June 2019 Headnotes: Immigration/International Law by Jessica Smith

Dallas Bar Association

HEADNOTES |

Focus | Immigration/International Law

June 2019 Volume 44 Number 6

DBA WE LEAD at Vistra Energy

The cast and crew will perform Bar None XXXIV – Lawquaman on June 12-15 at the Greer Garson Theatre on the SMU Campus.

Bar None XXXIV Presents Lawquaman Thank you to Vistra Energy for hosting the April 17 DBA WE LEAD session. A special thank you to the panelists of the “Lessons from Vistra’s C-Suite” discussion (left to right): Carrie Kirby, EVP & Chief Administrative Officer; WE LEAD Program Director Ophelia Camiña; Sara Graziano, SVP of Corporate Development; Stephanie Moore, EVP & General Counsel; and Dan Kelly, VP & Assistant GC, for sharing their time, experiences, and tips for success.

Maria Martinez Retires from Belo STAFF REPORT

350,400 hours. 14,600 days. 40 years. That is how long Maria Martinez has been a staple of the Belo Mansion. Mama Maria has attended to DBA members, staff, and the public and treated them like her own family. On June 28, she will retire from the Belo and begin a new chapter in her life. “Over the past 20-plus years I have come to know and love Maria like family. It is hard to imagine the Belo without her there to greet me with a hug,” said DBA President Laura Benitez Geisler. “Her loyalty to the DBA for the past 40 years speaks volumes. While she will be sorely missed, I am delighted to think of her enjoying retirement after a lifetime of hard work in service to others.” Others heartily agree. When asked to describe Maria, response was instantaneous and sentiments included: caring, compassionate, happy, active, tireless worker, wise, and honest, treats you like one of her own. These are just a few of the many words that define Maria. During her 40 years at Belo she not only took care of us, she also raised four sons and welcomed seven grandchildren—four grandsons and three granddaughters. She was the matriarch of her own family, while taking care of, and becoming part of ours. “I am most grateful for the memorable experiences and, most importantly, the great people and friendships I made throughout my 40 years

Maria Martinez

at Belo Mansion,” said Maria. But it is the countless past presidents, members, and staff who are most grateful! As one DBA staff person stated: “She makes the Belo feel like home when she welcomes you with her bright smile, warm embrace, and genuine interest in what’s new in your world. She will be missed!” Yes she will. Maria—we wish you the best and hope you enjoy your next adventure! HN

Inside 6 How Immigration Bonds Work 12 Pro Bono Golf Tournament 15 Knock, Knock. It’s ICE. Are Your Forms I-9 in Order? 19 Taxation of Residents Working Abroad

BY MICHELLE M. ALDEN

Join the cast and crew of Bar None June 12-15 as they present Bar None XXXIV – Lawquaman. This is the 34th year for the Bar None variety show and it promises to be the best show yet. Watch Dallas area lawyers and judges sing, dance, and make you laugh so hard your sides hurt. As much as the cast and crew love performing and making people laugh, their real motivation is to support the Sarah T. Hughes Diversity Scholarship program. The scholarship program was established in honor of U.S. District Judge Sarah T. Hughes, a former trustee of the Dallas Bar Foundation, who devoted herself to improving the rights of women and minorities. The Hughes Scholarship provides tuition and fees for deserving minority students each year. Students at SMU Dedman School of Law, UNT Dallas College of Law, and Texas A&M School of Law are eligible to apply for the scholarship. The Dallas Bar Foundation takes its responsibility for finding deserving recipients seriously. If you have ever met a Hughes Scholar, you know how impres-

sive these students are. Support them by coming to Bar None. Thousands of volunteer hours go into putting on such a large production each year. The hours come from lawyers all over the metroplex including 34-year veteran Director Martha Hardwick Hofmeister and Producer Tom Mighell, as well as the choreographers, script writers, committee members, actors, and numerous behind-the-scenes staff. All of these Bar Noners share a passion for making a difference in the lives of the Scholars, our legal community and, for a few hours, the audience members. Show your support for the Dallas legal community and the Hughes Scholars by heading to the Greer Garson Theatre on the SMU Campus June 12-15. To purchase tickets, visit www.barnoneshow.com, or contact Elizabeth Philipp at (214) 220-7487 or ephilipp@dallasbar. org for sponsorship and ticket information. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program and a Member of the Marketing Committee of the Bar None Production Company. She can be reached at aldenm@ lanwt.org.

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

June 2019

Calendar June Events FRIDAY CLINICS

JUNE 7-BELO Noon

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

“Asset Protection: A Guide to Professionals,” Patricia Dontevy-Rosen and Howard Rosen. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.

THERE IS NO FRIDAY CLINIC ON JUNE 14 JUNE 21-NORTH DALLAS** Noon

“Enforcing Foreign Agreements and Judgments,” G. Leroy Street. (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.

JUNE 21-BELO Noon

“Navigating IP Issues in Your Practice: A Primer for Non-Patent Lawyers,” Ira Matsil. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.

JUNE 28-OAK CLIFF Noon

“Mise en Place: Preparing for Your Cross-Examination,” Ben Barnes. (MCLE 1.00)* RSVP to yhinojos@ dallasbar.org.

MONDAY, JUNE 3 Noon

Tax Law Section “Addressing Tax Liens and Risk of Personal Liability in Estate Administration,” Matthew S. Beard. (MCLE 1.00)*

DAYL Assisting Lawyers in Transition Program Committee

MONDAY, JUNE 10 Noon

DAYL Membership Committee

TUESDAY, JUNE 4

Noon

Corporate Counsel Section Topic Not Yet Available

DBA/DAYL Moms in Law CLE “How Men Can Be Better Allies to Working Lawyer Moms,” Alan Greenspan, Michael Hurst, James Stanton, Rob Walters, and Hon. Tonya Parker, moderator. (MCLE 1.00)* RSVP at dayl.com.

Peer Assistance Committee

TUESDAY, JUNE 11 Noon

DAYL Solo & Small Firm Committee

6:00 p.m. DAYL Board of Directors

WEDNESDAY, JUNE 5 Noon

Real Property Law Section “Lis Pendens: A Journey of Use, Abuse, and Legislation,” Jeremy T. Brown. (MCLE 1.00)*

Tort & Insurance Practice Section Topic Not Yet Available

Alternative Dispute Resolution Section “Mediators’ Roundtable.” (MCLE 1.00, Ethics 0.50)*

Business Litigation Section “Civil District Judges Panel Discussion,” Hon. David Evans, Hon. Aiesha Redmond, Hon. Bridgett Whitmore, and moderated by Hon. Martin Hoffman. (MCLE 1.00)*

Juvenile Justice Committee

Public Forum/Media Relations Committee

DAYL Judiciary Committee

Noon

Friday Clinic-Belo “Navigating IP Issues in Your Practice: A Primer for Non-Patent Lawyers,” Ira Matsil. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.

Minority Clerkship Luncheon “Building Relationships Inside and Outside Your Organization,” Sakina Foster, Laura Benitez Geisler, and Earsa Jackson. (Ethics 1.00)*

DAYL Deal Boot Camp Committee

Trial Skills Section Topic Not Yet Available

8:00 p.m. Bar None XXXIV: Lawquaman at Greer Garson Theatre, SMU Campus. www.barnoneshow.com.

SATURDAY, JUNE 15

8:00 p.m. Bar None XXXIV: Lawquaman at Greer Garson Theatre, SMU Campus. www.barnoneshow.com.

MONDAY, JUNE 17 Noon

Labor & Employment Law Section “What’s Hot at the NLRB!” Timothy L. Watson. (MCLE 1.00)*

TUESDAY, JUNE 18 Noon

Franchise & Distribution Law Section “Compliance Programs in International Franchising,” Uanna Alves and Ximena Couret. (MCLE 1.00)*

International Law Section “The United States Mexican Canada Agreement,” Ed Lebow, Simon Potter, and Alberto de la Pena. At Center for American and International Law (5201 Democracy Dr., Plano) (MCLE 1.00)*

Community Involvement Committee

MONDAY, JUNE 24 Noon

Securities Section Topic Not Yet Available

TUESDAY, JUNE 25 Noon

American Immigration Lawyers Association

DAYL Lawyers Promoting Diversity

DWLA Board of Directors Meeting

WEDNESDAY, JUNE 26 Noon

Entertainment, Art & Sports Law Section “Radio Industry — Legal & Business Issues, from Terrestrial to Smartphones,” panel discussion led by Emily Horton. (MCLE 1.00)*

DAYL Equal Access to Justice Committee

DAYL Foundation

DVAP New Lawyer Luncheon. For more information, contact martinm@lanwt.org. Municipal Justice Bar Association

WEDNESDAY, JUNE 19

THURSDAY, JUNE 27

Bankruptcy & Commercial Law Section “Why Label Talent? Leveraging the Strengths of Every Generation in Your Legal Practice,” Melina Bales, Kevin Chiu, Audrey Hornisher, and Elijah Stone. (MCLE 1.00)* Family Law Section “Contracts Before Marriage, After Marriage, and Instead of Marriage: Tips and Traps When Drafting Prenuptials, Postnuptials, and Cohabitation Agreements,” Rebecca Rowan. (MCLE 1.00)*

Admissions & Membership Committee

DAYL Lunch & Learn

Judiciary Committee

5:15 p.m. LegalLine. Volunteers needed. Contact sbush@ dallasbar.org. 7:30 p.m. Bar None XXXIV: Lawquaman at Greer Garson Theatre, SMU Campus. www.barnoneshow.com.

THURSDAY, JUNE 13 Noon

Noon

Energy Law Section “Disputes Over Production in Paying Quantities,” Daniel Charest and James Key. (MCLE 1.00)*

Health Law Section “Ethical Representation of Healthcare Clients in a Post-Forest Park World,” Martin Merritt. (Ethics 1.00)*

Noon

Independence of the Judiciary “Protecting the Independence of the Judiciary: The Future of Judicial Selection in Texas,” Julie Johnson, Jeff Leach, Former Chief Justice Tom Phillip, and Hon. Eric Moyé, moderator. (Ethics 1.00)* RSVP to bavina@dallasbar.org.

Environmental Law Section “Environmental Criminal Investigations – Start to Finish,” Walter D. James. (MCLE 1.00)*

Intellectual Property Law Section “Online Infringement: Best Practices for Combatting Counterfeits and Imposters,” Heather Foster, Dyan House, Leanne Stendell, and Joel Voyles. (MCLE 1.00)*

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

DAYL CLE Committee

THURSDAY, JUNE 20

5:30 p.m. Evening at the Races at Lone Star Park. Tickets available online at dallasbar.org.

Law in the Schools & Community Committee

Pro Bono Activities Committee

DAYL/DWLA Women’s Mentoring Circles

Non-Profit Law Study Group

Noon

Criminal Law Section Topic Not Yet Available

Minority Participation Committee

Appellate Law Section “An Update on Business Law Cases from the Dallas Court of Appeals,” David Coale. (MCLE 1.00)*

Christian Legal Society

DAYL Animal Welfare Committee

Government Law Section “The Do’s and Don’ts of Closing Arguments,” John Kull and Gary Tromblay. (MCLE 1.00)*

3:30 p.m. DBA Board of Directors Meeting

DVAP �� S�� A�� P�� B�� L�� Friday, June 7, Noon at Belo | MCLE 1.00 | RSVP to martinm@lanwt.org Speakers: Laura Benitez Geisler, DBA President Preston Moore, Weil, Gotshal & Manges LLP Hon. Audrey Moorehead, County Criminal Court 3 John VanBuskirk, John C. VanBuskirk, PLLC

Speakers will present information regarding pro bono opportunities and what young lawyers can do to make a difference!

