Dallas Bar Association
HEADNOTES
Focus Employee Benefits/Health Law
February 2018 Volume 43 Number 2
Jo Anna Moreland Longtime DBA Endowment Ensures the Future of Access to Justice in Dallas Executive Director Passes Away BY MICHELLE M. ALDEN
STAFF REPORT
Jo Anna Moreland served as the third Executive Director of the Dallas Bar Association from 1962 until her retirement in 1990. During her 28 year tenure she led the organization with energy and commitment that was unmatched. After 28 years of a wonderful retirement she passed away on January 18, 2018. In 1962, the Dallas Bar Association President was Morris Harrell and Jo Anna worked with 27 more Presidents to carry out the mission of the Dallas Bar Association. She held each President up individually so that each shone. The DBA’s office in 1962 was in the Adolphus Hotel and Friday Clinics were held in the dining room. After many years of exploring the idea of the Association owning Jo Anna Moreland its own headquarters, the DBA Board made the decision in 1977 to purchase the Belo Mansion. Jo Anna was instrumental in coordinating this effort and the Association moved its headquarters to the Belo Mansion in 1979.
She was very proud of the new building and always carefully preserved the history of the building and the association by maintaining files and files of old photos, copies of invitations and board minutes dating back to the 1930’s. Today, the staff continues to carefully maintain the rich history of the organization. The Dallas Bar Association grew from 1,466 in 1962 to 6,550 in 1990. Jo Anna welcomed new members with a smile and got them involved in the DBA immediately. Many of those members were groomed by Jo, became section and committee leaders, board members and later served as presidents of the Association. Upon her retirement, the Board of Directors instituted the Jo Anna Moreland Committee Chair Award, which is the most prestigious award given to a Committee Chair and its members who have gone beyond the call of duty for the Association. Jo Anna served as the Association’s third Executive Director following Eula Cates (19371948) and Evelyn Conway (1948-1962). HN
Ensuring Equal Access to All BY MICHELLE M. ALDEN
There but for the grace of God go I. This is a phrase we hear people say all the time, and it encapsulates the uncertainty of our world—a world where we can work hard, lead a healthy life, try to do all the right things, but still hard times befall us. Many would be hard pressed to say that quote never passed their minds when working with someone less fortunate, who lost a job, whose spouse left them, or someone struggling with health problems or addiction. The list goes on. This phrase was at the forefront of one volunteer attorney’s mind when she represented “Marilyn” and helped her keep her home. Eighty-
one-year-old Marilyn was behind on her mortgage payments and the mortgage company was threatening to foreclose on her longtime home. She had been making payments on her mortgage for 30 years, and if she had remained current the entire time, the loan would have been paid off. However, due to financial hardship, Marilyn fell behind on her payments in 2009. She eventually caught up, only to fall behind again in 2014. During the times Marilyn was in default, the mortgage company charged excessive amounts of interest and penalties, so that even after 30 years of making payments, she still owed $12,000. Marilyn hired a private attorney to represent her in continued on page 17
Inside 8 DBA Board Elects Chair and Vice Chair 10 Inaugural of Michael K. Hurst 14 The Tax Man Comes For The Tax Man 17 Tips for Statistics in Health Care Enforcement Cases
When Michael Hurst, of Lynn Pinker Cox Hurst LLP, heard about the threats to funding for civil legal aid in Dallas County last year, he got to thinking. The new administration was threatening to eliminate the Legal Services Corporation, which funds legal aid nationally. State funding through the Texas Access to Justice Foundation is dependent on approval from the legislature every two years. Even if funding is approved for the current year, what about next year? The instability created by these funding cycles just didn’t seem right, and Michael decided to do something about it. The Dallas Volunteer Attorney Program (DVAP) is a joint initiative of the Dallas Bar Association and Legal Aid of NorthWest Texas. Since its founding in 1997, DVAP has become the largest and most comprehensive provider of free legal aid to the poor in Dallas. DVAP provides access to justice by recruiting, training, and supporting volunteer attorneys to provide pro bono legal aid to lowincome people in Dallas County. A 16-member staff supports over 3,000 volunteers annually in providing these services. Legal aid programs around the nation face a crisis over how to pay for the legal aid services they provide. Committed volunteers provide their legal services free of charge; however, funds are needed to coordinate clinics, recruit volunteers, train and mentor volunteers, and oversee the thousands of cases DVAP handles each year. Rather than waiting for the next round of funding cuts, Michael led the charge to establish a DVAP Endowment, which strives to seek and maintain long-term funding to secure legal aid to the poor in Dallas. The DVAP Endowment will be used solely to support DVAP so that pro bono legal aid services to the poor in Dallas will continue should traditional funding methods shrink or cease to exist. After the new DVAP Endowment was created, Lynn Pinker Cox Hurst/Jane and Michael Hurst committed to contribute $50,000, and Michael began reaching out to community-minded friends and leaders in Dallas to obtain initial funding. Michael is well-positioned to lead the charge as the
2018 President of the Dallas Bar Association. So far, $405,000 has been pledged! “I believe that Michael is going to be an extraordinary leader of the Dallas Bar Association, and, with his vision and leadership, the DBA will continue to build on its heritage as a pillar of the Dallas community. We at Hunt are thrilled to be able to support Michael’s vision to create an endowment for DVAP that will provide a much more stable funding source for the crucial services that DVAP delivers every year. We hope that the momentum being created through great leadership in the business and legal community will continue to grow the endowment now and in the future,” said David Hernandez, Executive Vice President and General Counsel of Hunt Consolidated, Inc. Hunt Consolidated, Inc., through the leadership of Ray Hunt, Mr. Hernandez, Hunter Hunt, and Chris Kleinert, is contributing $50,000. David and his wife Michele Hernandez are contributing an additional $10,000. AT&T and Vistra Energy also joined the ranks of initial supporters of the Endowment. “AT&T has a proud history of supporting DVAP through lawyer volunteers and annual contributions, so we did not want to miss out on the chance to help launch an endowment that will empower DVAP to do even more in the years to come,” stated David R. McAtee II, Senior Executive Vice President and General Counsel. AT&T, through David’s leadership, is contributing $50,000; and David and his wife, Cristy, are contributing an additional $10,000. “The legal department at Vistra Energy, which includes our subsidiaries TXU Energy and Luminant, places significant emphasis on pro bono work and community service. We were pleased to contribute to funding the endowment and hope that it will serve as a backstop that safeguards funding for DVAP in the event state and federal funding for legal aid decreases,” said Dan Kelly, Vice President and Associate General Counsel. Vistra Energy, under the leadership of Stephanie Moore and Dan Kelly, is contributing $50,000. So is Highland Capital Management. “We are proud to help provide legal continued on page 16
DBA MEMBER REMINDER – RENEW TODAY! 2018 DBA DUES must be received by the end of the month to continue receiving your member benefits! Mail in your payment or go online and click on Renew Your Membership NOW! 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
February 2018
Calendar February Events FEBRUARY 2-BELO Noon
FRIDAY CLINICS
“Lawyers in Cyberspace: A Survey of Ethics in Data Security,” Kathryne Morris. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.
FEBRUARY 9-NORTH DALLAS** Noon
“Advertising Rules, What Are They? How Do They Apply to Social Media?” Michael Dobbs. (MCLE 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org.
FEBRUARY 16-BELO Noon
Noon
Construction Law Section “10 Biggest Mistakes Construction Lawyers (and Their Clients) Make at Mediation,” Jason Spencer. (MCLE 1.00)*
Judiciary Committee
Lawyer Referral Service Committee
DAYL In-House Committee St. Thomas More Society
FRIDAY, FEBRUARY 2
Friday Clinic-Belo “Lawyers In Cyberspace: A Survey of Ethics in Data Security,” Kathryne Morris. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.
MONDAY, FEBRUARY 5 Noon
Tax Law Section “Bitcoin, Blockchain, and the Bank Secrecy Act: Taxation, Reporting and Regulation,” Jason Freeman. (MCLE 1.00)*
TUESDAY, FEBRUARY 6 Noon
Corporate Counsel Section “Legislating with President Trump – A View from the Hill,” Chris McCannell. (MCLE 1.00)*
WEDNESDAY, FEBRUARY 7 Noon
MONDAY, FEBRUARY 12 Noon
5:30 p.m. Bankruptcy & Commercial Law Section “Bankruptcy Reform: Proposed Venue and Consumer Reform You Need to Know About,” Pam Bassel and Marcus Helt. (MCLE 1.00)*
THURSDAY, FEBRUARY 8 Noon
Bench Bar Conference Committee
Juvenile Justice Committee
Public Forum/Media Relations Committee
Government Law Section “Small Cells are a Big Deal,” Don Knight. (MCLE 1.00)*
CLE Committee
Criminal Justice Committee
Publications Committee
Christian Lawyers Fellowship
5:30 p.m. DBA New Member Reception. Honoring our New DBA Members and Newly Licensed Attorneys. For more information, contact Kim Watson at kwatson@dallasbar.org. org (214) 220-7414.
Transition to Law Practice Committee “Professionalism and Mentoring,” Chief Justice Carolyn Wright. (Ethics 1.00)*
6:00 p.m. J.L. Turner Legal Association
FRIDAY, FEBRUARY 9 Noon
Employee Benefits & Executive Compensation Law Section “Annual Round-Up on Notable 2017 Employee Benefits Related Litigation,” Michael Bennett. (MCLE 1.00)* Solo & Small Firm Section “If You’re Going to the Courthouse, Please File this for Me: Ten Documents Which Must be Filed in the Trial Court to Preserve Error for Appeal,” Chad Ruback. (MCLE 1.00)*
DAYL Judiciary Committee
North Dallas Friday Clinic “Advertising Rules, What Are They? How Do They Apply to Social Media?” Michael Dobbs. (MCLE 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@ dallasbar.org. Blockchain Law Study Group “Bitcoin, Ethereum, and Blockchain: Surprising Insights from 200+ Podcast Interviews of Industry Insiders,” Richard Jacobs. (MCLE 1.00)* Trial Skills Section “Arbitration Clauses: Enforcing and Avoiding Them,” Scott McElhaney. (MCLE 1.00)*
MLK Day Celebrated at the Belo Mansion
Real Property Law Section “Top 10 Things Real Property Attorneys Need to Know About Bankruptcy,” Francis A. Smith. (MCLE 1.00)* Peer Assistance Committee
TUESDAY, FEBRUARY 13 Noon
“The Role of Lawyers During Times of Crisis,” Gary Kennedy. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.
THURSDAY, FEBRUARY 1
Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
Business Litigation Section “Insurance Essentials for Business Litigators,” Linda Dedman, Ernest Martin, Jr., and Paul Stafford. (MCLE 1.00, Ethics 0.25)*
Immigration Law Section “H-1B Advanced Issues,” Michelle Alonzo and Susan Bond. (MCLE 1.00)*
Mergers & Acquisitions Section “Delaware Corporate Law Update – 2017 In Review,” Jim Honaker. (MCLE 1.00)*
Health Law Section “Issues Related to Clinicial Licensure, Governmental Enrollments, and Credentialing: A Facility Perspective,” Martha Karam and Scott Schardt. (MCLE 1.00)*
Law in the Schools & Community Committee
Pro Bono Activities Committee
Non-Profit Law Study Group
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@ dallasbar.org.
