman, Christopher Kang (President, Dallas Asian American Bar Association), Krisi Kastl, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud (Vice Chair), Kate Morris, Cheryl Camin Murray, Erin Nowell, Paul Simon (President, Dallas Association of Young Lawyers), Tramaine Tinner (President, J.L. Turner Legal Association), Aaron Tobin (Chair), and Victor D. Vital Advisory Directors: Isaac Faz (President-Elect, Dallas Hispanic Bar Association), Ashlei Gradney (PresidentElect, J.L. Turner Legal Association), Shruti Krishnan (President-Elect, Dallas Asian American Bar Association), Stephanie Osteen (President-Elect, Dallas Women Lawyers Association), Jennifer Ryback (President-Elect, Dallas Association of Young Lawyers), and Dena DeNooyer Stroh (President, Dallas Women Lawyers Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, David Kent, Gregory Sampson, and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Josh Garza Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Alexander Farr and Keith Pillers Vice-Chairs: Andy Jones and Carl Roberts Members: Timothy Ackermann, Logan Adock, Wes Alost, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Amanda Brown, Paul Chappell, Charles Coleman, Shannon Conway, Rob Crain, James Deets, James Dockery, Maria Fernandez, Dawn Fowler, Andrew Gould, Susan Halpern, Meghan Hausler, Jeremy Hawpe, Beth Hearn, Lindsay Hedrick, Nicole Holland, Michael Hurst, Brad Jackson, Andrew Jones, Kristi Kautz, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravick, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jr., R. Sean McDonald, Kadie Michaelis, Terah Moxley, Jessica Nathan, Eugene Olshevskyy, Kirk Pittard, Laura Anne Pohli, Charles Price, Mark Rasmussen, Adam Reed, Kathy Roux, Joshua Sandler, Mary Scott, Jared Slade, Christopher Snyder, Thad Spalding, Shana Stein, John Stevenson, Scott Stolley, Amy Stowe, Adam Swartz, Ashely Swenson, Michael Tristan, Pryce Tucker, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karra Rybicki, Dominick Vallejo Program Assistant: Patsy Quinn Secretary: Debbie Starling Copyright Dallas Bar Association 2017. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
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
Septem ber 2017
The Summary Jury Trial: An ADR Innovation by Robert Gordon
Purpose The Summary Jury Trial (SJT) is a creative approach designed to help clients settle their litigation in a fair and informed manner. It allows the lawyers and clients to make settlement decisions by considering information about the likely outcome of the case. This includes answers to liability and damage questions. It can address assorted topical questions as well, such as those pertaining to family law issues. The technique is applied to litigation which is or may be scheduled for a jury trial. It is a cost effective and time efficient procedure to provide valuable information for making pragmatic settlement decisions. It empowers clients to make prudent decisions and helps their lawyers to provide them wise choices. Usually SJT is a one-day proceeding. It includes a condensed
simulated jury trial, deliberation, and a post-deliberation mediation session. Abbreviated discovery and the rules of evidence are agreed upon in advance. The appellate process is avoided. SJT may be used in state and federal cases. Results guide the lawyer-mediator to help resolve the client’s case amicably by considering actual risks and benefits. They pose a simple, cogent question: “Why try the time consuming, expensive case with uncertain outcome if you know how the verdict is likely to turn out?”
Legal Authority SJT is voluntary. It is authorized by the Texas ADR Statute and by the Federal Rules of Civil Procedure. Originally, it was designed by Ohio Judge Tom Lambros, past president of the Federal Retired Judges Association. In its infancy, the procedure was recommended and directed by the
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court with jurisdiction over the case. Recently, SJT is simply agreed upon by the parties, their lawyers, and the mediator.
How Does It Work?
In a judge-directed SJT, a jury panel is brought to the courtroom on an agreed upon date. In a party-directed SJT, the litigants hire a project manager to recruit typical and representative jurors from the venue and arrange for the use of a conference room at one of the law firms or at an ADR facility. The mediator serves as the judge. The essential arguments and evidence in the case are presented during attorney delivered opening statements. This can include slides, video excerpts of depositions and demonstrative evidence. With the participants’ permission, the parties, their attorneys, and the mediator observe, listen to and analyze the deliberation. The jurors are debriefed to discover the rationale for the verdict and how and why the jury questions were decided as they were. After deliberation, the mediator guides the process and the parties to the goal of successfully resolving the case. The mediator may adopt a facilitative, evaluative, transformative, or eclectic style. For maximum effectiveness in a private SJT, care is taken to avoid false positive or negative results. This is best accomplished by choosing a “representative” jury characteristic of the venire rather than a “random” jury based on driver’s licenses or voter registration. A project manager experienced in recruiting participants for private mock trials should be consulted.
Advantages and Disadvantages
A major advantage of SJT is parsimony. A one day trial including mediation is time and cost efficient. Best of all, the parties are empowered to resolve their case based on objective information and insight. Another advantage of SJT is that there is no sacrifice of ethical standards. The ADR ethical and judicial rules adopted by the Supreme Court of Texas and the State Bar of Texas are followed, including those regarding privilege and confidentiality. Disadvantages: The procedure alerts the opposing side to a party’s best arguments and evidence. Therefore opportunities for trial strategy can be compromised if the procedure is not successful. Also, the protocol may afford a “foot-dragging party” an opportunity for additional stalling and delay tactics.
Opportunities for Lawyers Dallas lawyers interested in providing this service may seek additional recognition by joining the Texas Association of Credentialed Mediators (TACM) and the Association of Attorney- Mediators. Membership in the Alternative Dispute Resolution Section of the Dallas Bar is available for lawyers who wish to learn more about non-acrimonious settlements of cases, enhance their professional skills, and network with like-minded colleagues. HN Robert Gordon is an attorney, psychologist, and mediator. He can be reached at drbob@drbob.com.
Sept e mb e r 2 0 1 7 â€
D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Column
Septem ber 2017
State Bar of Texas President
Rising by Lifting Others by Tom Vick
Robert G. Ingersoll—a Civil War veteran, a lawyer, a politician, and a renowned orator—wrote 140 years ago: “The superior man is the providence of the inferior. He is eyes for the blind, strength for the weak, and a shield for the defenseless. He stands erect by bending above the fallen. He rises by lifting others.” Ingersoll’s original paragraph is often shortened and changed slightly in this Internet age. Its message has been generalized, turned into inspirational memes, and pasted above sweeping vistas: “We rise by lifting others.” At its core, the message resonates with people of all professions so many years after Ingersoll wrote it. And when we as lawyers think about our profession, this must be our aspiration: to rise by lifting others. There are many great lawyers that come to mind when I think about this
phrase. The renowned Ken Fuller is certainly one. Ken passed away in 2014. Many of you may remember him. Perhaps you knew him, worked with him, volunteered with him, or have just heard his name repeated. A partner in the Dallas law firm now known as KoonsFuller, Ken dedicated much of his career to helping others through the Dallas Volunteer Attorney Program (DVAP). It was well known Tom Vick that he spent at least two days a week during his retirement years helping low-income Texans through DVAP. He gave so much of his time and talents to help others that the State Bar of Texas Family Law Section honors him every year by bestowing the
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Ken Fuller Pro Bono Award upon an attorney who “honors the Bar and the legal profession through outstanding dedication to pro bono legal services and Texans in need.” The award ensures Ken’s legacy endures and gives us all an aspirational goal. If you know Ken Fuller’s name, and you admire his remarkable level of service to the poor and underserved, there’s another name you should know: Susan “Hambone” Fisher. Fisher has a solo practice in Irving. In 2016, when Susan was awarded the Ken Fuller Pro Bono Award it came by surprise. She sat in the audience as presenter Brian Webb, of The Webb Family Law Firm, described that year’s recipient as a lawyer in the street, in the trenches; a lawyer who helped someone for no other reason than they needed help and it was the right thing to do. Susan, Brian said, even occasionally finished the day as a waitress to help pay the bills while she gave so much of her time to others. It wasn’t until Brian called her name that Susan knew she was the attorney he described at the podium. With her hands raised and mouth agape, she finally found words: “I literally
sat there and thought, ‘Now, that’s my kind of lawyer.’” The award presentation was captured on video, and it remains on the Family Law Section’s website (https://pbvideo. vids.io/videos/d49bdfb61b1de3c25c/ k e n - f u l l e r- p r o - b o n o - a w a r d - s u s a n fisher). You should take the chance to watch. Brian tells me personally that Susan “cares deeply and intelligently.” And that once when a friend gave Susan a fairly extravagant gift and she tried to turn it down, the friend replied, “No, I owe it to you because you’re leading the life that I should be leading.” We should all be a bit more like Susan. Whether she is trying to be humorous or humble, the profile pictures on Susan’s State Bar member page and her LinkedIn account are of a smiling brown-haired goat. Lawyers as a whole are certainly not afraid of hard work, but let us also be unafraid that our hard work would go unnoticed. When someone lauds our successes and calls our names, let us be so humble as to think they are talking about someone else. When Susan won her award she said just a bit more than a dozen words. There was nothing about herself in those words, only “I love the law, and I thank you.” It is she who rises by lifting others. We thank you, Susan. HN Tom Vick is a partner in Vick Carney LLP in Weatherford and the 2017-2018 president of the State Bar of Texas.
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Sept e mb e r 2 0 1 7
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Family Law
When Criminal & Family Law Interact by Marie Briner
While criminal law and family law address the needs of society in very different ways, the two practice areas increasingly interact with varying consequences for the parties. Criminal law is designed to identify and punish wrongdoers for past behavior. Family law uses past behavior to show how litigants and their families can operate more productively in the future. Because the criminal courts can incarcerate or otherwise punish defendants, there are many more legal safeguards there than in family court. Those include having to prove guilt beyond a reasonable doubt, the absolute right to a jury trial, the presumption of innocence, the right to counsel, constitutional protections against unreasonable searches and seizures, and the Fifth Amendment protections against self-incrimination. Family law cases adhere to a lesser standard, preponderance of the evidence. Parties are not entitled to counsel at all, and most family law matters are heard before a judge. While litigants cannot be sent to prison for bad parenting unless that behavior violates criminal law, access to children can be denied or restricted based on what is in their best interest—a finding that is undefined and frequently varies from one court to the next. Certain crimes can become central elements in a family law case, such as domestic violence, child sexual abuse,
interference with a child custody order, or child kidnapping. Other severe problems may lead to criminal acts that adversely affect the family—substance abuse, mental illness, and driving while intoxicated. DWI can be both a personal issue that affects a family (for example, if children are in the car when the DWI takes place) and a crime. The litigants in family law cases may allege criminal misconduct by the opposing party. Without solid evidence, though, the finder of fact may have no basis to believe the allegation. But a guilty verdict in criminal court will go a long way to rebut claims by a party that he or she is without blame. While family court judges do their best to make decisions fairly, they often operate at a disadvantage. A family law litigant cannot fully defend himself in family court if he has a pending criminal case that has not been litigated in the criminal courts. In this instance, the judge will not know all of the facts. Perhaps the litigant will eventually be found not guilty, but that may not happen for years. The judge has to proceed knowing that the person is accused of the crime and make a decision about what is best for the child even when the criminal case has not been proven. Because these cases can be exceedingly complex, family law attorneys are often reluctant to take family cases with contemporaneous criminal cases. There can be a great deal of confusion over the issuance of orders that conflict.