FRIDAY, JUNE 14

6:00 p.m. Dallas Hispanic Bar Association

Bench Bar Conference Committee

7:30 p.m. Bar None XXXIV: Lawquaman at Greer Garson Theatre, SMU Campus. www.barnoneshow.com.

Legal Ethics Committee

Summer Associates Pro Bono Luncheon RSVP to martinm@lanwt.org. (MCLE 1.00)* Sponsored by DVAP and the DBA Pro Bono Activities Committee.

Christian Lawyers Fellowship

Construction Law Section “Mechanics’ Liens – Off the Beaten Path,” Steven Kennedy. (MCLE 1.00)*

DAYL Elder Law Committee

Friday Clinic-Belo “Asset Protection: A Guide to Professionals,” Patricia Dontevy-Rosen and Howard Rosen. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.

Publications Committee

Noon

Entertainment Committee

Noon

FRIDAY, JUNE 7

CLE Committee

WEDNESDAY, JUNE 12

Lawyer Referral Service Committee

Judgments,” G. Leroy Street. (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.

Immigration Law Section “Parole in Immigration Law,” Paul Hunker, III. (MCLE 1.00)*

THURSDAY, JUNE 6

Transition to Law Practice Program Topic Not Yet Available

6:00 p.m. J.L. Turner Legal Association

Employee Benefits & Executive Compensation Law Section “2019 Executive Compensation Trends and Proxy Season Recap,” Krista Hanvey and Tyler Richardson. (MCLE 1.00)*

FRIDAY, JUNE 28

6:00 p.m. DAYL Wine Tasting At Sammons Center for the Arts. Benefiting DVAP. www.dayl.com.

FRIDAY, JUNE 21 Noon

6:00 p.m. Sister Bar Social. At Network Bar in Trinity Groves. Sponsored by O’Neil Wysocki Family Law.

North Dallas Friday Clinic “Enforcing Foreign Agreements and

Noon

Oak Cliff Clinic “Mise en Place: Preparing for Your CrossExamination,” Ben Barnes. Oak Cliff Chamber of Commerce, 1001 N Bishop Ave, Dallas. RSVP to yhinojos@dallasbar.org.

DVAP Education Advocate Training CLE

DBA/DAYL Moms in Law. The Zodiac Room at Nei-man Marcus downtown. RSVP rfitzgib@ gmail.com.

Minority Clerkship Luncheon “Building Relationships Inside and Outside Your Organization” Friday, June 21, at Noon | Ethics 1.00 Speakers: Sakina Foster, DBA President Laura Benitez Geisler, and Earsa Jackson Additional panelists TBD RSVP to bavina@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.

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

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

June 2019

President’s Column

Headnotes

Incubating a New Breed of Lawyers: “Entrepreneurs in Community Lawyering” BY LAURA BENITEZ GEISLER

Are There Too Many Lawyers?

Are there too many lawyers in this country? I guess it depends on who you ask—a lawyer looking for work in a competitive job market, or a person in need of an affordable lawyer. According to U.S. Bureau of Labor Statistics, lawyer employment is expected to grow 8 percent through 2026. Despite this projected growth, it is anticipated the number of law school graduates will continue to outpace employment opportunities even with declining law school admissions. What does it say about our values as a profession when there are not enough employment opportunities for law school graduates who want to work, while at the same time there are people in desperate need of legal representation who cannot find an affordable lawyer? Having legal representation is a crucial component of access to justice, especially when one’s family, finances, property, home, health, and safety are involved. Yet for too many, access to legal representation is beyond reach. The Texas Access to Justice Foundation estimates less than 10 percent of the civil legal needs of low-income Texans are being met. Keep in mind that to even qualify for legal aid an individual’s income cannot exceed $15,175 annually or $31,375 for a family of four. When you consider the poverty that exists in Dallas, home to SMU and UNT law schools (with Texas A&M right next door), the issue hits closer to home. The 2018 Dallas Mayor’s Task Force on Poverty Update reported that more than a quarter (28.8 percent) of households with children in Dallas live below the poverty level; more than half (54.2 percent) of all Dallas households have an annual income of $50,000 or less, while more than a quarter of all Dallas households (27.1 percent) have an annual income of $25,000 or less. Inadequate legal aid resources for the poorest among us is not the only problem. Current market rates and traditional fee structures create a financial barrier for a significant percentage of the population who do not qualify for legal aid and who cannot find a lawyer willing to work at a rate they can afford to pay. Rather than asking whether there are too many lawyers, the question we should be asking is “why are there not enough lawyers to provide equal access to justice for everyone?” The question we should seek to answer is “what can we do to change the inequities in access to justice?”

DBA Entrepreneurs in Community Lawyering

With this question in mind, I am excited to announce the launch of a new program through which the DBA seeks to create a pipeline of lawyers equipped with the skills necessary to launch a financially sustainable practice that can meet the needs of a modest means clientele. DBA’s “Entrepreneurs in Community Lawyering” is pilot project for recent law school graduates who have a demonstrated interest in serving the needs of a lower income clientele in a solo or small firm practice, but who need support developing the practical legal and business skills necessary to succeed. The 12-month program will kick off this fall with an inten-

sive three-day workshop that will provide practical instruction and training for starting a law practice. Thereafter, participants will meet regularly with instructors for in-depth guidance in areas of substantive law, professional responsibility, alternative fee arrangements, business development, and efficient law office management. In addition to a dedicated attorney program supervisor, participants will have access to mentors in various practice areas and multiple networking opportunities. Program participants will be selected following an application and interview process (www.dallasbar.org/incubatorprogram) and must agree to fulfill a requisite number of pro bono hours. Legal incubators as an access to justice remedy is a relatively new concept. In the past 12 years approximately 60 legal incubator programs have been implemented nationwide with varying degrees of success. While the overall concept and goals for these incubators are generally similar, existing programs vary greatly in structure and substance. Most legal incubators are a collaborative effort among some combination of legal aid organizations, law schools, and bar associations. Few are solely operated by a local bar association, which may be why more than one person has described this project as an “ambitious” effort. I do not disagree. But if not us, who? It may be an ambitious endeavor for a local bar association, but the DBA is not your average local bar. We have existing resources and programs to build upon that can be easily integrated into the incubator curriculum. We have an outstanding planning committee that includes, Hon. Royal Ferguson, Courteney Harris, Andrew Jee, Karen McCloud, Mary Scott, Frank Stevenson, Diane Sumoski, Robert Tobey, and John VanBuskirk, who along with DBA staffers Alicia Hernandez and Kathryn Zack are working hard to make this project a success. We have the support of AT&T, who through its general counsel, David McAtee, provided the seed money to launch this program, along with grants from the Texas Bar Foundation and Dallas Bar Foundation. Most importantly, we have an obligation to do our part to seek solutions to difficult problems, especially in our own community where there are three local area law schools and a majority of Dallas households do not have sufficient income to access affordable legal representation. At a minimum, Entrepreneurs in Community Lawyering will provide participating lawyers with quality training, support, and mentoring as they start their legal careers. Through the mandatory pro bono requirement, legal aid resources will be conserved for others in need, and young lawyers will gain experience helping someone who might otherwise go unrepresented. To me, that alone makes this ambitious undertaking worth the effort. Ultimately it is my hope that over time this program will produce more lawyers in the community who appreciate the importance of equal access to justice for all, who are equipped to launch a financially sustainable practice that reflects those values, and will create a pipeline for the next generation of lawyers looking for ways to equalize access to justice. For more information on the Entrepreneurs in Community Lawyering project, including how to apply, go to www.dallas bar.org/incubatorprogram. HN

The Dallas Bar Association is launching an “Entrepreneurs in Community Lawyering” Program in 2019 as the first local legal incubator program in Dallas. Through the Entrepreneurs in Community Lawyering program the DBA seeks to create a pipeline of socially conscious lawyers that are well equipped to launch a financially sustainable solo or small firm practice that caters to a lower income clientele. WHO CAN PARTICIPATE? Recent law school graduates licensed less than 5 years with a strong interest in starting a solo or small firm practice serving a modest-means clientele. All participants must complete an application and interview process and be invited to participate. Participants must demonstrate determination, an entrepreneurial spirit, dedication to providing access to justice, and a firm commitment to the program. Sustainability of the applicant’s proposed practice area is also critical. It is anticipated that the program will have eight to ten lawyers per session.

Visit DallasBar.org/incubatorprogram to apply. Application, Résumé & Statement of Intent due Friday, June 21, 2019 Questions? Contact Kathryn Zack at kzack@dallasbar.org or (214) 220-7450.

Published by: DALLAS BAR ASSOCIATION

2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Laura Benitez Geisler President-Elect: Robert L. Tobey First Vice President: Aaron Z. Tobin Second Vice President: Karen D. McCloud Secretary-Treasurer: Ashlei Gradney Immediate Past President: Michael K. Hurst Directors: Vicki D. Blanton, Jonathan Childers, Chalon Clark, Sakina Rasheed Foster, Charles Gearing (President, Dallas Association of Young Lawyers), Rocio García Espinoza, Hon. Martin Hoffman, Krisi Kastl, Dan Kelly, Bill Mateja, Hon. Maricela Moore, Audrey Moorehead, Kathryne Morris, Cheryl Camin Murray (Vice Chair), Erin Nowell (President, J.L. Turner Legal Association), Javier Perez (President, Dallas Hispanic Bar Association), Sarah Rogers (President, Dallas Women Lawyers Association), Mary Scott, Jason Shyung (President, Dallas Asian American Bar Associations) and Amy M. Stewart Advisory Directors: Stephanie Gause Culpepper (PresidentElect, Dallas Women Lawyers Association), Isaac Faz (President-Elect, Dallas Hispanic Bar Association), Justin Gobert (President-Elect, Dallas Association of Young Lawyers), Andrew Spaniol (President-Elect, Dallas Asian American Bar Association), and Koieles Spurlock (President-Elect, J.L. Turner Legal Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, Rebekah Brooker, Rob Crain, Michael K. Hurst, and David Kent 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: Andy Jones and Carl Roberts Vice-Chairs: James Deets 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 Dockery, Elisaveta (Leiza) Dolghih, Angela Downes, Sheena Duke, Charles Dunklin, Alex Farr, Dawn Fowler, Juan Garcia, Britaney Garrett, Michael Gonzales, Andrew Gould, Jennifer Green, Kristina Haist, Susan Halpern, Bridget Hamway, Edward Harpole, Meghan Hausler, Jeremy Hawpe, Lindsay Hedrick, Marc Hubbard, Brad Jackson, Kristi Kautz, Thomas Keen, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravik, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jordan McCarroll, R. Sean McDonald, Kathryn (Kadie) Michaelis, Elise Mitchell, Terah Moxley, Daniel Murray, Jessica Nathan, Madhvi Patel, Keith Pillers, Kirk Pittard, Laura Anne Pohli, Luke Radney, Mark Rasmussen, Pamela Ratliff, David Ritter, F. Colby Roberts, Bryon Romine, Kathy Roux, Stacey Salters, Joshua Sandler, Matthew Sapp, Justin Sauls, Mazin Sbaiti, Mary Scott , Jared Slade, Thad Spalding, Jacob Sparks, John Stevenson, Scott Stolley, Elijah Stone, Amy Stowe, Adam Swartz, Ashley Swenson, Robert Tarleton, Paul Tipton, Michael Tristan, Tri Truong, Pryce Tucker, Adam Tunnell, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Mejia, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Marketing Coordinator: Mary Ellen Johnson Membership Director: Kimberly Watson Projects Director: 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 Paralegals: Whitney Breheny, Miriam Caporal, Star Cole, Tina Douglas, Andrew Musquiz, Carmen Perales, Alicia Perkins, Dominick Vallejo Program Assistant: Patsy Quinn Secretary: Debbie Starling Copyright Dallas Bar Association 2019. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