THURSDAY, FEBRUARY 22 Noon
Criminal Law Section “Professional License Defense,” Deborah Goodall and Buck Johnson. (Ethics 1.00)*
Environmental Law Section Topic Not Yet Available
Christian Legal Society DAYL CLE Committee
Tort & Insurance Practice Section “When is a Lie Not a Lie?” Jennifer Weber Johnson. (MCLE 1.00)*
Home Project Committee
Legal Ethics Committee
Noon
WEDNESDAY, FEBRUARY 14
Intellectual Property Law Section “What Every IP Lawyer Should Know About Cloud Computing Agreements,” Suzy Fulton. (MCLE 1.00)*
DAYL Deal Bootcamp Committee
Noon
Summer Law Intern Program Committee
MONDAY, FEBRUARY 26
DAYL Freedom Run Committee
DAYL Lunch & Learn CLE
DAABA Committee Training
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
FRIDAY, FEBRUARY 23
Noon
Science & Technology Law Section Topic Not Yet Available
Securities Section “Contemplating the Rising Costs and Complications of an EU Presence for US-Based Investment Firms,” Joseph Brucchieri and Whitney Fogle Lewis. (MCLE 1.00)*
Golf Tournament Committee
DAYL Membership Committee
5:15 p.m. LegalLine. Volunteers needed. RSVP to sbush@ dallasbar.org.
THURSDAY, FEBRUARY 15 Noon
Alternative Dispute Resolution Section “Be Prepared: Practice Tips for the Mediator,” Will Pryor. (MCLE 1.00, Ethics 0.50)*
Appellate Law Section “Privilege Update,” Jadd Masso. (MCLE 1.00)*
TUESDAY, FEBRUARY 27 Noon
Probate, Trusts & Estates Law Section “Marital Property Agreements,” Diana Friedman and Shelly West. (MCLE 1.00, Ethics 0.25)*
Minority Participation Committee
DAYL Lawyers Promoting Diversity
Christian Legal Society
DAYL Animal Welfare Committee
WEDNESDAY, FEBRUARY 28
Dallas LGBT Bar Association
DWLA Board Meeting
FRIDAY, FEBRUARY 16 Noon
Friday Clinic-Belo “The Role of Lawyers During Times of Crisis,” Gary Kennedy. (Ethics 1.00)* RSVP to yhinojos@ dallasbar.org.
MONDAY, FEBRUARY 19 Noon
Labor & Employment Law Section “The Rules of Professional Conduct and the Practice of Employment Law: The Basic Wiring,” Michael Maslanka. (Ethics 1.00)*
TUESDAY, FEBRUARY 20 Noon
Antitrust & Trade Regulation Section “Electronic Pricing and Cartel Behavior,” Steve Wiggins. (MCLE 1.00)*
Franchise & Distribution Law Section “Getting Ready for the Dance: Polishing Your Online Reputation for Franchising, Investment or Sale Opportunities,” Anne Turner. (MCLE 1.00)*
International Law Section “International Implications of the Tax Cuts and Jobs Act,” Stephen Beck. (MCLE 1.00)*
DAYL Elder Law Committee
Dallas Bar Foundation Board Meeting
Noon
Collaborative Law Section “The Splitting Syndrome: How to Keep Unity in Your Case,” David Bouschor, II, MaryAnn Kildebeck, Camille Milner, and Steve Walker. (MCLE 1.00, Ethics 0.25)*
Entertainment, Art & Sports Law Section “Translating Novels to Television Series,” Kathleen Kent and Dena Weaver. (MCLE 1.00)*
DAYL Equal Access to Justice Committee
DAYL Foundation Board
Municipal Justice Bar Association
THURSDAY, MARCH 1 Noon
Legal Ethics Committee “Ethics Jeopardy!” Kate Morris, Hon. Eric Moyé, Hon. Tonya Parker, and Robert Tobey. (Ethics 1.00)*
Family Law Section Board Meeting
Judiciary Committee
St. Thomas More Society
5:15
Law on Ice IV “Law on Ice IV: Internal Governance of Legal Matters in Sports,” Jim Lites, Alana Newhook, and Dave Wishnew. (Ethics 1.00)* Visit www. dallasstars.com/cle to purchase tickets. Cosponsored by the Entertainment Committee, the Entertainment, Arts & Sports Law Section, and the Dallas Stars
6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, FEBRUARY 21 DBA President Michael K. Hurst (left) presented the MLK, Jr. Justice Award to Florentino “Tino” Ramirez, of Ramirez & Associates, P.C., for inspiring others and reflecting the values and service portrayed by Dr. King. The Dallas Bar Association has celebrated Martin Luther King Jr.’s birthday annually since 1993.
Noon
Energy Law Section “Quench My Thirst: Water Rights in the Context of Water Treatment Technologies,” Pete Hosey. (MCLE 1.00)*
DVAP New Lawyers Luncheon. For more information contact reed-brownc@lanwt.org.
FRIDAY, MARCH 2 Noon
Friday Clinic-Belo “Disorder in the Court: Life as a Bipolar Lawyer,” Kelly Rentzel. (Ethics 1.00)* Sponsored by the CLE & Peer Assistance Committees. RSVP to yhinojos@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 Grecia Alfaro at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
Fe b ru a ry 2 0 18 â€
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
February 2018
President’s Column
Headnotes Published by: DALLAS BAR ASSOCIATION
Inaugural Address BY MICHAEL K. HURST
Taken from Inaugural Address given on January 20, 2018 What I have learned from the people in my life that I have respected the most is that “leadership” is simply about influencing and impacting, and developing others to themselves lead by providing for them a platform and resources. Leaders can come in the form of clergy, mentors, family and colleagues. As lawyers, we have both opportunities, and I humbly suggest, responsibilities to be at the forefront of leadership.
Who is the Dallas Bar?
all local Federal and State Judges, the Dallas Chapter of the American Board of Trial Advocates and the local Inns of Court and presented the first of its kind Day of Civility through proclamation of the courts. This was but a stepping stone to a more universal road to a more civil profession. Thanks to our efforts, The Texas Supreme Court and The Court of Criminal Appeals have jointly signed a proclamation that April 20 of this year is a statewide day of civility and professionalism. Courtrooms and bar associations across the state will be reiterating through seminars and signs that we need to treat each other with the dignity and respect that is emblematic of our profession. Thanks to Justice Doug Lang and others who are making it happen.
I can start by telling you a story about Ms. Morris, who would eventually be a client of our Legal Aid. Mr. Morris controlled Ms. Morris’ every move, had an explosive temper, and was jealous of her outside relationships. Mr. Morris would pull her by the hair, throw things at her, slap and punch her, and push her around. Ms. Morris was cooking dinner one night and the couple got into an argument. Mr. Morris picked up a boiling pan of water from the stove and threw it at Ms. Morris. She sustained serious burns. Their oldest child was present and began screaming. Mr. Morris even threw Ms. Morris down a flight of stairs. She finally left him. When he later held a gun to her head, she reported this to the police and, in retaliation, Mr. Morris kept the children from her. This convinced Ms. Morris, thank God, to seek help from an attorney from Legal Aid, who filed for divorce and a protective order for her. The Legal Aid attorney obtained the convenience store security video that showed Mr. Morris pulling a gun on our client. At a contested trial, the attorney entered the tape into evidence, and Ms. Morris obtained all requested relief, including divorce on cruelty grounds, a 2-year protective order, sole possession of the children, permanent injunctions against Mr. Morris, and child support. When Hurricane Harvey struck last year, I went to the Dallas Convention Center, where Dallas Bar and Legal Aid set up a booth in the recovery center and had 83 volunteer attorneys assisting with legal issues that resulted from displacement of our fellow Texans on the Gulf, along with training, and a help hotline. For our indigent neighbors in need of legal representation, the DBA is here for you.
DBA WE LEAD
Pro Bono Endowment
Saving Jury Trial
Leadership is about leading with your heart in addition to your head. We need to protect the ability of our low income neighbors to have representation and access to our civil justice system. The Pro Bono Endowment, as a forward-thinking initiative will do exactly that for North West Texas. These awesome companies and individuals have made this a reality. The family of the late Ken Fuller, a pro bono legend, is in the audience. Perhaps others will follow. Thanks to them and some others, we begin this year already having raised $400,000 for this Endowment! “And justice for all” means equal access to justice for everyone. And now, because of this first of its kind, Endowment, “And Justice For All” means ‘Justice for All people AND FOR ALL TIMES.’
Peer Assistance
Being in this profession doesn’t remove us from the afflictions of depression and the like. Trust me, I know that first hand. In fact, lawyers are several times more likely to be diagnosed for depression and substance abuse compared to the general population. We are a noble and esteemed fraternity/sorority. We take care of each other. And for those of us in our profession who suffer from depression or substance abuse, the DBA wants to help. That’s who we are.
Statewide Day of Civility and Professionalism
In his Inaugural address in 1961, John F. Kennedy proclaimed: “Civility is not a sign of weakness.” As Americans, we want to see this in our country and as lawyers, we need to see this in our profession. During the fall of 2015, I proudly led the DBA to partner with
I’ve been blessed and molded by strong women leaders in my life, starting with Adele, my mother. Jane, my wife. Of course, Sophia, my daughter. And some of the women with whom I’ve hired to be my law partners and to whom I largely owe my career: Mary Goodrich Nix, Judge Tonya Parker, Dena DeNooyer Stroh, and Shonn Brown. In fact, thanks to these women I was presented as the first male recipient of the coveted DWLA Louise Raggio Award. Under Shonn’s leadership, along with a who’s who roster of committee members, we are partnering with the Dallas Women’s Foundation and the DWLA, and have created: DBA WE LEAD (Women Empowered to Lead), a leadership program designed to address the challenges of high-performing women who have practiced law for 8 to15 years. This is our effort to help bridge the gap in opportunities and compensation, and to positively impact both women’s participation and leadership in law practice. For women facing your unique challenges in our profession, the Dallas Bar is here for you.
Diversity Summit
The Dallas Bar Association, under the leadership of Rhonda Hunter, will host a day long Diversity Summit on September 21 at the Belo Mansion. The Summit will focus on how do we talk about and resolve issues on race, public trust or mistrust in the justice system and empowering lawyers to lead as agents of change. For you who identify as diverse in race, color or orientation, this is your bar association.