For instance, does the client follow a protective order issued by a criminal court which restrains him from contacting his ex or a co-parenting schedule approved by the family court that allows such contact? Then there is the problem of access to family funds by a criminal defendant. When a criminal case and a marital dissolution case are being litigated simultaneously, conflict arises when the divorcing party/criminal defendant tries to take money from the marital estate to pay for his defense. The battle lines are drawn even more sharply when the spouse or the children have been the victims of that crime. In this instance, two basic rights stand in
opposition to each other. On the criminal side, the defendant has the right to engage his counsel of choice, in hopes of securing zealous representation and a fair trial. In family law, the division of community assets is basic to marital dissolution. Should the funds be available for this divorce process or used in the criminal defense of one of the parties? While criminal law and family law often interact and collide, lawyers and the courts in Texas attempt to administer justice in a way that minimizes the amount of collateral damage. Sometimes we are successful, other times not. HN Marie Briner is a partner in the family law firm of Atkins O’Toole & Briner. She can be reached at mbriner@aob-law.com.
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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
Septem ber 2017
Family Law
Your Business and Your Marriage – Important Considerations by Kevin Segler
Business owners typically enlist a business lawyer for advice on legal decisions regarding their business. The same business owner likely has a family lawyer provide counsel for pre-marital agreements, post-marital agreements and divorce. Business lawyers and family lawyers should work together to ensure that a client’s assets remain properly protected and classified when making decisions related to business ownership.
A Business is “Property”
A person’s interest in a closely held business is considered marital property. In Texas, property can be characterized as community property, separate property or a mix of both. Community property may be divided between spouses in a divorce, but a court cannot divide separate property. In a divorce, the presumption
is that everything is community property unless you can prove to a judge—by clear and convincing evidence—that the asset is separate property. Pre-marital and postmarital agreements are helpful tools to change how property would otherwise be characterized under the law. Proving a separate property claim generally involves determining when the property was acquired (i.e. the inception of title) and/or tracing the funds used to purchase that property back to a separate property source. The inception of title to a closely held business is generally considered the date of incorporation or formation. However, if a business is formed during the marriage but capitalized entirely with separate property funds, it may be considered separate property. The various types of business entities— sole proprietorships, partnerships, limited liability companies and corporations— may be treated differently under the law in both the business and family law contexts.
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While tax treatment, liability protection and ownership structure are the main business considerations, the manner in which the property may be divided in a divorce should also be part of the legal analysis for forming a business. For instance, a sole proprietorship may make the most sense for a fledgling startup from a business perspective, but, unlike more formal entities, the business property of a sole proprietorship can be considered community property and divided in a divorce.
Differing Perspectives – Unified Goal
A business lawyer often looks at what type of entity will provide the client with the best tax treatment, liability protection and management efficiencies. The business lawyer’s assessment may also change over time depending on the nature, growth and scope of the business. Usually, the business lawyer’s goal is to find the best way to reduce liability and maximize efficiency and profit. A family lawyer aims to protect the client’s business in the event of a divorce. Sometimes, changing an entity type or structure makes the most sense from a strictly business perspective, but making that change during the marriage could invite unwanted consequences in the family law arena. In these situations, the business lawyer and the family lawyer should collaborate on the best course of action for the client. First, consider the importance of making a change to the business entity or structure, and whether or not the change
is significant enough to implement. If the potential benefits of the change are small and the risk of losing half of the business in a divorce is high, the change might not be the best strategy. Second, develop a joint strategy to make the amendment—usually by a formal merger or inclusion of special capitalization provisions in the new entity documents—with careful consideration of any pre- or post-marital agreement that may exist. Some marital property agreements may be very specific about how a change must take place. Third, execute the change with precision so that the intent is well-documented. In a divorce, the ability to prove a change’s compliance with Texas law and the terms of any marital property agreements is imperative to maintaining the validity of any marital property agreements and protect a client’s assets. Business lawyers advising clients about their closely-held businesses should make certain to evaluate the family law aspects and consider consulting a family lawyer before making any modifications in business ownership structure. Family lawyers should be cognizant of the fact that business needs often change and try to anticipate any potential future issues when drafting a pre- or post-marital agreement. Both family and business lawyers should work together to provide a coherent strategy that addresses the client’s needs and allows for informed decisions throughout the life of the business. HN Kevin Segler is an attorney with KoonsFuller, PC. He can be reached at kevin@koonsfuller.com.
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Sept e mb e r 2 0 1 7 â€
D al l as Bar A ssoci ati on l Headnotes 11
12 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
Focus
Septem ber 2017
Family Law
Booze, Pills & Powders: Their Impact on A Child Custody Case by Kelly McClure and Robert Epstein
Many high-conflict child custody cases involve an allegation of at least one of the parents abusing drugs and/or alcohol. When a party in a child custody case alleges that the other parent or conservator has a substance abuse problem, courts will oftentimes order drug and/or alcohol testing, depending on the evidence presented. If the test results show illicit or unprescribed drugs in the system or evidence of excessive alcohol consumption, the impact on that party’s child custody case could be significant. There are many ways courts can order parties to submit to drug and alcohol testing. Courts can order both drug and alcohol testing by way of urine
screens, hair tests (head or body), and nail tests (finger or toe). In addition to the above methods, courts can order alcohol screening by breath testing (e.g., Soberlink) and/or blood testing. There are also different panels for drug testing, ranging from 5-panel testing (cocaine, amphetamines, opiates, PCP, marijuana) as the smallest panel to 17-panel testing (which includes extended opiates) as the largest panel. The larger the panel, the more expensive the test, so if the substance at issue, for example, is cocaine or marijuana, a simple 5-panel test should be sufficient to screen for those drugs. The method of testing is important to consider for purposes of identifying specifically when the party used the substance. Urinalysis generally has only a short window of time for detection of
a substance; however, its advantage is that it will show if there is any recent use. Hair testing provides for a longer period of drug detection with body hair providing a longer period of detection than head hair. The disadvantage of hair testing, on the other hand, is the fact that it will not detect substance use that occurred during the approximate two-week period prior to collection (since the hair needs time to grow after the substance is used). Nail drug testing provides for the longest period of detection with toenail testing providing a longer period of detection than fingernail testing. Amazingly, toenail testing has the potential to show drug use as far back as one year. Like hair testing, however, its disadvantage is the fact that it will not detect substance use that occurred during the approximate two-week period prior to collection (since the nail needs time to grow after the substance is used). Evidence of a positive test for illegal/unprescribed drugs or a test that demonstrates chronic alcohol use or binge drinking could and oftentimes does result in unfavorable orders from the court with respect to child custody issues for that party. The other parent or conservator could be appointed sole managing conservator of the child(ren) on at least a temporary basis (assuming the other parent or conservator is clean and sober). The party who tests positive is also likely to have his or her time with the child(ren) supervised by order of the court, depending on
the substance for which the party tested positive, among other factors. If there is evidence of chronic alcohol use or binge drinking by a party, then that party could be ordered to submit to alcohol monitoring through Soberlink, which is a portable breathalyzer, during periods of possession with the child(ren). All is not lost though. Many courts believe in second chances, and the road to recovery, while neither easy nor soft, is the path for which a party with a positive drug/alcohol test oftentimes does well to take. Dallas offers an abundance of options for recovery, including but not limited to a variety of chemical dependency specialists and counselors, along with meetings for 12-step programs happening in various neighborhoods throughout the city on any given day. If help is needed, help is available, and there are few, if any, worthier causes for self-improvement than one’s own child(ren). If certain rights and powers of being a conservator are suspended and/or if supervised possession is ordered by the court, those orders can, and frequently do, modify after the party with a positive test proves a history or pattern of sobriety. Change is possible. It can happen if one works for it. HN Kelly McClure is CEO and Managing Partner of McClure Law Group, PC, and Robert Epstein is a partner at the firm. They can be reached at kmcclure@mcclure-lawgroup.com and repstein@mcclure-lawgroup.com, respectively.
Sept e mb e r 2 0 1 7
Column
D al l as Bar A ssoci ati on l Headnotes 13
Ethics
Appointment of Attorneys for Children by Thelma S. Clardy
In family law cases, an attorney must sometimes be appointed to represent a child. The issue thus arises what type of attorney should be appointed: guardian ad litem or attorney ad litem. There is also another type: amicus attorney. For purposes of this article, however, discussion will focus on the appointment of a guardian or attorney ad litem. Under certain types of cases, the type of ad litem is determined by statute. Specifically, when a juvenile child is placed in the juvenile court system, the court is obligated to appoint an attorney for that child if the child’s family does not have the financial ability to retain an attorney. In other types of cases as well, there may be a need for the child to have his or her own attorney, in either the form of an attorney ad litem or guardian ad litem. One might ask, what is the difference between the attorney ad litem and guardian ad litem? Chapter 107 of the Texas Family Code, among other things, gives definitions for attorney ad litem and guardian ad litem. Specifically, Section107.001 defines attorney ad litem as an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation. (emphasis added). On the other hand, a guardian ad litem is a person appointed to represent the “best interests of a child.” Thus, a guardian ad litem does not have to be an attorney and may be a volunteer advocate (such
as a CASA volunteer), a professional other than an attorney who holds a relevant professional license and whose training relates to the determination of a child’s best interest, or an adult having the competence, training and expertise determined by the court to be sufficient to represent the best interest of the child; or an attorney ad litem. T.F.C. Section 107.001(5) (A)(B)(C), and (D). Thus, an attorney may serve in the dual capacity of an attorney and guardian ad litem. The role of an attorney ad litem is to represent the child as he or she would represent any other client and the disciplinary rules of professional conduct apply equally to the attorney ad litem representing a child. T.F.C. Section 107.003(a). Additionally, under the Texas Family Code, an attorney ad litem shall, among other things, interview the child in a developmentally appropriate manner for a child 4 years of age or older, as well as interview each person who has significant knowledge of the child’s history and condition, including any foster parent of the child. It is imperative that the attorney ad litem investigate the child’s background in order to appropriately represent the child. The attorney may also request a hearing, consent or refuse to consent to an interview of the child by another attorney, receive pleadings, and file pleadings on behalf of the child. Similarly, the guardian ad litem’s role is to obtain and review copies of the child’s relevant medical, psychological and school records, interview the child as well as each person who has significant knowledge of the child’s history and
condition. T.F. C. 107.002 (a)-(b)(1) (2). However, while an attorney ad litem may call and question witnesses, a guardian ad litem cannot. T.F.C. Sec. 107.002(C)(4). This is understandable since the guardian ad litem may not necessarily be an attorney, but again, it is the guardian’s role to advocate for the best interests of the child, which is the overriding concern in any lawsuit involving a child. When a conflict arises sometimes between the child’s stated best interest and the attorney’s need to advocate for the child, it is important for the attorney ad litem to ascertain whether the child can meaningfully participate in the legal proceedings. If not, the attorney ad litem
should ensure that the guardian ad litem’s opinion and basis for any recommendation regarding the best interests of the child are presented to the court, and may present to the court a position that the attorney determines will serve the best interests of the child. T.F.C. section 107.008(c)(1). Representing a child can be tricky at times. However, any attorney appointed or retained to represent a child should be sure to familiarize himself or herself with the requirements outlined in Chapter 107 of the Texas Family Code, a portion of which has been outlined herein. HN Thelma Clardy is a solo practitioner. She can be reached at thelclardy@aol.com.
