Dallas Bar Association
HEADNOTES |
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Focus | Probate, Trusts & Estates/Tax Law
December 2020 Volume 45 Number 12
Dallas Bar Elects 2021 Officers Krisi Kastl Elected President-Elect STAFF REPORT
Members of the Dallas Bar Association proudly elected its 2021 officers during the Annual Meeting on November 6. Kristina “Krisi” Kastl, of Kastl Law, P.C., was elected president-elect and will serve as the Association’s 113th president in 2022. Ms. Kastl is an experienced trial lawyer whose practice focuses in the area of personal injury claims. A graduate of Texas Tech School of Law, she is a long-time supporter of pro bono and was a Co-Chair of the 2018-2019 Equal Access to Justice Campaign, which raised over $1 million for pro bono legal services. Ms. Kastl has been active in the Dallas Bar Association for many years and currently serves as the Board Advisor to the Entertainment, Art & Sports Law Section and the Golf Tournament Committee. Among her many accolades, she has been recognized as a Rising Star, Top Young Lawyer in Texas, and as a Texas Super Lawyer. Other officers elected at the Annual Meeting were: Cheryl Camin Murray, of Katten Muchin Rosenman, elected first vice-president; and Bill Mateja, of Sheppard Mullin, elected second vice-president. Robert Tobey, of Johnston Tobey Baruch, P.C. will serve as immediate past president, and Aaron Tobin, of Condon Tobin Sladek Thornton Nerenberg will serve as president in 2021. Additionally, on November 12, ballots for secretary/treasurer and director positions were sent to members and one of the following nominees will assume the position of secretary-treasurer in 2021: Ebony Rivon or KoiEles “Koi” Spurlock; and six of the following nominees will assume director positions in 2021: Vicki Blanton, Stephanie G. Culpepper, Rocío García Espinoza, Martin Hoffman, David Kent, Audrey Moorehead, Sarah Rogers, Andrew (Drew) Spaniol; Amy M. Stewart. Ballots were due back
Aaron Tobin
Kristina “Krisi” Kastl
Cheryl Camin Murray
November 23 and results were not available at press time. The 2021 presidents of the minority bar associations will also serve on the board as Directors, and the presidentelects of these associations will serve on the board as Advisory Directors. Also at the meeting, the membership approved an amendment to the Bylaws, which recognized the addition of the president of the LGBT Bar Association as an ExOfficio Advisory Director to the DBA Board of Directors. On November 12, the DBA hosted a virtual awards program where several award recipients were recognized. Each year, the Texas Center for Legal Ethics & Professionalism co-sponsors the presentation of the Morris Harrell Professionalism Award with the DBA. The award was created in 1999 in honor of DBA Past President Morris Harrell to recognize an attorney who best exemplifies, by conduct and character, truly professional traits who others in the bar seek to emulate. This year’s Morris Harrell Professionalism Award recipient is Lewis R. Sifford, of Sifford, Anderson & Co., P.C. In 2017, the DBA created the Kim Askew Distinguished Service Award. The award recognizes DBA members who have demonstrated a lasting dedication to the DBA and Dallas community, consistently given back, and who gone above and beyond traditional service of DBA members. This year’s award was given posthumously to Karen D.
Bill Mateja
McCloud for her many years of dedicated service to the DBA. Karen was a sounding board, ever ready to listen, question and guide. She was calm, self-confident, and led with strength and dignity. She was the only person to have ever served as President of the J.L. Turner Legal Association, Dallas Women Lawyers Association, and Dallas Association of Young Lawyers while also being poised to become president of the Dallas Bar Association in 2022. In 2019, the DBA created the Al Ellis Community Service Award to honor and recognize those DBA members who exemplify the spirit of community involvement and service. This year’s recipient is Martha “Marty” Crandall Coleman, of FisherBroyles, LLP. The co-chairs of the Continuing Legal Education Committee: Gabriel Reyes, of The Law Office of Gabriel Reyes, PLLC, and Leroy Street, of Street & Rudy, LLC, received the Jo Anna Moreland Outstanding Committee Chair Award. The Tort & Insurance Practice Section, chaired Paul Stafford, of Stafford Law Firm, P.C., received the Cathy Maher Special Section Award. The Outstanding Minority Attorney Award was presented to Lisa Tomiko Blackburn, of Blackburn Law PLLC. And Al Ellis, of Sommerman, McCaffity, Quesada & Geisler, L.L.P., received the Judge Merrill Hartman Support Award, for his continued support of the DBA Home Project. Presidential Citations were also presented to behind-the-scenes members who have faithfully performed often time-consuming
tasks for the association. This year’s recipients were Art Anthony, Locke Lord, LLP; Scott McElhaney, Jackson Walker, L.L.P.; and Nicole Muñoz, Figari + Davenport, LLP, for their work on the DBA Vote Project; Paul Stafford, Stafford Law Firm, P.C., for his work both on the DBA Vote Project and on the Allied Dallas Bars Equality Task Force; Hon. Audrey Moorehead, County Criminal Court No. 3, and Hon. Lisa Green, County Criminal Court No. 5, for efforts on behalf of the Civil and Criminal Bench Bar Conferences; Hon. Tina Clinton, Criminal District Court No. 1; Jen Falk, Dallas County District Attorney’s Office; Lynn Richardson, Dallas County Public Defender’s Office; and Mary Walters, U.S. Attorney’s Office, for their outstanding work on the first DBA Criminal Bench Bar Conference; and Ladd Hirsch, Winstead PC; Bill Mateja, Sheppard Mullin Richter & Hampton LLP; and Cheryl Camin Murray, Katten Muchin Rosenman LLP, for their efforts on the DBA Coronavirus Task Force. Vicki Blanton, AT&T, for her efforts on behalf of the DBA Coronavirus Task Force, as well as her work with the Allied Dallas Bars Equality Task Force and the Law Firm Diversity Survey; Amy M. Stewart, Stewart Law Group PLLC, for her work on behalf of the DBA Coronavirus Task Force and her outstanding work on the DBA ‘Rona Pep Talk Series; Josiah Daniel, for his outstanding work as DBA Historian; Chief Justice Carolyn Wright (Ret.) and Justice John Browning, the Fifth District Court of Appeals, for their efforts on behalf of the J.H. Williams Project, obtaining posthumous bar admission to the Texas Bar for Mr. Williams who was denied admission because he was a black man; Nnamdi Anozie, Anozie, LLP, and Leslie Chaggaris, Reese Marketos LLP, for their work on the Virtual Town Hall on Race Relations and Faith Leaders’ Program; Jeff Tillotson, Tillotson Law, for his efforts on behalf of the STEER program; and Rob Crain, Crain Brogdon Rogers, for his work on behalf of Racial Justice Issues and Community Relations. HN
Thank You to Our Major Donors The Dallas Bar Association and Legal Aid of NorthWest Texas kicked off their annual Equal Access to Justice Campaign benefiting the Dallas Volunteer Attorney Program. A number of Dallas firms, corporations, and friends have committed major support. Join us in recognizing and thanking the following for their generous gifts*:
GOLD PATRON
PLATINUM SPONSORS
PLATINUM SPONSORS
Hartline Barger LLP
Margaret & Jaime Spellings Witherite Law Group
CHAIRMAN’S COUNCIL
DIAMOND SPONSORS
Jerry & Sherri Alexander
AT&T Haynes and Boone Foundation Kimberly-Clark Corporation
Akin Gump Strauss Hauer & Feld LLP Business Litigation Section Capital One Condon Tobin Sladek Thornton Nerenberg Covington & Burling LLP Katten Muchin Rosenman LLP Latham & Watkins LLP Locke Lord LLP Mike McKool
Munsch Hardt Kopf & Harr, P.C. Nelson Mullins Riley & Scarborough LLP The Rosewood Foundation Simon Greenstone Panatier, PC Stewart Law Group Thompson & Knight Foundation Robert L. Tobey Toyota Vistra Energy
PRESIDENT’S COUNCIL
E. Leon & Debra Carter The Kilgore Law Firm
*As of November 16, 2020
Inside 8 A Guideline for Taxation of Settlements and Judgments 12 When Families Fight: Ways to Resolve Inter-Family Disputes 24 Pro Bono Attorney & Firm of the Year 29 Tax Consequences of Amending Leases During COVID-19
DBA MEMBER REMINDER – RENEW ONLINE NOW
You may renew your 2021 DBA Dues now! Go to dallasbar.org and click on the My DBA button to log in and Renew online or print the 2021 Renewal Dues Invoice to mail in with payment. Your 2021 DBA DUES must be paid by December 31, 2020 in order to continue receiving ALL your member benefits. Thank you for your support of the Dallas Bar Association!
2 He a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2020
All programs are presented virtually. Check the DBA Online Calendar (www.dallasbar.org) for webinar links and the most up-to-date information.
Calendar December Events
DVAP Probate CLE “How to Probate a Will,” Melinda Hartnett. (MCLE 1.00)*
FRIDAY CLINICS
DECEMBER 11 Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
“Spotting the Red Flags: How to Protect Your Company from PPP Fraud Prosecution,” Jeff Ansley, Ethan Davis, Fabio Leonardi, Sarah Wirskye, and Saba Syed, moderator. (MCLE 1.00)*
DECEMBER 18 Noon
Before Arbitrators: Recent Trends and Legal Developments,” Karla Gilbride. (MCLE 1.00)*
Noon
Faith Leaders Empowering Lawyers Forum “Pastor Richie Butler, Pastor Bryan Carter, Rabbi David Stern, Imam Omar Suleiman, and Pastor Jeff Warren.”
Corporate Counsel Section “Recent Developments in Delaware M&A Law and Practice,” Mark Morton. (MCLE 1.00)*
Tort & Insurance Practice Section “TIPS Section Annual Meeting; Professionalism Tips from TIPS Past-Chairs.” (Ethics 0.50)*
WEDNESDAY, DECEMBER 2 Noon
Public Forum/Media Relations Committee
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org. 4:30 p.m. Virtual In-House Counsel Speed Networking Event Participating In-House Counsel: AT&T, Kimberly-Clark, Rosewood Property Company, and Toyota. Benefiting the Dallas Volunteer Attorney Program. Cost: $50 donation to DVAP.
THURSDAY, DECEMBER 3 Noon
WEDNESDAY, DECEMBER 9
“The Movies: How I Learned to be a Trial Lawyer,” Al Ellis. (MCLE 1.00)*
TUESDAY, DECEMBER 1
Alternative Dispute Resolution Section “Litigation About Arbitration and Practicing
Construction Law Section “Lessons Learned, ‘History Made’ in First Zoom Jury Trial,” Hon. Nicholas Chu. (MCLE 1.00)*
Intellectual Property Law Section Topic Not Yet Available 2:00 p.m. CLE Committee
Publications Committee
9:00 a.m. Santa Brings A Suit Drive Drop Off – Circle Drive at the DBA, 2101 Ross Avenue. Questions? Contact kzack@dallasbar.org.
TUESDAY, DECEMBER 8
Noon
Noon
Legal Ethics Committee “2nd Annual End-of-Year Ethics Roundup.” (Ethics 1.00)*
Mergers & Acquisitions Section “A Discussion on SPACs,” Alain Dermarkar and Kyle Park. (MCLE 1.00)*
Need Help? You’re Not Alone.
