May 2021 Headnotes by Jessica Smith

Dallas Bar Association

HEADNOTES |

Focus | Solo & Small Firm and Mergers & Acquisitions

May 2021 Volume 46 Number 5

Innovations in Diversity, Equity, Inclusion & Belonging

DBA Board Votes to Change the Name of the Belo Mansion STAFF REPORT

On March 24, the DBA hosted part two of: “Why It Matters: Innovations in Diversity, Equity, Inclusion & Belonging,” with speakers (left to right): Riqui Bonilla, Jill Louis, Sakina Foster, Stacey Maris, Vicki Blanton, Phil Kim, and Albert Tan. The program accompanied the release of the Allied Dallas Bars’ Diversity Survey, which can be viewed at www.dallasbar.org.

Focus

On April 15, the DBA board unanimously voted to change the name of the Belo Mansion. As mentioned in the article in last month’s Headnotes, this vote followed a thorough review process that began in 2020, and came after the recent announcement by A.H. Belo Corporation that it will seek shareholder approval to change its name to DallasNews Corporation. The DBA board, in consulta-

tion with and support of the Dallas Bar Foundation, will move forward to change the name of the building. The DBA leadership, the Dallas Bar Foundation, and Culinaire International, the building’s events and catering vendor, will work in conjunction with a strategic planning company to strategize possible concepts and names to select the best name for the building. That decision should be made within the next four months. HN

Solo & Small Firm and Mergers & Acquisitions

Creating Systems & Workflows for Running an Efficient Law Firm What Must We Do?

BY KEVIN B. ROSS

Do you run your law firm or is your law firm running you? Creating systems and workflows for your law practice will put you back in control of your firm and help ease the stress and anxiety caused by running a firm without guidelines. Systems and workflows that are followed and properly executed will make you and your law firm more effective and efficient. However, there are three prerequisites needed to accomplish your goal of creating and executing systems and workflows: 1. Self-discipline 2. Intentionality 3. Execution Think about how many different “hats” you wear in your firm. For instance, are you the office manager, receptionist, bookkeeper, marketer, salesperson, IT, paralegal, and lawyer? Multitasking without systems and workflows in place can lead to mistakes, missed deadlines, and client dissatisfaction.

Systems and Workflows

A System is: “A set of detailed methods, procedures, and routines created to carry out a specific activity, perform a duty, or solve a problem.” A Workflow is: “Progression of steps (tasks, events, interactions) that comprise a work process, involve two or more persons, and create or add value to the organization’s activities.”

We have to transfer the systems and workflows already in our head to a written format. Why? 1) No one can read your mind; 2) Trying to constantly remember steps and processes causes stress and anxiety; 3) Time is wasted by having to think about the same thing over and over; and 4) It lets others know how things are done, where things are, and what to do in any given situation.

3-Steps to Creating a System and Workflow

• Step 1: Identify what you need to systematize and create workflows for. • Step 2: Write down the reasons behind the What. • Step 3: Draft the steps involved to accomplish the What.

Looking at the What

Systems and Workflows are needed for: Client Intake, Case Workup, Client Communications, Incoming/Outgoing mail log, Pleadings, Accounting, Billing/Time Tracking, Collections, Marketing, Trial Preparation, Proofing Documents, E-Filing, etc.

Answering the Why

This step is important because it causes

Inside 8 ADA Compliance for Solo and Small Firm Lawyers 12 Mental Health Awareness Month 21 Subchapter S Corporation Targets in M&A Transactions 23 A Solo Practioner’s Reflections and Gratitude

you to commit to the purpose of the system and workflow. The purpose is what gives you the will and motivation to create and execute. Why is the system or workflow valuable, how does it help, what will it do when executed? This is the value of the system.

and effectively. • Provides the client with a tangible look at the value of your services. • Provides the client with the perspective of what it takes to handle the matter. • Provides the client with peace of mind that the matter is handled correctly.

Doing the How

How Systems and Workflows Benefit the Lawyer

How do you create a system and workflow? Here is a practical approach: 1. Keep a legal pad or notebook with you throughout the week. 2. As you work on a task, take the time to write down the steps you take to complete the task. (Be detailed so someone who has never done the task can follow the steps to accomplish the task). 3. Go back and tweak the steps and create a checklist. 4. Name the system/workflow and categorize it for easy reference. 5. Give the checklist to someone else and see if they can replicate the process the way you intended.