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
Focus
Septem ber 2017
Family Law
Premarital Agreements: Negotiating Love Since 1980 by Michael D. Wysocki
Historically, spouses and couples about to marry in Texas could not change the character of their marital property by mere agreement—doing so was prohibited by the Texas Constitution. In 1948, the Texas Constitution was amended to allow spouses to contractually change the character of existing community property to separate property (Marital Agreements). It would be another 32 years before further amendments would allow couples considering marriage to partition or exchange their existing and future property by agreement (Premarital Agreements). Fast forward to 2017 where now the Texas Family Code works with the Texas Constitution to provide strict requirements through which those contemplating marriage can alter their marital property rights by agreement. Why does one need a Premarital Agreement? Such agreements can help:
Preserve family fortunes; eliminate, limit, or set future alimony obligations; document existing assets and related management rights; ensure religious upbringing for children; keep a party’s income separate or limit its’ community nature; clarify tax obligations; manage estate tax elections/credits; and my favorite… predetermine the parties’ rights and duties during the marriage, like family finances, child care, housework, and other domestic relations. Yes, you can contract for housework, size of house, who pays the bills, number of kids, number of nannies, and frequency of intimate relations in the same document. No problem. What you cannot do is: (1) violate public policy or statute imposing criminal penalties, (2) adversely affect a child’s right to support, or (3) defraud creditors. And if you want to push the envelope, the general contract doctrine of severability applies to premarital agreements.
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A premarital agreement takes effect on the date of marriage. Until marriage, the agreement remains an executory contract. Notably, the Texas Family Code did not adopt the official comments to the UPAA which require a ‘ceremonial marriage’ for a premarital agreement to become effective, so it is unclear how Texas courts would decide the issue of whether an ‘informal’ or ‘common-law marriage’ would also make a premarital agreement enforceable. I say, “Better safe than sorry. Big wedding!” The Family Code does not provide a termination date for premarital agreements. If the agreement does not specify its duration, it is presumed the parties intended the agreement to continue for a reasonable time. If it appears that any contingencies therein would limit the agreement’s duration, these contingencies would control. For those that think the second or third time is the charm, the Dallas Court of Appeals has previously found that a premarital agreement was terminated by the first divorce and did not contemplate that it would govern the relationship upon remarriage—so best to renegotiate a better deal upon remarriage. Who typically seeks a premarital agreement? (1) parties that both think it is best; (2) one party desires the agreement and the other is only entertaining his/her fiancée’s request; and (3) neither party wants the agreement, but must do so to appease others. Category 1 is straightforward and not worth further discussion. Category 2 often involves parties with disparate financial circumstances. In these cases it is important to make sure that each party has independent representation, preferably by an attorney
Board Certified in Family Law. Category 3 can be tricky. Often mom, dad, or grandparents demand a premarital agreement to protect inheritance. It is also becoming more common for trusts to contain provisions suggesting or requiring the trustee to consider reducing or eliminating distributions unless the beneficiary produces a copy of a premarital agreement which the trustee deems to adequately protect the beneficiary’s financial resources. No matter which party you represent, set the tone. Give them a detailed information session or two on Texas Family Law. Oftentimes a party has no clue how our community property system works, but just ‘knows’ they need a prenup. Understanding the difference between community property and separate property, how particular interests are treated upon divorce, management principles, and basic rules of premarital agreements can help the party have a meaningful conversation with you about drafting. This will also help ensure your client can have an educated discussion with their fiancée about the agreement, which you know will happen. There are many other creative steps a practitioner can take in drafting premarital agreements which are outside the scope of this article. The form book contains mere suggestions, so think outside the box. The best service you can provide your client is to tailor the agreement to their individual needs on a case-by-case HN basis. Michael D. Wysocki is Managing Shareolder at O’Neil Wysocki, PC. He can be reached at michael@owlawyers.com.
Sept e mb e r 2 0 1 7 â€
D al l as Bar A ssoci ati on l Headnotes 15
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
Focus
Septem ber 2017
Family Law
Survivor Entitlements can Enhance Retirement for Divorcees by Aubrey Connatser and Guy Rodgers
For the increasing number of people who divorce late in life, the key concern is determining whether there will be enough money to live comfortably the rest of their lives. People in their 60s and 70s may be too close to retirement to rebuild their finances after a divorce. These older people need to insure their security, and social security benefits can be an important part of the asset mix. Social security benefits are based on how long a person has worked, how much money is earned, and when the person starts taking benefits. Social security retirement benefits can start at age 62. Full retirement age of people born between 1943 and 1954 is 66 years of age, while benefits max out at age 70. Eligibility for certain benefits can also depend on marital status. For divorced, divorcing, and married people alike, the key is aggressively pursuing benefits. Claimants must not simply assume their eligibility, but must file to determine their benefits. Those who might not otherwise qualify for benefits may be eligible for divorced spousal benefits. A divorced spouse can collect social security retirement benefits based on the work record of an ex-husband or ex-wife under strict conditions. For purposes of this explanation, the spouse filing on the benefits of an ex is the filing spouse. The spouse who earned the
benefits being filed on is the earning spouse. The rules for collecting divorced spousal benefits are as follows: • Both the filing spouse and the earning spouse must be at least 62 years of age. • The couple must have been married for at least 10 years and divorced for two years. • The filing spouse must be unmarried at the time of filing. The marital status of the earning spouse is not a factor. • The filing spouse cannot be eligible for a higher benefit based on his or her own work record. • For the filing spouse to collect, the earning spouse must be entitled to receive benefits but does not have to be receiving them at the time of filing. The filing spouse does not have to ask permission of the earning spouse to file and there does not have to be any contact between the exes during this process. Even if the earning spouse is remarried, this filing will not affect the right to divorcee benefits, nor will it affect his or her retirement benefits or that of a current spouse. Only if the filing spouse remarries will he or she become ineligible for these benefits. Here is a true-to-life example of a divorced couple, both age 66, who filed on each other’s benefits. For four years, each of them received 50 percent of their ex’s full social security benefit, and it was perfectly legal. This kept their own benefits intact until
T I M VO N H AT T E N
North Texas Giving Day Donor
age 70, when they switched to their own full benefit plus the 32 percent bonus that goes with delaying retirement benefits until 70. This strategy is applicable only to people born before 1954. Note that if a person qualifies for more than one set of benefits, in most cases he or she will collect on only the larger one. A variation on the divorced spousal benefit is the divorced survivor benefit. If an earning spouse dies, after being married for at least 10 years and divorced for at least two years, the filing spouse can collect up to 100 percent of the amount the deceased was to receive. These benefits are available to divorced spouses as early as 60 years of age, or 50 if the survivor is disabled. With the current increase in divorce among older people, and with
people living longer, these benefits have become more important for supplementing the money available to people coming out of a divorce. Social Security is an important part of retirement income, but it is not intended to provide for everything. It should be just one piece of a person’s overall retirement strategy. Family law attorneys are beginning to explain these benefits to their divorcing clients. Some even team up with a qualified planner with experience interpreting the arcane rules of social HN security. Aubrey Connatser, of Connatser Family Law, can be reached at aubrey@connatserfamilylaw.com. Guy Rodgers, of Guy Rodgers Private Wealth Strategies, can be reached at guy@grpws.com. For more information on social security benefits, visit www.ssa.gov.
A Proud Tradition: Crain Lewis Brogdon Kicks Off 2018 EAJ Campaign continued from page 1 for 2018 which would eliminate all funding for the Legal Services Corporation (LSC), the primary funding source for legal aid programs nationwide. In addition, the state of funding for the Texas Access to Justice Foundation (TAJF), which provides funding for legal aid within the state, was undetermined. Happily, TAJF funding statewide will now remain at current levels for the next two years. The ultimate fate of LSC funding still hangs in the balance until this fall. Therefore, this year’s Campaign is especially important to DVAP’s continued ability to provide civil legal services to CLIENT: Communities Foundation of Texas low-income people in Dallas County. JOB#: CFOT-14-011 commitment of Dallas attorneys BrandThe Campaign
and the DBA to the Equal Access to Justice Campaign is impressive. Since 1997, the DBA and Legal Aid have joined forces to raise money for the program, with Dallas lawyers donating almost $12 million. DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www. dallasvolunteerattorneyprogram.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
TRIM: 5"w x 7.75"h LIVE: 5"w x 7.75"h BLEED: n/a COLOR: CMYK
DVAP’s Finest
PUB: Headnotes CONTACT: Jessica D. Smith, Headnotes Editor Communications/Media Director (214) 220-7477 jsmith@dallasbar.org RELEASE: 6/10/15 INSERTION: July Pickup for September.
Katherine Weber
Katherine Weber is a sole practitioner who answered a few questions for Headnotes about her pro bono involvement: 1. How did you first get involved in pro bono? My first exposure to pro bono was helping to raise money for Equal Access to Justice Campaign. Sally Crawford inspired me to take my first case. 2. What types of cases have you accepted? So far, I have accepted family law cases.