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

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

Focus

June 2019

Immigration & International Law

How Immigration Bonds Work BY AMY HSU

Noncitizens, including Lawful Permanent Residents (“green card” holders) of the U.S., can be detained by the Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security (DHS) for a variety of reasons, including criminal offenses. When a noncitizen is arrested and processed by ICE, the arresting officer makes an initial custody determination. The noncitizen can be released on his own recognizance, released under a minimum bond of $1,500 (it could be higher), or detained without bond. If the noncitizen is detained without bond, or a high bond amount that the noncitizen’s family or friends are unable to pay, he or she can file for a new custody redetermination in front of an immigration judge. If not subject to mandatory deten-

tion (see below), the immigration judge may still make the determination to hold the noncitizen without bond. The immigration judge can make a determination to keep the bond the same amount, lower the bond, raise the bond, or even take away the initial bond amount entirely and detain the noncitizen without bond, so the decision whether or not to apply for a custody redetermination must be carefully considered. The burden is on the noncitizen to establish that he or she is not a present danger to persons or property, is not a threat to the national security, and does not pose a flight risk. Immigration bond hearings are evidentiary hearings. This cannot be emphasized enough. The Dallas Immigration Court has its own form, the Application for Redetermination of Custody status, available at the Dallas Immigration Court. This form should

Sign up to Volunteer at the DBA Community Day of Service Saturday, September 28, 2019 A day of community service hosted by the DBA’s Community Involvement Committee. For more information, visit www.dallasbar.org/dbacommunitydayofservice. If your firm or group has an idea for a project that you would like to organize, please contact beth@bethmjohnson.com, cspencer@ritterspencer.com, or galfaro@dallasbar.org.

be submitted with as much documentary evidence attached as possible. If there are significant family ties to the U.S. such as a US citizen or permanent resident spouse, children, or parents, then the judge expects to see the marriage certificate, the birth certificates of the children, and affidavits from friends and family. These should be submitted to the court and government attorneys at least 3 days before the bond hearing, and ideally with the bond application. Witnesses should be prepared to testify at the bond hearing about the noncitizens ties to the community and rehabilitation after any criminal convictions. Pending criminal charges, a fixed address, and employment history are also factors to be considered, but ability to pay the bond is not a factor that most immigration judges consider. It may be necessary to submit a brief regarding eligibility for bond, and the discretionary factors, to the court in a case involving complicated immigration or criminal history. Counsel for the noncitizen should also be prepared to discuss how he or she qualifies for relief from removal to be able stay here legally in the U.S. If the noncitizen does not have any relief from removal then he or she will be considered a flight risk and the chances of receiving a bond are very low. The immigrant is only entitled to one bond hearing, unless circumstances materially change. It is possible, and in some circumstances advisable, to withdraw the bond application until such time as evidence and witnesses can be gathered. If a noncitizen has submitted

just the application form on its own without any supporting evidence, it might be best to withdraw that application and then re-submit at a later date with documentary evidence and when witnesses are available to testify. Bond hearings, or custody redetermination hearings, are separate from the actual immigration removal case, so it is possible for counsel to represent the noncitizen in only the bond hearing without representing the noncitizen in full removal proceedings and vice versa. Not all noncitizens are eligible for a bond. Some noncitizens are subject to mandatory detention under Immigration and Nationality Act Section 236(c) on terrorist grounds, arriving aliens that are seeking entry and therefore have not been lawfully admitted to the U.S. yet, and those convicted of aggravated felonies, crimes involving moral turpitude, and drug crimes. In April of 2019, US Attorney General William Barr issued a ruling that adult asylum seekers who are transferred from expedited removal proceedings to full removal proceedings are mandatorily detained, unless they are paroled into the U.S. They would be detained even if they have passed their credible fear interviews, the threshold inquiry conducted by asylum officers to determine if the asylum seeker has a “credible fear” of being returned to their home country. This new policy becomes effective 90 days after the decision, or on July 15, 2019. HN Amy Hsu is Of Counsel at the Patnaik Law Office and can be reached at amy.hsu@patnaiklaw.com

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

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

June 2019

2019 DBA 100 CLUB - Get on the LIST! The Dallas Bar Association would like to recognize the following firms, government agencies, organizations/schools and corporate legal departments for their support of the DBA along with their commitment to the advancement of the legal profession and the betterment of the community. The DBA 100 Club is a distinguished membership recognition category that consists of Firms, Law Schools, Organizations and Government agencies with two or more attorneys as well as corporate legal departments that have 100% membership in the DBA. Recognition is given to the 2019 DBA 100 Club members in our June, July and August Headnotes and at our Annual meeting in November. Not a DBA 100 Club member yet? This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 400 FREE CLE programs including 6 hours of online CLE access each year, networking opportunities, community projects and many other member benefits as well as the opportunity to qualify for the DBA 100 Club. Please note that the DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. How do you get on the list? To become a 2019 DBA 100 Club member, please submit your request via email and include a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify the list with our member records and, if eligible, we will add your firm to the 2019 DBA 100 Club! If we receive your qualifying list by June 6th, your firm will be included on the July and August DBA 100 Club recognition list in Headnotes.

Send in your list TODAY! DBA 100 Club Members as of May 10, 2019 Law Firms with 2 to 5 Attorneys A. William Arnold III & Associates, P.C. Adair, Morris & Osborn, P.C. Adam L. Seidel, P.C. Addison Law Firm P.C. Aldous \ Walker Alexander Dubose Jefferson & Townsend LLP Alexandra Geczi PLLC Altaffer & Chen PLLC Anderson & Brocious P.C. Ashcraft Law Firm Atwood Gameros LLP Barbee & Gehrt, L.L.P. Bisignano Harrison Neuhoff LLP Blackwell & Duncan, PLLC Blankenship, Wiland & O’Connor, P.C. Bocell Ridley, P.C. Brousseau Naftis & Massingill Carlock & Gormley Christiansen Davis LLC Clark Law Firm Clark, Malouf & White, LLC Duke Seth, PLLC Fisher & Welch, P.C. Francis & Totusek, L.L.P. FurgesonMalouf Law PLLC Gauntt Koen Binney & Kidd, LLP Goldfarb PLLC Grogan & Brawner P.C. Hamada Smith, PLLC Hance Law Group Herrera & Herrera Hitchcock Evert LLP Hollingsworth Walker Holmes Firm PC Horton & Archibald, P.C. Hunt Huey PLLC

Hunter & Kalinke Jameson & Powers, P.C. Jenkins & Watkins, P.C. Kabani & Kabani, PLLC Kastl Law, P.C. Langley LLP Law Office of Jodi McShan, PLLC Law Offices of Otstott & Jamison Law Offices of Richard A. Gump, Jr., P.C. Law Offices of Terrence G. Turzinski, P.C. Lawrence Law PLLC Lemons & Hallbauer, LLC Letteer & Mock, P.C. Lidji Dorey & Hooper Little Pedersen Fankhauser LLP Marshall & Kellow, LLP Martin Powers & Counsel, PLLC Mincey-Carter, PC Norris & Weber, PLLC Okon Hannagan, PLLC Orenstein Law Group, PC RegitzMauck PLLC Russell & Wright, PLLC Ryan Law Partners LLP Schubert & Evans, P.C. Sheils Winnubst, PC Smith, Stern, Friedman & Nelms, P.C. Starr Law Firm, P.C. The Perrin Law Firm The Vermillion Law Firm, LLC Travis Law Group, P.C. Tremain Artaza PLLC Woolley <> Wilson, LLP. Yarbrough & Elliott, P.C.

MUCH OBLIGED. TLIE celebrates 40 years protecting Texas lawyers. Thanks for your support. INSURING TEXAS LAWYERS SINCE 1979

Law Firms with 6 or More Attorneys Baker Botts, L.L.P. Bell Nunnally & Martin LLP Boyle & Lowry, L.L.P. Bradley Arant Boult Cummings, LLP Bragalone Conroy PC Brown Fox PLLC Buether Joe & Carpenter, LLC Burford & Ryburn, L.L.P. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Cavazos Hendricks Poirot, P.C. Cobb Martinez Woodward PLLC Cooper & Scully, P.C. Cowles & Thompson, P.C. Crain Lewis Brogdon, LLP Cutler-Smith, P.C. Durham, Pittard & Spalding, LLP Estes Thorne & Carr PLLC Figari & Davenport, L.L.P Godwin Bowman PC Goranson Bain Ausley, PLLC Hiersche, Hayward, Drakeley & Urbach, P.C. Higier Allen Lautin, P.C. Husch Blackwell LLP Jordan Flournoy LLP K&L Gates LLP Kessler Collins, P.C. KoonsFuller Lan Smith Sosolik, PLLC Linebarger Goggan Blair & Sampson, LLP Malouf Nakos Jackson & Swinson, P.C. Martin, Disiere, Jefferson & Wisdom, LLP McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Munsch Hardt Kopf & Harr, P.C.

Parsons McEntire McCleary PLLC Passman & Jones, P.C. Ryan Law, LLP Staubus & Randall, L.L.P. Steed Dunnill Reynolds Bailey Stephenson LLP Thiebaud Remington Thornton Bailey LLP Tollefson Bradley Mitchell & Melendi, LLP Touchstone Bernays Verner Brumley Mueller Parker, P.C. Corporate Legal Departments Borden Dairy Company Buckner International Capital Senior Living, Inc. Compatriot Capitol Inc. Dunhill Partners, Inc. El Rancho Inc. Gaedeke Group HighGround Advisors KidKraft, Inc. LALA U.S., Inc. North Texas Tollway Authority Tenaska, Inc. Government Agencies, Organizations & Law Schools Dallas Baptist University Dallas County Probate Courts DII Industries, LLC Asbestos PI Trust Mosaic Family Services Inc. UNT Dallas College of Law Special Recognition Students of the UNT Dallas College of Law

Asset Forfeiture Litigation Scott Gilbert has over ten years of experience successfully litigating asset forfeiture matters in state and federal courts, both as a former Assistant United States Attorney and in private practice representing defendants, claimants and lienholders in criminal and civil forfeiture matters. Scott has extensive experience with, and a deep understanding of, the government’s internal procedures for handling seized and forfeited assets. His firsthand knowledge of how both the legal and bureaucratic processes of the federal forfeiture apparatus work enables him to ensure the interests of defendants, claimants and lienholders are fully protected. Scott is admitted to practice in the state and federal courts in Texas and Mississippi. He may be contacted at 601.965.1922 or sgilbert@watkinseager.com.