How Systems and Workflows Benefit the Client

• Gives the client confidence in your ability. • Gives the client a glimpse into how you handle your cases. • Gives the client confidence that their matter will be handled efficiently

• Gives you confidence in your ability. • Gives you confidence that the client’s matter will be handled efficiently and effectively. • Gives you confidence that your business operations run smoothly. • Gives you peace of mind. • Reduces stress, anxiety, and worry. • Reduces mistakes. • Reduces missed deadlines. • Reduces wasted time. • Allows you to scale your law practice. • Allows you to delegate common tasks that are not defined as “legal” in nature. Take the time to create and execute systems and workflows in your law firm. It will make all the difference in turning your law firm into a place you love to work at, and will put you back in control of running your firm, rather than your firm running you! HN

Kevin B. Ross, of the Law Office of Kevin B. Ross, P.C., may be reached at kbr@rosscrimlaw.com.

Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee

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

May 2021

All programs are presented virtually. Check the DBA Online Calendar (www.dallasbar.org) for webinar links and the most up-to-date information.

Calendar May Events

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

ASIAN AMERICAN & PACIFIC ISLANDER HERITAGE MONTH

May is Asian American & Pacific Islander Heritage Month. For additional Heritage resources, visit the ABA’s website at https://bit.ly/3lPPCdG. To find out more about the Dallas Asian American Bar Association, visit www.daaba.org. For more on the DBA’s Diversity Initiatives, log on to www.dallasbar.org.

MAY 7 Noon

FRIDAY CLINICS “The Doctor and The Lawyer: A Prescription for Mental Wellness Fighting Stress, Depression and Anxiety in The Legal Profession,” Dr. Madhukar Trivedi and Ryan Waller. (Ethics 1.00)* Co-sponsored by the CLE and Peer Assistance Committees.

Noon

6:00 p.m. Intellectual Property Law Section Young Lawyers Committee IP Trivia Night. (MCLE 1.00)*

Franchise & Distribution Law Section “Basics of Blockchain and its Future Use in Distribution,” Taylor Rex. (MCLE 1.00)*

FRIDAY, MAY 7

Tax Law Section Topic Not Yet Available

Friday Clinic “Cryptocurrency and Blockchain,” Gavin Fearey and William Magnuson. (MCLE 1.00)*

Corporate Counsel Section “Navigating Labor & Employment in 2021,” Sean McCrory, Steven Rahhal, and Jennifer Youpa. (MCLE 1.00)*

Tort & Insurance Practice Section “D&O Update,” Beverly Godbey. (MCLE 1.00)*

Morris Harrell Professionalism Committee

Noon

Alternative Dispute Resolution Section “Texas Special Judge Statute: An Alternative to Litigation and Arbitration, or What’s so special about Special Judges?” Tena Callahan and Carl Ginsberg. (MCLE 1.00)* DVAP Divorce CLE “How to Do A Pro Bono Divorce,” Elaine Mosher. (MCLE 1.00)*

WEDNESDAY, MAY 5

Noon

Business Litigation Section Topic Not Yet Available

Immigration Law Section Topic Not Yet Available

Mergers & Acquisitions Section “Recent Trends in Rep & Warranty Insurance,” Sarah Mitchell. (MCLE 1.00)*

Home Project Committee

Noon

Solo & Small Firm Section Topic Not Yet Available

Public Forum/Media Relations Committee

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.

THURSDAY, MAY 6 Noon

Construction Law Section “Contractors & Investigations, What to Do When the Law Comes Knocking,” Laurence “Trip” DeMuth. (MCLE 1.00)*

Trial Skills Section “Why Do Jurors Blame the Victim,” Quentin Brogdon. (MCLE 1.00)*

Noon

MONDAY, MAY 24

FRIDAY, MAY 14 Noon

Trial Skills Section “Setting and Preventing Error Preservation Ambushes,” Steven Hayes. (MCLE 1.00)*

MONDAY, MAY 17 Noon

Labor & Employment Law Section “Top 5 Mistakes in Texas Non-Compete Litigation,” Zach Wolfe. (MCLE 1.00)*

Noon

Antitrust & Trade Regulation Section Topic Not Yet Available

International Law Section “Current Issues on Trade Law Enforcement,” Lawrence W. Hanson. (MCLE 1.00)*

Community Involvement Committee

Entertainment Committee

Energy Law Section “Flaring – RRC and TCEQ,” Paul Tough. (MCLE 1.00)* Health Law Section “Healthcare and Antitrust Trends in Recent Hospital Mergers and in Pricing and Other Conduct Demanded by Government Purchasers That May Violate the Antitrust Laws,” Jason McKenney. (MCLE 1.00)* Pro Bono Activities Committee

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.