3. Which clinics have you assisted with? None yet. Let me know what you need!
CRE ATIN G A C YCL E of G I V IN G
4. Describe your most compelling pro bono case. I represented a mom who was leaving an abusive spouse with her daughter, who is the same age as my daughter.
On North Texas Giving Day, an annual giving event organized by Communities Foundation of Texas, thousands of people donate to nonprofits that are improving our community. One of those nonprofits, Arlington Life Shelter, helped Tim Von Hatten overcome
Deep in the heart of giving™
Pro Bono: It’s Like Billable Hours for Your Soul.
the encompassing despair of homelessness, addiction and joblessness. Four years later, with a fulfilling career and bright future, Tim was able to donate back to the organization that changed his life. Thanks to the incredible outpouring of support on North Texas Giving Day, many of
Open your fund today. Call us at 214-750-4145,
the discouraged and hopeless are empowered to eventually
email giving@cftexas.org
give back themselves, creating an enduring cycle of giving.
or visit www.CFTexas.org/GivingFund.
CFOT-14-011 Headnotes_TVonHatten_01mg.indd 1
5. What is the most unexpected benefit you have received from doing pro bono? A former DVAP client referred a paying client to me!
6/8/15 3:12 PM
To volunteer or make a donation, call 214/748-1234, x2243.
Sept e mb e r 2 0 1 7 â€
D al l as Bar A ssoci ati on l Headnotes 17
CONNATSER FAMILY LAW MEANS BUSINESS
From left: Mike DeBruin, Christine Leatherberry, Aubrey Connatser, Abby Gregory, Doug Harrison, Alissa Castro.
Connatser Family Law attorneys have decades of experience evaluating professional practices, sports and entertainment ventures, energy or financial services firms, as well as momand-pop businesses. Dividing the family business or keeping it intact can be the most important issue in a divorce.
AUBREY M. CONNATSER, PLLC 300 Crescent Court, Suite 270, Dallas, TX 75201 214 306-8441 | connatserfamilylaw.com info@connatserfamilylaw.com
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
Septem ber 2017
CELEBRATING
YEARS AT BELO
Bar association makes a home in mortgage-covered mansion! Some contend Belo mansion will bankrupt bar association. when the Dallas Bar Association decided to purchase the white-columned home of Col. A.H. Belo. t that time the DBA had 3,500 members and was steadily growing. Most of those members, including bar leaders at that time like Judge Jerry Buchmeyer, Waller Collie, Jerry Jordan, Robert Storey, and Bob Thomas believed that the $2.2 million “born-again Belo Mansion” would bring with it a new spirit of community involvement. Others thought that despite some money-saving maneuvers by the organization, the project was doomed to bankrupt the bar association. Thankfully those nay-sayers were proven wrong. The bar association brought in Building Manager Nick LaBranche to lead the renovation, and DBA members, family, and friends pitched in to help scrape walls and carefully detail the home to its original condition. Crowds gather at Belo, then Sparkman Funeral Home, for Clyde Barrow’s viewing, May 1934.
Frontal view of the new Dallas Legal Education Center, designated on the National Register as the A.H. Belo Mansion.
DBA members were instrumental in restoring the Belo Mansion. (L to R: Jerry Buchmeyer, Robert Storey, Walter Collie Jr., Jerry Jordan, and Robert Thomas)
The home of Alfred Horatio Belo and his family, late 1800s.
Strasburger sitting room, ca. 1936.
Mrs. Helen Belo Morrison (second from right), original owner of the home, and her daughters attended the grand opening of the renovated Belo Mansion in 1979.
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D al l as Bar A ssoci ati on l Headnotes 19
CELEBRATING
YEARS AT BELO
ast forward 40 years later to a bar association 11,000 members strong who call the beautifully renovated pillar of the Dallas Arts District home. Not to mention a paid-in-full $2 million loan. The Dallas Legal community has played a vital role in the development of Dallas and the Metroplex as an area of international importance. From among its ranks have come many of the Dallas’s political, business and civic leaders who have been responsible for the city’s growth and for the growth of the Dallas Bar Association. After World War II, the Bar offered members the opportunity to dine and meet for CLE’s off the lobby of the Adolphus Hotel in downtown Dallas But with membership rapidly growing to 1,500 in 1977, bar leaders wanted to have its own headquarters—its own central meeting place for the lawyers of Dallas and for the community. After much planning and over $1 million raised by members and the community for renovation, the Belo Mansion became the Associations’ permanent headquarters in 1977. Designed after his family home in Salem, North Carolina, the Belo home was built in 1890 by Colonel Alfred Horatio Belo, a veteran of the Civil War and founder of The Dallas Morning News. The Belo family only occupied the home for 22 years, and then leased it to a local funeral home beginning in 1926. Crowds
Waller Collie Jr., 1975 Dallas Bar Association President, and Robert Thomas, 1978 DBA President, were instrumental in securing the purchase of the Belo Mansion.
flocked to Belo when outlaw, Clyde Barrow was laid out in the front parlor. The Mansion is one of only a few homes in Dallas placed on the National Register of Historic Places because of its historical and architectural significance; and it is one of the last remaining 19th century architecturally important homes in downtown Dallas. And, we are proud that this year marks the 40th anniversary of one of the proudest times for the Dallas Bar Association—the purchase of the A.H. Belo Mansion by the Dallas Bar Foundation—now the jewel in the center of the Dallas Arts District. In 2003, with a rapidly growing membership of 7,500 members the Dallas Bar Association raised $14 million to build the Pavilion and a much needed parking garage. The Dallas Bar Association with over 11,000 members today, is one of the oldest and most respected lawyer groups in the country. It is a recipient of many Awards of Merit from both the American Bar Association and the State Bar of Texas. As a professional association of the first rank, the Bar through its volunteer members, quietly performs valuable services to its members and to the Dallas community. We are proud to call the Belo Mansion the home for the lawyers of the Dallas Bar Association. Happy 40th anniversary of the purchase of the Belo Mansion!
In 2003, with a rapidly growing membership of 7,500 members, the DBA raised $14 million to build the Pavilion.
The Pavilion at the Belo Mansion was completed in 2003.
Some of the Campaign and Construction Leadership included (L to R): Robert Roby, Nancy Thomas, Mark Shank, Cathy Maher, Brian Melton, and Mike Baggett
To watch a video celebrating the history of the Dallas Bar Association and the Belo Mansion log on to http://www.dallasbar.org/site-page/dba-belo-mansion-40-years.
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
Focus
Septem ber 2017
Family Law
Yours, Mine and Ours: Home Ownership in Divorce by Jodi Bender
Jack and Jill went up the hill, To buy a house together Though still unwed, they lived instead Without a wedding’s tether But later on their fears were gone The knot they swiftly tied Alas those vows they did espouse Were later cast aside So Jack and Jill went down the hill, Their union soon to split. But who was owed their fine abode, And who was doomed to lose it?
—original poem by Matthew Eitzen
The tale of home ownership appears simple to many. Jack and Jill, madly in love and preparing for marriage, buy a home together. They each contribute equal
amounts towards the down payment and then take out a joint mortgage. After marriage, their salaries pay down the mortgage. But if they file for divorce, the issue of who owns the home and in what percentage becomes a point of contention. Putting aside reimbursement claims that the community estate may have, the home is most likely co-owned by Jack and Jill as their separate property in pro rata shares in a percentage based on the amount of consideration each paid at closing. Since the Texas Constitution and Texas Family Code prohibit a court from divesting a party of his or her separate property on divorce, it is reversible error for a court to award ownership of a house which is partly the separate property of one spouse to the other spouse. However, the court can order the sale of property in which each spouse
VOTE NOW! DALLAS COUNTY COURT STAFF AWARDS The Dallas Bar Association Judiciary Committee developed these awards to encourage court staff to do their personal best. This year, the awards will recognize the court staff team (court clerks, court coordinator, bailiff, etc.) that has consistently demonstrated a friendly and polite attitude, helpfulness, professionalism, and spirit of cooperation. Awards will be presented at an awards luncheon in December to court staff teams in each of the following categories: • Dallas Civil District Courts • Dallas County Courts at Law • Dallas Criminal District Courts • Dallas County Criminal Courts • Dallas Family Courts • Dallas Probate Courts For questions, contact kzack@dallasbar.org. Deadline to vote October 20. Visit: www.surveymonkey.com/r/2017CourtStaffAwards to vote!
owns an undivided one-half interest through general property partition laws. By doing this, the court converts the property from undivided separate real property to cash which can be divided in the appropriate amounts. Although partitioning jointly-owned property among co-tenants is not part of a divorce proceeding, courts have confirmed that a partition action under the Texas Property Code can be raised concurrently with a divorce. The Texas Property Code permits “any joint owner of real property or an interest in real property to compel a partition.” Further, when a party seeks partition, the trial court “shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise.” If the property is susceptible to partition, then the Property Code requires that the court partition it. If a physical partition is impossible, which is most likely the case with a marital residence, then the court must order a sale of the property and distribute the proceeds of the sale to the co-owners according to their percentage interests in the home. Further, under common law, a co-owner of real property can assert a claim for reimbursement or contribution. Like reimbursement claims under the Family Code, these claims are equitable claims based on the general rule that because the care, maintenance, upkeep, and preservation of property rests upon joint owners collectively, a joint owner who expends funds for necessary
or proper upkeep is entitled to have such expenditures charged to co-owners in accordance with their pro rata ownership. This right to contribution or reimbursement arises when an advancement is made, and interest may be recovered on such advancements from the date they are made. Thus, if Jill pays down the mortgage, pays the property taxes, repairs the property, pays for home owner’s insurance, and pays for routine maintenance on the home out of money she has inherited (assuming it is her separate property), she can ask the court to require Jack to reimburse her for the money spent—including interest—in the amount of his pro rata share of ownership. A co-tenant may bring an action for an accounting at any time, with or without a suit for partition. In an accounting, reimbursement claims between co-tenants are calculated and allowable offsets are adjusted. If the court finds a reimbursement obligation exists, it can be enforced as part of a partition action. For example, if the court finds that Jack owes Jill more money in reimbursement than the value of his portion of the home, the court has the authority to award the home to Jill and adjust the equities between the parties without selling the property. Although these partition and reimbursement claims are similar to Family Code claims, there are some differences that give courts and parties more options to determine whether the house is yours, HN mine, or ours. Jodi Bender is a Partner at Duffee + Eitzen, LLP and can be reached at jbender@duffee-eitzen.com.