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June 2 0 1 9 â&#x20AC;

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

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

June 2019

Immigration Services: How the Dallas Attorney Can Help STAFF REPORT

How can you—Dallas attorney— help immigrants and unaccompanied minors who are impacted as a result of the ongoing changes with immigration and international laws? We have compiled four local services where you should start:

Catholic Charities

Catholic Charities Dallas, Immigration Legal Services supports our immigrant community with visa petitions and removal defense. We have a team dedicated to providing legal orientations at the Prairieland Detention Center almost every weekday. For those detainees who qualify for a form of relief, our team assists them in acquiring a pro bono attorney for representation. Our Program also represents immigrant children applying for Special Immigrant Juvenile Status. If you are an attorney who is interested in representing low-income immigrant families, we have opportunities for representing children in Family Court, adult detainees in Bond Redetermination Proceedings, and adults and children in Immigration Court. Pro bono attorneys will receive training in immigration law and will be mentored by Catholic Charities staff attorneys throughout the duration of the representation. Additionally, our Program hosts weekly workshops where we assist Lawful Permanent Residents apply for U.S. citizenship. These workshops are held every Friday and the first Saturday of each month, where attorneys will have the opportunity to complete applicants’ citizenship forms. Also, if you speak any foreign languages, your services would be greatly appreciated in translating certain legal documents.

If you are interested in helping our immigrant community as a pro bono attorney in court, please contact Carolina Rivera at crivera@ccdallas.org. If you are interested in volunteering at our citizenship workshops, please contact Jessica Hernandez at jhernandez@ ccdallas.org.

Human Rights Initiative of North Texas

Since 1999, Human Rights Initiative of North Texas, Inc. has provided free legal services to vulnerable immigrants, through our award winning pro bono model. All of our clients are under 150 percent of poverty guidelines. Our clients come from all over the world. We do this in three programs. Each of these programs is staffed by a designated attorney who is tasked with supporting our pro bono volunteer lawyers. In FY18, 250 volunteer attorneys donated over 5,700 hours of service. 1. Asylum. We represent individuals in Defensive (Immigration Court) and Affirmative (the Asylum Office) cases, individuals with a well-founded fear of persecution because of race, religion, nationality, political opinion, or membership in a social group. A typical client is a pro-democracy activist, a journalist, a persecuted LGBT individual, or survivor of domestic violence. 2. Children’s Program. For over 10 years HRI has been providing legal services to unaccompanied minors in their applications for Special Immigrant Juvenile Visas. Part of the case is in Family Court. The other is administrative. A typical client is from Central America, abused abandoned or neglected by one or both parents, coming from countries plagued by gang violence. 3. Crime Victims United States law

provides protection to men, women, and children who have escaped abuse or is a survivor of violent crime. We represent clients with their U Visas and VAWA cases. This is perfect for attorneys who do not want to go to court. How you can help: Most of our volunteers are not immigration attorneys. We work with corporate legal departments, sole practitioners, major law firms, and attorneys who are not actively practicing. Call us to find out when our next CLE is or when we can do a CLE for your firm. Contact our volunteer coordinator Layne Faulkner at lfaulkner@hrionline.org.

Mosaic Family Services

Mosaic Family Services is a safe haven for survivors of human rights abuses, including human trafficking and domestic violence. With a multicultural staff and comprehensive services, Mosaic reaches over 25,000 people annually in direct services and outreach. Our clients’ needs are met in one safe place: they receive free shelter, legal representation, counseling, education and support services in more than 25 languages. A part of Mosaic’s comprehensive services for over fifteen years, Mosaic’s Multicultural Legal Services Program specializes in the provision of both family and immigration representation to survivors of family violence and in comprehensive screening and civil legal services for survivors of human trafficking. Mosaic has a long history of specialization in applications with United States Citizenship and Immigration Services for relief for victims of gender-based crimes and human trafficking. We particularly rely on pro bono assistance to meet the demand from eligible survivors of family violence and sexual assault to file VAWA self-petitions, petitions for U Visas, and related applications. In addition, we have many survivors of human trafficking who have received their T visa and may be eligible to adjust status and receive their green cards at any time. How can you help? Mosaic offers a number of manuals, templates, and trainings (both webinars and periodic live trainings) for interested attorneys. We further offer opportunities to tailor the level of responsibility for an application or sections of an application, and final Mosaic staff review prior to filing. Thanks to pro bono attorneys, Mosaic is able to significantly expand its services to survivors to meet the high demand for its specialized legal

services. For more information please contact Alison Maher at alisonm@ mosaicservices.org.

RAICES

RAICES is a non-profit immigration organization that has been in Dallas since 2014, but has been in existence throughout various cities in Texas since the 1980s. RAICES offices provide direct representation to children and families detained at various immigration detentions or shelters in Texas, as well as representation after release from detention. RAICES also seeks to protect the rights of the immigrant community via “Know Your Rights presentations” at community forums, such as churches, schools, and media interviews. Additionally, RAICES’ advocacy teams build community connections and work closely with local organizations to give the immigrant community a voice. Many of our clients here in Dallas are minors who have arrived to the United States on their own, seeking refuge from abandonment, abuse, neglect, persecution, attacks, and threats of death. RAICES offices assist our young clients to navigate the complicated immigration system and present their immigration claim. So, how can you help RAICES? Besides financial donations (www. raicestexas.org/donate/), we need help increasing legal representation through pro bono attorneys. There are many ways to give our clients a voice and an opportunity for their immigration claim to be heard: • Representing families and children in Immigration Court in applying for Asylum, Special Immigrant Juvenile Status, humanitarian visas, familybased petitions, or briefing in support of cases; • Representing children in family court proceedings; • Helping gather supporting documents and briefing for Immigration Court; • Attending and assisting in immigration clinics, such as Asylum, Naturalization, DACA, etc.; • Representing RAICES in community events. For further information, log on to www.raicestexas.org, or contact Priscilla Villarreal, Pro Bono Attorney Coordinator at (469) 250-6709 or priscilla.villarreal@raicestexas.org; or Felix Villalobos, Managing Attorney, at (214) 206-9263 or felix.villalobos@ raicestexas.org. HN

June Friday Clinics Friday, June 7, Noon at Belo “Asset Protection: a Guide to Professionals,” Patricia Dontevy-Rosen and Howard Rosen. (MCLE 1.00) Friday, June 21, Noon at Two Lincoln Centre (5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240) “Enforcing Foreign Agreements and Judgments,” G. Leroy Street. (MCLE 1.00) Thank you to our sponsor Fox Rothschild LLP. Friday, June 21, Noon at Belo “Navigating IP Issues in Your Practice: a Primer for Non-Patent Lawyers,” Ira Matsil. (MCLE 1.00) Friday, June 28, Noon at Oak Cliff Chamber of Commerce “Mise en Place: Preparing for Your Cross-Examination,” Ben Barnes. (MCLE 1.00, Ethics 0.50) RSVP to yhinojos@dallasbar.org. Belo Mansion_Headnotes Ad.indd 1

8/11/2017 3:57:49 PM

June 2 0 1 9

Column

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

Wellness

Resilience - Four Steps to Take After a Major Setback

#4. Understand That Your Thoughts Will Shape Your Future

SCOTT SCHARDT

MARK TORIAN

ROBERT SAYLES

ANDREW STUBBLEFIELD

SAM ACKER

Mediator & Arbitrator

SAWYER NEELY

JEFF ABRAMS

The Honorable Pamela Luther is judge of Dallas County Criminal Court of Appeals No. 2. She can be reached at pamela.luther@ dallascounty.org.

WILL SNYDER

This article is more about the mindset of facing obstacles than specific steps to take in order to get back on track after a setback. The truth is that “getting back on track” may not mean getting back on the same track. Someone who has experienced a tragedy or major life hurdle cannot

WENDI ROGALINER

Everyone arrives at their destinations after encountering closed doors as well as open doors. Looking back, most of us can remember an old plan or relationship that did not work out that we are grateful for today. Admittedly, it can take a long while to be thankful for the closed doors.

immediately know what the future holds. In my experience, the only real answers come through patience and a willingness to face the real discomfort that comes with unexpected change or loss. A mindset of avoidance or blame will not result in the best choices in moving forward. In summary, if you experience a tragic setback, focus on yourself and your loved ones instead of the expectations of others. Allow yourself time to heal without feeling guilty. Notice when your mind is spending too much time on painful memories or blame and bring your attention back to what you can see and feel in the moment. Constantly make an effort to be grateful for even the smallest blessings. Your mindset, more than anything else, will determine what will happen next. Bring your mind back to what you have instead of what you have lost. HN

STACY SIMON

Allow yourself time to do nothing, especially if this is a sudden, life changing event. There are two ways to do nothing. One way is to change your schedule, take time off and literally not do anything for as long as you need it. Another way is to continue on your previous plan as much as possible in spite of the life-changing event. One of the reasons that I was asked to write this article is because of a life-changing event that happened to me just days before law school. My teenage daughter was killed in a jet ski accident approximately one week before law school began. I personally experienced the grief and confusion that comes with unexpected tragedy. Mixed with all of the emotional and financial demands of planning a funeral and grieving are the worries about the future. One of the pieces of advice that I am most grateful for was this: “For one year, don’t make any changes.” As much as possible, do the things you planned to do. Do not sell your house. Do not move away. Do not quit your job. For me, this also meant not changing

Bring your attention back to your physical needs, routine caretaking, and bill paying. The proverbial “one day at a time” approach is a necessary stage. Often, the pain and fear we are experiencing resides in our minds. We increase our discomfort and grief by allowing our imaginations to replay events, worrying about the future, and finding someone or something to blame. Focusing on each moment brings us back to the real pain in our bodies and hearts. To some degree, it is unavoidable and healthy to allow ourselves to experience sorrow and

#3. Be Grateful.

DICK SAYLES

#1. Do Nothing

#2. Focus on the Here-and-Now

fear. However, reliving tragedy and blame in our mind leads to anger, depression, as well as physical and mental illness.

SHAWN LONG

It is bittersweet having experience in overcoming a major hurdle in life. Often, we feel as if we are alone in having difficult, lifechanging events. However, with each passing year, we realize that life is a never-ending series of personal and professional setbacks, as well as advancements. The challenge lies in moving beyond disappointments toward a mindset of gratitude in one’s own time. These suggestions deal less with practical suggestions for rebuilding what was lost, and more with allowing the often painful experience of change to benefit us.

my plans to attend law school. Undoubtedly, I would not be where I am today if I had changed my plans. The law school environment turned out to be the perfect place to be for me at that time. Moving forward with our original plans after a tragedy does not mean that we are not grieving.

MARK STRACHAN

BY HON. PAMELA LUTHER

New Dallas Office. Same Promise. Experienced Creative Dog Friendly

Bradley is pleased to introduce our new team of Dallas attorneys: Dick Sayles, Will Snyder, Wendi Rogaliner, Shawn Long, Robert Sayles, Mark Torian, Mark Strachan, Sawyer Neely, Scott Schardt, Sam Acker, Stacy Simon, and Andrew Stubblefield. Long recognized in Texas for their quality legal counsel and exceptional client service, our new colleagues handle a wide range of litigation and business matters of every size and scope.

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As a national law firm with offices in six states and the District of Columbia, Bradley understands that legal matters are more than contests of critical thought; they have real-world implications, which is why we prioritize integrity. It is this integrity that inspires all of us to go above and beyond our clients’ expectations by providing innovative solutions, dependable responsiveness and a deep commitment to success.