The Rule of Law may be the single most important benefit that distinguishes our great country. But our civil jury trial system is way up there in importance. The fate of our important disputes is not supposed to be in the hands of kings. Working with ABOTA, TADC, DTLA, and led by Judge Martin Hoffman and Aaron Tobin, the DBA is going to do what it can to educate, address and celebrate our civil jury trial system. For those of you who believe in our 7th Amendment right to trial by jury, the DBA is for you! Our Board will be also partnering with other Community organizations this year including Genesis, New Friends New Life, and the One Love Foundation, For you young lawyers, please remember this. Thinking about 2 of my closest friends from law school, and the choices we make. In the same year, 2007, that one these friends became a federal judge (the Honorable Reed O’Connor), the other came under federal indictment. Choose your path carefully, have good mentors, and do what you can do to make your mark and make those you love proud. While being able to serve as the 109th president of the DBA is humbling when thinking of all who have held this office, and an office I assume with great appreciation to all who have supported me, I view this position as more of a duty than an honor—a duty which I passionately assume to make a difference and to work hard to lead others to do the same. Ronald Reagan said “we can’t help everyone, but we can help someone.” I want to work with YOU for us to all grow together as leaders...and help as many “someones” as we can. Michael
YOU ARE INVITED TO THE DALLAS BAR ASSOCIATION
WELCOME FIESTA The DBA is now offering Online CLE. DBA Members receive 6 FREE courses per year. Discounted Member Rate is only $20! Log on to onlinecle.dallasbar.org
THURSDAY, FEBRUARY 8, 2018 5:30 UNTIL 7:30 P.M. THE BELO MANSION COMPLIMENTARY FOOD, BEVERAGES, LIVE MUSIC, RAFFLE DRAWINGS THROUGHOUT THE EVENING! RSVP TO KWATSON@DALLASBAR.ORG
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: Michael K. Hurst President-Elect: Laura Benitez Geisler First Vice President: Robert L. Tobey Second Vice President: Aaron Z. Tobin Secretary-Treasurer: Vicki D. Blanton Immediate Past President: Rob D. Crain Directors: A. Shonn Brown (Vice Chair), Jonathan Childers, Chalon Clark, Stephanie Culpepper, Isaac Faz (President, Dallas Hispanic Bar Association), Sakina Foster, Ashlei Gradney (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Krisi Kastl, Dan Kelly, Shruti Krishnan (President, Dallas Asian American Bar Association), Bill Mateja, Karen McCloud (Chair), Kate Morris, Cheryl Camin Murray, Stephanie Osteen (President, Dallas Women Lawyers Association), Hon. Irma Ramirez, Jennifer Ryback (President, Dallas Association of Young Lawyers), Mary Scott, and Victor D. Vital Advisory Directors: Charles Gearing (President-Elect, Dallas Association of Young Lawyers), Erin Nowell (President-Elect, J.L. Turner Legal Association), Javier Perez (President-Elect, Dallas Hispanic Bar Association), Sarah Rogers (PresidentElect, Dallas Women Lawyers Association), and Jason Shyung (President-Elect, Dallas Asian American Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, David Kent, Gregory Sampson, Scott Stolley, and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Alexander Farr and Carl Roberts Vice-Chairs: Andy Jones and Beth Johnson 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 Deets, James Dockery, Elisaveta (Leiza) Dolghih, Angela Downes, Sheena Duke, Charles Dunklin, 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, Andrew Jones, 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 Program Assistant: Biridiana Avina LRS Interviewers: Marcela Mejia, Viridiana Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karra Rybicki, Dominick Vallejo Program Assistant: Patsy Quinn Secretary: Debbie Starling Copyright Dallas Bar Association 2018. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
Fe b ru a ry 2 0 1 8 â€
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
Focus
February 2018
Employee Benefits/Health Law
The Basics of an ESOP BY ERIN TURLEY, ALLISON WILKERSON AND ELI BURRISS
An employee stock ownership plan (ESOP) is a type of tax qualified benefit plan designed for employees to invest their retirement savings primarily in the stock of their employer. When structured properly, an ESOP can provide significant financial benefits to companies and their employees. There are several advantages to ESOPs. One of the primary benefits is that an ESOP, by allowing employees to invest their retirement savings in the stock of their employer, often incentivizes employees to work hard for the success of the company. In addition, ESOPs can provide liquidity for company owners, while allowing those owners to continue participating in the company. While there are many ways in which ESOPs can be structured, the two most basic forms of ESOPs are leveraged and non-leveraged. A leveraged ESOP is an ESOP that funds the purchase of employer stock with the proceeds of a loan. A nonleveraged ESOP, on the other hand, is one that does not rely on any debt to fund stock purchases. A leveraged structure is often
favored because it provides a mechanism for the employer to fund the ESOP’s acquisition of the employer’s stock with capital that benefits from favored tax treatment. At the most basic level, the formation of a leveraged ESOP generally has the following elements: (1) the company establishes the ESOP and name fiduciary to control and manage the administration of the ESOP and its assets; (2) the company secures the capital necessary for the ESOP to purchase company stock, which is commonly done through financing the company secures; (3) the company lends money to the ESOP in accordance with the terms of the Internal Revenue Code and the Employee Retirement Income Security Act of 1974 (ERISA) to allow the ESOP to acquire the company stock; and (4) the ESOP uses the proceeds of the loan from the company to purchase the stock held by the company. Once a leveraged ESOP transaction is completed, the ESOP will end up holding the shares of the company’s stock. The shares are placed into a holding or “suspense” account and are released and allocated to participants’ accounts as the inside loan is repaid by the ESOP. The ESOP will
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ultimately repay the loan from the company using tax deductible annual contributions from the corporation. If used properly, a strong, profitable company can use a leveraged ESOP to simultaneously provide significant tax savings for itself along with substantial benefits to its employees. Although there are many advantages to ESOPs, they are not without their risks. ESOPs must be structured and managed in a manner that complies with the requirements of both the Internal Revenue Code and ERISA. With respect to the latter, ERISA requires all ESOPs have one or more fiduciaries who are responsible for controlling and managing the operations and assets of the ESOP. ERISA also imposes several affirmative duties on the fiduciaries, including but not limited to the duty to act solely in the best interest of the plan participants and their beneficiaries (the Exclusive Benefit Rule), the fiduciaries must comply with the plan documents unless it is not prudent to do so, and the fiduciaries must monitor plan expenses and pay only those expenses that are reasonable and necessary, and fiduciaries must not engage in any “prohibited transactions” such as those that are tainted with a conflict of interest. Notably, ERISA fiduciaries can face significant liability in the event that they fail to comply with the obligations imposed under ERISA and the corresponding Department
of Labor Regulations. The opinion from the Fifth Circuit Court of Appeals in Perez v. Bruister, 823 F. 3d 250 (5th Cir. 2016), illustrates this point. In Bruister, the Fifth Circuit affirmed a judgment holding the ESOP trustees and sponsor liable for plan losses in relation to three transactions in which the Bruister & Associates Inc. (BAI) ESOP was found to have paid too much for its acquisition of BAI stock. The Court of Appeals found that the trustees and sponsor breached ERISA duties of loyalty and prudence by failing to act solely in the best interests of the plan participants and their beneficiaries. The Court of Appeals also found that the fiduciaries allowed the ESOP to pay more than adequate consideration for the company’s stock. As a result of its findings, the Court of Appeals upheld a multi-million dollar judgment in favor of the plaintiffs. In short, ESOPs hold a number of advantages for both employers and the employees who participate in the plans. They also, however, are complex transactions that require careful analysis and attention. When carried out correctly, the benefits are substantial. When things go wrong, the consequences can be severe. HN Erin Turley, Allison T. Wilkerson, and Eli Burriss are partners at the law firm of McDermott Will & Emery. They can be reached at eturley@mwe.com, awilkerson@mwe.com, and eburriss@ mwe.com, respectively.
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D al l as Bar A ssoci ati on l Headnotes 7
Our experience in the courtroom is our greatest value. It’s what we do.
8 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2018
DBA Board Elects Chair and Vice Chair STAFF REPORT
At its January Organizational Meeting, the Dallas Bar Association Board of Directors elected Karen McCloud Chair of the Board and Shonn Brown Vice-Chair of the Board for 2018. Ms. McCloud, of Karen D. McCloud, P.C., is a 1999 graduate of Georgetown University Law Center. Ms. McCloud is a Co-Chair of the 2016-2017 Equal Access to Justice Campaign, which raised over $1 million for legal services to the poor in Dallas County. She is currently the Chair and Board Advisor of the Bylaws Committee, is a Co-Chair and Board Advisor of the Judiciary Committee, a Co-Chair of the Judicial Investiture Committee, and a CoVice Chair of the LegalLine Committee. In addition, she is the Board Advisor to the Franchise & Distribution Law and Solo & Small Firm Sections. She joined the DBA Board of Directors in 2008. Ms. Brown, a graduate of SMU Dedman School of Law, is a Partner at Lynn Pinker Cox & Hurst, LLP where her practice focuses on commercial litigation, employment, securities and energy law. She was Co-Chair of the 2013-2014 Equal Access to Justice Campaign, and has been active in numerous DBA sections and committees throughout the years. She is currently Vice Chair of the Trial Skills Section, Co-Chair of the Judiciary Committee, and Chair and Board Advisor of the Judicial Investiture Committee, and the Board Advisor to the Business Litigation and Probate, Trusts & Estates Law Sections. The Board also appointed Hon. Irma Ramirez, U.S. Magistrate Judge, to serve a one-year judicial at-large position. Judge Ramirez is a graduate of SMU Dedman School of Law. She is Board Advisor to the Law in the Schools & Community Committee and the Antitrust & Trade Regulation Section.
Karen McCloud
Filling a two-year at-large director position is Chalon Clark. Ms. Clark, a 2006 graduate of The University of Texas School of Law, is a Partner at Husch Blackwell LLP, where her practice focuses on financial services and capital markets. She is currently Board Advisor to the Summer Law Intern Program and the International Law Section. Filling a one-year at-large director position is Dan Kelly. Mr. Kelly is a 2001 graduate of University of Michigan Law School and is with Vistra Energy Corp. He is currently the Board Advisor to the Pro Bono Activities Committee and the Corporate Counsel Section. The 2018 board also includes: President Michael Hurst; President-Elect Laura Benitez Geisler; First Vice President Robert Tobey; Second Vice President Aaron Tobin; Secretary-Treasurer Vicki Blanton; Immediate Past President Rob Crain; Directors Shonn Brown, Jonathan Childers, Stephanie Gause Culpepper, Isaac Faz, Sakina Foster, Ashlei Gradney, Hon. Martin Hoffman, Krisi Kastl,
Shonn Brown
Hon. Irma Ramirez
Chalon Clark
Dan Kelly
Shruti Krishnan, Bill Mateja, Kate Morris, Cheryl Camin Murray, Stephanie Osteen, Jennifer Ryback, Mary Scott, and Victor Vital; Advisory Directors Charles Gearing, Erin Nowell, Javier Perez, Sarah
Rogers, and Jason Shyung,; ABA Delegates Rhonda Hunter and Mark Sales; and State Bar Directors: Jerry Alexander, David Kent, Greg Sampson, Scott Stolley, and Brad Weber. HN
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Fe b ru a ry 2 0 1 8
D al l as Bar A ssoci ati on l Headnotes 9
Congratulates David Finn & Tiffany Talamantez Federal Charge: Bank Fraud | Jury Verdict: Not Guilty
O F F ILCAE W S OF L A W O F F ILCAE W S OF OFFICES
OF
B.JAMES WRIGHT, JR. JAMES B.JAMES WRIGHT, JR. B. WRIGHT, JR. PLLC
PLLC
1220 Bienville Blvd. 1220 Bienville Blvd. 1220 Bienville Blvd. 39564Springs, MS 39564 Ocean Springs, MSOcean 39564Springs, MSOcean Post Office Box 249Post Office Box 249Post Office Box 249 Springs, MSOcean 39566-0249 Ocean Springs, MSOcean 39566-0249 Springs, MS 39566-0249
PLLC Voice: 228.875.2304 Voice: 228.875.2304 Voice: 228.875.2304 Fax: 228.202.1400 Fax: 228.202.1400 Fax: 228.202.1400
email: jameswrightlaw@gmail.com email: jameswrightlaw@gmail.com email: jameswrightlaw@gmail.com www.jameswrightlaw.com www.jameswrightlaw.com www.jameswrightlaw.com