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As part of our strategy of Working Smarter, we’ve moved to Westlake (and don’t miss the traffic). If you are interested in what we are doing and want to be a part of it, contact us by e-mail at bbains@l-llp.com. 1301 Solana Boulevard Bldg. 1, Suite 1545 Westlake, TX 76262
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D al l as Bar A ssoci ati on l Headnotes 21
At Quaid Farish, we believe that divorce doesn’t have to be destructive to be effective. We are experienced litigators, recognized for our skill in the courtroom, as well as in alternative ways of divorcing, such as collaborative law.
Divorce and Custody cases often include far more than mere legal issues. While litigation may still be necessary in some cases, the reality of families in transition is a collaborative resolution is far more efficient, private and durable.
8150 N. Central Expressway, Suite 600, Dallas, Texas 75206 PH: (214) 373-9100 FX: (214) 373-6688 www.QuaidFarish.com www.CollaborativeDivorceDallas.com *
Collaborative law is forward thinking, not focused on fighting over the past. The collaborative process replaces the combative and threatening atmosphere of litigation, with a confidential, transparent, structured, and solution oriented process.
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While many lawyers & firms handle collaborative cases, few are as practiced at the art of collaborative law, committed to collaborative practice and as recognized as leading Collaborative Family Law practitioners, as Quaid Farish.
Christopher M. Farish * † Charles J. Quaid * Julie H. Quaid *
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
Focus
Septem ber 2017
Family Law
The Dangers of Not Using an ERISA Attorney by Raechel Parolisi
Retirement benefits are often the most significant asset in the marital estate, but are not always given the attention they deserve in a divorce. The Qualified Domestic Relations Order (QDRO) which is required to divide the benefits is often treated as an afterthought or worse, not even drafted. This way of handling retirement benefits, while dangerous for the divorce attorney and the client, can easily be remedied by consulting with a qualified ERISA attorney early in the case. ERISA (Employee Retirement Income Security Act of 1974) and retirement plans have a language all their own. To understand the benefits available and effectuate an enforceable division, one must speak that language. Simply determining the marital portion of the benefit then plugging it into a model QDRO is not enough. There are numerous plan features that need to be evaluated and negotiated in order to create a division which protects and benefits the client.
The dangers of not utilizing an ERISA attorney to assist with the division of retirement benefits are present from the beginning of a case and go beyond having a QDRO rejected. Lacking the proper knowledge and understanding of retirement plans can be detrimental to the client and result in malpractice. Too often, attorneys craft divisions without having or understanding all the necessary information. These divisions result in unintended consequences, unanticipated yet significant inequity, or are simply impossible to implement. A true understanding of plan features is required for a proper division and to competently and diligently represent a client. Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct requires in part, that an attorney be competent when handling a legal matter or else consult with another attorney who is competent in that area. Thus, a family law attorney who is not familiar with retirement plans is obligated to consult with an attorney who is.
Let’s Keep it Social. Follow Us! Find out what’s going on at the #DallasBarAssoc www.dallasbar.org
Attorneys who fail to understand the nuances of retirement plans cannot competently advise clients of what they are entitled to or draft an effective QDRO. Bringing in a QDRO attorney after the divorced is finalized does not always protect a client’s interests. A QDRO must reflect the terms set forth in the decree. A poorly worded decree could lead to litigation if a disagreement arises over the intent of the language or if necessary information is missing. No one wants to draft the QDRO after the divorce is finalized, only to realize there are terms that were never discussed or that the participant took a loan that was not factored into the division. To prevent this, an expert should be brought in well before the divorce is finalized. Retirement benefits should be treated like any other marital asset. All information should be obtained about the value and type of benefits available. A screenshot showing the current value of a benefit is insufficient. As gathering information is a lengthy process, consulting with someone early on who knows what to request, can locate all plans, and who can explain the information received is necessary. Knowing the options available and what a client is entitled to provides an edge in negotiations and the information and guidance needed to prevent money from being left on the table. Neglecting to address every benefit and option can significantly harm a client and have huge financial ramifications.
Particular care needs to be taken with creative divisions such as negotiated settlements in mediation or collaborative settings. The danger of not getting assistance early is that there is a high risk of having agreements blow up and collaborative cases torpedoed. Even an unintentional oversight by one party regarding the value or existence of retirement benefits can result in a breakdown of trust, the agreement and relationships. Worse still is when an agreement is crafted based on a misunderstanding of the value or type of retirement benefits causing the process to start all over. These types of issues require additional negotiations, time and money, and will require an explanation to the client of why the attorney failed to handle it correctly the first time. Unfortunately, while collaborative law allows for creative agreements, retirement plans cannot always be manipulated to fit them. These dangers exist for wealthy and low-income clients alike. The complexity of retirement plans needs to be understood when dividing benefits and drafting QDROs. Attorneys can protect themselves and their client from the dangers associated with dividing retirement benefits by becoming well versed in this area of law, or by bringing in a qualified ERISA HN attorney at the start of a case. Raechel Parolisi is a solo practitioner. She can be reached at rparolisi@odroattorney.law.
DAY OF CIVILITY & PROFESSIONALISM
Save the Date! Friday, October 20, 2017 at Belo 11:30 a.m.—1:30 p.m. Ethics 2.00, pending Sponsored by the DBA Morris Harrell Professionalism Committee
Civility is the hallmark of a professional
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Sept e mb e r 2 0 1 7 â€
D al l as Bar A ssoci ati on l Headnotes 23
24 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
Septem ber 2017
Family Law
“Zealous Representation” in the Family Courts? BY DAWN RYAN BUDNER
Zealous representation is a term of art for lawyers—the long-held yardstick by which our duty to the client is measured. For courtroom lawyers, this means zealously advocating the facts and law in support of our client’s position. Assuming “zealous” means we are earnest and dedicated—rather than fanatical or wild-eyed—we do not question the standard very often. But what happens when the litigants are not business competitors but members of a family—mothers, fathers, and children? The long-term impact of divorce and related court decisions renders the family court a most powerful force in the development of our culture today. Knowing this, are we doing enough to accommodate these complex, personal dynamics in our legal system? And, is “zealous advocacy” the appropriate benchmark to guide us? The zealous lawyer began as one who “owe[d] his entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights.” (“How Far a Lawyer May Go in Supporting a Client’s Cause,” Final Report of the Committee on Code of Professional Ethics ¶ 15 at 579 (1908).) But even in 1908, “warm zeal” was distinguished from the other kind of zeal, the one that gets carried away by the ego: Nothing operates more certainly to create or to foster popular prejudice against lawyers as a class, and to deprive the professional of . . . public
esteem and confidence . . . than does the false claim . . . that it is the duty of the lawyer to do whatever may enable him to succeed in winning his client’s cause. Id. These cautionary words ring just as true today. In its 1989 Lawyer’s Creed, the Texas Supreme Court described the lawyer’s balancing act this way: “The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system.” So, while we owe our primary duty to the client, that duty exists entirely within a system of jurisprudence that derives its very legitimacy from the honesty and integrity of the lawyers and jurists who practice within it. Lawyers who value their reputations do not assert frivolous positions or file Rambo-style pleadings to harass or increase the costs to the opposing party. They do not alter or destroy evidence; nor do they mislead, misrepresent, misquote, or miscite facts or law. Indeed, an ethical lawyer will never sell his or her soul for the client’s cause, but not because of a disciplinary rule. These lessons we learned when our parents taught us not to lie, cheat, or hurt others. But sometimes, our code of ethics demands more than just avoiding misconduct. Bd. of Law Examiners of State v. Stevens, 868 S.W.2d 773, 780 (Tex. 1994) (“Disciplinary Rules sometimes require lawyers to act with extraordinary courage.”). In becoming
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lawyers, did we not imagine a future in which we would change lives or save the day or at least make a positive contribution? Family practice is teeming with such opportunities, and as many pitfalls. Here, zealous representation of a client has consequences in the lives of other, vulnerable human beings. Sometimes, the “legal” rights of a parent may conflict with the best interests of a child. Are we then derelict, instead of zealous, in encouraging our client to pay for private school or college tuition, when the court would not have compelled him to do so? Are we zealous, instead of ethical, when we turn a blind eye from our client’s transfer of funds to a separate account? Or when we ignore or even exacerbate the client’s explosive rage against the other parent? Family lawyers are humans whose egos can be piqued by the prospect of
“winning” the case. And in family law, perhaps more than other areas, there is a tendency to blur the line between lawyer and client. We forget that there are humans on both sides of the table. We insist on positions when our client is willing to compromise. We follow the client’s instructions when we know she is suffering from a mental illness or maybe just the lack of compassion. When the lawyer loses objectivity, the client loses effective counsel. The art of family law is in guiding the client toward a solution without damaging or destroying lives in the process. In family court, there are no winners or losers. There are only families, who will be left to navigate what remains of their world after we finish. HN Dawn Ryan Budner is a Partner at Calabrese Budner LLP. She can be reached at dawn@calabresehuff.com.
DBA & Caruth Institute for Children’s Rights Education Symposium Improving the Lives of Children through Advocacy Thursday, November 9 ~ 8:30 a.m. ~ Belo Mansion The Jack Lowe Sr. Award for Community Leadership will be presented during the luncheon. Contact Kathryn Zack at (214) 220-7450 or kzack@dallasbar.org for more information.
UPCOMING DBA EVENTS ADD THESE TO YOUR CALENDAR!
Winner receives a 2018 Mercedes-Benz CLA-Class*
September 14: North Texas Giving Day, Donate to DVAP! October 13: Annual Stephen Philbin Awards Luncheon October 30: Fireside Chat with Dallas Mayor Mike Rawlings November 3: DBA Annual Meeting November 7: DBA Awards Luncheon, Honoring Members November 8: Pro Bono Awards Celebration November 16: New Member Reception November 29: Faith Leaders Public Forum
For more information, or to register, visit www.dallasbar.org.
Runner-Up Receives: Charleston Luxury Getaway (Private Historical Photo Tour, Dinner & Wine Pairings at Charleston Grill, Belmond Charleston Place 3-Night Stay with Airfare for 2) Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, which provides legal services to the less fortunate in our community. No more than 1,500 tickets will be sold. *Picture shown is not exact winning vehicle
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). Drawing will be held at the DBA Inaugural Ball on January 20, 2018 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.