Friday Clinic “Spotting the Red Flags: How to Protect Your Company from PPP Fraud Prosecution,” Jeff Ansley, Ethan Davis, Fabio Leonardi, Sarah Wirskye, and Saba Syed, moderator. (MCLE 1.00)*
SATURDAY, DECEMBER 12
FRIDAY, DECEMBER 18 Noon
MONDAY, DECEMBER 21 No events scheduled
TUESDAY, DECEMBER 22 No events scheduled
WEDNESDAY, DECEMBER 23
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
THURSDAY, DECEMBER 24
DBA Offices closed in observance of Christmas holiday
FRIDAY, DECEMBER 25
DBA Offices closed in observance of Christmas holiday
MONDAY, DECEMBER 14
TUESDAY, DECEMBER 29
Real Property Law Section “Interpreting and Recommending Commercial Endorsements for Title Policies,” Roland Love. (MCLE 1.00)*
Noon
Community Involvement Committee
1:00 p.m. Franchise & Distribution Law Section “Hot Topics in Franchise Law – Year in Review,” Sally Dahlstrom and Taylor Rex Robertson. (MCLE 1.00)*
No events scheduled
No events scheduled
WEDNESDAY, DECEMBER 30
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
THURSDAY, DECEMBER 31
DBA Offices closed in observance of New Year’s holiday
FRIDAY, JANUARY 1
DBA Offices closed in observance of New Year’s holiday
Faith Leaders Empowering Lawyers Forum
Each of these leaders are not only changing the landscape on race relations in Dallas, they are reshaping how our local faith institutions interact with one another. Join the conversation as five of the City’s most dynamic faith leaders discuss their efforts, as well as what challenges lay ahead and how lawyers can join forces to unleash the great potential of our city.
Friday Clinic “The Movies: How I Learned to be a Trial Lawyer,” Al Ellis. (MCLE 1.00)*
MONDAY, DECEMBER 28
TUESDAY, DECEMBER 15
More resources available online at www.dallasbar.org/content/peer-assistance-committee
3:30 p.m. DBA Board of Directors Meeting
6:30 p.m. Virtual DHBA Noche de Luz
Noon
Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200
Pro Bono Activities Committee
THURSDAY, DECEMBER 17
FRIDAY, DECEMBER 11
Science & Technology Law Section “Video Games and E-Betting,” Bill Stark. (MCLE 1.00)*
5:00 p.m. Bankruptcy & Commercial Law Section “Annual Judges Roundtable,” Hon. Harlin “Cooter” Hale, Hon. Stacey G.C. Jernigan, Hon. Robert L. Jones, Hon. Michelle V. Larson, Hon. E. Lee Morris, Hon. Mark X. Mullin, and Hon. Brenda T. Rhoades. (MCLE 1.00)*
Noon
MONDAY, DECEMBER 7
Energy Law Section “Less Companies, More Focus - Deal Trends in the Oil and Gas Business,” Jason A. Schumacher. (MCLE 1.00)*
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
11:00 a.m. Relaunch Program “Taking the First Steps to Relaunch! Your Career,” Monica Blacker, Alysa Schildcrout, Electra Harelson, Kelly Noblin, and Celeste Flippen.
No events scheduled
Noon
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
THURSDAY, DECEMBER 10
FRIDAY, DECEMBER 4 Noon
Home Project Committee
WEDNESDAY, DECEMBER 16
Tuesday, December 1, 2020 Noon - 1:00 pm | Via Zoom Speakers: Pastor Richie Butler
St. Paul United Methodist Church
Pastor Bryan Carter Concord Church
Rabbi David Stern Temple Emanu-El
Imam Omar Suleiman
Yaqeen Institute for Islamic Research
Pastor Jeff Warren
Park Cities Baptist Church
Register at DallasBar.org 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 the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2020
President’s Column
Headnotes Published by: DALLAS BAR ASSOCIATION
2020: The Year That Was! BY ROBERT TOBEY
Before this year, several DBA Past-Presidents told me: “There is the year you plan for, and then the year you get—expect the unexpected!” I could start and end my column with those statements, but this is my opportunity to thank all of you for making this an incredible year despite all of the trying circumstances. So, here goes. The year began as planned with a wonderful inaugural gala at the Westin Galleria. This celebration was followed quickly by our MLK Justice Award celebration honoring Richard Stewart. The DBA Board Retreat in Austin at the end of January focused on Project 2020, which was strategic planning for the DBA through 2025. Little did we know that just a few weeks later, everything would change and our lives would be dominated by COVID-19 for the rest of the year. At the beginning of March, things were still going as planned when storm clouds began to gather. Our Executive Director, Alicia Hernandez, and I watched the news reports which accelerated hour by hour until we decided to close our headquarters on March 12. Our first closure was scheduled to end on March 31, and I truly thought all of this would be over in a couple of weeks. It is a good thing I didn’t go to Las Vegas with that prediction! After a few days, it was clear that things were going in the wrong direction. Our DBA Board Chair, Bill Mateja, came up with the idea of a COVID-19 Task Force to get resources, news of closings, courthouse developments, mental health resources, and CLE presentations focused on COVID to the membership. Thanks to the amazing work of the DBA staff, we converted the DBA—which for years had been anchored by our amazing headquarters building—to a virtual bar association. Since those first presentations in March, we have provided our members with more than 200 CLE presentations, including our traditional Bench Bar Conference and our inaugural Criminal Law Bench Bar Conference. The DBA responded to the crisis in the community with a program sponsored by the Probate Section to prepare wills and other estate-planning documents for first responders. Our members did numerous drives to benefit North Texas Food Bank and other charities. And, in response to law students and young lawyers losing their job offers and clerkship opportunities, the DBA—in partnership with the Sister Bars—formed the STEER Committee to help those in need. To date, the STEER program has helped more than 30 young lawyers and law students. What I noticed about the pandemic is that every time I thought we had a handle on things, something else would happen. From legal challenges to “shelter- in-place” orders to disputes about whether lawyers and other workers were “essential,” every day was a new adventure. For me, while this year has been faced with constant challenges, our one true setback is when we lost Karen McCloud on April 9 after a lengthy illness. Karen served as President of the Dallas Women Lawyers Association, the Dallas Association of Young Lawyers, and the J.L. Turner Legal Association. She would have been President of the DBA in 2022. But what made Karen truly special was the friendship she bestowed on so many people in the DBA, thereby vastly enriching their lives. Planning is underway for a memorial for Karen at our building when we can safely gather
there in 2021. Another momentous societal event occurred in late May with the killing of George Floyd and the social unrest that followed. At that time, J.L. Turner Legal Association President, Koi Spurlock, and I discussed how to respond. Out of that conversation, the DBA and the Sister Bars formed the Allied Dallas Bars Equality Task Force. While I did not come into this year focused on working on diversity, equity, inclusion, and belonging issues, I altered course to make it my focus during the second half of 2020. The Task Force has issued its “Call to Action,” and it hopefully will be approved by the DBA Board in its December meeting. There is a long list of ideas, some of which can be done by our Bar Associations alone, some require partnerships with groups in the community, and some are aspirational. The Task Force has already put on CLE presentations, a Town Hall, is supporting Project Unity on a program called “Together We Can,” and is working on the results of a law-firm survey on diversity. The work on the Call to Action will begin in earnest in 2021. In July, we received an application for a Board seat from the Dallas LGBT Bar Association. The Board granted the application in October, and the membership approved a bylaw amendment to grant the seat at the DBA Annual Meeting on November 6. I am so proud of the diversity, equity, inclusion and belonging steps that our Bar Association is taking! Of course, we can’t forget the Presidential election, which will be talked about for years! We had two wonderful programs celebrating the right to vote: 1) Professor Eric Foner spoke in February on the 150th anniversary of the ratification of the Fifteenth Amendment and the reconstruction amendments generally, and 2) Judge Tonya Parker interviewed Nina Totenberg on the 100th Anniversary of the ratification of the Nineteenth Amendment in August. In response to the fact that only one out of three people between the ages and 18 and 29 vote, we supported the efforts of March to the Polls and the League of Women Voters to educate and register high school and junior college students to vote. Together with our Sister Bars, we engaged in efforts to help people who were properly registered to vote to participate in the process. I hope that we repeat these efforts in future election cycles. I have had quite a few people comment to me: “What a year to be President of the DBA!” I responded that in an odd way, this year with all of its challenges has been everything I could have wanted and more. We are doing things with our virtual presentations that I thought were years away. When the pandemic ends, and we find a new normal, I know that the DBA will be prepared for whatever comes based on everything that we have done this year. Looking forward, the DBA is in great shape for the future. I am excited that Aaron Tobin will become the 112th President of the Dallas Bar Association on January 1, 2021. He will do a fantastic job! And he will be assisted by our newly elected 2021 officers: Krisi Kastl, Cheryl Camin Murray, and Bill Mateja. I have been truly honored and privileged to serve our members as the 111th President of the Dallas Bar Association in 2020. Our members make us great. So, please continue making the DBA the best bar association in America! Robert
2021
DBA
COMMITTEE
PREFERENCES
It's time to add and/or update your 2021 DBA Committees! We have streamlined the process, so please keep an eye out for your email invitation. Thank you for your ongoing support and commitment to volunteer!
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: Robert L. Tobey President-Elect: Aaron Z. Tobin First Vice President: Krisi Kastl Second Vice President: Cheryl Camin Murray Secretary-Treasurer: Monica Lira Bravo Immediate Past President: Laura Benitez Geisler Directors: Vicki D. Blanton (Vice Chair), Rob Cañas, Jonathan Childers, Hon. Tina Clinton (Judicial At-Large), Stephanie G. Culpepper (President, Dallas Women Lawyers Association), Rocío García Espinoza, Isaac Faz (President, Dallas Hispanic Bar Association), Sakina Rasheed Foster, Justin Gobert (President, Dallas Association of Young Lawyers), Hon. Martin Hoffman, Kate Kilanowski, Bill Mateja (Chair), Hon. Audrey Moorehead, Lindsey Rames, Bill Richmond, Mary Scott, Andrew Spaniol (President, Dallas Asian American Bar Association), KoiEles Spurlock (President, J.L. Turner Legal Association), Amy M. Stewart, and Mary Walters Advisory Directors: Whitney Keltch Green (PresidentElect, Dallas Association of Young Lawyers), Marissa Hatchett (President-Elect, J.L. Turner Legal Association), Stacey Cho Hernandez (President-Elect, Dallas Asian American Bar Association), Jennifer King (President-Elect, Dallas Women Lawyers Association), and Javier Perez (President-Elect, Dallas Hispanic Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Chad Baruch, Rebekah Brooker, Rob Crain, Michael K. Hurst, Mary Scott HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: Andy Jones and Beth Johnson Vice-Chairs: James Deets and Elisaveta (Leiza) Dolghih Members: Timothy Ackermann, Logan Adcock, Wesley Alost, Stephen Angelette, Michael Barbee, David Black, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Jonathan Bridges, Amanda Brown, Angela Brown, Eric Buether, Casey Burgess, Cory Carlyle, Paul Chappell, Charles Coleman, Wyatt Colony, Shannon Conway, Natalie Cooley, Daniel Correa, G. Edel Cuadra, Jerald Davis, James Dockery, Angela Downes, Sheena Duke, Charles Dunklin, Alex Farr, Dawn Fowler, Juan Garcia, Britaney Garrett, Michael Gonzales, Andrew Gould, Jennifer Green, Kristina Haist, Susan Halpern, Bridget Hamway, Edward Harpole, Meghan Hausler, Jeremy Hawpe, Lindsay Hedrick, Marc Hubbard, Brad Jackson, Kristi Kautz, Thomas Keen, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravik, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jordan McCarroll, R. Sean McDonald, Kathryn (Kadie) Michaelis, Elise Mitchell, Terah Moxley, Daniel Murray, Jessica Nathan, Madhvi Patel, Keith Pillers, Kirk Pittard, Laura Anne Pohli, Luke Radney, Mark Rasmussen, Pamela Ratliff, David Ritter, F. Colby Roberts, Bryon Romine, Kathy Roux, Stacey Salters, Joshua Sandler, Matthew Sapp, Justin Sauls, Mazin Sbaiti, Mary Scott , Jared Slade, Thad Spalding, Jacob Sparks, John Stevenson, Scott Stolley, Elijah Stone, Amy Stowe, Adam Swartz, Ashley Swenson, Robert Tarleton, Paul Tipton, Michael Tristan, Tri Truong, Pryce Tucker, Adam Tunnell, 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 Director: Biridiana Avina LRS Prgram Assistant: Marcela Mejia LRS Interviewer: Viridiana Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Marketing Coordinator: Mary Ellen Johnson Membership Director: Kimberly Watson Director of Legal Education: Kathryn Zack Publications Coordinator: Judi Smalling Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Star Cole, Tina Douglas, Carolyn Johnson, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Copyright Dallas Bar Association 2020. 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.