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No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. ATTORNEY ADVERTISING. Contact: Dick Sayles, Esq., 214.939.8701, dsayles@bradley.com, Bradley Arant Boult Cummings LLP, 4400 Renaissance Tower, 1201 Elm Street, Dallas, TX 75270. Principal office location Birmingham, AL. ©2019

12 He a d n o t e s l D a l l a s B a r A s s ociationâ&#x20AC;

June 2019

27th Annual DBA Golf Tournament On April 18, more than 100 golfers participated in the 27th Annual DBA Pro Bono Golf Classic at Cowboys Golf Club to benefit Access to Justice. Thank you to our Golf Committee Co-Chairs Steven Aldous, Jerry Fazio, and Brad Monk. And a big thank you to all of our sponsors! We appreciate you!

Please Support Our Vendors! BVA Group Crockett McBride & Associates at Merrill Lynch Wealth Management David M. Vaclavik, Sage Settlement Consulting Esquire Deposition Solutions HAAG Global HC Legal Search HSSK LLC Legal Directories Publishing Company, Inc. Lexitas Legal MediaSmack Ryan Fraud and Forensic Recovery Texas File Thomson Reuters U.S. Legal Support ValueScope Inc Weaver

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

27th Annual DBA Golf Tournament

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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

June 2019

Pirating Private Keys BY ANDREW N. SPEER

If you handed everyone in a courtroom an exhibit containing the username and password to your client’s bank account, did you commit malpractice? What if you put that information on the projector for anyone in the courtroom to see? In cases involving cryptocurrency, attorneys may inadvertently do the functional equivalent of this, exposing clients to risk of asset loss by treating cryptocurrency like traditional financial assets. To litigators, cryptocurrency can be defined as two lines of text, consisting of numbers and letters. That is it, two lines of text, one called a “public key” and the other a “private key.” Public keys are known to the world. Anyone can see the key number, the amount of cryptocurrency associated with it, and send funds to it. This public key is like a telephone number. Anyone can find your phone number in a phone book, see where you live, and call you, but the owner of the house located at the

address is undisclosed. “Private keys” determine ownership and are unique lines of text, like the deed to a house (in a universe without central appraisal districts). There is only one deed stating who the current owner of the address in the phone book is, but you wouldn’t know who that is from the phone book. Holding a private key makes the holder the only owner of that unit of cryptocurrency. To transfer cryptocurrency, private keys are sent to public keys, much like one person deeding property to another. There is only one deed stating who the current owner of a property is, and only one private key at any point in time. While deed transfers are lengthy processes, transmitting private keys only requires a few seconds. Much like a new deed existing with a new name on it, the text of the private key permanently changes numbers upon transfer that only the new owner knows. This makes all transactions irreversibly one-way. There is no crypto-judicial system or concept of

Protecting the Independence of the Judiciary: The Future of Judicial Selection in Texas Thursday, June 27, Noon at Belo | Ethics 1.00 (pending) Speakers: State Representative Julie Johnson, State Representative Jeff Leach and Former Chief Justice Tom Phillips Moderated by Hon. Eric Moyé RSVP bavina@dallasbar.org

fraud permitting reversals. All sales are final. For this reason, unredacted private keys should never be disclosed. Four main ways exist to store cryptocurrency (including private keys): exchanges, hot wallets, cold wallets, and paper wallets. Exchanges are online, similar to Fidelity. Hot wallets are apps or computer programs. Cold wallets are USB keys, often with physical buttons to unlock them. Paper wallets are printouts of public and private keys, sometimes with a QR code. To minimize hacking risks, most investors hold 25 percent of their cryptocurrency in exchanges, and 75 percent in cold or paper wallets. Exchanges, hot wallets and cold wallets may provide transaction history statements. These might include a private key. Text strings with 30+ digits starting with S or 5 should have the last 10 digits redacted. (Bitcoin private addresses start with S or 5, other cryptocurrency private addresses start with different numbers; research and redact accordingly.) In camera review can determine if these numbers are private addresses, exchange IDs, or transaction IDs, which look similar. Hot and cold wallets have a master code called a “seed code,” holding all private and public keys in that wallet. This is a list of words, usually twentyfour, in a specific order, all of which are more than four letters long. Seeds

are written down the first time a wallet is used. They can be used to establish that a person owns a hidden cold wallet. However, if you obtain the seed, you can clone the wallet and transfer the private keys it contains. Broadcasting that seed exposes a party to risk. An attorney should never disclose unredacted copies of seeds in discovery or in court. Redacted copies should ALWAYS have the first four letters of each word in a seed code removed. Paper wallets are the equivalent of physical shares of stock, and attorneys may want to use them as exhibits to establish ownership of cryptocurrency. Unlike a share of stock, paper wallets display private addresses as text or sometimes as a QR code. The mere act of producing a picture of a paper wallet can render it worthless. Attorneys must redact all private keys and QR codes on paper wallets prior to production or use in court. Failing to do so allows someone to write the private key down or take a picture of a QR code, and transfer the private address in an irreversible one-way transaction. If an attorney follows these rules, they can avoid major mistakes that expose both the attorney and their client to significant risk. HN Andrew N. Speer is a family law attorney at O’Neil Wysocki, P.C. He can be reached at andrew@owlawyers.com.

Moms in Law Events June

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 June events are: Tuesday, June 4 CLE: Noon, Belo Mansion “How Men Can Be Better Allies to Working Lawyer Moms,” Alan Greenspan, Michael Hurst, James Stanton, Rob Walters, and Hon. Tonya Parker, moderator. (MCLE 1.00) RSVP at dayl.com Friday, June 28: Noon, The Zodiac Room at Neiman Marcus downtown. RSVP rfitzgib@gmail.com Email christine@connatserfamilylaw.com to join the Moms in Law email listserv.

Holmes Firm PC is proud to announce that Donna J. Yarborough has joined the firm as a shareholder to lead the Estate Administration and Probate Litigation Practice Group (will contests, trust suits, guardianships and fiduciary litigation).

Donna is certified by the State Bar of Texas to serve as an Attorney Ad Litem in guardianship proceedings and has spoken regarding guardianship to the Probate Section of the Dallas Bar, the Texas Trial Lawyers Association and the Dallas Young Lawyers Association.

Holmes Firm PC 14911 Quorum Drive, Suite 340, Dallas, TX 75254 469-916-7700 | www.theholmesfirm.com

June 2 0 1 9

Focus

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

Immigration & International Law

Knock, Knock. It’s ICE. Are Your Forms I-9 in Order? BY KELLI GAVIN

Federal law requires employers to verify the identity and employment eligibility of all employees. Failure to do so can result in civil or criminal sanctions. The Employment Eligibility Verification Form I-9 documents this verification. Forms may be inspected by Homeland Security’s Immigration and Customs Enforcement. Below is a hypothetical audit from start to finish: Notice of Inspection: ICE Auditor Smith appears at BigBuilders (BB) on May 1 and serves the owner with a Notice of Inspection. This notice states that BB has three business days to give ICE its original Forms I-9 for all current employees. BB gives 100 Forms I-9 to ICE. • Best practice: Make copies of all Forms I-9 as ICE may have the originals for 1-2 years. This also allows an external auditor to predict what issues may be found and what fines may result. Internal Audit: BB hires immigration counsel. Counsel audits the I-9s and supporting documents retained by BB. Counsel can evaluate potential violations to estimate a fine. Counsel discusses creating policies and procedures that ensure a culture of compliance (I-9 training, E-Verify, internal audits). • E-Verify is a free web-based system that provides an instant employment authorization result. It must be used on all new hires from the time of enrollment but cannot be used to pre-screen or verify current employees. • Best Practice: Make copies of documents provided by employees. While not required, it is highly recommended for internal audit purposes and a good faith defense. Notice of Suspect Documents: Auditor Smith delivers a list of 50 BB employees who

ICE suspects do not have work authorization. BB is given 10 days to ask the employees for alternate documents. BB does not have to disclose to employees that company is under ICE audit. Name discrepancies can cause employees to appear on this list. • Warning: an employee’s name appearing on the Suspect Document list is not grounds for termination alone. During an I-9 audit, employees should only be fired once ICE confirms lack of work authorization or based on another termination reason. • Best Practice: Create a replacement plan now to determine what positions suspected employees hold, which employees can be terminated immediately, how much time is needed to train replacements, and resources for finding a legal workforce. Do not wait for ICE confirmation, planning ahead will lead to better informed business decisions. Notice of Technical and Procedural Errors: Auditor Smith provides BB with a notice concerning Form I-9 technical errors. Proof of completed corrections must be provided to ICE within 10 business days. Substantive errors are uncorrectable; these include: failure to timely complete an I-9 (Section 1- first day of employment; Section 2- three business days from date of hire); failure by the employee or employer to sign the Form I-9; or, missing I-9s. Corrections will usually be made on copies of the I-9s. Original forms may not be returned until the audit is complete. Confirmation of Notice of Inspection Results: ICE confirms that 45 employees do not have authorization and must be terminated in 5 days. BB terminates 20 employees by the deadline. Companies may be civilly fined for any employee retained after the deadline.

Employees may not be kept indefinitely without consequence. Notice of Intent to Fine and Negotiation: BB is issued a Notice of Intent to Fine of $82,200. ICE currently uses fine matrices to calculate violations (regularly adjusted for inflation). Companies may be fined for 1) substantive or uncorrected technical Form I-9 violations, 2) knowingly hiring unauthorized workers, and 3) continuing to employ unauthorized workers. Counsel and ICE attorney will negotiate a settlement agreement. Counsel will request a lower fine and determine the final date of employment for unauthorized workers. A hearing with an OCAHO judge may be requested if negotiations fail. • Calculation method: Divide total violations by total employees to determine violation percentage. Percentages correlate to a monetary penalty that is assessed per violation.

The remaining portion of the fine comes from paperwork violations.

For BB: 25 violations divided by 100 employees equals 25 percent.

• Alternate outcome: If ICE finds that company is compliant, a warning notice may be issued in lieu of a fine. The more employees terminated by the deadline, the better chance of this outcome occurring. • What Else Could Happen? • Raid • ICE audits again • Criminal charges (pattern or practice, fraud, harboring) • IER/DOJ discrimination investigation • Debarment from federal contracts • DOL audit ICE audits can be quite lengthy; even straightforward cases may take more than one year to complete. Employers and counsel should be diligent and move towards compliance before ICE arrives. Worksite compliance impacts all businesses and the laws should be paid the same reverence as filing taxes, following safety regulations, and reporting discrimination. HN

BB will be fined $1,754 fine per employee retained for a total of $43,850 solely for continuing to employ violations.

Kelli Gavin is an Associate at the Law Office of Richard A. Gump, Jr. P.C. She can be reached at kelli@rickgump.com.

DBA Home Project: Volunteers Needed The DBA Home Project is in need of volunteers – both individual and firms/organizations. For more information, go to https://www.facebook.com/DBAHomeProject/

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

June 2019

DBA Celebrates Law Day On May 3, local judiciary and attorneys attended the 2019 Law Day Luncheon at which Judge Karen Gren Scholer was the keynote speaker. In addition to awards presented to the winners of the Law Day Dallas ISD art and essay contests, DAYL presented the Liberty Bell Award (Matt Osborne), Outstanding Mentor Award (Dena DeNooyer Stroh), and Outstanding Young Lawyer Award (Marisa Jeffrey O’Sullivan).

Ave Maria

After forty happy years of service at the Belo Mansion & Pavilion, Maria Martinez has decided at long last to hang up her apron for good. It is a bittersweet decision for Maria, who enjoys the people she works with and the staff of the Dallas Bar Association.