Sept e mb e r 2 0 1 7
D al l as Bar A ssoci ati on l Headnotes 25
Left to right: DAWN RYAN BUDNER, CARLA M. CALABRESE, LAUREN S. HARRIS, & ASHLEY JONES
SOMETIMES TENACITY NEEDS A WOMAN’S TOUCH When legal issues impact your marriage or family, you need an attorney with sound judgment, empathetic insights, and an unwavering commitment to your best interests. That’s exactly what you’ll find at Calabrese Budner. Whether in the courtroom or the conference room, Calabrese Budner works tenaciously to protect what you value most. + Divorce + Complex Property Division + Collaborative Law + Marital Agreements (Pre- and Post-Nuptial) + Child Custody and Support + Adoption + Paternity + Mediation + Assisted Reproductive Technology (ART)/Surrogacy + Alimony/Spousal Maintenance + Post Divorce Modification/Enforcement
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Best Lawyers in Dallas, D Magazine 2017 Collaborative Divorce Texas, Master Credentialing 2017
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26 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
Septem ber 2017
Family Law
Trusts and Divorce: What You Should Know by Larry Hance
Many high-net worth individuals and families have assets that are contained within a trust, or trusts. There are very sound legal reasons to create trusts, and a great number of families use them. The three primary reasons are: 1. Protection from lawsuits and creditors (especially for people in occupations more susceptible to lawsuits, like doctors, lawyers, and CEOs); 2. To create a legacy; and 3. Potential tax benefits. However, high-net worth clients and the lawyers representing them may find themselves asking the question: What happens in a divorce when a significant percentage, or most, of a couple’s assets are tied-up in trusts? For starters, when a trust is created—as long as it is done legally—the assets used to fund the trust are no longer part of the marital estate. In a great number of situations, that can certainly benefit a married couple. But in a divorce, it can create some very complex issues, especially if the trust was created or funded in anticipation of filing for divorce.
If a trust was created and funded near the time of the divorce, that’s an obvious red flag, but even trusts created early in the marriage, with both spouses agreeing to the terms of the trust, might require more scrutiny than they might initially appear to need. In order to fully analyze a trust and know how the law should apply to the assets held by that trust, you must first understand the parameters of the trust. To do so, you need to gather the following necessary information: (1) who the trustee is, (2) who the beneficiaries are, and (3) how the distribution rules operate, based on the terms of that particular trust. For example, if the trustee is a close personal friend of the husband rather than a bank, that could make a difference in how the trust operates. A trust might be set up to provide the wife in this situation with a certain amount of income, or all of the income of the trust. After the divorce, the husband and trustee might not be able to change how much income is distributed to the now-ex-wife via the trust, but they could conceivably change how much income the trust produces by investing the
DBA MEMBERS INVITED TO RED MASS 5:00 p.m., Saturday, October 14, 2017 The Cathedral Shrine of the Virgin of Guadalupe The St. Thomas More Society invites you to join us for our annual Red Mass on Saturday, October 14, at 5:00 p.m., at the Cathedral Shrine of the Virgin of Guadalupe, followed by a dinner reception at the Petroleum Club. Children are encouraged to attend this family event.
assets differently. Also, in this situation, the wife would have no control over the principal or assets of the trust. Oftentimes, even though both spouses signed off on a trust early in the marriage, one, or both, might not be aware of the pitfalls embedded in that trust. These include whether either spouse has ownership of the trust corpus, which is generally evidenced by having a “present possessory right to part of the corpus;” whether one spouse has discretionary control over distributions of trust income or the trust corpus; and whether the trust provides one spouse with authority to decide when, where, and how the trust corpus should be invested. These pitfalls typically reveal themselves once a divorce happens, and parties who were once allies have now become adversaries. There is some debate in the estate planning community around these issues. Most trusts are set up by one lawyer acting in the interest of both parties. The lawyer would normally have no idea that one party might want the trust in order to control assets after an impending divorce. In my opinion, any time marital assets are to
be transferred to a trust, each party should have their own lawyer. And these lawyers should advise each spouse on the effect this transfer of assets would have on them if they were to divorce. Since it is difficult to change the terms of a trust after a divorce, it is best to address any assets contained in a trust during divorce negotiations. In some cases, the rules and circumstances around a trust are so complex that it is better to dissolve the trust and disperse the assets to the spouses directly as part of the overall community property division. And while it is possible to convince a judge to ignore a trust under some circumstances when dividing marital assets, it is very difficult to do, so it is a risk at trial. Sound legal advice from a family lawyer knowledgeable in trusts is essential in these cases, whether the client is a highnet worth earner trying to protect his or her wealth through trusts, or the spouse of a high net worth earner trying to ensure a HN fair divorce settlement. Larry Hance is the principal of Hance Law Group, P.C. He can be reached at lhance@hancelaw.com.
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D al l as Bar A ssoci ati on l Headnotes 27
No Bulldogs, Boxing Gloves, or Baseball Bats Needed. The team at Hance Law Group doesn’t need gimmicks. They practice family law with a calm, confident and focused approach that guides each client to his or her best possible outcome. Founding Partner Larry Hance is Board Certified in Family Law by the Texas Board of Legal Specialization and has more than 35 years of proven experience.
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28 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
Septem ber 2017
wit h
Jon Meacham
Pulitzer Prize-Winner • Author Presidential Historian
Thursday, October 12, 2017 Cocktail Reception at 6:30 pm Dinner at 7:15 pm
Benefiting the Sarah T. Hughes Diversity Scholarships DA L L A S B A R F O U N DAT I O N ( 2 1 4 ) 2 2 0 - 7 4 8 7 B el o Man s i on and Pav i l i on / 2 1 0 1 R o ss Ave. / Dal las
Belo Mansion_Headnotes Ad.indd 1
8/11/2017 3:57:49 PM
Sept e mb e r 2 0 1 7 â€
D al l as Bar A ssoci ati on l Headnotes 29
30 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2017
Congratulations 2017 DBA Summer Law Interns & Employers Since 1993, the Dallas Bar Association (DBA) Summer Law Intern Program (SLIP), a joint effort between the DBA and the Dallas Independent School District (DISD), has provided a select group of incoming high school seniors with the opportunity to work in law firms and corporate legal departments through the Dallas area. SLIP is recognized among DBA members as one of the most successful partnership projects ever undertaken by the DBA and the DISD. It is considered to be a cornerstone program for the DBA, having received a Dallas Bar Foundation grant each year from 1998-2017. As the firms and corporate legal departments who have participated in the past can attest, these interns are trained and ready to get concrete, professional experience wherever they can. Both the interns and their employers benefit from their involvement in SLIP, and many maintain contact with each other even after the program ends. In fact, in a number of circumstances, interns are hired on to continue working with their respective employers during the school year and beyond. SLIP interns have the opportunity to learn about the law and how the justice system operates through hands on experience at their placements as well as through weekly educational events at the area courthouses and law schools. Congratulations to this year’s SLIP students on their accomplishments this summer and a big thank you to all the firms, organizations and mentors who supported the program. To learn more about the Summer Law Intern Program, contact Kathryn Zack at kzack@dallasbar.org or log on to www.dallasbar.org/summerlawinternprogram.
Thank You to the Firms who Supported the 2017 Summer Law Intern Program Alicia G. Burkman, Attorney at Law Cobb Martinez Woodward Cowles & Thompson Cox Bower, LLP Dallas ISD Legal Department
Haynes and Boone, LLP Jones Day Law Office of Lauren C. Medel, PLLC Law Office of Alisa Richman
English Law Group, PLLC Espinar Law, PLLC Farrah I. Ahmed, PLLC GUERRERO LAW OFFICES Hameline & Eccleston LLP
34th Annual Stephen Philbin Awards Luncheon
continued from page 1
Friday, October 13, 2017 Noon at the Belo Mansion Tickets: $45 ($450 for tables of 10)
Direct ticket inquiries to Judi Smalling at jsmalling@dallasbar.org
Strasburger & Price, LLP Tailim Song Law Firm Weil, Gotshal & Manges LLP Zaby & Associates
David McCraw to be Keynote Speaker at Philbin Awards
The Dallas Bar Association
Purchase tickets by 9/22 to receive the early bird rate.
LeBoeuf Law, PLLC Locke Lord LLP Patterson + Sheridan LLP Saputo Law Firm, PLLC SMU Child Advocacy Clinic
Keynote Speaker David McCraw The New York Times
Recognizing Excellence in Legal Reporting
cases. He has litigated more than 40 FOIA suits, winning the disclosure of secret documents on topics ranging from drone strikes in Yemen and terrorist investigations in the U.S. to the government’s burgeoning surveillance program. Mr. McCraw also heads up The Times’s crisis management team coordinating the paper’s response when journalists are kidnapped or detained overseas. Mr. McCraw is a graduate of the University of Illinois, Cornell University, and Albany Law School. He is an adjunct professor at the NYU Law School. In 2010, the New York City Bar awarded Mr. McCraw its Cyrus Vance Award for his international pro bono work on behalf
of free expression. As a pro bono attorney, he has worked with lawyers and journalists in Bahrain, Montenegro, Yemen, and Kuwait and various countries in South America and Eastern Europe. DBA members may reserve seats now for the luncheon. To receive the early bird rate of $45 per ticket or $450 per table of 10, register by September 22. After September 22, tickets increase to $50; and tables of 10 can be purchased for $500. No walk-ins will be accepted. Purchase your ticket by logging on to www.dallasbar.org or by contacting Judi Smalling at jsmalling@dallasbar.org. HN Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
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Sept e mb e r 2 0 1 7
D al l as Bar A ssoci ati on l Headnotes 31
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32 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2017
What Is Your Collection Rate? by Claude Ducloux
Every business and professional practice owner expects that some percentage of their billed services will not be paid. Any lawyer who says, “I have a collection rate of 100 percent” is either lying, or simply works for his mom. Businesses actually accommodate for “bad debt” in annual budgeting, and small fluctuations in your collection rate can have a huge impact on your bottom line. As a director for the dozen or so for-profit boards I have served on, I often see a figure of 5-10 percent as an expected range of lost earnings. Knowing this, I have often reviewed my year-end billings and determined that I have been fortunate to have maintained a 97 percent collection rate, despite a very diverse practice where real people are digging in their own pockets to pay the vast majority of my bills. To get to 97 percent, I have learned many hard lessons, and I try always to share those in my law practice management speeches. Let us start with the basic premise. If you depend on your work to support you, these are the most important questions: 1. How can I ensure that all or most of my bills get paid?