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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
D ecem ber 2020
DBF Announces Justice Carolyn Wright Internship BY ELIZABETH PHILIPP
It was with great pleasure that Dallas Bar Foundation Chair, Kim Askew, of DLA Piper LLP, announced the establishment of the Chief Justice Carolyn Wright Internship at the Fifth District Court of Appeals in Dallas. The newly established internship represents a legacy of excellence, justice, and diversity epitomized by Chief Justice Wright’s career. When making the announcement, Ms. Askew thanked Chief Justice Wright for having served as a mentor for over 20 years to the Dallas Bar Foundation Collins Clerks who are selected for placement at the Court of Appeals each summer. Starting in this year, the annual six-week internship for a 2L student is now named in Chief Justice Wright’s honor. The Dallas Bar Foundation had hoped to share this news at the Fellows Luncheon in October, but the luncheon was postponed until May 2021. In response to the announcement, Chief Justice Wright thanked the Trustees of the Dallas Bar Foundation for this honor. She spoke about how meaningful this internship was to her on a personal
Left to right: Chief Justice Carolyn Wright, retired; Natalie Wise, and Justice Erin Nowell.
level and the importance of having a pipeline for diversity in the legal profes-
Stolley Law
P.C.
Scott Stolley Appellate Attorney Respected Advocate Gifted Writer Trusted Bar Leader
“I love working with Scott – he’s one of the best appellate lawyers in Texas!” Victor Vital, Barnes & Thornburg LLP
scott@appellatehub.com • (469) 235-4588
sion. Chief Justice Wright received her Juris Doctor degree at Howard University, from which she later received a Distinguished Alumni award. She was the first African American woman in Dallas to win a county-wide election when she became Judge of the 256th District Court of Texas. In 1995, she was appointed as an associate justice to the Fifth District Court of Appeals by Governor George Bush. When Chief Justice Wright was sworn in as the Chief Justice of the Fifth District Court of Appeals on January 4, 2010, she became the first African American in Texas to become chief justice of an intermediate appellate court in Texas. Sean Hamada, of Hamada Smith, PLLC, and a Dallas Bar Foundation trustee, announced the selection of Nata-
lie Wise, 2L UNT Dallas College of Law, as the first recipient of the Chief Justice Carolyn Wright Internship. Serving with Mr. Hamada on the interview committee were Victor Corpuz, of Jackson Lewis PC; Gabe Vazquez, of Vistra Corp; Laura Benitez Geisler, of Sommerman, McCaffity, Quesada & Geisler, L.L.P.; and Steve Bolden, of Bracewell LLP. Mr. Hamada remarked that Ms. Wise was selected for this internship, in part, because of her love of legal writing as demonstrated by her initiative in taking an additional semester in legal writing in which she excelled. She also received the award, Best Brief, at the Thurgood Marshall Moot Court Competition and was named a semi-finalist for Best Brief at the Thompson & Knight Moot Court Competition. Mr. Hamada recognized and thanked Justice Erin Nowell, Fifth District Court of Appeals, for mentoring Ms. Wise this summer and for agreeing to follow in the tradition of Chief Justice Wright by accepting a 2L student each summer who will be selected by the Dallas Bar Foundation for the Chief Justice Wright Internship. Mr. Hamada commented that Justice Nowell made the internship especially meaningful for Ms. Wise by providing a learning environment where Ms. Wise received affirmation of her strengths. The Dallas Bar Foundation will continue to accept contributions for the Chief Justice Carolyn Wright Internship with the goal to fully endow the internship so that it can be awarded in perpetuity, beyond the initial 10 years. Please contact Elizabeth Philipp, Executive Director, at the Dallas Bar Foundation at (214) 220-7400 or ephilipp@dallasbar.org for more information. HN Elizabeth Philipp is the Executive Director of the Dallas Bar Foundation and may be reached at ephilipp@dallasbar.org.
HN_DEC2020-CoalAd-Final-Revised.pdf 1 11/5/2020 12:19:58 PM
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D al l as Bar A ssoci ati on l Headnotes 7
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Focus
D ecem ber 2020
Probate, Trusts & Estates/Tax Law
A Guideline for Taxation of Settlements and Judgments BY JOSHUA D. SMELTZER
Nearly every time money changes hands there are tax issues, including when clients receive amounts resolving legal disputes. The specifics involved are paramount; however, knowing some basic guidelines will help attorneys guide their clients.
Settlements and Judgments are Taxed the Same
The same tax rules apply to amounts paid as part of a settlement or received as a judgment. The analysis of the tax treatment of these amounts, by the IRS or the courts, usually involves the normal documents used in litigation from the complaint to the final settlement agreement or judgment. If a settlement agreement is involved, the analysis of the agreement is particularly important. Both the IRS and the courts consider the settlement agreement the best evidence of the parties’ intentions regarding why amounts were paid. Therefore, as a practical matter, a settlement agreement offers additional flexibility to explain unique facts and circumstances related to the recovery.
Tax Treatment is Determined by the “Origin of the Claim”
Taxation of settlements and judgments depends on the causes of action involved and the nature of the recovery sought. Lost-profits claims are generally
taxed as ordinary income. Lost wages are usually taxed as wages and subject to the normal withholding rules. Claims involving damage to property may not be treated as income at all and merely reduce the purchase price of the asset. The specific facts and circumstances of each cause of action are important and form the starting point for whether certain exceptions or distinctions to the tax treatment apply.
Recoveries for Injuries/ Sickness are Excluded from Income
Internal Revenue Code Section 104 specifically excludes from taxable income damages for personal physical injuries and physical sickness. Therefore, a recovery for physical injuries or sickness is essentially tax free. Since 1996, the Internal Revenue Code added the “physical” requirement, and what is sufficiently “physical” is the primary cause of confusion among lawyers and their clients. In general, the IRS requires some form of visible harm for an injury or illness to be “physical.” This usually excludes all damages for infliction of emotional distress. In some cases, small scrapes and bruises are sufficient for exclusion. In contrast, sexual-harassment claims involving only verbal comments and inappropriate touching may not meet the necessary “physical” standard. The IRS wins a lot, but not all, of the close cases
on whether damages are physical enough to receive tax-free treatment.
Symptoms of Emotional Distress are Not Physical
Although things like headaches, stomach problems, and insomnia may seem “physical,” they usually do not qualify for exclusion. The tax law distinguishes physical “symptoms” of emotional distress from actual physical injuries or sickness. However, if the emotional distress is a result of the physical injury, or exacerbates an existing injury, they can sometimes be excluded. The burden of proof is on the taxpayer to show entitlement to exclusion. Therefore, both documentation and the language in the settlement agreement are important to the analysis.
Punitive Damages are Always Taxable
The tax law clearly states that any portion of the recovery that is for punitive damages is taxable income—even if the other recovery involves a physical injury or sickness. As discussed below, this can cause problems when seeking to deduct attorney’s fees.
Most Medical Expenses are Tax Free
Regardless of the physical or emotional injuries involved, payments for medical expenses are generally tax free. What is considered “medical expenses” is interpreted broadly and encompasses payments to both
traditional (e.g. psychiatrists, chiropractors, physical therapists, etc.) and even some nontraditional medical treatments. Remember, however, that there is a specific “tax benefit” rule that may prevent exclusion if a medical expense was previously reimbursed.
Some Recoveries are Entitled to Capital Gain Treatment
Aside from the exclusions for physical injuries and sickness, discussed above, the usual treatment for all other recoveries is taxable income. However, that still leaves the question of how that income will be taxed (i.e. ordinary income or capital gain). Again, the origin of the claim involved controls, and the specifics are important. The type of claim and assets involved are critical inquiries.
Attorney’s Fees Must be Considered
In general, attorney’s fees received as part of a settlement or judgment are included in income. For example, a plaintiff using a contingent-fee lawyer will be treated as receiving 100% of the recovery, even if the lawyer takes a percentage as their fee. Businesses can usually deduct attorney’s fees as business expenses. Also, there are special rules allowing for deductibility when the suit involves the employment relationship or certain whistleblower claims. HN
Joshua Smeltzer is Counsel at Gray Reed & McGraw LLP and former U.S. DOJ Tax Division Honors Trial Attorney. He may be reached at jsmeltzer@grayreed.com.
~ In Memoriam ~
Since 1875, the DBA has honored recently deceased members by passing resolutions of condolences. This tradition continues through the work of the DBA Memorial & History Committee. To view the Memorial Resolutions presented to the families of deceased members, visit www.dallasbar.org. Dr. Robert Marion Anderton (1937-2020), a 1995 graduate of Southern Methodist University School of Law
James Edwin Coleman, Jr. (1923-2020), a 1951 graduate of University of Virginia School of Law
Charles Quentin Grimm (1949-2020), a 1977 graduate of Memphis State University School of Law
Karen Danielle McCloud (1971-2020), a 1999 graduate of Georgetown University Law Center
Stephen Daily Susman (1941-2020), a 1965 graduate of The University of Texas School of Law
Lester Vernon Baum (1935-2020), a 1960 graduate of Southern Methodist University School of Law
Robert Don Collier (1947-2020), a 1973 graduate of Texas Tech University School of Law
Michael Krist Haines (1957-2020), a 1982 graduate of Southern Methodist University School of Law
Patrick Francis McGowan (1940-2020), a 1965 graduate of The University of Texas School of Law
Jerry Lynn Beane (1944-2020), a 1967 graduate of Baylor Law School
Durwood Douglas Crawford (1931-2019), a 1959 graduate of Southern Methodist University School of Law
Jeffrey Garner Hamilton (1970-2020), a 1995 graduate of Emory University School of Law
Robert Lewis Meyers, III (1936-2020), a 1960 graduate of Southern Methodist University School of Law
William Edward Taylor III, Esquire (1967-2020), a 1995 graduate of University of Iowa College of Law
Mark Eugene Bennett (1953-2020), a 1980 graduate of University of Kansas School of Law Thomas Alton Blakeley, Jr. (1936-2020), a 1959 graduate of The University of Texas School of Law John Francis Boyle, Jr. (1935-2020), a 1961 graduate of The University of Texas School of Law Justice David Lee Bridges (1955-2020), a 1984 graduate of Texas Tech University School of Law Maryann Sarris Brousseau (1959-2020), a 1984 graduate of Southern Methodist University School of Law William Robert Cohrs (1950-2020), a 1980 graduate of University of Virginia School of Law Hon. Billy Floyd Coker (1929-2020), a 1970 graduate of Southern Methodist University School of Law
Thomas Lynn Crisman (1941-2020), a 1969 graduate of Georgetown University Law Center George Constantine Dixie (1938-2020), a 1962 graduate of The University of Texas School of Law Joel Morgan Eastman (1950-2020), a 1977 graduate of Southern Methodist University School of Law John Lancaster Estes (1933-2020), a 1956 graduate of The University of Texas School of Law Robert Allen Fanning (1931-2019), a 1960 graduate of Southern Methodist University School of Law Liza Farrow-Gillespie (1953-2020), a 1992 graduate of The University of Texas School of Law Richard Alan Freling (1932-2020), a 1956 graduate of The University of Texas School of Law
Richard Kevin Hardage (1961-2020), a 1989 graduate of Southern Methodist University School of Law Clyde Vernon Hartline, Jr. (1944-2020), a 1973 graduate of Baylor Law School James Joseph Hartnett, Sr. (1929-2020), a 1959 graduate of The University of Texas School of Law Stanley George Harvey (1952-2020), a 1979 graduate of University of Colorado School of Law Shirley Rosilyn Levin (1934-2020), a 1968 graduate of Southern Methodist University School of Law Kirk Robert Lyda (1971-2020), a 1999 graduate of The University of Texas School of Law Edward James Lynch (1931-2020), a 1957 graduate of Harvard Law School John Andrew Martin (1938-2019), a 1962 graduate of Harvard Law School
Patrick Eugene Mitchell (1957-2020), a 1982 graduate of University of Virginia School of Law Mark Christopher Mueller (1945-2020), a 1971 graduate of Southern Methodist University School of Law Matthew John Papagolos (1982-2019), a 2012 graduate of St. Mary’s University School of Law
Robert Hyer Thomas (1931-2020), a 1957 graduate of Southern Methodist University School of Law Brian Lockwood Webb (1949-2019), a 1975 graduate of Southern Methodist University School of Law Christopher Maurice Weil (1937-2020), a 1961 graduate of Washington University School of Law David Rodriguez Weiner (1954-2020), a 1979 graduate of St. Mary’s University School of Law
Michael Lewis Parham, Sr. (1946-2019), a 1973 graduate of Southern Methodist University School of Law
Robert Earl Wilbur (1941-2020), 1966 graduate of The University of Texas School of Law
Robert Fields Spears (1943-2020), a 1968 graduate of The University of Texas School of Law
Kelly Rule Yount (1970-2019), a 2002 graduate of Texas Wesleyan University School of Law
Jose Alwin Stewart (1947-2020), a 1972 graduate of Howard University School of Law
Norman Arnold Zable (1934-2020), a 1958 graduate of Southern Methodist University School of Law
Hon. Annette Stewart (1928-2020), a 1966 graduate of Southern Methodist University School of Law