December 26, 2017 December 26, 2017 December 26, 2017 December 26, 2017 Dallas Bar Association DallasBar BarAssociation Association Dallas Bar Association Dallas 2101Ross RossAve Ave 2101 Ross Ave 2101 Ross Ave 2101 Dallas, Texas 75201 Dallas, 75201 Dallas,Texas Texas 75201 Dallas, Texas 75201 Re:Re: United States of America v. James Wright, Re: States of America v. James B. Wright, Jr. B. Wright, Jr. United States ofUnited America v.B. Re: James United B. Jr. Wright, States of Jr. America v. James Dear Members of the Dallas Bar Association: Dear the Members Dallas BarofAssociation: Dear Members of the Members Dallas Barof Dear Association: the Dallas Bar Association: I’m sure you noticed the name in the style of the above case, USA v. James B. Wright, Jr., is also the name on this letterhead. I feel very fortunate and blessed that I am at home and able to write this letter. I assure you, that over the past two years I had a very different belief. That is, I’m sure you noticed the name infor theover style of theinIabove case, v. James Wright, I’mFinn suretook youover noticed the Iname inI’m the sure style you of law the noticed above thecase, USA the v. James style of B.USA the Wright, above case,B.of USA v. Law James B. Wright, until David my case. have been practicing 27name years. graduated from the University Texas School in 1990 Jr., is also the name on this letterhead. I feel very fortunate and blessed that I am at home and Jr., is also the name on this letterhead. Jr., is also I feel the very name fortunate on this and letterhead. blessed I that feel I very am at fortunate home and and blessed that I am at (it was somewhat amusing, in hindsight that is, that the AUSA during my trial tried to use the fact that I went to an “ivy league” lawhome schooland to able to write thisable letter. I over assure theyou, years had belief. atwo very different able to write letter. I assure you, to that write this theyou, letter. pastthat two I over assure years I past hadthat atwo very over different theI past years I had belief. a very different belief. show how smartthis I am). That is, until David Finn took over my case. have my been practicing law for won’t anyFinn time going over the ofIDavid my case, but I amI certain youcase. all know howyears. “impossible” it isyears. to win federal That Iis, untilspend David took over That my is,facts case. until have been Finn practicing took over law for over I have 27 been practicing I over 27 law forIaover 27 criminal years. Icase graduated from the University of Texas Law School in 1990 (it was somewhat amusing, in ofamusing, in Sherman, Texas. It just doesn’t happen. But, in fact, it did happen. It did not happen, however, by accident or some stroke luck. It happened graduated from the University ofgraduated Texas Law from School the University in 1990 (itof was Texas somewhat Law School amusing, in 1990 in (it was somewhat in because of the efforts and ofmy David Finn. Asto noted above, I that have practicing for a to long I have seen“ivy andleague” been that is,talents that the AUSA during my trial tried to my use the fact I league” went antime “ivyand hindsight thatincredible is,hindsight that the AUSA hindsight during that trialis, tried that the use AUSA the fact during Ibeen went trial to tried anthat “ivy tolaw use the fact that I league” went to an part many to trials overhow the years. however, seen thesmart skill, determination, grit, and fortitude as I witnessed in my five day jury trial law school to Ishow how smart I am). lawofschool show smart Ihave law am).never, school to show how I am). in Sherman, Texas. You really have no idea the toll it takes, on an innocent person, when you have been charged by the very government and laws you have I won’t spendover any time going over the facts mycertain case, but am certain youIall know won’t spend timesomeone going I won’t the facts spend my any case, time but Iofam over the facts youIof all my know case,defense but am certain you to allwatch. know supportedI your entire life.any Having that believes inofyou and whogoing leaves no stone unturned in your is awe-inspiring how “impossible” it is to win a federal criminal case in Sherman, Texas. It just doesn’t happen. how “impossible” it is to win a federal how “impossible” criminal case it is in to Sherman, win a federal Texas. criminal It just doesn’t case in happen. Sherman, Texas. It just doesn’t You all can be very proud that David Finn is a member of your Association and he is someone that I will be grateful to for the rest of myhappen. life. But, in fact,Wright, did Itithowever, did not happen, byagainst accident orluck. some stroke of luck. Itstroke But, As in fact, did happen. Ititdid But, not happen, in fact,say did happen. by accident It however, did to not or happen, some stroke however, of by Itby orFinn: some luck. It to me,it wife of James Ihappen. honestly to anyone expecting argue a defense ledaccident David David Finnofwill come happened because ofefforts thepresence incredible efforts and talents ofHis David Finn.research, As noted above, I have happened ofthe thefocus incredible because and talents the of Finn David incredible Finn.efforts As noted and talents above, of I have David Finn. As noted above, I have after you in because Court with andhappened fearless thatof only commands. thorough comprehension, and knowledge of his beenfor practicing law for longhisseen time Ia have seen been part ofand many trials the years. Ioverofthe Client’s case are unequivocally unsurpassable, and cross examinations are brutally efficient. James is apart free man today because these three I been practicing law a long time been and practicing Ia have lawand for been longpart time ofand many I have trials seen over thebeen years. Iover of many trials years. have never, however, seen the skill,grit, determination, grit, and fortitude I witnessed inasmy five things: God’s power, James’ true innocence, and an amazing representation by aasfearless Attorney. We will FOREVER thankful. in my five have never, however, seen the skill, havedetermination, never, however, seen andthe fortitude skill, determination, I witnessed grit, inasmy and five fortitude Ibe witnessed James Wright
Lourdes Wright
day jury trial in Sherman, Texas. day jury trial in Sherman, Texas. day jury trial in Sherman, Texas.
really notakes, idea thehave tollinnocent itnotakes, on person, when you have been You really have You no idea thehave toll itYou really on an ideaperson, thean tollinnocent when it takes, you on have an innocent been person, when you have been charged by the very government and laws you have supported your entire life. Having someone charged by the very government charged and lawsbyyou thehave verysupported government your and entire lawslife. you have Having supported someoneyour entire life. Having someone that and believes in you and who unturned leaves instone yourunturned defense is watch. that believes in you who leaves thatno believes stone in you no and instone who yourunturned leaves defense nois awe-inspiring in toawe-inspiring your watch. defense istoawe-inspiring to watch. Youproud all canthat be David very David Finn is a member of your Association and Association he is someone You all can be very Youproud all Finn canthat isbe a member very proud of your that David Association Finn isand a member he is someone of your and he is someone that I to will grateful rest ofto myforlife. that I will be grateful forbethe rest thatofI to will myforlife. bethe grateful the rest of my life.
FEDERAL • STATE • JUVENILE
AsJames to me,Wright, wife of honestly say toIanyone expecting to against to a argue against a As to me, wife of As I James honestly to me,Wright, wife say to ofIanyone James Wright, expecting honestly to argue say against to anyone a argue expecting defense led by David Finn: David Finn will come after you in Court with the focus and fearless defense led by David Finn: David defense Finn will led by come David after Finn: you in David CourtFinn withwill thecome focusafter and fearless you in Court with the focus and fearless www.DallasCriminalLawyer.com presence that only Finn Hiscommands. thorough research, comprehension, and knowledge of presence that only Finn commands. presence Hiscommands. thorough that onlyresearch, Finn comprehension, His thorough and knowledge research, of comprehension, and knowledge of casehis areunsurpassable, unequivocally unsurpassable, and his cross areexaminations brutally his Client’s casehis areClient’s unequivocally Client’s case are and unequivocally his cross examinations unsurpassable, areexaminations brutally and his cross are brutally 2828 Harwood Street, Suite 1950, Dallas, Texas 75201 efficient. James is abecause free man today oftoday these three things: God’s power, James’ true efficient. James is a freeN. man today efficient. James of these is abecause free three man things: God’s because power, of these James’ three true things: God’s power, James’ true innocence, an amazingbyand representation byrepresentation a fearless Attorney. We will FOREVER be FOREVER be innocence, and an amazing and representation innocence, a fearless an amazing Attorney. We will FOREVER by a fearless be Attorney. We will Office: 214.651.1121 | Cell: 214.538.6629 thankful. thankful. thankful. James Wright James Wright James WrightLourdes Wright Lourdes Wright Lourdes Wright
10 H e a d n o t e s l D a l l a s B a r A s s ociation
February 2018
THE INAUGURAL OF MICHAEL K. HURST The Inaugural of Michael K. Hurst, DBA’s 109th President, was held January 20, 2018, at the Omni Dallas. It was an elegant evening, with fashionably dressed guests, a silent and live auction, a casino party, and dancing. Each year, the Inaugural is the culmination of the Campaign for Equal Access to Justice. This year, an amount of $1,016,714 was raised for the Dallas Volunteer Attorney Program. Congratulations to this year’s Ticket to Drive Raffle winner: Bill Mahomes, who will take home a 2018 Mercedes Benz and runner up Rob Milbank, winner of the Charleston Luxury Getaway Package.
THANK YOU Lynn Pinker Cox & Hurst, LLP for underwriting the Inaugural Casino Party!
Fe b ru a ry 2 0 1 8
D al l as Bar A ssoci ati on l Headnotes 11
109TH PRESIDENT OF THE DBA
12 He a d n o t e s l D a l l a s B a r A s s ociation
Focus
February 2018
Employee Benefits/Health Law
Legislature Enacts New Law for In-Hospital DNR Orders BY MICHELLE E. ROBBERSON
Last session, on September 1, 2017, the Legislature enacted a new law governing in-hospital do-not-resuscitate (DNR) orders and modified laws regarding medical and durable powers of attorney (POAs) and guardianships.
In-Hospital DNR Orders
Generally, a “DNR order” is a medical directive signed by an attending physician documenting the patient’s instructions to medical professionals not to initiate or continue certain life-sustaining procedures (e.g., CPR, ventilator, defibrillator, etc.). Previously, Texas law addressed only DNR orders applicable in specified out-of-hospital settings, such as private homes, doctors’ offices, transport vehicles, hospital ERs, outpatient clinics, long-term care facilities, etc. The new law (Senate Bill 11) is narrower than the out-of-hospital law. SB 11
applies to DNR orders issued in a hospital or health care facility and limits the scope of a “DNR order” to an order instructing medical professionals not to attempt CPR on a patient whose circulatory or respiratory function ceases. The new law requires an in-hospital DNR order to be issued by the patient’s attending physician; dated; issued in compliance with certain treatment decisions or other advance directives; not contrary to the patient’s directions if the patient was competent at the time the patient conveyed the directions; and, in the reasonable medical judgment of the physician, the patient’s death is imminent and the DNR order is medically appropriate. Also, the DNR order must state it takes effect at the time it is issued, provided it is placed in the patient’s medical record as soon as practicable. If the DNR order conflicts with a treatment decision (e.g., signed consent form) or another type of advance directive, the document
dated and executed/issued later in time controls. The new law requires a health care provider to inform the patient of the DNR order’s issuance before placing it in the medical record, or, if the patient is incompetent, to make a reasonably diligent effort to notify at least one person of the order’s issuance, including an agent under a medical POA, a legal guardian, or, in order, the patient’s spouse, adult children, parents, or nearest living relative. Further, the new law includes procedures for revoking a DNR order and procedures for physicians and hospitals who do not wish to execute or comply with a DNR order. The statute limits liability for health care providers who, in good faith, issue and follow a DNR order and for health care providers who fail to follow a DNR of which they have no actual knowledge (including no civil or criminal liability and no disciplinary action by any licensing authority). The new DNR law takes effect April 1, 2018.
Changes to Medical POA Laws
Medical POAs authorize agents to make any health care decision on the principal’s behalf that the principal could make if the principal were competent. The Act used to have a separate disclosures form and a separate POA form; but, House Bill 995 combines the two documents into one form. Effective January 1, 2018, if a spouse is named as agent, the authority of the principal’s spouse will terminate only upon
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dissolution, annulment, or voiding of the marriage, unless the medical POA states otherwise.
Changes to Durable POA/ Guardianship Laws
Senate Bill 39 made several changes to the Estates Code. One notable addition is that children and siblings are not required to get court permission to intervene in guardianship cases involving their loved ones. This ensures that immediate family members have an opportunity to state their position in court. Further, the law includes procedures for a court to remove an agent under a durable POA who is engaged in misconduct, and to appoint the substitute agent named in the durable POA, without the need to create a guardianship to protect the person. The law also authorizes a court, on its own motion, to remove a personal representative, executor, or guardian who commits certain types of misconduct. SB 39 also provides that, upon appointment and qualification of a permanent (or temporary) guardian for the estate of the ward, authority of any agent under a durable POA executed by the ward is automatically revoked (or suspended). This prevents situations where two persons with conflicting authority attempt to make decisions for the same person. The law also made some non-substantive changes to the form for a durable POA. HN
Michelle Robberson is a shareholder at Cooper & Scully, P.C. She can be reached at michelle.robberson@cooperscully.com.