2. What behaviors, habits, skills, and processes will maximize my collections? Historical ways lawyers have tried to maximize collections include: • demanding “cash up front” in flat-fee situations • getting a huge retainer sufficient to cover the expected bill • simply restricting a practice to predictable clients or controllable tasks But all of these restrictive methods are contrary to a growth-oriented private practice. Lawyers know that even if they can turn out excellent work-product, obsolete or rigid billing practices can divert good prospective clients to firms that provide more payment options and flexibility. The “Good Billing Habits” presentation that I have delivered to multiple bar associations instead focuses on the keys to successful billing and collection. Although the presentation focuses on many specific factual examples, the most important tenets of getting paid are summed up below.
listen to the client. The result of a thorough interview should be reasonable expectations by the client, and by the lawyer, using these steps: 1. Determine whether the client’s needs and expectations can ever be realistically satisfied. 2. If so, give the client a road map of what the most important next step will be, and the decisions that may arise thereafter. 3. Ensure the client understands the cost and the law firm’s expectation of payment, discussing frankly how the client plans to pay and whether the client can afford the firm’s services. 4. Exercise your own good judgment as to whether this client is credible and a good risk. (Sadly, it is hard to teach this. But if stories do not make sense, and you are not the first attorney who has attempted to help this person, alarm bells should be ringing.) Bottom line: when the interview ends and the client is signed up, both sides should be comfortable and confident in the integrity of the other party.
Interviewing the Client
Communication During the Case
Few lawyers are ever trained to carefully, thoughtfully, and intelligently
Moms in Law Expands to DBA The DBA and DAYL will host their first joint Moms in Law lunch on Friday, September 15, 2017, noon, at Belo. There will be quarterly lunches at the Belo and two lunches offered in either Dallas or North Dallas.
RSVP christine@connatserfamilylaw.com to attend the first joint lunch or join the Moms in Law email listserv.
Nothing protects the lawyer and firm more than vigorously updating the client throughout this process and controlling the narrative of events as they progress. The single biggest complaint against lawyers in the United States is “my lawyer will not return my call.” Failure to communicate not only can get you in trouble with the bar, but also affects the client’s willingness to pay your bill. Instead, create confidence and protect yourself by sending frequent, even if short, messages and updates to the client. Remember, you are, after all, a team!
Billing the Case
Effective billing includes all of these elements: 1. Carefully craft the bill itself. Use real words and explanations of what you did, and do not bill for things like office supplies. Stupid billing only makes clients angry, offended, and more likely not to timely pay you. 2. Save your time entries daily. It just does not take that long to do it daily. Good lawyers do not need to spend more than five minutes per day with a good, basic billing system. 3. Get the bill out on a set schedule at least every month. If you expect your clients to understand billing is important, get the bill out timely, as I do on the first business day of the month. The previous month’s activities will be recalled more readily by the client. Clients routinely complain that all too often, they receive bills 90 days or more after the work is done. That delay astronomically increases the client’s reticence to pay you: “If you can go 90 days without billing me, clearly you do not need the money.” 4. Finally, make it easy to get paid! Nothing has supercharged my own collections more than giving clients a hyperlink and the opportunity to pay immediately with a credit card. Small firms especially need this professional capability. In saying this, I am giving you my personal experience. It works wonderfully in HN private practice.
Claude Ducloux is Director of Education of LawPay and is Board Certified, Civil Trial Law and Civil Appellate Law, Texas Board of Legal Specialization.
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Sept e mb e r 2 0 1 7
Focus
D al l as Bar A ssoci ati on l Headnotes 33
Family Law
The Child Moved in the Middle of the SAPCR. Can I Transfer? by Beth M. Johnson and Georganna L. Simpson
When a parent moves with the child during a pending suit affecting the parent-child relationship (SAPCR), it is tempting to seek to transfer the suit to the child’s new county of residence because that is where the child and the evidence are. But a transfer may only be obtained pursuant to the Texas Family Code, and a failure to follow the code could result in a void judgment rendered by a court without jurisdiction. In In re C.G., 495 S.W.3d 40, the parents were divorced in Sherman County, and their divorce decree included orders regarding their child. Less than a year after the divorce, the mother and child moved to Moore County. Subsequently, the father filed a SAPCR in Sherman County with a motion to transfer the case to Moore County. The case was transferred, and everything would have been fine if it had stopped there. However, after the mother subsequently moved with the child to Randall County, the father filed another motion to transfer the case from Moore County—since neither of the parties lived in Moore County any longer— to Randall or Ellis County where he lived. Father then sought and obtained a protective order in Ellis County, after which Mother moved with the child to Nueces County. After a hearing, the Moore County court transferred the case to Nueces County.
In Nueces County, the court held a full-blown bench trial and signed a final judgment with various rulings related to the interest of the child. However, shortly thereafter, the Nueces County court determined it had never obtained subject-matter jurisdiction, set aside its orders, and transferred the case back to Moore County. The appellate court denied the mother’s appeal and agreed that the Nueces County court never had jurisdiction because the purported transfer was not compliant with the Texas Family Code. In a SAPCR, venue is proper in the county where the child has resided for the six months prior to the suit. Additionally, a trial court acquires continuing, exclusive jurisdiction over matters in connection with a child after the rendition of a final order and may exercise its jurisdiction to modify its order regarding conservatorship, possession of and access to the child, and support of the child. If a Texas court has acquired continuing, exclusive jurisdiction, no other court of this state has jurisdiction of a suit with regard to that child. Transfers from courts of continuing, exclusive jurisdiction are governed by the Texas Family Code. If a party files a modification or enforcement suit in the court with continuing, exclusive jurisdiction over the child, on the timely motion of a party the court shall, within the time required by the Texas Family Code, transfer the proceeding to another county in this state if the
child has resided in the other county for six months or longer. The Texas Family Code states that a motion to transfer by a petitioner or movant is timely if it is made at the time the initial pleadings are filed. A motion to transfer by another party is timely if it is made on or before the first Monday after the 20th day after the date of service of citation or notice of the suit or before the commencement of the hearing, whichever is sooner. The transfer procedures in the Texas Family Code governing suits affecting the parent-child relationship are the exclusive mechanism for transferring the case or challenging venue and were designed to supplant the regular rules dealing with transfer of venue applicable in ordinary civil cases. In other words, in SAPCRs, the venue rules in the Texas Civil Practice
and Remedies Code do not apply when a court has acquired continuing, exclusive jurisdiction pursuant to the Texas Family Code. An untimely motion to transfer gives a trial court no authority to transfer a cause to another court. Thus, under the Texas Family Code, continuing, exclusive jurisdiction over a pending SAPCR may only be transferred pursuant to a motion to transfer filed with a party’s initial pleadings. Thereafter, the transferee court is barred from transferring its continuing, exclusive jurisdiction—i.e., the parties can obtain a transfer only one time with the filing of the parties’ initial pleadings. HN Beth Johnson and Georganna L. Simpson are solo practitioners and can be reached at beth@bethmjohnson. com and georganna@glsimpsonpc.com, respectively.
17th Annual Freedom Run 5K Run/1 Mile Walk
Saturday, September 16, at 8:00 a.m. Ronald Kirk Pedestrian Bridge at Trinity Groves Benefitting the Assist The Officer Foundation Paying tribute to the victims and heroes of 9/11.
Register Online at www.freedomrun.com
Organized by the Dallas Association of Young Lawyers. For sponsorship or corporate team information, email cherieh@dayl.com.
Divorce Doesn’t Have to Destroy a Family we know from experience
- experience matters
Left to right: Brant M. Webb, Chetammia A. Holmes, Brian L. Webb*+ , Natalie L. Webb+ *Inductee into the Texas FamilyChetammia Law Section of Legends Left to right: Brant M. Webb, A.Hall Holmes, Brian L. Webb*+ , Natalie L. Webb+ + + + L. Webb*+ , Natalie Board in Chetammia Family Law by the Texas of Legal Specialization toCertified right: M. Webb, Chetammia A. Holmes, Brian *Inductee intoBrant the Texas Family Law SectionBoard Hall of to right: Left Brant M. Webb, A. Holmes, Brian L.Legends Webb* , Natalie L. Webb+ L. Webb + Board Certified in Texas Family Law byLaw the Texas Board Specialization *Inductee into the Family Section HallofofLegal Legends ductee into the Texas Family Law Section Hall of Legends
+ Board Certified in by Family Law by the Texas Board of Legal Specialization ard Certified in Family Law the Texas Board of Legal Specialization
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34 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2017
Recent Applications of the Electronic Communications Privacy Act by Sophilia Wu
Through the years, the Electronic Communications Protection Act of 1986 (ECPA) has been amended several times, including by the USA PATRIOT Act. The ECPA extended previously existing government restrictions on wire taps from telephone calls to include transmissions of electronic communications by computers. As technology continues to advance, the courts are forced to apply the ECPA to issues that did not exist when the law was initially enacted, resulting in courts struggling to answer questions with insufficient tools. Two recent examples include: 1) the question of whether URLs are considered content or metadata; and 2) whether search warrants may be used to access data stored in foreign countries.
Are URLs Content or Metadata? for
In 2015, the U.S. Court of Appeals the Third Circuit considered
whether internet advertising businesses violated federal law when they placed tracking cookies on users’ web browsers in contravention of the browsers’ cookie blockers and the businesses’ own public statements. In re Google Inc. Cookie Placement Consumer Privacy Litigation, 806 F.3d 125 (3d Cir. 2015), cert. denied sub nom. The most important point that the Court made was that in addition to functioning as metadata, some URLs also function as content. Federal surveillance law distinguishes between the content of communication, which is protected under the Wiretap Act (Title I of the ECPA), and the non-content means of establishing communications (metadata), which is not protected and governed by the Pen Register Act (Title III of the ECPA). In the underlying action, the District Court held that the URLs in the electronic transmissions intercepted by the defendants are location identifiers, which constitute metadata, not content. However, the Court of Appeals explained that the dichotomy between
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content and metadata is not always so clear. Instead, the analysis is contextual, and turns on the role of location identifier in the intercepted communication. The Court of Appeals reasoned that URLs, which normally function as routing and location-based metadata, could also contain search terms entered into a search engine, which would reveal that the user is conducting a search for a particular topic, thus constituting content. Thus the Court of Appeals determined that some URLs also qualify as content. However, the Court of Appeals chose not to establish a test, stating that, “[w]e need not make a global determination as to what is content, and why, in the context of queried URLs. Lack of consensus, the complexity and rapid pace of change associated with the delivery of modern communications, and the facileness of direct analogy to mail and telephone cases counsel the utmost care in considering what is, and what is not, “content” in the context of web queries.”
Can U.S. Search Warrants Access Data Stored on Foreign Servers?