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D al l as Bar A ssoci ati on l Headnotes 9
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10 H e a d n o t e s l D a l l a s B a r A s s ociation
Focus
D ecem ber 2020
Probate, Trusts & Estates/Tax Law
Probate & Guardianship Proceedings With Minor Children BY ADRIANE S. GRACE
Of primary concern to clients in probate cases involving minor children is how to quickly transfer inherited estate assets with minimal burden to the child or caregiver. Bypassing the obvious probate and guardianship proceedings of dependent administration and guardianship of the estate—oftentimes, costly and lengthy in duration—involves implementing unique solutions. One type of proceeding providing for immediate transfer of estate assets to a surviving parent or caregiver is the Application for Family Allowance. This Application is made in an existing estate administration, or independently with a request for an order of no administration. In the case of a deceased parent with no estate plan, debt, and minimal or exempt estate assets, an Application for Family Allowance and Order of No Administration under Chapters 353 and 451 of the Texas Estates Code is an essential tool. This Application can be made and heard without notice, “on behalf of” the minor child, to request a sum of money equivalent to one year’s support of the child. This sum is paid out of remaining estate assets to the exclusion of most estate creditors. To be eligible for the Family Allowance, the applicant must swear that the Class 1 claims of the estate are paid or “secured” and that the minor child does not have adequate separate property for his/her maintenance. Class 1 claims include funeral expenses and expenses of last illness up to a total
of $30,000 ($15,000 per each). Typically, these costs are paid or secured by insurance policies or by the family prior to filing. If expenses of last illness are substantial, the Applicant may consider negotiating with medical providers directly to seek a waiver or a discount to an amount they can personally “secure” prior to filing the Application. Setting the allowance amount is in the discretion of the probate court. The amount requested in the application depends on available estate assets and the needs of the minor child(ren) involved. In the case of a small or insolvent estate, the amount of the allowance may be painfully obvious, e.g., the remaining balance in the parent’s bank accounts, a last paycheck, and/or set aside or sale of exempt property. In the context of a more complex estate and pending administration, when pleading an amount, the Applicant should consider how the deceased parent supported that child before they died and the child’s needs in the year following the parent’s death. One obvious need is grief counseling. Consider also, other extraordinary needs in the wake of a parent’s death. For example, are there increased transportation or caregiving needs for the child(ren) since their parent died? Applicants should be prepared to testify as to these needs at the hearing on the Application. A well-drafted Order should specify the assets to be paid and how payment is made. Although the statute provides that a family allowance be paid directly to the child’s guardian, some probate
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courts may want to utilize the court’s registry instead. Determining what the court requires, and what language any financial institutions involved may require before obtaining the court’s final signed order, is crucial. Oftentimes, parents who fail to make a formal estate plan also name their minor child as direct beneficiary of their life insurance or retirement plans. If the amount due to the minor child is $100,000 or less, Chapter 1355 of the Texas Estates Code can be utilized to collect these funds without a guardianship of the estate. Under this section, a creditor who owes money to a Texas resident under a legal disability, in a sum of $100,000 or less that is uncontested and liquidated, may pay it to the county clerk (court’s registry), where it can be held in an interestbearing account. Once deposited, the child’s guardian applies to the probate court to request disbursements from the account to pay for the child’s expenses. Finally, in cases involving minor
orphans, filing a guardianship proceeding can be more beneficial over a conservatorship proceeding. Caregiving and the administration of inherited estate assets should be carefully coordinated because the orphaned child’s caregiver, as “next friend”, has standing to request disbursement of estate funds. Probate courts have original jurisdiction over probate and guardianship proceedings and maintaining these actions in one court better protects the minor child’s interests. Guardianship for minor orphans is contained in Section 1104.052 of the Texas Estates Code. The Estates Code even provides a guardianship process for caregivers who need to manage a child’s social security survivor benefits. These unique solutions are essential tools for practitioners helping estates involving minor children. HN Adriane S. Grace is a mother of two young children with her own estate planning, probate, and guardianship practice in Frisco. She may be reached at adriane@gracelawoffice.com.
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12 He a d n o t e s l D a l l a s B a r A s s ociation
Focus
D ecem ber 2020
Probate, Trusts & Estates/Tax Law
When Families Fight: Ways to Resolve Inter-Family Disputes BY STEWART H. THOMAS AND KATRISHA L. SHIRLEY
“The family is truly desperate. And when people get desperate, the knives come out.” As with the hit film Knives Out, a familymember’s death and the ensuing splitting-up of the estate is often the source of unpleasant family drama and discord. Disputes can arise from non-compliance with legal formalities, fraud, duress, forgery, undue influence, and fights over who gets the family toaster. Ageold sibling rivalries come flooding back, and before you know it, the family members are “lawyering up” against each other. Avoid it! Such drama is great fodder for movies, but today’s families have enough difficulties staying supportive and together. Families must work extra hard to avoid bit-
ter disputes, because after the case is settled and done, unlike in commercial or tort litigation, the parties are still related to each other and still deserve a supportive and loving family. With that in mind, here are a few ways attorneys can help resolve inter-family disputes without protracted, costly, and messy litigation.
Mediation and Family Settlement Agreements
Mediation is the easiest and quickest way to resolve will contests and often leads to a family settlement agreement. Family settlement agreements are contracts between the interested parties and, as such, are governed by Texas contract law. In a family settlement
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In Memoriam
Maryann Sarris Brousseau December 26, 1959-October 24, 2020
With profound sadness, we mourn the loss of our founder, mentor and guiding light. Her passion for the law and her dedication to her clients were inspiring. Though she may be gone, her impact on our lives and our community will endure.
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agreement, all beneficiaries agree to divide the estate assets in a different manner than provided in the will. A valid family settlement agreement must include all beneficiaries of the will and contain both an agreement not to probate a will and an agreed plan of distribution. Such an agreement can be reached early on in the dispute, before incurring large attorneys’ fees.
Conversion to a Dependent Administration
An independent executor enjoys minimal supervision by the probate court and does not require court approval to pay debts, transfer title, or sell property. This is often preferred. But what if a beneficiary disagrees with the executor’s actions and threatens to sue him if he makes a proposed distribution? One option is for the executor to convert the estate to a dependent administration, where the judge must approve all actions by the executor. While cumbersome and expensive, the court presides over the administration, which protects the executor from liability.
Judicial Discharge
An independent executor may not require a waiver or release from a distributee as a condition of delivery of the property. So, what if a beneficiary is unwilling to sign a family settlement agreement or release the executor? A little-known provision in the Estates Code provides an avenue by which an executor may obtain a judicial discharge of all matters relating to the administration of the estate. Texas Estates Code Section 405.003 provides: “if there is no further need for an independent administration of the estate, the independent executor of the estate may file an action for declaratory judgment … seeking to discharge the independent executor
from any liability involving matters relating to the past administration of the estate that have been fully and fairly disclosed.” By filing a declaratory judgment action in the probate proceeding, an independent executor may obtain a judicial declaration of rights or legal relations with respect to the estate—both to determine any questions arising from the administration of the estate, and to determine the rights of an independent executor regarding fiduciary fees and settling of accounts—and then be discharged from liability relating to his administration of the estate. The executor must first file a final accounting and distribution plan, then file the declaratory judgment action seeking judicial discharge. On or before filing the petition, the executor must distribute all remaining estate assets, retaining a reasonable amount for attorneys’ fees and final expenses pending court approval of the final account and distribution plan. Each estate distributee must be personally served with citation or agree to waive such service. Obtaining a judicial discharge under Section 405.003 is particularly attractive when beneficiaries are likely to sue the executor because the judicial discharge shields the executor from liability once discharged. However, this method can be time-consuming and expensive since it requires preparation of an account and a hearing. Another downside to this relief is that it terminates the estate and the letters testamentary are no longer effective. This could pose a problem if, later, there is a need for an estate representative’s signature on a deed or other instrument. HN Stewart H. Thomas is a Shareholder at Hallett & Perrin, P.C. He can be reached at sthomas@hallettperrin.com. Katrisha L. Shirley is an Associate at the firm and can be reached at kshirley@hallettperrin.com.
DVAP’s Finest BRIAN MORROW
Brian Morrow is a sole practitioner. 1. How did you first get involved in pro bono? Due to the pandemic, I was furloughed from my product owner role in hospitality analytics. Being furloughed provided me time to engage with DVAP and learn skills that will help my fellow Texans. 2. What types of cases have you accepted? With the help of DVAPs’ amazing mentors, I am assisting clients with divorce, custody modification, probate, real estate, bankruptcy, adoption, custody, and driver’s license restoration matters. 3. Describe your most compelling pro bono case. Currently, my most compelling case involves obtaining an adoption/formal custody arrangement for my client and her foster child. My client has cared for her child for over a decade and seeks to formalize her custodial rights. My client’s concern for the child motivates me to provide her with some legal security to continue providing a stable home for the child. 4. What impact has pro bono ser vice had on your career? Pro bono has taught me new skills which will allow me to help more Texans in the future. 5. What is the most unexpected benefit you have received from doing pro bono? Pro bono is my first foray into the legal profession. Although I was quite anxious when I began, every member of this profession that I meet is incredibly helpful and generous with their time. Pro bono has dispelled my anxiousness working as an attorney and has shown how this profession would be a fulfilling career.
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
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D al l as Bar A ssoci ati on l Headnotes 13
Jordan Flournoy llp www.JFAttorneys.com
Fiduciary litigation and estate planning lawyers you can count on
DALLAS 10000 N. Central Expressway Suite 800 Dallas, Texas 75231 PH: 214.369.0361
FRISCO With offices in Dallas and Frisco, the firm represents clients in fiduciary litigation, trust disputes, estate litigation, and will contests. It also provides innovative solutions for sophisticated business, estate, tax, and probate matters.
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14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
D ecem ber 2020
Probate, Trusts & Estates/Tax Law
Five Myths of Probate Law BY JESSICA DUNNE AND SPENCER TURNER
Probate law is a world unto its own. It is governed by an independent statutory scheme, subject to a unique set of procedures, and (in large counties) presided over by a dedicated system of courts. Unsurprisingly, misconceptions have developed among laymen and attorneys regarding probate proceedings. This article addresses five prevalent “myths” of probate law.
Myth #1: “Avoid Probate at All Costs.”
In Texas, independent administrations involve minimal supervision from the probate court, making them cost-effective and efficient. A hearing is necessary to formally open an estate administration and appoint a personal representative (an executor or administrator). Beneficiaries must be notified of the newly opened administration. Thereafter, the personal representative need only prepare an inventory, appraisement, and list of claims and, if debts remain that are not secured by real property, file them with the Court. No further interaction with the Court is necessary under Texas law. The personal representative may pay debts, liquidate property, and ultimately distribute the remaining assets to the decedent’s beneficiaries or heirs without seeking judicial approval. Depending on the complexity of the estate, the legal expense of probate administration can sometimes be less than the cost of
complex estate plans designed to avoid the probate process.