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Focus
D al l as Bar A ssoci ati on l Headnotes 13
Employee Benefits/Health Law
Key Factors to Consider When Investing in a Healthcare Entity BY KENYA S. WOODRUFF AND PHILLIP L. KIM
Federal agencies recovered over $2.5 billion from healthcare-related settlements and judgments under the False Claims Act (FCA) in 2016 alone. In 2017, prison sentences for healthcare fraud and abuse violations ranged from six months to 75 years. While there are a number of critical considerations that can impact the success of a healthcare deal, federal fraud and abuse laws, including the FCA, Anti-Kickback Statute (AKS), and Physician Self-Referral (Stark) Law, are among the most important. These laws cover egregious acts of fraud and bribery, as well as contractual relationships, investments, and marketing and recruiting practices that are perfectly legal in other industries. Consequently, anyone can unknowingly commit healthcare fraud, and with prison time and millions of dollars at stake, what you don’t know can hurt you. The FCA imposes civil liability essentially any time a claim is submitted to a government payor that does not reflect the services provided. It is an AKS violation to knowingly and willfully offer, pay, solicit, or receive anything of value to induce referrals for federally covered items or services. AKS is triggered if one purpose of the transaction is to induce referrals, regardless of other legitimate purposes. The Stark law prohibits a physician (or family member) from making referrals for designated health services (DHS) payable by Medicare to an entity with which the physician/family member has a financial relationship, unless an exception applies.
Some examples of DHS are clinical laboratory services, radiology services, and inpatient and outpatient hospital services. Stark also prohibits entities from billing any individual, third-party payor, or other entity for any DHS provided pursuant to a prohibited referral. A violation of AKS is automatically a violation of the FCA, and a violation of Stark is typically a violation of AKS, the FCA, or both. Because both Stark and AKS give rise to FCA penalties, the FCA has the highest enforcement figures, but Stark and AKS present the most complex issues for deals and related transactions. Common arrangements that implicate Stark and AKS include joint ventures, discounts, call coverage, co-marketing or practice support, speaking/teaching compensation, grants, and entertainment. The most highly scrutinized transactions include physician-laboratory arrangements, independent diagnostic testing facilities (IDTFs), pharmacies, pharmaceutical and medical device companies, and home health agencies. While the above arrangements and transactions almost automatically raise AKS and Stark flags, the government has continuously recognized that kickback and referral schemes can be complex and take many different forms. Accordingly, the movement toward consolidation in the healthcare industry has brought with it new fraud and abuse enforcement trends. In particular, the government is paying attention to mergers and acquisitions. For example, healthcare acquisitions that account for “goodwill” in the purchase price may resemble compensation for existing or future patient volume,
which could violate AKS and/or Stark if proper measures are not taken to ensure that the transaction fits within the applicable safe harbor and/or exception. The Department of Human Health Services Office of Inspector General (OIG) is responsible for enforcing AKS, while the Center for Medicare and Medicaid Services (CMS) enforces Stark. The OIG and CMS issue advisory opinions in response to inquiries about the legality of complex healthcare arrangements under AKS and Stark, respectively. These advisory opinions can be helpful in identifying potentially problematic transactions and how the government may perceive them. For example, in 2013, the OIG issued Advisory Opinion No. 13-03, in which it expressed its “long-standing concern about arrangements under which parties ‘carve out’ referrals of federal health care program beneficiaries or business generated by federal health care programs from otherwise questionable financial arrangements.” In short, the OIG warned against
the contemplated attempt to circumvent AKS by avoiding government payors, as such arrangements may be viewed merely as an attempt to “disguise” the risks the OIG is seeking to eliminate. The analysis of a given healthcare arrangement under AKS, Stark, or any other applicable state or federal law depends upon the totality of the facts and circumstances involved, which means there is no one-size-fits-all formula for regulatory compliance in this realm. The landscape of healthcare business is constantly changing in response to legislative activity and concerns about controlling costs. The proposed arrangements are often innovative and may seem to make good business sense. Nonetheless, careful review of the applicable fraud and abuse laws is necessary to ensure permissibility. HN Kenya Woodruff is a partner at Haynes and Boone, L.L.P. and can be reached at kenya.woodruff@haynesboone.com. Phillip Kim is an associate at the firm and can be reached at phil.kim@ haynesboone.com.
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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
February 2018
Employee Benefits & Executive Compensation and Health Law
The Tax Man Comes For The Tax Man BY JIM GRIFFIN
Greg Gowen is a tax man. He holds a master’s degree in tax and is a CPA. He worked for the biggest international accounting firms, including Ernst & Young, PricewaterhouseCoopers and KPMG. He is an expert in the field of income tax. Gowen v. Commissioner, T.C. Summary Opinion 2017-57 (July 24, 2017). Despite his expertise, Greg Gowen got tripped up by the tax and ERISA rules that apply to 401(k) plan loans. Admittedly, anything involving tax and ERISA causes a rush of adrenalin in most normal people. The plan loan rules, however, are among the least complex of all the mind-numbing things that fall into ERISA. Plan loans are available in almost all 401(k) plans. A plan loan allows an employee to borrow from money that she
has saved in the 401(k) plan for retirement. The loan is not included in the employee’s income and is not subject to a penalty tax as long as the loan meets the tax law requirements. Those requirements must be met in both form and operation. The Internal Revenue Code addresses such things as the duration, interest rate, amount and repayment of the loan. Pretty simple. Not rocket science and not a reverse triangular merger! In March 2012, Greg Gowen borrowed $50,000 from his 401(k) plan account at his employer, KPMG. Greg was supposed to repay his loan over five years. Greg lost his job at KPMG and stopped making loan payments. His first missed loan payment was due August 30, 2012. The record keeper for the KPMG 401(k) plan sent Greg three separate notices informing him that his loan pay-
Moms in Law Lunches 2018 Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is going on its third year of being a no pressure, no commitment, informal, fun, support group for lawyer moms. The February lunches are: Thursday, February 8, noon at Jose (4931 Lovers Lane, Dallas) Friday, February 23, noon at Mesero – Inwood Village (5330 W. Lovers Ln., Ste. 112B)
ments were due and that his loan would go into default if he did not make the past due payments. The notices described the Treasury Regulation that allows a loan default to be avoided if the missed payments are paid before the last day of the calendar quarter after the quarter in which the payments are missed. Greg did not make the missed payment by the December 31, 2012 deadline. So, the KPMG 401(k) plan issued an IRS Form 1099-R to Greg for $46,703 representing the entire unpaid balance on his loan. Greg claimed that he didn’t include the income from his loan balance on his 2012 income tax return because he did not receive the Form 1099-R and because he believed that the income would be reportable by him in 2013 instead of 2012. Greg also did not report the 10 percent penalty tax on early distributions even though he was under age 59-1/2 in 2012. Greg’s argument for including his loan income in his 2013 (not 2012) taxable income was based on his incorrect reading of the Treasury Regulation that defines the loan cure period. Greg argued that his cure period included two full quarters after his first missed payment, effectively giving him a six month cure period. The Tax Court rejected Greg’s interpretation saying that he had ignored the plain language of the Treasury Regulation in making his argument. Greg tried to escape the 10 percent early distribution penalty tax by arguing that he qualified for a 401(k) hard-
RSVP christine@connatserfamilylaw.com to attend the lunch or join the Moms in Law email listserv.
Jim Griffin is a partner at Jackson Walker and can be reached at jgriffin@jw.com.
Play Golf & Support Pro Bono Save the date for the 26th Annual Pro Bono Golf Classic,
DVAP’s Finest
benefitting the Dallas Volunteer Attorney Program.
Thursday, April 26, 2018 at Cowboys Golf Club
LAVONDA RUSSELL
LaVonda Russell is a sole practitioner who answered a few questions for Headnotes about her pro bono involvement.
TREAT YOUR CLIENTS TO A GAME OF GOLF! Registration includes lunch, dinner, on-course drinks, goody bag and more. to keep things moving, we have secured exclusive use of the course and we will limit play to the first 128 golfers. The tournament is a 4-person scramble format. Check-in and practice range open at 10 a.m. and shotgun start is at 1:00 p.m. A reception and awards dinner will follow the tournament.
How did you first get involved in pro bono? I became involved with pro bono work shortly after returning to Dallas from law school. Another attorney recommended I join the DBA and the first CLE that I attended was a DVAP CLE. I learned more about DVAP at the CLE. Why do you do pro bono? There are many people in our community who need legal assistance but lack the resources to access the legal aid that they require. It is a blessing and a privilege to be able to practice law and use my abilities to assist those who are less fortunate.
ship distribution. His hardships included the loss of his marriage and his job. The Tax Court again rejected Greg’s position finding that the hardship distribution regulation that he cited did not provide an exception to the 10 percent early distribution penalty tax. Finally, the Tax Court turned to the 20 percent accuracy-related penalty. The penalty applies to any portion of an underpayment that is attributable to negligence or disregard of rules or regulations or a substantial understatement of income tax. Greg’s education, experience and expertise as a tax man were of no help to him in defeating the IRS’ imposition of the accuracy-related penalty. Perhaps, Greg should have consulted another tax professional about the tax treatment of his 401(k) plan loan default. But, he did not. The Tax Court noted that Greg relied on his own expertise, which was not enough to avoid the additional 20 percent penalty tax. The Tax Court decided several cases in 2017 involving 401(k) plan loan problems. The Tax Court is very strict in applying the tax law requirements for plan loans. The Tax Court will not let 401(k) plan loans be used as an end run around income taxes that are due on 401(k) plan distributions. The best advice on plan loans to avoid a trip to the Tax Court with an outcome like Greg’s is to borrow infrequently and repay on time. HN
For more information on sponsorships, contact Rhonda Thornton at rthornton@dallasbar.org.
What impact has pro bono service had on your career? Pro bono work has had a significant impact on my career because it has exposed me to multiple areas of law that I would not have otherwise attempted to learn or practice.
DallasBarAssoc
What is the most unexpected benefit you have received from doing pro bono? The most unexpected benefit I have received from doing pro bono work is the sense of fulfillment from being able to help someone who feels hopeless. Most of my clients have expressed more gratitude for me being willing to listen to them and offer my assistance than achieving a particular outcome. It truly is amazing how assisting someone with a matter they consider important can uplift their spirit and in turn, yours.