Maria Martinez and Kevin Brant

DBA Bench Bar Conference

“Their kindness, courtesies, and the respect they have shown me has always warmed my heart,” states Maria. “They truly made me feel like a grandma to all. I welcome someone new to take on that role--or of a mom, at least.”

Maria has lived five minutes from the Belo Mansion in the same house for the past fifty years. Her brother Manuel was a manager there in 1978 and asked her if she wanted to work. “Although I was a young mother with small children, I was intrigued, and Belo management was very generous and flexible with my work hours in case I needed to go home and tend to a sick child or emergency. My intrigue grew over the first weeks and months knowing I was working with a special group of people,” added Maria. “One funny memory--at a certain point at the Belo, the ladies dress code called for short skirts. I can’t recall how it happened but during a walk through the atrium I suffered a fall – legs up in the air and all. Those that noticed quickly got up off their chairs and asked if I was ok. I returned to my feet and reassured everyone that I was fine. When I got to the kitchen I screamed! I wasn’t sure if I was crying in pain or in laughter, or the thought that someone may have seen something inappropriate. We all had a great chuckle.” With lasting memories of so many co-workers, but especially Juan, James, Alvaro and Remy, Maria bids a fond farewell and is excited to embark on her next adventure.

SEPTEMBER 25-27, 2019 HORSESHOE BAY RESORT Up to 7 Hours of CLE Excellent Networking Meet your Judges Sponsorships and Exhibit Space

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June 2 0 1 9

Focus

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

Immigration & International Law

Textualism Besting Purpose-Driven Interpretations Results BY DAVID RITTER

On February 27, 2019, the Supreme Court decided Jam v. International Finance Corp. a decision that may hasten the ability of human rights groups and others to bring suits against international organizations and their counter-parties. The case also provides a lesson in the application of sovereign immunity, and establishes that general counsel need to be fully cognizant of the importance of textualism when advising clients as to the effect of U.S. law. Jam involved the International Finance Corp. (the IFC), a member of the World Bank Group, and perhaps the largest institution providing private sector loans for projects in developing countries. One of the projects financed was a coal-fired power plant in an impoverished area in India. People living near the plant, including the eventual plaintiff, complained that the power plant polluted the land, air and water. Ultimately, the plaintiffs sued the IFC in Washington, D.C. Historically, the United States granted foreign sovereigns complete immunity from suit in U.S. courts. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486, 103 S. Ct. 1962, 1967 (1983) (citing The Schooner Exchange v. M’Faddon, 7 Cranch 116 (1812)). Against this backdrop and after World War II, Congress drafted the International Organizations Immunities Act of 1945 (the “IOIA”) to provide international organizations the same privileges and immunities as foreign governments. 22 U.S.C. §288a(d). In the wake of the destruction after World War II, the United States and its allies formed many international and multi-lateral organizations with missions to stabilize the economies of coun-

tries, rebuild nations, and promote international peace and security. The IOIA would provide immunity to the organizations to perform their missions. In 1952, the State Department adopted a more restrictive approach to sovereign immunity, limiting immunity to sovereign acts, and exempting commercial acts. Under this approach the executive branch had leeway in making immunity determinations, and the courts deferred to the executive branch’s determinations. As a result, the decision as to whether to grant immunity was sometimes seen as more of a political decision rather than a legal one. In 1976 Congress passed the Foreign Sovereign Immunities Act (the FSIA), which provided that the judicial branch would make determinations as to whether immunity would apply and whether property could be levied against a foreign sovereign. 28 U.S.C. § 1602. The FSIA codified the State Department’s restrictive approach, providing a general grant of immunity to foreign states, and creating a number of exceptions, including a “commercial activity carried on in the United States” or an act outside the United States “in connection with a commercial activity of the foreign state elsewhere.” 28 U.S.C. § 1605(a)(2). At that time, Congress did not change the IOIA, which simply recognized that international organizations would be entitled to the same immunity as foreign governments. The problem for the IFC and other international organizations is that part of their purpose is to engage in arguably commercial activities,—i.e. the type of activity by which a private party engages in trade or commerce. Without immunity from commercial activities, which existed at the

time the IOIA was enacted, these international organizations essentially are subject to suit in the United States and elsewhere for many of their activities. Several cases against international organizations in the last ten years were ultimately dismissed. The Supreme Court granted cert as it conflicted with OSS Nokalva, Inc. v. European Space Agency, 617 F. 3d 756 (3rd. Cir. 2010) holding that immunity under the IOIA did not exist. Justice Roberts authored the Supreme Court’s 7-1 decision in favor of the plaintiffs. Jam a win for textualism. The Court rejected the purpose driven interpretation that Justice Breyer favored and found that the natural language of the statute should apply. Accordingly, the language in the IOIA, written at a time when foreign sovereigns enjoyed complete immunity from suit, could not remain static when foreign sovereign immunity was dynamic and changing. While the Supreme Court recognized that other protections existed for international organizations, the commercial activi-

ties exception to immunity will make these organizations vulnerable to suit, will require them to devote resources to the defense of such lawsuits, and will make the executives subject to second-guessing with a focus on liability. Certainly, without immunity, accountability of international organizations may increase as a result of threat of suit. Further, counter-parties who contract with such organizations may also be exposed to liability in their dealings with the international organizations, and may be required to analyze their liability exposure. The breadth of the Court’s decision remains to be seen, and whether it will adversely affect the ability of international organizations to pursue their missions. Lawyers who practice in this area should be keenly aware that the Supreme Court will consider the text and natural language of a statute regardless of the purpose of the language when written. HN David Ritter, of Spencer Ritter, can be reached at dritter@ ritterspencer.com.

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

Column

June 2019

Ethics

Think Before You Speak (to the Media): Ethics Opinion No. 683 BY M. KEVIN ANDERS, II

The March 2019 ethics opinion answers the question of whether a lawyer violates the Texas Disciplinary Rules of Professional Conduct by making statements to the news media about a case pending on appeal when the lawyer criticizes the opponent’s litigation tactics and reiterates alleged misconduct underlying the complaint. Even though a minuscule number of our colleagues may ever speak to the media regarding any case, this opinion serves as a reminder of the rules and roles surrounding the extent to which attorneys can speak to the public at large. The facts involved in this opinion surround statements made by a plaintiff’s lawyer about the defendants and their legal strategy on a case pending in the Texas Supreme Court, namely that “the defendants ‘brazenly stole trade secrets worth millions of dollars from

my clients and are now just as brazenly trying to take this case away from a Texas jury,” and that their strategy was “to ‘delay at all costs so their misconduct is never brought before a jury.’” This is the third ethics opinion discussing issues implicated here—the prior two being Opinion 369 (August 1974) and Opinion 631 (July 2013). Opinion 369 addressed the importance of the timing of the speech. Opinion 631 addressed “the manner in which the information is posted.” The facts in the Opinion 631 opinion are similar to those involved here. Texas Disciplinary Rule 3.07 applies to the types of statements made here. Rule 3.07(b) states that “ordinarily … [the] character, credibility, [or] reputation” of a party are generally impermissible categories for statements. Contrast this with Rule 3.07(c), where “ordinarily … the general nature of the claim or defense … [or] information contained

Register now for the SBOT 2019 Annual Meeting The 2019 State Bar Annual Meeting is in Austin, June 13-14. For more information and to register, visit www.texasbar.com/annualmeeting.

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in a public record” are permissible categories for statements. The applicable test, found in 3.07(a), is whether or not there is a “substantial likelihood of materially prejudicing an adjudicatory proceeding.” As with most cases involving the First Amendment, the specifics of each individual case drive the analysis. Comment 3 to Rule 3.07 speaks to the importance of the flexible nature of the Rule 3.07(a) standard and the “unique considerations” of each case. Even the U.S. Supreme Court has struggled in reaching consensus with the issues involved in these types of cases. In Gentile v. State Bar of Nevada, Justice Kennedy struck down the Nevada analogue to Texas Rule 3.07 as void for vagueness, but Chief Justice Rehnquist upheld the “substantial likelihood of material prejudice” standard. When applied to this standard, the speech involved in this ethics opinion does not violate Rule 3.07. The Committee reasoned that even though an appellate proceeding is an “adjudicatory proceeding,” it is manifestly different from a jury trial where “the likelihood of material prejudice is highest.” In finding no prejudice resulting from the statements, the point the Committee seems to be making is that appellate

justices are not likely to be swayed by public comments by counsel in the way jurors or potential jurors are. This Ethics Opinion provides yet another reminder of the rules and the roles of attorneys. As noted in Gentile, attorneys frequently face restrictions on our First Amendment rights to the freedom of speech so as to facilitate the jury trial process. The trade-off of the rights guaranteed by the Constitution to all at the expense of some First Amendment rights of attorneys is what we signed up for when we became attorneys. The Texas Lawyer’s Creed, while aspirational, also speaks to the speech issues involved here. Point 10 states, “I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety.” While the counsel in this case would undoubtedly argue that there was good cause to make the statements to the media, the case law and Ethics Opinions show that even in the limited cases where speaking to media about these issues can happen, counsel should stop and think about their larger role in society first. HN Kevin Anders is a Project Associate at Level 2 Legal Solutions. He can be reached at kanders@level2legal.com.

Oak Cliff Friday Clinic

Friday, June 28, Noon | MCLE 1.00 “Mise en Place: Preparing for Your Cross-Examination,” Ben Barnes Oak Cliff Chamber of Commerce (1001 N. Bishop Avenue)

Habitat House $90,000

$60,000 $40,000 $30,000 $20,000 $10,000 $5,000

Support the DBA Home Project Help us reach our goal of $90,000 to build our 29th house for Habitat for Humanity. For more information, log on to www.facebook.com/DBAHomeProject or contact Co-Chairs David Fisk (dfisk@krcl.com) or Mike Bielby (mbielby@velaw.com). Make checks payable to Dallas Area Habitat for Humanity and mail donations: c/o Grecia Alfaro Dallas Bar Association 2101 Ross Avenue Dallas, TX 75201

June 2 0 1 9

Focus

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

Immigration & International Law

Taxation of Residents Working Abroad BY VU LE AND JOHN TING

When a foreign national becomes a U.S. resident and then leaves the U.S. to work abroad, he may not be aware that he still has a filing obligation for both income tax and immigration purposes. Failure to file U.S. tax returns of Foreign Bank Account Reports (FBARs), live in the U.S. for at least six months, or remove conditional resident status can result in penalties and revocation of resident status.

Tax Return Disclosure

For tax purposes, a non-citizen resident is treated very similarly to a citizen even if he lives abroad. This means the resident is subjected to U.S. taxation on his worldwide income, from whatever source derived. Hence, even if he is not a citizen and does not live in the U.S., he is still required to file the annual tax return, unless one of three exceptions apply: 1. Final administrative or judicial determination. Even if the resident surrendered his green card, this does not mean that he is no longer a permanent resident. Until he receives an official notice from the United States Citizenship and Immigration Service (USCIS) that there has been a final determination, he is still required to file his annual tax return. A common situation is when the green card expired or the resident has been living abroad for a long time. Unfortunately, living abroad and having an expired green card will not change the requirement, and the resident must continue to file every year. 2. Gross income is less than the amounts required to file tax return. The 2019 amount requiring a tax return filing is

income above $1,050 of unearned income or $12,000 of earned income. For those making above these amounts, a tax return is required. In most cases, the Foreign Earned Income Exclusion or foreign tax credit can be used to reduce any U.S. tax owed. However, the resident must file a tax return for the exemption and credit to apply. 3. Tax treaty. First, the resident must find out if there is a tax treaty between the U.S. and his current residence country. If there is no treaty, the resident will be subject to both the U.S. and the residence country governments. Luckily, and if applicable, a foreign tax credit will help to offset some of the taxes owed. If there is a tax treaty between the U.S. and his residence country and the resident meets the “tie-breaker” rules, the resident can make an election to excuse the tax filing requirement. To make the election, the resident must file a U.S. nonresident alien income tax return in the year of the election and attach Form 8833 (Treaty-based return position disclosure). Treaty analysis should be handled by an international tax professional.