Myth #2: “Non-Probate Assets are Untouchable.”
Certain assets that pass outside the probate process, such as life-insurance proceeds or retirement accounts, are generally exempt from garnishment, seizure, or attachment by a decedent’s creditors. However, if a decedent’s probate assets are insufficient to pay debts, taxes, or other expenses of administration, Texas law permits a personal representative to recover proceeds from some non-probate accounts. For example, a personal representative may reclaim proceeds paid to a payable-ondeath beneficiary in order to fund a family allowance. A creditor or surviving spouse can make a written demand to the personal representative to engage this process. The personal representative then has two years from the decedent’s death to sue for recovery of sums from multi-party accounts. Beneficiaries of such accounts should be mindful of this potential claw-back power.
Myth #3: “The Surviving Spouse Gets the House.”
Under Texas law, a surviving spouse has the right to reside in the marital home until the surviving spouse either abandons the home or dies. But this socalled “probate homestead” right does not extinguish the ownership interests of co-owners, heirs, or beneficiaries under a will.
The responsibilities of the homestead claimant include paying advalorem property taxes, costs of maintenance and repair, and interest on any existing encumbrances (e.g., a mortgage); avoiding “waste” and preserving the property; and funding any permanent improvements on the property. The homestead claimant is also entitled to all fruits, rents, and revenues derived from the property. The remaindermen must maintain insurance on the property and pay the principal on any existing encumbrances, such as mortgage principal. Texas law permits the surviving spouse to sell the homestead and use the proceeds to acquire a new homestead with the same rights and obligations as before. Because these dynamics can strain a relationship, particularly between a stepparent and stepchildren, Texas law does not permit remaindermen to force a partition of a probate homestead. A common resolution to this conundrum is for one party to buy out the other party’s interest in the home, if both sides are willing.
Myth #4: “But It’s in the Will!”
A will, even if valid, is not effective until admitted to probate by a court of proper jurisdiction. A named executor does not have authority to administer an estate until he or she is appointed by the probate court and obtains letters testamentary. Immediately after death,
family members frequently divide the decedent’s personal property, list the decedent’s house for sale, and even file or settle lawsuits on behalf of the estate under the misguided belief that they have the authority to do so based on the terms of an unprobated will or merely because they are the decedent’s heirs. Such actions are unauthorized until a probate administration is opened and a personal representative is appointed to administer the estate.
Myth #5: “A Will Is a Fortress.”
No estate planner has ever created an incontestable will. Facially valid, self-proved wills may be opposed with the filing of a general denial before admission to probate and can be contested for up to two years after being admitted to probate. Lack of testamentary capacity, undue influence, and lack of testamentary intent are common grounds for a will contest. Who bears the burden of proof depends on the nature of the claim and whether the will has already been admitted to probate. Many wills contain provisions that threaten to disinherit anyone who challenges the validity of the will, but those impediments do not always deter motivated litigants from attempting to topple an estate plan. HN
Jessica Dunne and Spencer Turner are attorneys at FarrowGillespie Heath Witter LLP. They may be reached at jessica.dunne@ fghwlaw.com and spencer.turner@fghwlaw.com, respectively.
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D al l as Bar A ssoci ati on l Headnotes 15
Estate, Trust, Guardianship and Fiduciary Litigation throughout Texas
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D ecem ber 2020
J.H. Williams – Justice Delayed, but not Denied BY JOHN G. BROWNING
For most newly-licensed Texas lawyers, seeing their names among those admitted to the bar is an early November rite of passage. But for one name appearing on 2020’s list, it marked the righting of a racial injustice dating back to 1882, and the culmination of an effort by Dallas lawyers and judges to correct that wrong. It all began in 1882. Dallas’ first—and only—African American lawyer, Samuel Scott, had left the city the year before after a stay of only six months, departing after what the Dallas Herald euphemistically described as “a slight prejudice against him on account of his race.” In December 1882, a 28-yearold African American merchant from Mineola named J.H. Williams arrived in Dallas with the hope of being admitted to practice law. Like most aspiring attorneys of the time, Williams lacked a formal legal education but had “read the law” under the tutelage of an older lawyer, to the point where the Dallas Herald described him as “a colored disciple of Blackstone.” Texas’ standards for admission to the bar at the time have been described as “extraordinarily easy”; even the notorious outlaw
John Wesley Hardin was admitted to Texas’ legal profession—after a 15-year jail term for murder. There was no bar exam. In 1882, an applicant simply had to prove he was at least 21 years of age, a citizen who had resided in Texas for a minimum of one year, and that he was “of good moral character and deportment.” An applicant would simply present himself to the presiding judge of the district, and the judge would appoint a committee of lawyers to orally examine the candidate on his legal knowledge, and then report back with a recommendation on the young man’s fitness to practice law. The bar was set so low that, up until 1890, only two candidates were ever denied admission to the Dallas bar—J.H. Williams would be one of them. Williams made his application to the presiding judge of what would soon become the 14th District Court, a former Confederate officer named George Aldredge. Aldredge appointed a four-man committee to examine Williams. But that committee unexpectedly deadlocked, 2–2. The two voting in favor of Williams’ admission were two of Dallas’ most respected attorneys: Yaleand Harvard-educated W.W. Leake, then president of the Dallas Bar Association, and prominent lawyer Jeff Word. With the two
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other lawyers voting no, Judge Aldredge handpicked a second committee of three. That second committee wasted no time in doing what was expected; the day after being appointed, it reported “unfavorably” about J.H. Williams. Although the Dallas newspaper reported that Williams intended to continue his studies until he could pass examination, there is no record of his admission in Texas or elsewhere. The racial prejudice Williams encountered was hardly unusual. Black lawyers were a rarity, both in Texas and nationally. By 1890, there were only a dozen statewide. The arrival of an African American lawyer or aspiring lawyer was newsworthy at best, but sometimes sparked racial violence. Those few African Americans who did seek entry into the legal profession encountered barriers much like Williams did. John N. Johnson, the first African American admitted to practice before the Supreme Court of Texas in 1883, was previously rejected by Brazos County committees in 1881 and 1882. In recent years, however, bar associations and individuals around the country have been trying to address the racial injustices of the past. Between 2001 and 2019, state supreme courts in Washington, California, Pennsylvania, and New York granted posthumous bar admission to a handful of Asian Americans and African Americans who were wrongfully denied admission over a
century ago on racial grounds. Texas became the latest to do so. In August, after a Dallas Bar Association presentation by former 5th Court of Appeals Chief Justice Carolyn Wright and me, it became clear that the recent national discussions about systemic racism had laid the foundation for righting the wrong done to J.H. Williams. We applied to the current judge of the 14th District Court to vacate Judge Aldredge’s order of denial. Judge Eric Moyé not only did so, but also appointed a committee of distinguished current and former Dallas Bar presidents—Robert Tobey, Paul Stafford, and Al Ellis—to re-examine Williams’ application. They recommended his posthumous admission. Armed with Judge Moyé’s order, this recommendation, and a letter of support from the Dallas Bar Association, Chief Justice Wright and I asked the Supreme Court of Texas to right a historic wrong. In an October 19, 2020 special order, the Supreme Court did just that, posthumously admitting J.H. Williams to the State Bar of Texas. For a profession that still struggles with diversity, even belated recognition like this represents an acknowledgement of the many contributions made by lawyers of color, as well as an important step in bridging the racial divide that still plagues us. HN John Browning is a Justice on the Fifth Court of Appeals in Dallas, and a frequent writer on African American legal history. He may be reached at John.Browning@5th.txcourts.gov.
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D al l as Bar A ssoci ati on l Headnotes 17
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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
Column
D ecem ber 2020
Ethics
Trusts and Estates: Avoiding Liability in an Ethical Minefield BY RICHARD PULLMAN AND SAMUEL KESSLER
Trusts and estates attorneys in Texas routinely navigate a complex legal maze. The practice area involves working closely with professionals in the insurance, accounting, tax, and wealth management fields. While the multi-dimensional aspects of trusts and estates make for an intellectually stimulating and emotionally satisfying work life, the practice presents a minefield of ethical considerations attorneys must recognize in order to avoid liability and foster long-term client relationships. The rewarding aspects of practicing trusts and estates are, perhaps, the underpinning to ethical concerns unique to the practice area. The longer an attorney represents a family, the more likely relationships within that family will change. As a result, interests become less aligned. Much of what
we advise our clients to do, such as establishing a trust or the creation of a new legal entity, effectively creates new duties within a family. As estates grow and interests change, these duties complicate how attorneys represent and advise members within a family or entity. Though duties vary depending on the size and complexity of the estate, attorneys are required to possess a minimum level of competency. The ABA Model Rules of Professional Conduct require the requisite legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation. An estate administration can be as simple as a single matter involving a will that directs outright distribution of assets to a single beneficiary. On the other hand, it can be far more complex, illustrated by the distribution of a large estate that includes multiple entities to be distributed to multiple beneficiaries. The latter type of estate
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administration will require an attorney to understand tax implications, charitable bequests, creditors rights, the rights of a surviving spouse, and more—all of which will increase the complexity of the administration and require a heightened level of competency. Notably, the ABA Model Rules do not address the issue of specialization, nor do they discuss an obligation of counsel to hire or consult a specialist on a particular aspect of administration. The comment to the Rule 101, instead, provides options for attorneys dealing with more complicated administrations. The comment recognizes that lawyers may acquire adequate skills through necessary study or by association with a lawyer of established competence. A lawyer’s duty to effectively communicate with the client is paramount when dealing in trusts and estates. Lawyers must keep clients reasonably informed about the status of a matter, promptly comply with requests for information, and explain a given matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation. The goal is to facilitate the proper conclusion of each matter that arises in the administration of the estate in accordance with the client’s expectations. While effective communication may seem rudimentary, the transparency that results provides a shield from liability and significantly reduces the likelihood of malpractice claims. Clearly identifying the client at the outset of engagement is fundamental
in establishing transparency through communication. When the “client” is the estate, the lawyer’s primary duty is to that entity through its personal representative—not to the representative as an individual. The attorney must then distinguish between the estate and the individuals with whom the attorney communicates. There are times when the estate’s interests may be adverse to those of its representative. ABA Model Rule 1.13 suggests that lawyers advise, in writing, that they cannot represent such an adverse constituent, and that the individual should consider obtaining independent representation. It is imperative that the constituent understands that the lawyer for the estate cannot provide legal representation in an individual capacity and that discussions between the lawyer and individual may not be privileged. Resolving these unique ethical scenarios is ultimately attributable to an attorney’s ability to exercise a high degree of personal and moral judgment. Lawyers who practice trusts and estates are more exposed than others due to the multi-dimensional nature of the practice. As the array of claims available against attorneys continues to evolve, attorneys practicing trust and estates should always identify their client upfront and put all critical decisions and legal advice in writing to the extent possible. HN Richard Pullman and Samuel Kessler are attorneys at Kessler Collins, P.C. and may be reached at rpullman@ kesslercollins.com and skessler@kesslercollins.com, respectively.
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D al l as Bar A ssoci ati on l Headnotes 19
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20 H e a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2020
Supporting Employees and Staff During a Crisis or Emergency BY DANIKA H. MENDRYGAL
When widespread disasters occur, employers often ask how to support employees and staff. Establishing a charity specifically for this purpose is a popular option, but there are several less-intensive options that can facilitate a timely response.