THURSDAY, MAY 20

DBA 100 Club

Noon

Appellate Law Section “Texas Supreme Court Update,” Justice Rebeca Aizpuru Huddle. (MCLE 1.00)*

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 2021 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 2021 DBA 100 Club member recognition list! WHAT ARE THE PERKS? Our 2021 DBA 100 Club members will be recognized in Headnotes, the 2022 DBA Pictorial Directory, and at our Annual Meeting.

J oin today!

Living Legends Program “Hon. Elizabeth Lang-Miers, interviewed by Jennifer Ryback.” Pre-recorded program. (MCLE 1.00)*

Criminal Justice Committee

Noon

Bankruptcy & Commercial Law Section “Tips and Tricks for Getting Your Subchapter V Case Confirmed,” Areya Holder Aurzada, Hon. E. Lee Morris, Hon. Eduardo V. Rodriguez, and M. Christian Schwartz. (Ethics 1.00)*

Friday Clinic “The Doctor and The Lawyer: A Prescription for Mental Wellness Fighting Stress, Depression and Anxiety in The Legal Profession,” Dr. Madhukar Trivedi and Ryan Waller. (Ethics 1.00)* Co-sponsored by the CLE and Peer Assistance Committees.

WEDNESDAY, MAY 19

WEDNESDAY, MAY 12

Noon

TUESDAY, MAY 18

TUESDAY, MAY 11

Employee Benefits & Executive Compensation Law Section Topic Not Yet Available

FRIDAY, MAY 21

Real Property Law Section “When Real Estate and Divorce Collide: A Real Estate Lawyer’s Primer on Navigating the Murky Waters of Divorce,” Alexandra Geczi. (MCLE 1.00)*

Peer Assistance Committee

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

Government Law Section Topic Not Yet Available

Publications Committee 2:00 p.m. CLE Committee

MONDAY, MAY 10

TUESDAY, MAY 4 Noon

Noon

Bench Bar Conference Committee

Noon

Admissions & Membership Committee

Annual Law Day Program Keynote speaker: Louis J. Freeh. Registration available at www.dallasbar.org or contact lhayden@dallasbar.org.

Dallas Asian American Bar Association “Past, Present, and Future – Hate Crimes, Asian American Jurisprudence, and Civil Rights,” Sumi Cho, Stacy Cho Hernandez, Michael Hillman, Huyen Pham, Eun Kate Suh, Sarah Tejada, Karin Wang, and moderator Vishal Chander. (MCLE 1.50)* Co-sponsored by the Minority Participation Committee.

Blockchain Law Study Group “Update on the Texas Blockchain Council’s Activity at the 2021 Texas Legislative Session,” Dr. Lee Bracher.

THURSDAY, MAY 13

“Cryptocurrency and Blockchain,” Gavin Fearey and William Magnuson. (MCLE 1.00)*

MONDAY, MAY 3

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.

MAY 21 Noon

Family Law Section Topic Not Yet Available

Noon

Science & Technology Law Section “Technology Transfer Today: How the Biotech Revolution Has Changed IP, Ethics, and the Development of New Therapies,” Claire Aldridge and Tracey Davies. (MCLE 1.00, Ethics 0.50)*

Securities Section Topic Not Yet Available

TUESDAY, MAY 25 Noon

Probate, Trusts & Estates Law Section “Judge’s Panel – Dallas County Probate Courts,” Hon. Margaret Jones-Johnson, Hon. Brenda Hull Thompson, and Hon. Ingrid Warren. (MCLE 1.00)*

WEDNESDAY, MAY 26 Noon

Collaborative Law Section Topic Not Yet Available

1:00 p.m. Entertainment, Art & Sports Law Section “Music Legal Issues Boot Camp 2021: New Rules and Remedies.” (MCLE 4.00)* 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.

THURSDAY, MAY 27 Noon

Criminal Law Section “Criminal Defense When Your Client has a Professional License,” Deborah Goodall and Buck Johnson. (MCLE 1.00)*

Environmental Law Section “PFAS Regulations under the New Administration: An Overview of Current and Anticipated Federal and State Regulations for PFAS Under the Biden/Regan EPA,” Dr. Janet Anderson. (MCLE 1.00)*

Intellectual Property Law Section “IP Implications of the Consolidated Appropriations Act, 2021: Trademark Modernization Act and CASE Act,” Robert H. Johnston, III. (MCLE 1.00)*

FRIDAY, MAY 28 No DBA Events Scheduled

MONDAY, MAY 31

DBA Offices closed in observance of Memorial Day

May 20, Noon-1:30 p.m. via Zoom | MCLE 1.50

Past, Present, and Future: Hate Crimes, Asian American Jurisprudence, and Civil Rights Speakers: Sumi Cho, Stacy Cho Hernandez, Michael E. Hillman, Huyen Pham, Eun Kate Suh, Sarah Tejada, and Karin Wang. Moderated by Vishal Chander

Sponsored by: Dallas Asian American Bar Association and the DBA Minority Participation Committee

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.