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
The DBA is now on Instagram! Follow us #DallasBarAssoc
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Fe b ru a ry 2 0 1 8
Focus
D al l as Bar A ssoci ati on l Headnotes 15
Employee Benefits & Executive Compensation and Health Law
Post-Payment Audit: What’s A Medicare Provider to Do? BY JOSHUA I. SKORA AND ADAM COOPER
The Medicare Fee-for-Service program processes more than one billion claims each year submitted by more than one million healthcare providers. These providers include hospitals, physicians, nursing facilities, home health care agencies, and medical device and equipment suppliers. The Centers for Medicare and Medicaid Services (CMS) and its contractors do not have the resources to perform a medical review of these claims prior to payment. Sometimes payment is made in error and subject to clawback by CMS. Medicare providers must deal with the complexities and costs associated with post-payment reviews, recoupments, and the administrative appeals process. These reviews can sometimes occur years after payment is made. Two of the most common reasons for post-payment denial of claims are payment for services submitted without the required supporting documentation, and payments for services that do not meet Medicare’s coverage and medical necessity criteria. Providers that care for Medicare beneficiaries must be aware of these requirements. Lack of adherence could result in post-payment audits. Under CMS’s Recovery Audit Program, audits are conducted by myriad Medicare contractors such as Medicare Administrative Contractors (MACs), Recovery Audit Contractors (RACs), Zone Program Integrity Contractors (ZPICs), and Unified Program Integrity Contractors (UPICs). The
lookback period for post-payment reviews can extend up to three years (RACs) or an unlimited amount of time if the review is predicated on suspected fraudulent activity (ZPICs/UPICs). This places substantial uncertainty on any Medicare provider’s cash flow and long term business planning if safeguards are not implemented. Regardless of which contractor identifies the improper payment, the MAC is responsible for collecting any overpayment from the provider. The MAC will issue an initial demand letter, outlining the identified overpayment and requirements for repayment. The provider may then appeal this initial determination via a five-stage administrative appeal process if it disagrees with the initial determination: (1) redetermination performed by the MAC; (2) reconsideration by a qualified independent contractor; (3) a hearing before an administrative law judge (ALJ); (4) review by the Medicare Appeals Council; and (5) Federal district court review. All administrative appeals must be exhausted prior to Federal district court review. The statutory timelines for appeal, mandated by the Social Security Act and its regulations, present another burden on Medicare providers. The statute envisions completion of ALJ review, at the very latest, approximately one and a half years from the MAC’s initial overpayment demand letter. During the first two stages of appeal, redetermination and reconsideration, the MAC is prohibited from collecting the identified overpayment if the provider timely appeals.
However, after a reconsideration decision is issued, the MAC will demand collection. While there is some burden placed on providers when the MAC collects an overpayment prior to ALJ review, if the process follows the statutory timeline, the burden is manageable. However, CMS and ALJs do not adhere to the statutory timeline. Statutorily, the ALJ is obligated to issue a decision within ninety days of appeal. Currently, the backlog at the ALJ level is approximately three to four years. This means that a provider appealing a reconsideration decision to an ALJ must wait three to four years for a decision, while CMS collects the overpayment in the interim. The issue is further compounded by the fact that success rates for reversals at the first two stages of appeal are notably low due in part to the clinical nature of review. The first opportunity to present legal and clinical argument to a judge comes at the ALJ stage, where the provider is guaranteed a hearing and testimonial evidence may be presented. However, due to the backlog, CMS will have already recovered the alleged overpay-
ment with interest. In fairness, if the ALJ reverses, CMS will repay providers the principle and interest. But, if an alleged overpayment is large enough the financial pressure placed on a provider waiting for an ALJ hearing can cripple a business. Overpayments are further inflated through CMS’s use of extrapolation. This occurs when an error rate derived from review of a small sample of claims is applied to a universe of claims. This, coupled with the massive backlog at the ALJ, has created an insurmountable burden on many Medicare providers. A Medicare provider’s best chance of defeating these audits prior to ALJ review is to invest in a robust compliance program to ensure coverage criteria are met prior to claims submission. If forced to enter the appeals process, providers should use all of their tools to refute the allegations during the first two levels of appeal, because there may not be sufficient time to wait for ALJ review. HN Joshua Skora and Adam Cooper are associates at K&L Gates LLP. They can be reached at joshua.skora@klgates.com and adam. cooper@klgates.com, respectively.
Professionalism & Mentoring with Chief Justice Carolyn Wright Thursday, February 8, 5:30 p.m. at Belo | Ethics 1.00 Sponsored by the Transition to Law Practice Committee
HELP PRESERVE BELO—BECOME A SUSTAINING MEMBER OVER 200,000 PEOPLE COME THROUGH OUR BUILDING EACH YEAR
Your 2018 dues statements have arrived and we ask that you consider renewing as a Sustaining Member ($500). 200,000+ members and guests use the building each year and your contribu�on at the Sustaining Member level will help us con�nue the essen�al upkeep needed to preserve our beau�ful building—as the premiere bar headquarters in the na�on. Thank you for your support.
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February Friday Clinics Friday, February 2, Noon at Belo “Lawyers in Cyberspace: A Survey of Ethics in Data Security” Kathryne Morris | Ethics 1.00
RSM and our global network of litigation consulting professionals specialize in working with global, national and regional law firms. This focus leads to custom insights designed to meet your specific case challenges. Our experience, combined with yours, helps you move forward with confidence to reach even higher goals. rsmus.com/litigation
Friday, February 9, Noon at Two Lincoln Centre (5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240) “Advertising Rules, What Are They? How Do They Apply to Social Media?” Michael Dobbs | MCLE 1.00 Thank you to our sponsor Fox Rothschild LLP. Friday, February 16, Noon at Belo “The Role of Lawyers During Times of Crisis,” Gary Kennedy | Ethics 1.00 RSVP to yhinojos@dallasbar.org.
RSM US LLP is the U.S. member firm of RSM International, a global network of independent audit, tax and consulting firms. Visit rsmus.com/aboutus for more information regarding RSM US LLP and RSM International.
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
February 2018
Employee Benefits & Executive Compensation and Health Law
Cost Efficient Healthcare Arbitration BY CECILIA MORGAN AND GEOFF DRUCKER
Arbitrations have become more prevalent in the healthcare industry. The most common complaint about arbitration is that it is too much like litigation; it is too expensive, slow and consumed by procedural battles tangential to healthcare business interests. Since healthcare is such a highly regulated field, healthcare disputes lend themselves to arbitration; healthcare laws and technical language are often best deciphered by a healthcare-savvy arbitrator. . The alternative to arbitration is trial by judge and/or jury with its accompanying risks. Consider the following baker’s dozen “dos and don’ts” prior to a final arbitration hearing: 1. Independent administration is best. The administrative body—such as JAMS, American Health Lawyers Association (AHLA) or the American Arbitration Association (AAA): • identifies the arbitrator by a fair process with disclosures, • has trained staff to answer questions and provide administrative support, and • provides rules, the hearing location and office access for the parties and attorneys.
Ad hoc arbitration administration is often stalled by disputes over ex parte communications and payment. 2. Consult with the independent administrative body to determine the rules which best meet the parties’ needs. A time-tested and published set of rules clarifies the discovery protocols, hearing location selection and form of award, which minimize costs, while providing a full, fair hearing. 3. The parties can bypass the lengthy arbitrator selection process by agreeing on the arbitrator in a simple phone call between lead counsel. Counsel can select an arbitrator based on her unique healthcare regulations expertise and availability at a proper price point. 4. One arbitrator is much less expensive than a panel. A single arbitrator avoids the substantial cost of calendaring multiple arbitrators, along with parties and witnesses. When the parties cannot agree to one arbitrator, designate one panel member as the discovery arbitrator. 5. Prepare for the preliminary scheduling conference. Most professional arbitrators provide a template of the matters to be considered in the initial hearing. Contact opposing counsel to agree to the procedures and deadlines that best suit the parties’
needs. Include your client in the preparation for the hearing. 6. Attend the preliminary scheduling conference telephonically at a time when all—including the client—can actively participate. Set realistic time deadlines that will be honored. Agree on published discovery protocols to limit paper discovery and number of depositions. Consider including the parties’ IT professional in the conference; they may prepare exhibits—such as spreadsheets of complicated medical billing information—that may be used by all parties at the hearing. Number the exhibits consecutively starting with the exchange of documents through the deposition process. Discuss pre-marking exhibits, preparation of joint exhibit lists and the process for resolution of the admissibility of exhibits. Timely circulate the scheduling order to all interested parties and witnesses for calendaring. 7. Use e-discovery and file only the discovery which the arbitrator must review, paring down discovery to avoid duplicated submissions of the same information. 8. Waive summary disposition except on discrete issues and schedule time for the proper filing of the motion, responses and decisions. 9. Think about those witnesses who
can testify via video or Skype as opposed to those that may testify by affidavit or deposition. Schedule any doctors’ depositions early in the process—and when they are not on call—to avoid rescheduling due to medical emergencies. 10. Schedule a conference between lead counsel to enter into stipulations. Agree on a discovery dispute resolution process, e.g., certificate of conference process, to limit hearings with the arbitrator. 11. Pay arbitrator’s invoices promptly to ensure timely hearings and decisions. 13. Schedule a mediation with a healthcare mediator. Since over fifty percent of convened arbitrations never reach final hearing and award, a properly timed mediation results in settlement in more than fifty percent of cases. There are many similar suggestions for the hearing itself. The hearing is significantly expedited by stipulations on all documents, Skype or video depositions and limiting expert testimony to affidavits and to cross examination. HN Cecilia Morgan is an attorney/mediator/arbitrator with JAMS and may be reached at cmorgan@jamsadr.com. Geoff Drucker is the Director of the AHLA Dispute Resolution Service and may be reached at gdrucker@healthlawyers.org.
DVAP Endowment Ensures the Future of Access to Justice in Dallas CONTINUED FROM PAGE 1
resources to needy families who are otherwise unlikely to achieve results beneficial to their children,” added
James Dondero of Highland Capital Management. Donors to the DVAP Endowment are encouraged to make gifts in honor of their legal heroes. Aubrey Connat-
ser, of Connatser Family Law, stepped up to make a gift of $50,000 in honor of late Dallas family law attorney Ken Fuller. The DVAP Endowment is also accepting planned giving gifts. Jerry Alexander, of Passman & Jones, P.C., is contributing $50,000 as part of his planned giving. “It is a privilege to share whatever you can with this most worthy of causes—that of equal access to justice. It may be the most important thing lawyers do,” he stated. Michael Hurst’s leadership in the establishment and initial funding of the DVAP Endowment is a meaningful contribution to a lasting legacy for
Dallas—equal access to justice. In the words of U.S. Supreme Court Justice Hugo Black, back in 1964, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” The DVAP Endowment will help to make the goal of equal access to justice for all closer to reality in Dallas County. If you would like to contribute to the DVAP Endowment, or would like further information, please contact Alicia Hernandez at ahernandez@dallasbar.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
Need Referrals? Take out an Area of Practice and/or Foreign Language Proficiency listing in the 2018 DBA Member Directory to get great exposure for your practice. For just $25 per listing you will be included in both the printed and online DBA Member directory. Listing Cost: $25.00 For more information and an order form contact Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.
BECOME INVOLVED IN HIGH SCHOOL MOCK TRIAL
Volunteer as an Attorney Advisor
Judge mock trial
Be a compeƟƟon judge. No liƟgaƟon experience necessary! Earn CLE credit! MulƟple dates available.
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Mock Trial Compe��on Dates: February 3 and March 2‐3, 2018 See website for details: www.texashighschoolmocktrial.com To volunteer, or for more informa�on: mgarcia@dallasbar.org | (214) 220‐7484.
Fe b ru a ry 2 0 1 8
Focus
D al l as Bar A ssoci ati on l Headnotes 17
Employee Benefits & Executive Compensation and Health Law
Tips for Statistics in Health Care Enforcement Cases BY NATHAN FISH AND BRADLEY M. SMYER
Government agencies and whistleblowers often use statistical sampling to recover money from health care providers and suppliers. This usually involves reviewing a random sample of a provider’s claims, calculating an “error rate” based on purported errors in the sample claims, and extrapolating that error rate to all of the provider’s claims within the same period. Although the sampling process can be quicker and less costly than reviewing all claims individually, it can artificially inflate overpayment and damage estimates if used incorrectly. Attacking statistical methodologies can pay enormous dividends. For example, small victories on individual claims in the sample can have a big impact on the overall error rate. While statistical methodologies can be complex, these simple tips should help you shape a successful defensive strategy.