Employer Payments
Under Section 139 of the Internal Revenue Code, employers may provide “qualified disaster relief payments” to employees that are not treated as wages and can be excluded from income for federal tax purposes. Payments are permitted when the President declares a “disaster” under the Stafford Act, as occurred on March 13 with respect to the COVID-19 pandemic. Only certain payments qualify. With respect to COVID-19, “qualified disaster relief payments” include payments “to reimburse or pay reasonable and necessary personal, family, living, or funeral expenses incurred as a result of a qualified disaster.” Reimbursable items potentially include over-thecounter medications, hand sanitizers, disinfectants, childcare/tutoring due to school closings, remote work expenses, increased unreimbursed health-related expenses, and increased transportation costs. Important rules related to these payments include: • Expenses may not also be paid by insurance or otherwise; • All expenses must be “incurred as a result of” the disaster; • Collecting receipts is not required if the payments are reasonably expected to be commensurate with
expenses incurred; • Expenses must be “reasonable and necessary” and cannot be for luxury/non-essential items; • Payments may not be made as income replacement or to replace lost wages; and • All employees should be eligible. Employers should implement guidelines and processes addressing the points above, and employees should attest to the key requirements when requesting a payment.
an employer forego a degree of control and oversight with respect to the operation and management of the fund. In exchange, the sponsoring charity handles the administration and compliance almost exclusively. Such funds can generally be established quickly with no need for IRS recognition. Funds may receive donations from any source, including the employer, employees, and vendors—without restrictions related to the amount of funding from any one source.
Leave Sharing or Donation New Employee Relief Programs Charity Employers have several options to establish programs for employees to donate unused vacation, sick, or personal time, including (i) a major disaster leave sharing program, (ii) leave donations for employees on medical leave, and (iii) leave donations to charity. Each option carries a unique set of benefits and requirements, but all are relatively simple and quick to establish. Properly structured, these programs can offer tax advantages to the employees who donate leave.
Employee Relief Fund at an Established Charity
Employers may establish a fund at a local community foundation or other established charity to provide assistance to employees affected by a disaster or emergency. In fact, there are a number of charities specifically focused on administering these programs for large employers. Outsourcing a fund in this manner typically requires that
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Many large employers establish charities to support employees (sometimes including furloughed employees or retirees) and their families who are impacted by an emergency or disaster. Specific guidelines govern administration of these charities and employeebase size thresholds apply. Charities may receive donations from any source, including the employer, employees, or vendors—provided that employer support does not exceed certain thresholds to ensure qualification as a “public charity.” Charities funded primarily by an employer are also permitted, but the types of assistance are significantly restricted. An employee relief charity can be an excellent tool for promoting employee morale and participation despite the administrative burden. There is generally a great degree of flexibility related to control of the charity (for example, the Board can be composed of C-suite management, subject to rules related to disclosure and compensation), so long as a selec-
tion committee composed of lowerlevel employees retains the authority to approve grants. Employees may receive grants for a broad range of uses, so long as each demonstrates financial need and is evaluated objectively. A new charity can be established within a few weeks and can begin operation as soon as it fills leadership positions and adopts program parameters. IRS recognition of 501(c)(3) status will follow months later but will be retroactive to the date of formation.
Existing Corporate Foundations
Most corporate foundations are classified as “private foundations” due to extensive funding by the corporation. Such foundations are generally precluded from providing employee assistance, with one exception. Employer-sponsored private foundations may provide assistance to employees of the sponsoring employer for “qualified disasters,” with appropriate safeguards in place. As above, a qualified disaster includes Presidentially-declared disasters. In the current environment, corporate foundations may be able to make distributions to employees of the sponsoring employer even though they are classified as private foundations. Foundations considering this option should seek guidance regarding permissibility and safeguards. Important factors include the size of the employee base, eligibility requirements, program parameters, and foundation purposes. HN
Danika H. Mendrygal is the Managing Member of Mendrygal Law, PLLC. She can be reached at danika@mendrygallaw.com.
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D al l as Bar A ssoci ati on l Headnotes 21
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22 H e a d n o t e s l D a l l a s B a r A s s o ciation
D ecem ber 2020
How to Say No and Still Be the Go-To Lawyer BY JANE MALLOR MCBRIDE
There are many times in a lawyer’s career when it seems that saying no is the only way to go. A lawyer may not want to take on a new assignment; a lawyer may want to prevent a client from doing or not doing something; a lawyer may want to ensure that their client stays in compliance or is positioned well for a dispute. The most successful lawyers manage to do all of that by choosing no often, and actually saying the word no rarely. They understand that the tiny word no has a lot of negative connotations in the listener’s brain. The secret to being able to say no and still be the go-to lawyer is to understand how to say no without actually saying no. While this will depend on the situation at hand, here are some ideas that may help you: How to say no when your client wants to do something you do not think is a good idea: • If you have an alternative, go
directly to an alternative solution: “We can accomplish that by doing X”. • Gather more information: “That’s an interesting concept. Tell me what you are trying to accomplish” • Use the power of delay if it is a problem (or project) you think will go away: “I want to think on it a bit more. Let me get back to you.” Of course, you cannot leave it in limbo forever, but often the delay will divert the need for action. • Globalize and de-personalize, and make it be about something other than what they want and what you want: “I would love to be able to do that for you; sadly, the company policy/firm policy/statute prohibits X” • Present options and consequences: “We have several options here. If we…, then…” and then “Now that I have laid out our options, which do you prefer?” • Stay focused on the solution, not the problem: Make sure you have correctly identified the problem your client is bring-
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ing to you by asking questions and repeating what you hear to be sure you are all on the same page. Whenever you see the conversation focusing on the problem, bring the conversation back to possible solutions. “Have we considered X as a solution?” • Always present it from their point of view, not yours. Consider the audience, and what is important to them. Phrase it in terms of how this will or could impact them: (to a profit-oriented executive) “Don’t you think we would have a better impact on the bottom line if we did (solution) instead?” How to say no when your boss or manager asks you to do something new. This might be the most problematic no of all. But it may also be the most important no for you and your long-term success. • When you do not have the expertise (and it would not be beneficial to you to gain the expertise) and you can offer an alternative, do so: “I know Joe has already handled something like this. Would it be OK with you if I pass this along to him or work with him on this project?” • When you absolutely do not have the time to do it, let your boss or manager know this without saying no: “Happy to help with this. What should I de-prioritize?” or “I can do this by (date). Would
that be acceptable?” How to say no to an opportunity— whether work related or not work related—that is presented to you: • Use the calendar check no: “Let me check my calendar and I will get back to you” • Use the awkward pause. Often, simply waiting will cause the asker to retract the ask. • Offer an alternative: “I think Rob would be very interested in doing that. I will forward the request on to him.” • Say a very polite thank you but no thank you: “This sounds like an excellent opportunity but I am sorry that it is not possible for me to do at the current time.” • Use email. Often people are hesitant to say no—even without actually saying no—in person. Consider using email with the above responses for an easier soft no. Follow these suggestions to avoid the word no, and still accomplish what you want to accomplish. Want more ideas for how to say it? Have a situation that’s not on this list? Feel free to give me a call to brainstorm a way to get what you want— without saying no. HN Jane Mallor McBride is Principal and General Counsel at Optimus Legal and may be reached at jane.mcbride@optimuslegal.com.
Client Development—Speak at a DBA Webinar Interested in sharing your legal knowledge and expertise with your colleagues? The CLE Committee is looking for speakers and hot topics for the Friday Clinic programs it holds throughout the year. Please submit a short bio, title, and 2-3 sentence description of your presentation to yhinojos@dallasbar. org. Submissions will be discussed at monthly CLE Committee meetings.
DAYL Foundation Fellows Luncheon Thursday, December 10, 2020 Join the DAYL Foundation at its annual luncheon to celebrate the many accomplishments of the Foundation in 2020. During the luncheon, we will hear from Texas Supreme Court Chief Justice Nathan Hecht. In addition, the DAYL Foundation will recognize the 2020 Award of Excellence recipient, Dallas County Judge Clay Jenkins. The event is free and is open to all. Register at https://tinyurl.com/fellows-luncheon-2020.
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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
D ecem ber 2020
Hunton Andrews Kurth Named Pro Bono Law Firm of the Year Robert Anderson Named Pro Bono Lawyer of the Year STAFF REPORT
At the Annual Pro Bono Awards program, held virtually this year on October 30, the Dallas office of Hunton Andrews Kurth LLP was recognized as Pro Bono Law Firm of the Year. Each year, the Dallas Volunteer Attorney Program (DVAP), a joint project of the Dallas Bar Association and Legal Aid of NorthWest Texas, honors the lawyers, judges, and other legal professionals who donate pro bono legal services. Hunton Andrews Kurth has been
instrumental in supporting pro bono for many years, volunteering at DVAP’s various clinics, representing pro bono clients, and providing pro bono help wherever they can. But this year has been perhaps DVAP’s most challenging year yet. In March 2020, DVAP was forced to close all in-person clinics due to the COVID-19 pandemic. Shortly afterwards, Hunton Andrews Kurth contacted DVAP to see what they could do to help DVAP continue to provide free legal services to low-income Dallas County residents. DVAP was fortunate enough to partner with Hunton Andrews Kurth to create DVAP’s first online application, which allowed them to continue to reach this vulnerable population during a difficult time. Hunton
Andrews Kurth continues to provide valuable support for the online application process and DVAP’s virtual clinics. Since the first virtual clinic in April of this year, Hunton Andrews Kurth has sponsored 10 clinics over a seven-month period. “The [virtual clinic] platform is a win for our community because of the increase of accessibility to pro bono services, a win for our colleagues because it provides greater flexibility in when and how attorneys can provide pro bono services with resources at their fingertips, and a win for DVAP because it has streamlined the clinic process enabling DVAP to ultimately help even more individuals that need help the most,” said Fawaz Bham, who serves on the firms’ Pro Bono Committee and who was also recognized as a Pro Bono Coordinator of the Year. “It has been a rewarding experience because during this pandemic, everyone is taking a leap in the technology space and it was time to move pro bono legal services into the next realm as well.”
Lawyer of the Year
Robert Anderson
Robert Anderson, solo practitioner, was named Pro Bono Lawyer of the Year. A graduate the 2019 DBA Entrepreneurs in Community Lawyering program, Robert donated over 143 hours during the reporting year and accepted over 29 cases from DVAP! An outspoken advocate for pro bono legal service, Robert has not only taken on and represented numerous DVAP clients, he has also volunteered at countless clinics, including the Veterans Clinic. Additionally, he encourages colleagues and the wider Dallas Bar community to participate in pro bono work.
2020 Pro Bono Awards Lawyer of the Year Robert Anderson Law Firm of the Year Hunton Andrews Kurth LLP Pro Bono Appreciation Award Robert L. Tobey Johnston Tobey Baruch, P.C. Hartman Judicial Pro Bono Service Award Hon. Dennise Garcia Ken Fuller Outstanding Mentor Attorney Award Jack Wilburn, Attorney at Law
Pro Bono Court Reporter of the Year Glenda Finkley 256th District Court Pro Bono Coordinators of the Year Fawaz Bham and Daniel Garner Hunton Andrews Kurth LLP Outstanding Sole Practitioner John VanBuskirk Oustanding Small Firm Lawyer Tanner Hartnett The Hartnett Law Firm Outstanding Government Attorney Samire Elhouty U.S. Department of Education
Rex Spivey Corporate Pro Bono Award AT&T Outstanding Veterans Clinic Attorney Dustin Mauck Gold Award for Pro Bono Service RegitzMauck PLLC Alston & Bird LLP Baker Botts L.L.P. Outstanding Clinic Sponsor Haynes and Boone, LLP Foley & Lardner LLP Weil, Gotshal & Manges LLP Outstanding Clinic Attorney Volunteers Silver Award for Pro Bono Service West Dallas Clinic Akin Gump Strauss Hauer & Feld LLP Soden Abraham Cozen O’Connor Katten Muchin Rosenman LLP Jackson Walker Garland Clinic Winstead PC William Milne, Attorney at Law Bronze Award for Pro Bono Service Bracewell LLP South Dallas Clinic Sidley Austin LLP Jack Manning, Manning & Meyers Outstanding Ad Litem Attorney Elaine Mosher Mosher Law Firm Outstanding Court Personnel Barbara Esquivel, 303rd District Court
“The pro bono experience has engendered in me a much deeper connection to the community in which I live, and strengthened my desire to make that community better through my service,” said Robert. “Seeing the needs of those less fortunate has given me a greater appreciation for the many blessings in my own life, and being able to help them in such a meaningful way has been immensely gratifying and inspiring.” DVAP and the DBA congratulate Hunton Andrews Kurth and Robert Anderson! Thank you for all you do for the #DBACommunity! HN
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Focus
D al l as Bar A ssoci ati on l Headnotes 25
Probate, Trusts & Estates/Tax Law
Combating Elder Manipulation: Undue Influence Claims BY P. KEITH STAUBUS
Financial exploitation of the elderly is a growing problem worldwide. As the cognitive ability of an elder declines, they become more susceptible to being manipulated into executing legal documents prepared at the urging of a third party, such as a last will and testament, which they would not otherwise have executed. In cases where the elder’s mental capacity was diminished but was partially intact, a will contest based upon a lack of testamentary capacity may be challenging.