May 2021

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

May 2021

President’s Column

Headnotes

Taking Care of Each Other BY AARON TOBIN

As lawyers, we fight admirably and passionately for those that need our help. Unfortunately, as a profession we sometimes do a much better job of taking care of our clients than we do of taking care of each other. We are all aware of the statistics and studies that show year in and year out our profession is near the top for members who struggle with anxiety, depression, substance abuse, and suicide. And, most of these studies were commissioned before the pandemic, which has only caused lawyers to deal with increased isolationism and professional uncertainty. Tight deadlines, long hours, an adversarial system, and demanding clients create unrealistic expectations and significant pressure on practitioners. We must continue the conversation on attorney wellness. May is mental health awareness month and a good time for a reminder that if we are not healthy, we will not be in a position to help our clients. Like most important issues facing the profession, an action plan must start with awareness and conversation. Fortunately, there has been an increased emphasis on attorney wellness over the last five years since the ABA published its Path to Lawyer Well-being Report. What that report and many other studies have noted is that the best way we can avoid the pitfalls of our profession is to have open and frank dialogue and to walk this path together. Available Resources: The stigma of mental health and addiction causes many attorneys to fight these battles alone. If a colleague is brave enough to confide in you about a struggle they are having, it could be a signal for help. In that moment it is important to listen, offer help, and if need be, reach out for assistance. Fortunately, there are resources available to assist. The Texas Lawyers Assistance Program (TLAP) has a confidential support line to help if you have questions or concerns related to a situation that you or a fellow colleague is experiencing. The DBA’s Peer Assistance Committee led bravely by cochairs Terry Bentley Hill and Kelly Rentzel, provides valuable assistance to not only those directly in need, but also those who know someone that is in need of assistance. I have learned that these committee meetings are quite often attended by many members who are concerned about a colleague but do not know how to help. If you are unable to make a meeting, check out the Committee’s recently released Top 10 Wellness Tips on YouTube or turn to page 12 to find more resources.

Healthy Habits

Attorney wellness is certainly a much broader conversation than mental illness, addiction, and substance abuse. There are daily habits that we should all practice to live a healthier life. Here are just a few thoughts and habits to help us stay healthy. Practice civility: When we are not collegial and respectful with each other, it promotes a toxic environment in our courts, our law offices, and with each other. It is hard to be productive and remain energized and focused on positive solutions for our clients when incivility becomes pervasive. I

am proud of the Dallas Bar Association’s historical efforts to promote civility and healthy practice habits. It was the DBA who in the late eighties after the Dondi decision developed the words that have now become the Texas Lawyers Creed. Thanks to past presidents Doug Lang and Michael Hurst’s efforts, A Day of Civility, is now state-wide program endorsed by our state’s judiciary, which helps keep us centered and focused on this important healthy habit. When we are civil with each other in the course of the practice, we find more productive solutions for our clients and we calm stress and anxiety along the way. Stay Connected: Now more than ever, lawyers are struggling to stay connected with their firms, their colleagues, and their support systems. Firms should put an increased emphasis on having someone dedicated to reaching out to their lawyers to see how they are doing and what the law firm can do to help with healthy habits. Likewise, bar associations and support groups should also get creative to stay connected to each other. Last year, the DBA quickly transitioned to virtual and remote programming. All of our sections and committees are meeting virtually in order to stay connected with our membership. Many of these committees are adapting the services they provide to maximize connectivity while we exist in a remote environment. For instance, the newly named STEER program (formerly Transition to Law) under the leadership of co-chairs Kelli Hinson and Tim Newman, along with our partner organization the Dallas Association of Young Lawyers, quickly transitioned the format of the programming to put an emphasis on small support groups to help young lawyers transitioning into the practice. These small groups pair seasoned lawyers and advisors with our newest members entering the practice to talk about all areas of the profession, including attorney wellness. These small groups help our new lawyers integrate into the profession and avoid being isolated at a critical point in their careers. Daily Maintenance: Healthy habits are hard to break. Just as you build into your routine habits to help your clients, you should also build in a routine to help yourself. Exercise, healthy eating, proper rest, and breaking away from the job are important maintenance steps to lead to a long and productive career. If you are going to take the time to calendar important firm and client meetings, why wouldn’t you do the same for scheduling the most important agenda item for the day—taking care of yourself. If it is on the calendar, you are much more likely to commit and follow through. As a profession we demand high professional and ethical standards. As the demands on our time and the stakes for our clients continue to rise, it becomes more and more difficult to hit these standards. The only way we will meet our own lofty expectations for our profession is for us to remain committed to continuing the conversation on attorney wellness. If our lawyers are not healthy, then neither is the profession. Let’s take care of each other, and in doing so, we will take care of the profession along the way. Be well my friends. Aaron