Reduce the Error Rate
Engage a qualified medical or coding expert to re-examine the accuracy of each claim in the sample. Successfully contesting the denial of even a small number of the sample claims reduces the overall error rate and can have a material impact on alleged damages. A thorough and independent reassessment of all sample claims is a must.
Challenge the Statistical Modeling
It is important to test the validity of the underlying statistical methods. Sample claim results cannot be applied to the larger universe of claims unless the overall statistical methodology is sound. Common
pitfalls include sample claims that were not randomly selected or that do not properly account for variation in providers, locations, standards, claim types, or reimbursement amounts. This is where engaging a qualified statistician with substantial experience in health care cases is critical.
Understand the Burden of Proof
The type of case shapes the limits of statistical sampling. In administrative overpayment cases, sampling “creates a presumption of validity as to the amount of an overpayment which may be used as the basis for recoupment.” Henry R. Desmarais, Health Care Fin. Admin., HCFA Ruling No. 86-1 (1986). It is the provider’s burden to show that the overpayment does not comply with published statistical guidelines or is based on sample claims that were reimbursed appropriately. When fraud is alleged, government agencies and whistleblowers pursue recovery of damages and serious penalties under the federal False Claim Act or analogous state laws. There is no presumption of statistical validity in those cases, and many courts closely scrutinize the use of statistical evidence.
Watch for Overreaching
In administrative overpayment cases, providers and suppliers should carefully scrutinize all phases of the statistical estimation process and challenge anything that does not comply with agency guidelines (e.g., failing to maintain sufficient documentation to support the sampling and extrapolation methods). In fraud cases, defendants should aggressively challenge the use and admission of statistical evidence, particularly when offered to prove
Ensuring Equal Access to All CONTINUED FROM PAGE 1
2015 and paid him $750. The attorney did nothing and Marilyn never got her money back. Still in danger of losing her home, she applied for pro bono assistance. Marilyn’s pro bono lawyer immediately began negotiations with the mortgage company to stop the foreclosure proceedings. The lawyer was able to avoid the foreclosure and work out a loan modification for Marilyn so that she could keep her home. This case shows what a profound difference a volunteer can make in a client’s life, sometimes by not even spending too many hours on the case. Marilyn’s life would have taken a sharp turn for the worse without the assistance of her volunteer attorney. Thanks to the help she received from her attorney, Marilyn still has a home to live in during her golden years. Many of you will see yourselves in Marilyn—someone who struggled, persisted, and are where they are today despite the obstacles. Some will see yourselves in a different situation—you have enjoyed a life of relative privilege. Some will feel they land somewhere in between—challenges and opportunities—but carrying on just like Marilyn. “I am so thankful and really honored that I was able to do something positive for Marilyn. Her case was a learning experience both personally and professionally,” said our volunteer, who wishes to remain anonymous. In order to assist people in need like Marilyn, DVAP relies on the financial assistance provided each year by committed volunteers and supporters alike. Margaret and Jaime Spellings have generously contributed to this year’s Campaign in the amount of $20,000.
“It is a privilege to share whatever you can with this most worthy of causes—that of equal access to justice. It may be the most important thing lawyers do,” said Jerry Alexander, who, along with his wife Sherri, generously donated $15,000. “AT&T has a proud history of supporting DVAP through lawyer volunteers and annual contributions,” added David R. McAtee II, Senior Executive Vice President and General Counsel of AT&T—also a $15,000 donor. The Dallas Association of Young Lawyers is another $15,000 donor. DAYL President Jennifer Ryback added: “DAYL supports DVAP and the Equal Access to Justice Campaign through its annual Wine Tasting. The Wine Tasting not only raises money for DVAP, but also serves as an opportunity to highlight DVAP, encourage young attorneys to volunteer their time by taking pro bono cases, and recognize a young lawyer for his or her contribution to pro bono service. Pro bono service is important, and DAYL is proud to do its part to support DVAP and the EAJ Campaign. Jerry and Sherri Alexander, AT&T, and the Dallas Association of Young Lawyers have all generously supported this year’s Campaign by contributing at least $15,000 to the cause. They are all long-time supporters of Equal Access to Justice and the Dallas Volunteer Attorney Program. Because of contributions from donors like Margaret, Jaime, Jerry, Sherri, DAYL, and AT&T, the Equal Access to Justice Campaign is a success. These contributions are what allows DVAP to continue to assist thousands of clients every year—and provide opportunities for all. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
liability or where the review involves questions of medical necessity or subjective clinical judgment. See United States ex rel. v. Vista Hospice Care, Inc., No. 3:07-CV-00604-M, 2016 WL 3449833, at *11-14 (N.D. Tex. June 20, 2016); U.S. ex rel. Michaels v. Agape Senior Cmty., Inc., No. CA 0:12-3466-JFA, 2015 WL 3903675, at *6-8 (D.S.C. June 25, 2015).
Play Some Offense
Incorporate sampling into your compliance program to mitigate future enforcement risk. Consider using small probe samples to uncover potential concerns. If the net financial error rate of the probe sample equals or exceeds 5 percent, then consider a full review. The Office of Inspector General for the U.S. Department of Health and Human Services generally recommends that full samples have at least 90 percent
confidence and 25 percent precision. Medicare contractors are required to use higher precision. Incorporating a sampling procedure into your ongoing auditing and monitoring activities enables quicker discovery of potential issues and voluntary repayment where necessary to reduce the risk of future enforcement actions.
Conclusion
Health care enforcement actions are on the rise, and they increasingly hinge on statistics about claims and reimbursement amounts. Knowing how to deal with statistical sampling is often critical to an effective legal defense and can help prevent future enforcement actions. HN
Nathan Fish is an associate at Greenberg Traurig and may be reached at fishn@gtlaw.com. Bradley M. Smyer is a senior associate at Alston & Bird and may be reached at brad.smyer@alston.com.
Last chance for a new directory photo! There are two upcoming photo sessions available to have your photo updated for the 2018 DBA Directory.
Wednesday, March 7: 9 a.m. to 3 p.m. at Belo Friday, March 9: 11 a.m. to 1:30 p.m. at the
North Dallas Clinic (5420 LBJ Frwy, Ste. 240)
It’s FREE and only takes 5 minutes! No reservation necessary. Photos may also be purchased for personal use. If you have questions please contact Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.
When litigation involves healthcare contracts...you need a Healthcare Litigator on your team. Contract Litigation OIG Civil Investigations FBI Criminal Investigations Commercial Insurance Litigation Business Breakups 15.50 Non-Competes Fraud waste & Abuse
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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
February 2018
Tax Cuts and Jobs Act Brings Compensation and Benefits Changes BY JAMES DEETS
The Tax Cuts and Jobs Act of 2017 (Act), signed into law on December 22, 2017, makes substantial changes to the tax laws impacting executive compensation and employee benefits. Compensation Limitation: Section 162(m) of the Internal Revenue Code provides that compensation exceeding $1 million paid to one of the top five executives of a publicly traded corporation is not deductible by the corporation. Prior to the Act, the law contained an exception for “performance-based compensation.” Under this exception, assuming certain requirements were met, compensation that became payable due to the satisfaction of certain performance criteria could still be deducted even if it exceeded $1 million. Most public companies relied heavily on this exception to deduct compensation paid to their top executives. The Act, however, eliminated the exception, so that any compensation exceeding $1 million payable to any of the top executives of a public company is no longer deductible. While there is a grandfathering provision that exempts from the new law compensation payable under a written binding contract in effect on November 2, 2017, it is unclear how broadly the grandfathering provision will be
Column
paid for employers who pay employees fifty percent of their normal wage during leave, and scales up to 25 percent for employers who pay full wages to employees during FMLA leave. Unfortunately, this employee-friendly provision is only effective for FMLA wages paid in 2018 and 2019. 401(k) Loan Relief: Prior to the Act, employees who terminated employment with loans outstanding under their employer’s 401(k) plan were hit with income tax, plus a 10 percent penalty tax on the loan balance—unless they could come up with funds equal to the loan balance and contribute those funds to an IRA as a “rollover” within 60 days. For many employees, the 60-day time limit that applied made this offsetting IRA contribution impossible. Under the Act, taxpayers may now make an offsetting IRA rollover contribution at any time up until the due date (including extensions) of the tax return that relates to the year in which the termination of employment occurred. The additional time allowed to make the IRA contribution should allow many individuals who would otherwise be unable to meet the 60-day deadline to avoid the 10 percent early withdrawal penalty tax and preserve the value of their retirement savings. Moving Expense Reimbursements: Under prior law, employees were gener-
ally able to receive tax-free reimbursement of moving expenses incurred when relocating for a new job, and companies paying employees to relocate could deduct such expenses. The Act eliminates this deduction and exclusion. Accordingly, employees who relocate should expect to be taxed on moving expense reimbursements, and may consider negotiating with their employer for a tax “gross-up” payment to offset the taxes incurred with respect to such reimbursements. Unreimbursed Business Expenses: Under prior law, employees were generally able to take an itemized deduction for unreimbursed business expenses that exceeded 2 percent of their adjusted gross income. The Act eliminated this deduction, so that employees will no longer be able to deduct unreimbursed business expenses in any amount. The Act constitutes a substantial overhaul of the U.S. tax laws, and includes many provisions that are not discussed here. However, this article has intended to summarize the major provisions impacting employees and executive compensation. The practical impact of the Act, and whether it will result in significant workplace changes, is yet to be seen. HN
David J. Diamond, of Richard Law Group, has been promoted to Member.
Chauncey Lane, of Husch Blackwell LLP, has been promoted to Partner.
Ryan Funderburg joined Brown Fox PLLC as Associate.
Frank Carroll, of the Law Offices of Wm. Frank Carroll, PLLC, has been recertified by the Texas Board of Legal Specialization in Civil Trial Law for the fifth time since his initial certification in 1992.
Matthew Hanson, of Locke Lord LLP, has been promoted to Partner.
Michelle Hartmann joined Baker McKenzie as Partner.
Brad Smith, of Kane Russell Coleman Logan PC, has been promoted to Directorship.
Frank Carroll opened Law Offices of Wm. Frank Carroll, PLLC located at 1304 Alexandra Court, Colleyville, Texas 76034. (817) 781-7086.
applied, and accordingly, companies should generally expect to lose the deduction for compensation paid in excess of $1 million. In addition to the foregoing, the Act also added a new section 4960 to the Internal Revenue Code, which imposes an excise tax of 21 percent on compensation exceeding $1 million paid to certain employees of nonprofit entities. Often dubbed the “college football coach tax,” the provision is intended to put nonprofits on the same footing as for-profit entities with respect to excessive employee compensation. Qualified Transportation Benefits: The Act eliminated the employer deduction for qualified transportation fringe benefits provided to employees. Therefore, employers who pay for parking, or for transit passes for employees, will no longer be able to take a deduction for such expenses. While employees may generally continue to receive tax-free reimbursement of such expenses, those who prefer to travel on two wheels will no longer enjoy tax-free reimbursement of bicyclerelated commuting expenses, at least until 2027. Tax Credit for Paid FMLA Leave: The Act provides a tax credit for employers who provide paid family and medical leave to employees. The tax credit starts at 12.5 percent of FMLA wages
James Deets is a Senior Director at Alvarez & Marsal Taxand, LLC. He can be reached at jdeets@alvarezandmarsal.com.
In the News
FROM THE DAIS
Alyson Brown, of Clouse Dunn LLP, spoke for the Alliance of Academic Internal Medicine’s 2017 Skills and Leadership Conference, Women in Medicine Leadership Development Forum. Jeremy Brown, of Irelan McDaniel, PLLC, spoke at the 2018 Texas Land Title Institute.