Cause of Action for Undue Influence
An alternative basis for contesting wills is undue influence. The test for undue influence consists of three elements: 1) the existence and exertion of influence; 2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of its execution; and 3) the execution of a testament that the maker would not have executed but for such influence. Undue influence becomes a valuable tool in cases where the person executing the document in question had diminished capacity but the question as to the level of diminishment is not clear, giving the fact finder an additional option for setting the document aside.
Case Law Defining Undue Influence
There is a significant amount of
Texas case law giving guidance on what does and does not constitute undue influence. Not all influence constitutes undue influence. In addition, the mere opportunity to exert influence does not constitute undue influence. The question is whether the influence rises to the level of overcoming or subverting the true wishes of the testator. Undue influence has been defined as compelling the testator to do that which is against his will from fear, the desire for peace, or some feeling which he is unable to resist. It may take many forms, including force, intimidation, duress, excessive importunity, or deception. Case law further establishes that undue influence need not be accomplished forcibly and directly, more often being exercised by subtle and devious means, which may occur consistently over a long period of time, or briefly and immediately prior to the execution of the instrument in question. The Texas Supreme Court has stated that undue influence may be exercised through the silent power of a strong mind over a weak one. These cases often involve the influencer actively working to alienate the elder from their family, friends, and trusted advisers.
Burden of Proof
The burden of proof for an undue influence claim is on the person contesting the validity of the document in question. Because of the nature of undue influence, it is rare that it can be established by direct testimony.
Most cases of undue influence are established by circumstantial evidence. Texas opinions note that no two suits alleging undue influence are the same. The outcome of each case depends on its own unique facts.
Factors
A few of the factors which Texas courts have listed as considerations in determining the existence of undue influence include the following: • the circumstances surrounding the execution of the instrument; • the motive, character, and conduct of the persons benefitted by the instrument; • the participation by the alleged influencer; • previously stated desires and intentions of the person executing the instrument which are contradictory to the instrument at issue; • opportunity for the exercise of undue influence; • habitual subjection to the control or influence of others; • the physical and mental condition of the person upon whom influence is exerted; • an unjust, unreasonable, or unnatural disposition of the property.
Shifting of Burden of Proof
A game changer in cases involving undue influence occurs when there is a fiduciary relationship between the person who executed the document in question and the party accused of exerting and benefiting from the undue
influence, shifting the burden of proof to the party who benefitted from the transaction to produce evidence showing the absence of undue influence. This creates a presumption that confidence was placed in the fiduciary and that influence was exerted. The fiduciary relationship can be a formal fiduciary relationship, such as the person’s trustee or attorney-in-fact, or a relationship which the law recognizes as an informal fiduciary relationship. An informal fiduciary relationship exists where “special confidence is reposed in another who in equity and good conscience is bound to act in good faith and with regard to the interest of the one reposing confidence.” Informal fiduciary relationships can arise between family members, although each case is decided on a case by case basis.
Broad Uses for Undue Influence
While undue influence is often utilized in will contests, it is also available to challenge the validity of other legal documents, including but not limited to trusts, beneficiary designations on life insurance policies, retirement accounts and other non-probate assets, deeds, right of survivorship and pay on death accounts, settlement agreements, and other contracts. With our population aging, every litigator should consider putting the undue influence claim in their toolbox. HN
P. Keith Staubus is a Partner at Staubus & Randall, LLP. He can be reached at pks@srllp.com.
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The new Entrepreneurs in Community Lawyering participants met in their new space at the Turley building.
Though held virtually this year, the DBA’s Annual Evening Ethics program was a success with more than 100 attendees
On October 12, the DBA hosted An Overview of Minority Recruiting and Pipeline Programs with speakers Lacy Durham, Valerie James, Whitney Fogle Lewis, Crystal Moore-Mitchell, and Courtney Barksdale Perez
On October 15, the DBA Public Forum/Media Relations Committee and the League of Women Voters hosted a panel for the 5th District Court of Appeals candidates.
The International Law Section hosted the Mexican Consulate General of Dallas at their October CLE webinar.
On October 7, the DBA We Lead program held a breakfast club meeting. Attending were (left to right): Judi Smalling, Marifer Aceves, Stephanie Wood, Kavita Bhalla, Liset Lefebvre, Lesley Moseley, and Crystal Moore-Mitchell. Peter Vogel and Gene DuBose hosting the October Solo & Small Firm Section webinar.
The Dallas Minority Attorney Program looked a little different this year, as it was held virtually over a period of several weeks.
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D al l as Bar A ssoci ati on l Headnotes 27
Probate, Trusts & Estates/Tax Law
Guardianships for Incapacitated Persons with Part-Time Jobs BY ANGELICA L. FARINACCI AND HEATHER R. BELL
Sections 1001.001–1357.102 of the Texas Estates Code govern guardianship procedures and requirements. The Code provides a vast array of guidance when determining whether any type of guardianship, or some alternative or supports and services, is appropriate. One should always begin an analysis of a situation related to an Incapacitated Person or an alleged Incapacitated Person with the Code. An Incapacitated Person (IP) is defined as: (1) a minor; (2) an adult who, because of a physical or mental condition, is substantially unable to: (A) provide food, clothing, or shelter for himself or herself; (B) care for the person’s own physical health; or (C) manage the person’s own financial affairs; or (3) a person who must have a guardian appointed in order for the person to receive funds due the person from a governmental source. Tex. Est. Code § 1002.017. An IP may be either totally incapacitated or partially incapacitated as discussed below. Oftentimes, an IP may only require a guardian of the person to assist with the IP’s activities of daily living (ADLs), such as bathing, grooming, dressing, walking, toileting, eating, clothing, shelter, and administering medications. These activities are viewed as separate and apart from a person’s ability to obtain employment, make purchases, pay their bills, and manage their own bank account or other property, which may require the appointment of a guardian of the estate.
For instance, you may have a loved one who is unable to provide food, clothing, and shelter for himself, but who is able to maintain a part-time job. You may be wondering if your loved one should have full control and access to those funds. Perhaps your loved one does not need the funds, and another person completely provides for him at this time. Whether the IP can manage funds earned from his or her job depends on the person’s level of incapacity. If an IP is unable to manage his or her funds, a guardian of the estate may be necessary. To determine whether a guardian of the estate for the IP is appropriate, a twostep analysis should be applied. First, you must review the Physician’s Certificate of Medical Examination (CME). Generally, the IP’s physician will indicate on this form whether the IP has the mental capacity to manage his or her own funds. More specifically, the physician will indicate whether the IP has the ability to: (1) make complex business, managerial, and financial decisions; and (2) manage a personal bank account, and whether the amount deposited in any such bank account should be limited. If the physician has indicated that the IP does not have capacity to do one or both, you must next review the CME to determine if the physician determined that the incapacity was partial or total. If the physician has indicated that the IP lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage his or her property, you will need to review which specific powers and duties the physician indicates that the guardian should have.
If the physician determines that the IP is totally without capacity (1) to care for himself or herself and (2) to manage his or her property, you should move to step two of the analysis. The second step consists of a costbenefit analysis to weigh the amount of income the IP receives from his or her job against the expense of an additional guardianship and whether any alternatives to a guardianship might suffice. A guardianship of the estate requires the guardian to pay a bond premium each year, undergo fingerprinting and an additional background check, and submit annual accountings to the court, detailing the funds received, the distributions made, and the funds remaining in the hands of the guardian. This two-step analysis arises most often when a parent becomes their disabled child’s guardian of the person when he or she turns 18, and the child later matures enough to earn and man-
age a small amount of funds. Perhaps the IP’s only income is from a part-time job, earning minimum wage. It is unlikely that this scenario warrants the expense of a guardian of the estate, and the IP would likely be able to continue to independently manage her or her income, perhaps with some guidance from a guardian of the person. However, this analysis may change if the IP inherits property from a deceased family member or has a personal injury claim. The IP may be capable of managing his or her nominal income, but the IP would be unable to adequately manage real property or substantial funds or pursue a claim alone. In this instance, a guardian of the estate may be economical and required. HN Angelica L. Farinacci is an Associate at Ford + Bergner LLP and may be reached at afarinacci@fordbergner.com. Heather R. Bell is the Founder of Bell Law Group, PLLC and may be reached at heather@dfwprobatelaw.com.