FBAR Disclosure

The resident must also disclose his foreign financial accounts above the FBAR limit or be subject to heavy penalties. Even if the resident does not need to file a tax return, if he owns assets above the yearly limit, he is still required to file an FBAR. Failure to file either the income tax return or the FBAR affects monetary penalties and the resident’s immigration status when he applies for naturalization. Remember, one must show that he is in good tax status.

Immigration Disclosure

A resident living abroad may run into issues of forgetting to maintain status in one of several scenarios. If a resident wants to naturalize to become a U.S. citizen, he must prove that his absence did not demonstrate abandonment of lawful permanent resident status or break the statutory period for continuous residence. Specifically, he must have continuously resided for 30 months in the U.S. if status was not obtained through marriage or 18 years of age if through marriage. The trigger is whether a trip lasts six months or longer. If your client shares that he may be outside of the U.S. for an extended period, then he will need to apply for a reentry permit. This requires planning ahead as USCIS takes on average three to five months to process the applications. Even though the resident card may generally suffice for reentry, a reentry permit

is proof that he did not abandon his status. It is not unusual for immigrant clients to return to their previous country for a significant time to maintain their foreign business. A second scenario is that a conditional resident often forgets to file an application to remove those conditions for USCIS to eventually approve and grant permanent resident status when he is living abroad. Failure to file such application will result in a removal proceeding with the Executive Office of Immigration Review because he failed to maintain his status. If a person became a conditional resident through marriage to a U.S. citizen, then he needs to show proof of a bona fide marriage, which may be difficult if one spouse has been living abroad and did not plan ahead. HN Vu Le, of Le Tax Law PLLC, can be reached at vle@lelawgroup.net and John Ting, of Ting Law Group PC, can be reached at john@ johntinglaw.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

June 2019

Q&A with Cerenade BY MICHELLE LOWE

LawPay partners with others in legal tech companies, including Cerenade. I caught up with Cerenade’s Ray Herrera recently for insights on how technology can help immigration attorneys and their clients. What problems do electronic forms and online payments solve for immigration attorneys? Computers and smartphones have changed how we do things, both in our personal lives and business. What once needed to be done at the office, or in person, is now accessible from anywhere. By having an electronic forms solution and accepting online payments, not only does it give you flexibility to work from anywhere, but it also means the ability to have these documents readily available. It also gives you the option of accepting payments from anywhere. How do clients benefit from techenabled law firms? For clients, the option to fill out a form online or pay with a credit card makes it easier on them and the attorney. No more need to travel, which in immigration law,

can mean visiting another city, state, or country in some cases. If the attorney needs your info, she will send you a questionnaire for you to answer online. If she requires payment on an invoice, the attorney will guide you to the proper location where you will input credit card and other sensitive information securely online. Without electronic forms and online payment options, this requires the client to make a trip to the attorney’s office, sometimes spending hours each visit. On that note, how can attorneys use technology at work and still show compassion to clients? On the surface, using e-forms and e-payments might seem like there’s “less face time” with your client. But if you dig a little deeper, aren’t you making life easier for the client? Most of your clients work business hours of 9 to 5 which coincide with your business hours. Without an e-forms and online payments solution, they would have to visit your office meaning they have to request time off work. In a perfect world we would think all employers cover time-off for important things like this but that’s not

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always the case. In most cases these clients are living paycheck to paycheck and are sacrificing needed income so they can visit your office. Why not use technology so they don’t run into these situations? So, not only do they not have to request a day off, but now they can do everything on their time. You will still be there along the way, sending them emails, making phone calls, ensuring that they get the best service. What does going ‘paperless’ mean for an immigration law firm? Immigration attorneys aren’t always in the office. We have a lot of users who spend a good amount of time outside whether visiting courtrooms, conferences, visiting law enforcement, and visiting clients. Going paperless not only means saving on those reams of paper, but it also means having instantly accessible files. If you are still using a paper system, finding a file might require you to go through numerous file cabinets, which can be time consuming. By going paperless, you have all your files inside one system where they are readily available to be accessed or

worked on. And because most technologies are “cloud based,” you can access those documents from any computer, tablet, or smartphone. Going paperless means fewer delays, and more productivity. This will come in handy when you need a colleague or paralegal to do a task ASAP so that you can have that document within seconds wherever you are. Time is money and the more time wasted on not having things readily available can cost you in the long run. What is your #1 recommendation for immigration attorneys interested in using more technology in their practices? In theory, yes, you can run a law firm without any practice or case management software, but think of the time wasted during the day. Think of the tasks you have to try to remember. Think of important deadlines you cannot let pass. That is a lot of info to try and remember. Why not get software that helps with all of that and more! HN Michelle Lowe is LawPay’s finance and tech expert. Visit lawpay.com/dallasbar.

NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/lawyerreferralservice or call (214) 220-7499.

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June 2 0 1 9

Focus

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

Immigration & International Law

The Overlap Between Immigration Law & Employment Law BY LISA SOTELO

Immigration and employment attorneys navigate in overlapping practice areas. The shared turf of the employment relationship is something that should align our parallel universes more closely, particularly given the exposure to liability as our government works to both toughen immigration enforcement while at the same time strengthen worker protection regulations. In representing both management and labor forces, we generally engage with the same decision makers in the human resources and legal departments. We each manage issues that involve avoiding conflicts of interest, defining the scope of legal representation, and complying with government regulation of the employment relationship. Further, our specialties are codebased and affected by sporadic issuance of policy memoranda or press release that serve as binding guidance. We must each navigate through administrative and bureaucratic agencies that are so dispersed in its oversight responsibilities that often conflicting or inconsistent decisions make workforce prediction and planning a minefield of uncertainty. What follows are some common overlapping areas that should be considered by both practice areas.

I-9 Reverification, Record-keeping & AntiDiscrimination Compliance

The Immigration Reform and Control Act of 1986 (IRCA) requires that employers verify that all employees, regardless of nationality, hired on or after November 6, 1986, are authorized

to accept employment in the U.S. In cases involving foreign nationals with temporary work permission, employers must ensure that those employees maintain valid work authorization through the duration of their employment. The form used to collect this data is Form I-9, a deceptively simple document often bundled with newhire onboarding materials. However, slack corporate compliance policies on employment eligibility verification can produce significant error rates in Form I-9 completion, which in turn can result in civil and criminal liability, brand damage, and workflow disruption when things go amiss. Additionally, with the ebb and flow of changing administrations and their respective priorities regarding immigration and worksite enforcement, employers may be faced with worksite raids and unwanted negative press coverage for non-compliance. In addition to potential liability for knowingly hiring unauthorized foreign nationals, employers are also subject to liability in other areas: federal contractors face one-year or longer contract bars for knowingly hiring unauthorized workers; an employer’s tax and withholding obligations can be affected by I-9 verification issues; and, discrimination claims may be brought for employer over-documentation or requesting particular documents in the I-9 verification process. Forethought in this area is important, particularly if an employer must defend itself against an I-9 investigation by the United States Citizenship and Immigration Service (USCIS), the Department of Labor (DOL), or the other law enforcement agencies. Developing a comprehensive corporate policy on employment eligibility verification that incorporates

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both immigration and employment law considerations is key.

Professional Employer Organizations

Outsourcing HR functions to professional employer organizations (PEOs) can result in situations where a foreign national, for whom the company submitted a petition with USCIS, may actually be paid and nominally employed by another entity. Outsourced payroll and HR functions puts the PEO at risk of being deemed a co-employer for immigration purposes, and this can also have negative implications for the foreign worker and his petitioning employer. Carefully defining the employer-employee relationship may involve a closer look by experts in both practice areas.

Employment Litigation

Immigration legal issues are prevalent in employment suits. Terminated workers may claim that the firing arose out of retaliation for objection to violation of immigration law, namely, failing to pay H-1B required wages or the prevailing wage in a labor certification case. Workers’ compensation and back-pay claims brought by foreign nationals make clear that immigration status—lawful or not—does not preclude employer liability. In other claims involving negligent hiring, negligent entrustment, wrongful death, etc., the courts have found that the probative value of immigration status, even if marginally relevant, is highly prejudicial and generally not admissible in an employer’s defense. Further, Eng-

lish-only policies can be wrought with liability if not carefully constructed and compliant.

Employment-based Immigration Sponsorship

Nonimmigrant work visa categories provide strategic hiring options for professional workers, corporate transferees, investors and traders, students and trainees, and workers with essential skills or specialized knowledge. USCIS also authorizes employment for various other foreign nationals such as those seeking asylum or pursuing permanent status through a family member, to name a couple. Employment attorneys must keep close watch on changed employment circumstances that would affect a foreign national’s work authorization such as promotions, demotions, job transfers or entity restructuring. Failure to understand the terms of the sponsorship and the immigration implications of changes in the employment of a foreign national can result in considerable liability for an employer. Understanding and identifying the overlap of immigration and employment law is critical to providing innovative strategies for your clients. Aligning with counterparts in both practice areas strengthens your arsenal and sharpens your talons—both needed to win cases and assist in accomplishing your clients’ overarching objective of global mobility management. HN

Lisa Sotelo is a Partner at Elise Healy + Associates, pllc and can be reached at lsotelo@ehealylaw.com.

Seasoned, Responsive Immigration Lawyers

JULIA PENDERY

Julia Pendery is Of Counsel with Cowles & Thompson. How did you first get involved in pro bono? When I rejoined Cowles & Thompson in 2016, they regularly forwarded the DVAP list of available pro bono cases. I was interested, but my areas of expertise are civil appeals and eminent domain, so those were not likely to be needed by DVAP. I thought I could pick something fairly simple and learn it from the DVAP attorneys, which I have. Describe your most compelling pro bono case. I helped a man in his fifties who had been living on $800 a month Social Security disability due to a head injury he sustained in high school. When we first met, he put my hand on his skull to feel the large crack in it. I soon realized he had significant mental dysfunction and had been taken advantage of. A woman had married him and opened a joint account, into which she had his monthly benefits deposited. Then she left him and arranged to have his benefit check deposited into a new account, which was controlled solely by her. She had also gotten credit cards in his name and maxed them out, and took his car. He was subsisting by giving blood, finding a few odd jobs, and staying with friends or on the street. She fought the divorce at first, but realized it was in her best interest to sign the papers. Along with his divorce, he got his benefits (and a bit of his dignity) back. Why do you do pro bono? It truly is “billable hours for the soul.” Every time I help someone get divorced, they get to start a whole new chapter of their life. They are always so grateful, and I rejoice in it with them. Many have been separated for years but could not afford to get a divorce, or the spouse had gone to jail, moved out of state, etc. Until they went to a DVAP clinic, they had thought they could never get out of the marriage and had put their lives on hold.