KUDOS
Al Ellis, Of Counsel with Sommerman, McCaffity & Quesada, has been presented with the Albert Nelson Marquis Lifetime Achievement Award by Marquis Who’s Who. Steven Wolens, of McKool Smith, has been elected Chairman of the Texas Ethics Commission. Bruce W. Bowman Jr., of Godwin Bowman & Martinez PC, has been promoted to Vice Chairman. Sidney Scheinberg has been named to the firm’s Executive Committee.
Robin Phelan, of PHELANLAW, was recently awarded the American Bankruptcy Institute lifetime achievement award. Robert Albaral, of Baker & McKenzie, LLP, has been named Managing Partner of the Dallas office. Michael Santa Maria, of the firm, has been named Chair of firm’s North America International Commercial Practice Michele Wong Krause, of The Wong Krause Law Firm, was elected Secretary of the Dallas Area Rapid Transit board. The Dallas Trial Lawyers Association elected its new officers for 2018; Colleen Carboy, President; Ben DuBose, President-Elect; and Mark Frenkel, VicePresident/Secretary.
Kristina “Krisi” Kastl, of Kastl Law PC, was selected as Top Personal Injury Lawyer of the Year for 2017 by the International Association of Top Professionals. Samir Kaushik and Andrew Van Noord, of Jones Day, have been named Partners.
Andy Mielnik and Zachary Tobolowsky joined Munck Wilson Mandala, LLP as Associates.
Patrick Hanchey and Jared Slade, of Alston Bird, have been elected as Partners.
Stephen Drinnon and Scott Hazen joined Cowles and Thompson, P.C., as Of Counsel and Shareholder respectively. Joshua Klinck, Dorlin Lafer-Sousa, and Christopher Littell have joined as Associates with the firm.
Stephanie Wooley, of Sheils Winnubst, PC, has been elected Shareholder.
Kristina Kiik has opened The Law Offices of Kristina A. Kiik, PLLC.
ON THE MOVE
Karen Turner and Ashley McDowell opened the firm of Turner McDowell, PLLC, located at 8080 N. Central Expressway Suite 1300, Dallas, Texas 75206.
Paula Beasley joined Farrow-Gillespie & Heath LLP as Partner.
Michelle Larson joined Carrington, Coleman, Sloman & Blumenthal, LLP as Partner.
Jay Forester has opened Forester Law PC located at 1701 N. Market St. #210, Dallas, TX 75202. (214) 288-8519.
Beverly Ward Via joined Gupta & Wiora, PC. Kris Balekian Hayes and Jennifer Goldman have opened HG² Mediation. (469) 616-1442.
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
Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
Fe b ru a ry 2 0 1 8
Classifieds
D al l as Bar A ssoci ati on l Headnotes 19
February
EXPERT WITNESS
Economic Damages Experts – HSNO is the Forensics Firm. Economic Damages Experts - HSNO is a CPA firm specializing in Financial Damages. The Dallas office of HSNO has five CPA testifying experts who specialize in the calculation of financial damages in most areas including commercial lost profits, personal lost earnings, business valuations, insurance litigation, intellectual properties and contract disputes. HSNO is qualified in most industries including, but not limited to; energy, manufacturing, hospitality, service, insurance, transportation, entertainment, product liability and construction. HSNO has 10 U.S. offices and an office in London. Contact Peter Hagen CPA CFF CEO at (972) 980.5060 or go to HSNO.com. Economic Damages Experts - Thomas Roney has more than thirty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” Insurance Industry Expert. R. P. “Bob” Gaddis, JD, 46 years’ experience in Property/Casualty Insurance, sequentially as Underwriter, Agent, and Insurance Litigation Attorney. His underwriting and agency work concentrated on complex commercial accounts. Served as Expert Witness in over 65 cases. Visit complexinsuranceconsulting.com or contact him at bgaddis@ complexins.com, (713) 621-1601.
OFFICE SPACE
North Dallas - LBJ/Montfort. Executive Office Suites, external $650, internal $300. All inclusive: Receptionist, kitchen, garage parking, free guest parking, Internet, WI-FI, phone, conference room, coffee/water/ice, utilities, janitorial and maintenance. Contact Laura at: email laura@5580midtown. com or (214) 888-2800. North Dallas - Hillcrest Road / LBJ Area: Day Rental Rates for Mediation Conference Space (includes professional office). Also, large attorney suite has offices available for monthly rental. Contact hicks@ morganmediations.com or call (214) 6973537 for information. Lee Park Area - newly remodeled building with executive office space available for lease in a professional, legal environment. Two large executive window offices available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or para-professionals. Three bench seat spaces available for daily or short term use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, Wi-Fi, notary, conference room, kitchen area, covered visitor parking, and free secured office parking. Loca-
tion convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 740-5033 for a tour and information. Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference room. 2619/2608 Hibernia St 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & Internet. Phone (214) 987-8240. Downtown Dallas – Two window offices with included secretarial space available, in the historic KATY Building overlooking the Old Red Courthouse and Kennedy Memorial. Receptionist, notary, phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at (214) 748-1948. Prime legal office space on Central Expwy at Knox Henderson for small firm. Free parking and Wi-Fi. Just ten minutes from courthouse. Each office is large. Two conference rooms, shared staff and kitchen area. Twelve month lease. RMC@RobertMClark.net or call (214) 528-2400. Virtual Office – Available Immediately! Contemporary office space, 12222 Merit Drive, Suite 1200, offers nine conference rooms, receptionist, Internet service, mail service, parking, fully equipped breakroom. $300 monthly fee – competitive rates! Email Amy at arobinson@englishpllc.com or (214) 528-4300. McKinney Avenue. Office with secretarial area available at 4054 McKinney Avenue. Shared conference room, break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $800.00 for the furnished or unfurnished large office and $300.00 for the furnished secretarial office. Possibility of overflow Real Estate or Civil Litigation work. Call (214) 520-0600. Uptown. 4054 McKinney Avenue has available one office suite with 1090 sq. ft. and one suite with 1275 sq. ft. Each space has three offices with reception, conference and secretarial space. Located across from Cole Park with surface parking. One year terms with flat rates are available. Possibility of overflow Civil Litigation work. Call (214) 520-0600. Coit/Churchill - Office share opportunity with small established law firm. Large corner window office with separate support staff custom built work station. No lease; 60 day move-out notice required. Includes shared reception area-two conference rooms-kitchen, two 5-drawer lateral cabinets, DD phones, Wi-Fi, fax, copier/ printer/scanner/postage meter at pass-thru cost, 24/7 security and tenant access, free gym, free large meeting room, 1 underground executive parking space, 1 secured upper level parking, free visitor parking. Contact Renay at: (214) 292-2614. 75 Central & Forest Lane. Johnson English Law Center – Merit Tower Office Space. For lease – Sleek, contemporary office space: 2222 Merit Drive – 12th Floor. Nine conference rooms, lobby with receptionist/mail service, high speed Internet,
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee
library, spacious breakroom…plus parking and workout facilities are complementary! Come take a look – Contact arobinson@ englishpllc.com or (214) 528-4300.
POSITIONS AVAILABLE
Palmer & Manuel, LLP, a 14 attorney firm in Campbell Centre, seeks one or two experienced attorneys with established practices to join our family law team and/or our business, bankruptcy and general civil practice group. Work with us, not for us. Our formula based compensation system allows attorneys to keep a substantial portion of their fees. See our website at www. pamlaw.com or contact Steve Palmer or Rebecca Manuel at (214) 242-6444. Litigation Association Attorney Needed. Established medium sized AV-rated law firm in Dallas needs an associate attorney with one to three years of litigation experience. Insurance defense experience is a plus. Principal duties include interacting with clients, preparing reports, handling discovery, attending hearings, taking depositions, legal research and writing, and assisting with trying lawsuits. Energetic work environment offers substantial responsibility at competitive compensation plus bonus program. Other benefits include 401(k), medical and life insurance, and parking. Replies held in confidence. Please include a writing sample (five pages or less) on a legal analysis issue and a salary range requirement. Reply via e-mail to personnel@tbjbs.com. Downtown Defense Firm – Experienced Associate. Downtown mid-sized defense litigation firm looking for associate with 5+ years’ experience. Practice areas include overall defense litigation, premises liability, automobile, trucking and subrogation (both workers’ compensation and ERISA). Must have good communication skills, solid writing ability, be able to work independently and with others, and have experience working with insurance companies. Great opportunity for a motivated, self-starting individual. Please submit resume and salary requirements to dwoodard@downsstanford.com. Dallas Family Firm that helps people through divorce with empathy and unyielding representation seeks associate with 5+ years’ experience. Email resume to christina@katielewisfamilylaw.com; subject line should be your last name in all caps plus one word that describes you.
to (214) 754-0999. Legal Nurse Consultant. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire a Legal Nurse Consultant with 5 years’ clinical nursing experience. LNC experience, LNC certification or healthcare risk management experience preferred but not required. This is an in-house position. Send your resume to Christine Santosuosso, Adm. Mgr., Thiebaud Remington Thornton Bailey, 4849 Greenville Ave., Ste. 1150, Dallas, TX 75206 or email to csantosuosso@trtblaw.com or fax to (214) 754-0999.
SERVICES
Portuguese. Need help with evidence that is in Portuguese (Português)? For bilingual case discovery and litigation support, contact me: Gracilene Oliveira Brooks, Attorney at Law Licensed to practice in Texas and Brazil. attorneygracilene@gmail.com; (469) 644-8245. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www.ProfessionalAncestry Research.com. Wanda Smith, (972) 8369091. To place an affordable classified ad here, contact Judi Smalling at (214) 2207452 or email jsmalling@dallasbar.org.
JEFF ABRAMS Mediator & Arbitrator
Commercial Insurance Litigation Attorney. Small, highly-respected, downtown Dallas, insurance coverage/defense firm seeks a 4-5yr+ attorney with solid commercial insurance coverage/coverage litigation experience. Ideal candidate has significant experience with CGL insurance, particularly construction defects. Portable business and insurance defense litigation experience a plus, but not required. Reasonable billable hour expectation allows for good lifestyle balance. Excellent benefits (health insurance, 401k, parking). Salary negotiable. Email cramsey@schubertevans.com or call (214) 744-4400. Real Estate Associate. Far North Dallas/ Farmers Branch Area law firm seeks an associate attorney with 2 - 3 years’ experience. Real estate law background required. Corporate or business law background a plus. Compensation commensurate with experience. Send resume to chicagogar7@yahoo.com.
Experienced Creative Dog Friendly
Medical Malpractice Defense Attorney. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire an attorney with 3-5 years’ experience. Medical malpractice defense experience preferred. Send your resume to Christine Santosuosso, Adm. Mgr., Thiebaud Remington Thornton Bailey, 4849 Greenville Ave., Ste. 1150, Dallas, TX 75206 or email to csantosuosso@trtblaw.com or fax
Office 972-702-9066 Cell 214-289-4427 jeff@abramsmediation.com
Online scheduling calendar www.abramsmediation.com
Case coordinator: kelli@abramsmediation.com
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
February 2018
Crain Lewis Brogdon, LLP is pleased to welcome
Sarah Rogers
Sarah’s past accomplishments include: • Former partner at Thompson Coe with 13 years’ experience • 2017 Best Lawyers in Dallas, D Magazine • Super Lawyer Rising Star 5 years, Texas Monthly • President-Elect of the Dallas Women Lawyers Association • Former President of the Dallas Young Lawyers Association
crainlewis.com | 214.522.9404 Personal Injury | Criminal Defense