In 2016, the U.S. Court of Appeals for the Second Circuit held in Microsoft Corp. v. United States, 829 F.3d 197 (2d Cir. 2016), that electronic communications that are stored exclusively on foreign servers cannot be reached by U.S. prosecutors under the Stored Communication Act’s (SCA) warrant provisions (Title II of the
ECPA). In this case, Microsoft refused to provide e-mail content information stored on servers in Ireland, arguing that this subjected U.S. prosecutors to Irish laws. The United States argued that Microsoft could access the information from its offices in the United States, so it was a domestic matter subject to domestic law. Ultimately, the Court of Appeals, siding with Microsoft, held that the SCA’s emphasis was on the privacy of the content of a user’s stored communications. In a concurring opinion, Judge Gerard Lynch said that he was “skeptical of the conclusion that the mere location abroad of the server on which the service provider has chosen to store communications should be controlling,” and opined “[t]hat may be the default position to which a court must revert in the absence of guidance from Congress, but it is not likely to constitute the ideal balance of conflicting policy goals.” A 2017 decision in the Eastern District of Pennsylvania resulted in a different answer: Google, in connection with a domestic criminal investigation, was ordered to comply with FBI search warrants and produce emails stored on foreign servers. In re Search Warrant No. 16-960-M-01 to Google (E.D. Pa. Feb. 3, 2017). (Notably, the facts in Google are different, as Google was unable to identify where the information was HN stored.) Sophilia Wu is an attorney at Mullin Law PC. She can be reached at sophilia.hsu@gmail.com.
This O d Dog Happens To Know A Few Tricks. Rely on a trial lawyer with 45 years of experience and 175 trials. When your case needs to be mediated, call Al Ellis, a trial lawyer who has the experience to help you creatively resolve any dispute. His vast experience in the courtroom gives him comprehensive insight that allows him to understand the different perspectives of each case. Al is one of only 500 U.S. members of the International Academy of Trial Lawyers, a former President of the Dallas Bar Association, and the recipient of the Morris Harrell Professionalism Award — evidence that he has earned the respect of peers on both sides of the docket. Once Al gets his teeth into a case, he won’t let go, working tirelessly until he negotiates a fair, mutually agreeable deal. When it’s time for mediation, there’s no one better to have at your side. Voted one of D Magazine’s Best Lawyers of 2015 for Alternative Dispute/Mediation
AL ELLIS
T R I A L L AW Y E R / M E D I AT O R Sommerman, McCaffity & Quesada, LLP 214.720.0720 | Dallas, TX al@textrial.com
Sept e mb e r 2 0 1 7
Classifieds
D al l as Bar A ssoci ati on l Headnotes 35
September
EXPERT WITNESS
Economic Damages Experts - Thomas Roney has more than thirty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@ thomasroneyllc.com. “We Count.” Insurance Industry Expert. R. P. “Bob” Gaddis, JD, 46 years’ experience in Property/Casualty Insurance, sequentially as Underwriter, Agent, and Insurance Litigation Attorney. His underwriting and agency work concentrated on complex commercial accounts. Served as Expert Witness in over 65 cases. Visit complexinsuranceconsulting.com or contact him at bgaddis@complexins. com, (713) 621-1601. Economic Damages Experts – HSNO is the Forensics Firm. The Dallas office of HSNO has six CPA testifying experts who specialize in the calculation of economic damages in areas such as commercial lost profits, personal lost earnings, business valuations, property damage, insurance litigation, intellectual properties, commercial litigation, contract disputes, bankruptcy, and fraud. HSNO is qualified in most industries including, but not limited to; energy (offshore and onshore), manufacturing, hospitality, service, insurance, transportation, entertainment, product liability and construction. HSNO has 17 U.S. offices and an office in London. Contact Peter Hagen or Karl Weisheit at (972) 9805060 or go to HSNO.com. Mexican Law Expert - Attorney, former law professor testifying for 20 years in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/ defenses, personal injury, moral damages, contract law, corporations. Coauthor, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 6029895. dlopez88@rocketmail.com
FOR SALE
Well-established Dallas Tax Law Firm. The owner, a sole practitioner, is retiring. The firm has an excellent paralegal, strategic location, class A office, reputation, and historical income stream. It is a platform for growth and one of the best tax practices dealing with the IRS in region. If interested in more details, call Jeff at (410) 987-7062.
OFFICE SPACE
North Dallas. Law Firm – Merit Tower Office Space - For Lease: Contemporary office space, 12222 Merit Drive, offers five conference rooms, receptionist, Internet service, lobby, library, fully equipped breakroom, parking, workout facilities. Available 5/1/17. Email Amy at arobinson@englishpllc.com or (214) 528-4300. Walnut Glen Tower (Walnut Hill/ Central). Great Deal! Terrific offices in Class A building near Northpark with views of downtown over lake with fountains. Convenient access to DART station. Prized, central location wherever you need to go in the Metroplex. Do business in a relaxed yet professional environment which includes administrative stations, conference room, kitchen, copier, phones, reserved garage parking, on-site restaurant and other amenities. A larger executive office and/or smaller offices/flex space for as little as $500/month. A fully furnished office is an option. Why not have a professional location for your business and quality of life at work? Please call (214) 373-0404 for details. North Dallas - Hillcrest/LBJ En-Suite Offices: Monthly Rental includes electricity, phone and Internet connection, reserved underground parking, 24/7 security. Large suite has receptionist, conference rooms, library, secure filing space, break room, kitchen and copier. Call (214) 697-3537 or email hicks@ morganmediations.com. Downtown Dallas. Beautiful office space available near Arts District. Amenities include conference room, kitchen, Wi-Fi. Furnished offices, with or without downtown view. Located near DART rail. Notary and mail service. Parking available. Virtual space $300/month. Office space $1000-1250. Call (214) 624-9803. Downtown Dallas - Arts District. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. Downtown Dallas – KATY Building Two window offices with included secretarial space available, in the historic KATY Building overlooking the Old Red Courthouse and Kennedy Memorial. Receptionist, notary, phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at (214) 748-1948. McKinney Avenue. Office with secretarial area available at 4054 McKinney Avenue. Shared conference room, break room, copier, fax, DSL & phone equipment are available if needed. No
Volunteer at the DBA Day of Service Saturday, October 21, 2017 A day of community service hosted by the DBA’s Community Involvement Committee.
To volunteer, visit www.surveymonkey.com/r/2017DBADayofService
long term commitment and a monthly rate of $800.00 for the furnished or unfurnished large office and $300.00 for the furnished secretarial office. Call (214) 520-0600 Lee Park Area - executive office space available for lease in a professional, legal environment. Two large executive window offices available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or paraprofessionals. Three bench seat spaces available for daily or short-term use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, Wi-Fi, notary, conference room, kitchen area, covered visitor parking, and free secured office parking. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 7405033 for a tour and information. Uptown. 4054 McKinney Avenue has available one office suite with 1550 sq. ft. and one suite with 2500 sq. ft. Each space has three of more offices with reception and secretarial space. Located across from Cole Park with surface parking. One year terms with flat rates are available. Call (214) 520-0600. Virtual Office – Available Immediately! Contemporary office space, 12222 Merit Drive, Suite 1200, offers five conference rooms, receptionist, Internet service, mail service, parking, fully equipped breakroom. $300 monthly fee – competitive rates! Email Amy at arobinson@englishpllc.com or (214) 528-4300. Frisco-Hall Park. Law firm with fullyfurnished, premier lobby offices. Seeks office-share. Possible cross-referrals. Lake views. Large conference room, three available offices, secretarial desk, kitchen, Internet, covered parking. Terms negotiable. Call (972) 922-8866. Campbell Center I: AV rated law firm has a window office (15x15) for sublease in Class A Bldg. Space has exceptional finish out and elevator exposure. All amenities included. $850/month. Call Joy (214) -361-1262.
with 1-3 years litigation experience. Medical malpractice, healthcare law, and regulatory experience preferred. Comparable salary and partnership tract. Send resume to LegalAssistant@ dkshaw.com.
SERVICES
Mediation Dispute Resolution Service-Mediation Center. Mediations at affordable rates. Please visit our website at www.mediatewithme.com. Call (469) 213-0940 or (214) 932-3495. Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Kirk Leitch or Brenda Phillips at 1-800-760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www. ProfessionalAncestryResearch.com. Wanda Smith, (972) 836-9091. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@ dallasbar.org.
JEFF ABRAMS Mediator & Arbitrator
POSITIONS AVAILABLE
Fort Worth Real Estate Firm near downtown in need of an associate attorney with 3-5 years’ experience. Please forward resumes with salary requirements to asincleair@bamolaw.com. Dallas Firm Seeks Litigation Attorney. Small, AV rated, downtown insurance defense litigation firm seeks a full-time attorney with 1 - 3 years of litigation experience. Personal injury and first party bad faith experience required. Applicant should be highly motivated, a team player, Computer literate, work well without supervision, and possess excellent research and writing skills. Fax resume and salary requirements to Administrator at (214) 748-1421 or e-mail to jtbdal@tx.rr.com. Legal Nurse Consultant. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire a Legal Nurse Consultant with 5 years of clinical nursing experience. LNC experience, LNC certification or healthcare risk management experience preferred but not required. This is an in-house position. Please e-mail your resume to: csantosuosso@trtblaw.com or mail to: C. Santosuosso, Adm. Mgr.; Thiebaud Remington Thornton Bailey LLP; 4849 Greenville Ave., Ste. 1150; Dallas, TX 75206 or fax to: (214) 9740999. Dallas Firm Seeks Trial Attorney. Dallas boutique firm seeks trial attorney
Experienced Creative Dog Friendly Online scheduling calendar www.abramsmediation.com Office 972-702-9066 Cell 214-289-4427 jeff@abramsmediation.com Case coordinator: kelli@abramsmediation.com
36 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2017
PLEASE JOIN US IN ATTENDING THE 26TH ANNUAL BENCH BAR CONFERENCE
Bench, Bar, Beach & Boating October 5-7, 2017 In the 26th year of the Dallas Bar Association’s Bench Bar Conference, there is change inside and out. CLE programming is intended to reach all practice areas, including Thursday afternoon’s workshop on the Neuroscience of Decision-Making in the Law. Internationally acclaimed speaker and attorney, Kimberly Papillon, will help you retrain your brain to better represent your clients. These are state of the art tools used at the highest levels of business, education and law. Outside, we will enjoy new areas of the resort. Thursday night’s Judicial Reception will be lakeside. On Friday afternoon, we will be boating on the lake and enjoying land activities at The Yacht Club - followed by outdoor BBQ dinner. Live music provided by Whiskey Pants. ADDITIONAL HIGHLIGHTS INCLUDE: - Trial Lawyer of the Year Dinner honoring Charla G. Aldous - Fireside Chat with Rusty Hardin - Mikal Watts: Reflections on U.S. v. Watts For registration and sponsorship opportunities: www.dallasbar.org, or contact Rhonda Thornton (rthornton@dallasbar.org) or Shawna Bush (sbush@dallasbar.org).
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