Lisa Sotelo

Elise Healy

Strategic Immigration Solutions for Employers and Investors

What is the most unexpected benefit you have received from doing pro bono? Pure joy when I get a hug from a person who has been freed to start fresh.

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

ELISE HEALY + ASSOCIATES pllc

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

900 Jackson Street, Suite 150 Dallas, TX 75202 214.545.3050 www.ehealylaw.com

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

Column

June 2019

In The News

KUDOS

LeElle Slifer, of Burns Charest LLP, has been named Partner. Tom Melsheimer, of Winston & Strawn, has been inducted as a Fellow of the American College of Trial Lawyers. Quentin Brogdon, of Crain Lewis Brogdon, LLP, was inducted as a Fellow of the American College of Trial Lawyers. Past DBA President Al Ellis, of Sommerman, McCaffity, Quesada & Geisler, L.L.P., has been honored as a Legal Legend by the Dallas Trial Lawyers Association. Also honored were Frank Branson, of The Law Offices of Frank L. Branson, P.C.; Ted Lyon, of Ted B. Lyon & Associates; and Windle Turley, of Turley Law Firm.

ley Terrell received the AALS Trailblazer Award, Judge Tonya Parker received the AALS Distinguished Jurist Award and Rhonda Hunter received the AALS Outstanding Achievement Award. Marc C. Lenahan, of Lenahan Law, P.L.L.C., is Chair of the National Compassion Fund. Jerry C. Alexander, of Passman & Jones, P.C., was selected chair-elect of the State Bar of Texas Board of Directors. He will take office during the State Bar of Texas Annual Meeting to be held June 13-14 in Austin. He will serve as chair until June 2020. Chad Baruch, of Johnston Tobey Baruch, P.C., received the Texas Bar College Jim Bowmer Professionalism Award.

Tom Leatherbury, of Vinson & Elkins LLP, has been inducted as a Fellow of the American Academy of Appellate Lawyers (AAAL).

Art Anthony, of Locke Lord, received a Heman M. Sweatt Award from the National Bar Association.

The State Bar of Texas African American Lawyers Section awarded the following at the 4th Annual Summit & Awards: Wes-

Katharine Battaia Clark joined Hedrick Kring, PLLC as Partner.

ON THE MOVE

Join Us for a Sister Bar Social Thursday, June 27, 6:00-8:00 p.m. at Network Bar in Trinity Groves

Perry Cockerell has opened Perry Cockerell, P.C., 8300 Douglas Avenue, Suite 800, Dallas, Texas 75225, (972) 752-3153. Jonathan Bull joined Jackson Walker LLP as Partner. Claire Wiswell joined Hiersche, Hayward, Drakeley & Urbach, P.C as a commercial litigator. Lauren Gilbert joined Cordell & Cordell PC as a litigation attorney. Rachel Rizzieri joined Adam L. Seidel, PC as Associate. Craig R. Novak has joined Friedman & Feiger, LLP as Partner. Alison L. Battiste joined Munck Wilson Mandala as a senior associate. Former Judge W. Royal Furgeson and Marcellene Malouf have opened the firm Furgeson Malouf Law PLLC located at 6125 Luther Lane #439, Dallas, Texas 75225. (972) 765-1959. Caleb Davis and John Sigety joined Kane Russell Coleman Logan as Associates. David D. Johnston and Brandy BaxterThompson have joined Lan Smith Sosolik, PLLC, as Partners Meagan Martin Powers has opened the firm of Martin Powers & Counsel, PLLC at 6363 N. State Highway 161, Suite 450, Irving, Texas 75038. (214) 612-6474.

Mark Werbner joined Winston & Strawn LLP as Partner. Former Justice Douglas S. Lang joined Dorsey & Whitney LLP as Of Counsel. Catherine Schraegle joined The Bassett Firm. Former Justice Elizabeth Lang-Miers joined Locke Lord as Partner. Jonathan Aldaco and Brian Memory joined Spencer Fane LLP as Associate and Partner, respectively. Charles M. Hosch, Kathryne (Kate) M. Morris, and Russell (Russ) B. Pearlman have launched Hosch & Morris, PLLC, a data privacy and technology boutique law firm. Charles R. Gibbs, Mark Lewis Patterson, and Eric C. Seitz joined Katten Muchin Rosenman LLP as Partner and Special Counsel. respectively. Kurt W. Greve joined Lathrop Gage as Of Counsel. Christopher Espinosa and T. Glenn Ingram joined Stacy | Conder | Allen LLP as Associates. 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

Hosted by the Dallas Association of Young Lawyers, Dallas Asian American Bar Association, Dallas Bar Association, Dallas Hispanic Bar Association, Dallas LGBT Bar Association, Dallas Women Lawyers Association, and J.L. Turner Legal Association Thank you to our event sponsor O’Neil Wysocki Family Law

254 That’s how many counties are in the 3rd LARGEST LEGAL COMMUNITY we call home. This year’s Texas Courthouse Guide is the only directory you need for vital contacts in the federal, state, district and county courts. We researched and received than 1,500 updates on the information you seek: court coordinators, clerks, administrators, and more.

Order at www.TexasLawyerBooks.com or call 800.756.8993

SIGN UP FOR THE 2019 DBA 100 CLUB! What is the DBA 100 Club? The DBA 100 Club is a special membership category that recognizes firms, agencies, law schools and organizations that give 100% membership support to the DBA! What is the cost to join the DBA 100 Club? It’s FREE! How do you join? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments can qualify if all of their Dallas office attorneys are DBA members. To join the 2019 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@ dallasbar.org. Once approved, we will add your organization to the 2019 DBA 100 Club member recognition list! What are the perks? Our 2019 DBA 100 Club members will be recognized in Headnotes, the 2020 DBA Pictorial Directory, and at our Annual Meeting in November. JOIN TODAY!

June 2 0 1 9

Classifieds

D al l as Bar A ssoci ati on l Headnotes 23

June

EXPERT WITNESS

Economic Damages Experts - Thomas Roney has more than thirty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” Economic Damages Experts-GMCO Litigation Damages Firm. Economic Damages Valuation Experts. GMCO a CPA firm with significant testifying experience. George Mendez CPA CVA has more than twenty years’ experience providing economic damages, lost profits, damage calculation testimony in court, deposition and arbitration. The firm provides services regarding commercial damages, lost profits, intellectual properties, employment, personal injury/lost earnings wrongful death, and insurance litigation. George Mendez has experience in most industries including energy/oil & gas, manufacturing, transportation, hospitality, service, distribution, and construction. GMCO serves attorneys in Dallas/Ft. Worth, Houston, Austin/San Antonio. Contact George Mendez CPA CVA. Dallas/Ft Worth (469) 248-4477 or Houston (713) 8925037 experts@georgemendez.com

OFFICE SPACE

Lakewood Office: Prime Location. 2014 Skillman. Only 12 minutes from the Dallas County Courthouses. 2,557 square feet. Furnished. Lobby. Conference Room. Fully Equipped Kitchen. 5 Sepa-

rate Offices. File Room. Plenty of Free Parking. Call Craig (214) 559-3131. Office space available at 4303 N. Central Expressway for lease in a professional legal environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax copy machines, notary, Internet, two conference rooms, two kitchen areas and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa at (214) 696-9253. Office space available at 4054 McKinney Avenue. Second floor suite with three offices and file room. This space is 1127 sq/ ft and rents for $1,878.00 per month fixed rate. Two single offices available starting at $400.00. Call (214) 520-0600. Legacy & Tollway, Plano. Business law firm has up to 3 offices available for sublease. Reasonably priced. New building, near Legacy and the tollway in Plano, in the “5 billion dollar mile”. Kitchen, lobby, and free parking. The offices are offered furnished or unfurnished. Possibility of some legal work referrals. Email Jim at: Jim.Havarford@gmail.com. Private offices designed for attorneys available at 75 & NW Hwy - Class A High Rise. ENGAGE is an innovative attorney-only workspace. Plug in to a secure & professional environment with mail/parcel handling, guest reception, conference rooms, free garage parking, office/ kitchen amenities, and networking opportunities. Contact Chelsea at (214) 8657770 or chelsea@engagelawspace.com. Looking for an officemate – 3 offices available; secretarial/legal assistant stations, two conference rooms, Wi-Fi, copier/fax, 24 hour security in building, located at Meadow and North Central

Expressway; entire 3099 square feet can be subleased as well. Contact Leslie@ HopeFamilyLaw.com LBJ Freeway & Coit – Full Second floor! Approximately 12,000 sq. ft. of shell space available, glass window perimeter. Ready to be built to suit your needs. Prime location and visibility from LBJ Freeway. Easily accessible from Far North Dallas and Downtown via North Central Expressway. First floor lobby, entranceway, and parking lot newly remodeled for a welcoming, impressive feel. Please e-mail management@8001lbj.com for a tour or further information. Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference room. 2608 Hibernia Street, 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & Internet. Phone (214) 987-8240. Office space – N. Central Expressway and Royal Lane Area. 1 office with legal assistant work space, 1 conference room, Wi-Fi, and copier. Location is convenient to Dallas County and Collin County courts. Please call Lisa at (214) 837-7103.

OFFICE SPACE WANTED

Solo business litigation/appellate lawyer would like to sublease office space from a solo, small, or medium sized firm that practices business litigation. Ability to share a secretary a big plus. There is a possibility that I may have some overflow work. Leave message at (214) 213-8701.

POSITIONS AVAILABLE

Ready to Own Your Practice? Palmer & Manuel, PLLC provides a platform in

iconic Campbell Centre where you get to do what you love – practice law while we handle the administration and logistics. Run your practice and be an entrepreneur as part of our well-established group of respected and collegial attorneys with varied practice areas. Keep 95% of your fees plus earn on your internal referrals. Reasonable fixed overhead covers rent, legal assistant (or bring your own), office administrator, PCLaw/ProDoc, Lexis, phone, Internet, website, parking, malpractice insurance, etc.). See www.pam law.com or contact Larry, Marty, or Jeff at (214) 242-6444. Dallas civil litigation firm seeks attorney with one to five years’ experience. Candidate must have excellent writing skills and a minimum of one year of civil litigation experience. Compensation is negotiable. Clientele a plus. Submit resume in confidence to oaklawnfirm@aol.com

SERVICES

The Attorney’s Therapist: Kate Casey, LPC, JD. As a former practicing attorney, Kate understands the overwhelming feelings of stress, burnout, and isolation that often accompany the art of balancing life with the practice of law. Kate will help you evaluate your choices, identify areas for change, and implement an achievable plan which will allow you to become the best version of yourself both at work and home. Autumn Ridge Counseling and Wellness is conveniently located at 270 Miron Drive, Suite 112 in Southlake. Kate can be reached at (817) 881-1914 or Kate@AutumnRidgeLPC.com or AutumnRidgeLPC.com. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@ dallasbar.org.

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

ROB CRAIN

SARAH ROGERS

June 2019

CHRIS LEWIS

JOHN SPILLANE

QUENTIN BROGDON

LUKAS GARCIA

BILLY MCGILL, Of Counsel

Crain Lewis Brogdon– By Your Side When life takes an unexpected turn, it is natural to be overwhelmed with anxiety and questions. This is particularly true for people needing a personal injury or criminal defense attorney. At Crain Lewis Brogdon, we help clients navigate difficult times while maximizing their results. We stand by our clients with the same commitment and zeal we would for our own loved ones. We appreciate you trusting us with your referrals.

crainlewis.com | 214.522.9404 Personal Injury | Criminal Defense