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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 ciation
D ecem ber 2020
Dallas Court Staff MVPs BY SARAH-MICHELLE STEARNS
Each year the Dallas Bar Association hosts the “Court Staff Awards” to recognize outstanding court staff members in Dallas County. This year, however, the DBA instead would like to take a moment to recognize and thank the court staff collectively. It is no secret that the Dallas County court staff members are the real “MVPs” of 2020. During these unprecedented times, each and every court staff member’s hard work and dedication to public service has been apparent. In fact, court staff members have gone above and beyond to meet the unique challenges presented by COVID-19. As Tracie Broadnax in the 305th Juvenile District Court emphasized, “We never shut down and the Court never stopped running.” Instead, the court staff simply had to adapt, quickly. The same is true of all Dallas County courts, and everyone within the court system worked
together—despite all of the extra stressors—to make sure things ran as smoothly as possible, sometimes working even longer hours than normal. Bertha Moore, a Court Coordinator for the 192nd Civil District Court, has given over 30 years of service to Dallas County and will be retiring in December, but even as a seasoned staff member she stated that “COVID-19 quickly helped identify that we should embrace technology to move forward during these unprecedented times.” Similarly, Catherine Nicholson, Court Administrator for the 301st Judicial District Court, noted it was a “struggle to reinvent how we do everything and push ourselves to use technology in a way we never thought we would or could.” Yet, Ms. Nicholson noted that “many heroes stepped forward” to make sure the courts remained up and running. She gave credit to her incredible work colleagues and shared that the court’s motto is: “We are all in this together.” In fact, outside
Indeed, every single court staff member has made the most of a difficult situation. District Court Administrator Lori Ann Bodino said that she has seen “growth from all court staff” and that all court staff members have been both “motivated” and “eager” to learn new skills, with some staff members making even more time than usual for remote continuing education opportunities. Ruby K. Gray, an Administrative Assistant in District Court Administration, similarly said that court staff members have all “realized they can still learn a lot” and further noted that she was excited to see staff members “take off
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with new wings.” The challenges are not without a few surprising bright spots, too. Ms. Bodino has been able to see more people faceto-face via Zoom than during the normal course of business at the courthouse. These Zoom meetings have often presented some interesting moments of levity, as Ms. Bodino noted she has seen many a pajama! Ms. Gray is working on her post-pandemic travel wish-list, but in the meantime has used her “stay-athome” time to turn her backyard into a meditation garden. In fact, her neighbors have joined in the fun and they trade ideas with each other. Other court staff members are finding they have more time for health and wellness, now that their commute time is significantly shorter. Finally, while it can be difficult to stay focused amidst the gloom of a pandemic, court staff members have remained as passionate as ever about serving the public. As Judge Margaret Jones-Johnson’s Probate Court staff put it, “Each day, we wade through the halls of the courts and our offices with our PPE gear on, our minds focused on answering the phone calls of families and law firms about how the court is conducting hearings, so that they know their best interests are being cared for foremost.” The lawyers within the Dallas Bar Association and the public at large would certainly be lost without such dedication. On behalf of all members of the Dallas Bar Association, we want to send a heart-felt “thank you” to each and every Dallas County court staff member for their hard work during 2020! HN Sarah-Michelle Stearns is an Associate at GreenbergTraurig and may be reached at stearnssa@gtlaw.com
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D al l as Bar A ssoci ati on l Headnotes 29
Probate, Trusts & Estates/Tax Law
Tax Consequences of Amending Leases During COVID-19 BY ANDREW BOTTS
The COVID-19 pandemic has created uncertainty as we cannot know when our economy will rebound. This has caused landlords and tenants to consider amending their leases, whether through rent deferral or otherwise. A simple lease amendment may have significant federal income tax consequences that changes the treatment of payments, which could come as an unpleasant surprise. The parties need to understand Internal Revenue Code (IRC) Section 467 so that lease amendments meet their business and tax goals. When Does Section 467 Apply to Leases, and Why Should Landlords and Tenants Care? Suppose the landlord agrees to either waive or defer rent. This modification may create a tax liability. When a lease is subject to Section 467, it requires the parties to report income and deductions on an accrual basis, regardless of their chosen method of accounting. So, if rents are significantly deferred or prepaid, there is imputed interest. Consequently, a cash method landlord will have income accelerated, even though the rent is deferred, but a cash method tenant has an advantage because accrued but unpaid rent expense is available as a current deduction. There are two requirements for a lease to be subject to Section 467: (1) the lease has increasing or decreasing rents, or the rents are deferred or prepaid; and (2) the total amount of consideration is more than $250,000. In determining this amount, all agreements that are part of the same transaction (i.e. side letters, and equipment leases) are included. Options to renew or extend the lease term are included only if it is expected that the option will be exercised; thus,
including or excluding it is based on the facts and circumstances. There are exceptions, however, where rents may change over time, and certain contingent rent (e.g., tenant’s reimbursement of triple nets, among other things) is disregarded. Accordingly, if a lease is not a Section 467 lease at inception, a cash method landlord may want to consider modifications that do not trigger it. However, there are circumstances where subjecting the lease to Section 467 is beneficial. For instance, if a tenant makes a lump sum payment as consideration for an amendment, or the landlord draws down a letter of credit upon a default, this is prepaid income that is recognized in the year of receipt. However, if the lease amendment has a rent allocation schedule, the landlord may cause Section 467 to apply, which would defer income recognition beyond the year of prepayment. When is an Amendment a Substantial Modification, and What are the Federal Income Tax Consequences? If a substantial modification of the lease occurs, it will trigger Section 467. This occurs when the parties’ rights or obligations change and it is “economically substantial.” The Treasury Regulations have safe harbors that exclude certain modifications, including, some refinancing, reimbursement of third-party costs, and changes in rent that do not exceed 1 percent of the rent before the modification. This 1 percent safe harbor illustrates a threshold amount for triggering Section 467. Section 467 may further alter the income or deductions recognized by the parties by recharacterizing a portion of deferred or prepaid rent as interest. Certain leasebacks and long-term leases may trigger this additional accounting requirement that bifurcates rent into rent and interest. Even when a taxpayer
has adopted the accrual method of accounting, this aspect of Section 467 can have a considerably greater tax consequence on the parties than forcing them to change accounting methods. For instance, by deferring rent without adequate stated interest, the tenant may be forced to recognize significant interest expense that could be disallowed under IRC Section 163(j). When a “substantial modification” occurs and neither party changes its accounting method, the Internal Revenue Service (IRS) may assert that a taxpayer adopted an improper method of accounting. If the IRS discovers this issue on examination, it could make the change going back to the earliest year under audit and order an IRC Section 481(a) adjustment entirely in the year of change. If this results in an increase to income due to an understatement of income or overstatement of expense in prior
years, penalties and interest may be due on any assessment. For partnerships and limited liability companies taxed as partnerships, it is important for the entity agreement to address “imputed underpayments.” Owners that benefitted from the underpayment of tax may no longer be affiliated with the entity, and the entity’s ability to recover payments from prior owners is governed in the entity’s agreement. Conclusions: (1) when the parties are considering a lease amendment, the tax provisions in the entity’s agreement should be evaluated to determine if it has appropriate clawback or indemnity provisions; and (2) lease amendments should be analyzed under Section 467 before the amendment is signed. HN Andrew Botts is Tax Counsel at Higier Allen & Lautin, PC, and may be reached at abotts@higierallen.com.
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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
D ecem ber 2020
In the News FROM THE DAIS
Sally Helppie, of Waddell Serafino Geary Rechner Jenevein, P.C., presented an online class to the North Texas chapter of the American Association of University Women. She also recently commenced her 10th year teaching the Producers Seminar for the Division of Film and Media Arts at SMU. Jeff Abrams, of Abrams Mediation, spoke at the Annual Meeting of PIABA (Public Investors Advocate Bar Association) on Use of Zoom Technology for Effective Virtual Mediations.
KUDOS
Michael McCabe and Jenny Martinez, of Munck Wilson Mandala, have been named co-chairs to the firm’s complex litigation/dispute resolution section in addition to serving on the executive committee. Rick Jordan, of Polsinelli PC, received the Texas Lawyer’s Legal Innovators award through its 2020 Texas Legal Awards program. Cheryl Camin Murray, of Katten Muchin Rosenman LLP, was honored as a 2020 Working Mother of the Year, by Working Mother Magazine.
Vicki D. Blanton, of AT&T, received the State Bar of Texas, Texas Minority Counsel Program (TMCP) Corporate Counsel of the Year Award.
Mike McKinley, of Shackelford, Bowen, McKinley & Norton, LLP, has been elected President of the Salesmanship Club of Dallas.
Amy M. Stewart, of Stewart Law Group PLLC, has been awarded the Trailblazers Award by the Texas Minority Counsel Program (TMCP) of the State Bar of Texas.
Shonn Brown, of Kimberly-Clark Corporation, was awarded the Charyle O. Farris Trailblazer Award by the J.L. Turner
2020 DBA HOME PROJECT THE REX. J. SPIVEY MEMORIAL BUILD We need to raise $6,000 more to satisfy our gift to Dallas Area Habitat for Humanity and to pay for the materials and labor costs (above the volunteer labor) associated with building the 2020 DBA Home Project – the Rex. J. Spivey Memorial Build. If you would like to donate, please contact one of the 2020 Co-Chairs, David Fisk (dfisk@krcl.com) or Mike Bielby (mbielby@velaw.com).
Legal Association, for her continuous achievements and efforts that support and elevate women. Scott Chase, of Farrow-Gillespie Heath Witter, has been elected Board Chair of the Center for the Advancement and Study of Early Texas Art (CASETA), located at the San Angelo Museum of Fine Art. Melinda Phelan, of Baker McKenzie, has been appointed to the Firm’s Global Executive Committee. Michael Santa Maria, of the firm, has been named the Firm’s North America Chair. Claire E. James, of Cowles & Thompson, has been elevated to Shareholder.
ON THE MOVE
Allison Mathews has joined Skierski Jain PLLC as Of Counsel. Queena Leung and Colin Phillips also joined the firm as Associates. Jake Pollack has joined Shackelford, Bowen, McKinley & Norton, LLP as Partner. Connor Bourland has joined the Alston & Bird LLP Dallas office as Associate. Conrad Hester has joined the newly opened Alston & Bird LLP Fort Worth office as Partner.
Aaron Kaufman has joined Gray Reed as Partner. Stephen Liu rejoined Carstens & Cahoon, LLP as Partner. Brian Carpenter also joined the firm as Partner. Nicole Karam and Natalie Washington have joined Spencer Fane LLP as Associates. Eric Winwood has joined Sidley Austin L.L.P. as Partner. Rachael Smiley has joined Ferguson Braswell Fraser Kubasta PC as Shareholder. Jonathan Bridges joined Sbaiti & Company as Partner. Doug Skierski, of Skierski Jain PLLC, has joined Transcend Family Counseling as a Licensed Professional Counseling Associate. Brett Lamb has co-founded the firm Construction Discovery Experts located at 12225 Greenville Ave Ste 1050, Dallas, TX 75243. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@ dallasbar.org
2nd Annual End-of-Year Ethics Roundup Tuesday, December 8, Noon via Zoom Ethics 1.00 | Register at www.dallasbar.org Sponsored by the DBA Legal Ethics Committee
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D al l as Bar A ssoci ati on l Headnotes 31
Newly Approved: Service of Citation by Social Media or Email BY BROOKE PAXSON
The year is 2020. Across the globe, a pandemic sets in. TikTok takes the U.S. by storm. Dak Prescott is not starting in next week’s Cowboys game. And, the Texas Supreme Court decides we can serve lawsuits via Facebook message. Is this real life? On August 21, 2020, the Texas Supreme Court approved an amendment to Rule 106 of the Texas Rules of Civil Procedure allowing service of process for civil cases to be done via social media, email, or other technology. But before you scour the internet looking for the defendant’s LinkedIn page, certain steps must be taken first. Traditional service must be first attempted on the defendant either in person or via certified mail, return receipt requested. If that does not work, you may now file a motion seeking service by social media, email, or “other technology” with a sworn statement or evidence showing that such service will be reasonably effective to give the defendant notice of the suit. But what is adequate “notice of the suit”? Clearly, this amendment opens the door to due-process concerns. Will a text message or Facebook message to the defendant be enough?
Like the brief statement seen in a citation by publication, there is no requirement to provide a copy of the petition and citation if process is served through email or social media. Should the court’s order for substituted service specify the contents of the notice? Without the information contained in a petition and citation, the defendant may not know where to start. Pro se litigants will be at a significant disadvantage. A citation’s purpose is to provide basic information such as the county, the cause number, and the parties’ names. The citation also provides the deadline and instructions for filing an answer to an unsuspecting defendant. The Comment to Rule 106 states that in determining whether to permit electronic service of process, a court should consider whether the technology used for service actually belongs to the defendant and whether the defendant regularly uses or recently used the technology. If the defendant’s privacy settings restrict or prevent the public’s view of any given social media platform, this could be difficult to prove. A defendant could use Facebook every day, but a petitioner may never be able to prove that if all she or he can see is
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a profile picture uploaded in 2011. Texas is not the first state to consider these issues. In 2015, the New York Supreme Court in Baidoo v. Blood-Dzraku permitted a wife to serve her husband with a divorce citation through a private Facebook message. The court approved substituted service after traditional methods of service failed. The wife presented evidence to the court that she was unable to serve the husband in-person or via mail. However, the wife could reach her husband through Facebook, and she presented evidence to that effect. At that point, the court specifically considered the issue of authenticity of a Facebook page. The court acknowledged that anyone can make a fake social media profile page. Thus, the wife needed to prove that the Facebook page she was claiming belonged to her husband was actually his. And she did by presenting evidence showing his historical and recent use of that page, photos, and their previous conversations. The citation should still come from a lawyer or a process server. But how can that
be done if the lawyer is not Facebook friends with the defendant? The Baidoo Court ordered the the wife’s lawyer to login to the client’s page, identify himself as her lawyer, and provide a web address to, or image of, the summons. The Comment to Rule 106 suggests a Texas court use the analysis and considerations set forth in Baidoo. A Texas court should consider not only a social media page’s authenticity, but whether a defendant will actually and timely see the citation. Despite foreseeable challenges, we rely on technology almost entirely to share information in both our personal and professional lives. In theory, this amendment catches up to the times. Only time will tell how well this works in practice. It seems that in the year 2020, anything goes. This amendment will take effect December 31, 2020. Written comments should be sent to rulescomments@txcourts.gov by December 1, 2020. HN Brooke Paxson is an Associate at Johnson, Loyd & Schmitz, PLLC. She can be reached at brooke@jlsattorneys.com.
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