2021 LAW DAY CELEBRATION

LOUIS J. FREEH

Managing Director and Vice Chairman, AlixPartners Former FBI Director

Friday, May 21 • Noon - 1:00 p.m. MCLE: 1.00 Ethics

Hosted virtually on Zoom. Register at Dallasbar.org.

Interviewed by: DBA President Aaron Tobin

MONDAY, MAY 3 • NOON - 1:00 P.M. HOSTED ON ZOOM • MCLE: 1.00 SUPPORTED BY: Austin Bar Association Austin Young Lawyers Association Bell County Bar Association Collin County Bar Association Dallas Association of Young Lawyers Dallas Bar Association

El Paso Bar Association Houston Bar Association Jefferson County Bar Association San Antonio Bar Association Tarrant County Bar Association

DALLASBAR.ORG

Elizabeth Lang-Miers

Locke Lord LLP DBA Past President Former Justice, Fifth District Court of Appeals

Interviewed by Jennifer Lawson Ryback McGuire, Craddock & Strother, P.C.

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: Aaron Z. Tobin President-Elect: Krisi Kastl First Vice President: Cheryl Camin Murray Second Vice President: Bill Mateja Secretary-Treasurer: Ebony Rivon Immediate Past President: Robert L. Tobey Directors: Vicki D. Blanton (Chair), Rob Cañas, Jonathan Childers (Vice Chair), Stephanie G. Culpepper, Whitney Keltch Green (President, Dallas Association of Young Lawyers), Marissa Hatchett (President, J.L. Turner Legal Association), Stacey Cho Hernandez (President, Dallas Asian American Bar Association), Hon. Martin Hoffman, Kate Kilanowski, Jennifer King (President, Dallas Women Lawyers Association), Hon. Audrey Moorehead, Javier Perez (President, Dallas Hispanic Bar Association), Hon. Monica Purdy, Lindsey Rames, Kelly Rentzel, Bill Richmond, Sarah Rogers, Mary Scott, Amy M. Stewart, and Mary Walters Advisory Directors: Ashlei Gradney (President-Elect, J.L. Turner Legal Association), Andy Jones (PresidentElect, Dallas Association of Young Lawyers), Jonathan Koh (President-Elect, Dallas Asian American Bar Association), Elsa Manzanares (President-Elect, Dallas Hispanic Bar Association), Derek Mergele-Rust (President, Dallas LGBT Bar Association), and Marisa O’Sullivan (President-Elect, Dallas Women Lawyers Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Chad Baruch, Rebekah Brooker, Rob Crain, Michael K. Hurst, Mary Scott HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: James Deets and Beth Johnson Vice-Chairs: Elisaveta (Leiza) Dolghih and Joshua Smeltzer Members: Logan Adcock, Benjamin Agree, Dallas Andersen, Andrew Botts, David Brickman, Catherine Bright Haws, Ian Brown, Srinivasan Chakravarthi, Lindsay Drennan, Alexander Farr, Dawn Fowler, Candace Groth, Ted Huffman, Neil Issar, Alexandra Jones, Krisi Kastl, Katherine Kim, Brian King, Jared Knight, John Koetter, Margaret Lyle, Majed Nachawati, Keith Pillers, David Ritter, Carl Roberts, John Shipp, Jared Slade, Sarah Spires, Jay Spring, Sarah-Michelle Stearns, Scott Stolley, Robert Tarleton, Paul Tipton, Anastasia Triantafillis, Pryce Tucker, Kathleen Turton, Peter Vogel, Benton Williams, Jason Winford DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Director: Biridiana Avina LRS Program Assistant: Marcela Mejia LRS Interviewer: Viridiana Rodriguez Law-Related Education & Programs Coordinator: Melissa Garcia Marketing Coordinator: Mary Ellen Johnson Membership Director: Kimberly Watson Director of Legal Education: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Araceli Rodriguez Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Star Cole, Tina Douglas, Carolyn Johnson, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Copyright Dallas Bar Association 2021. 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.

May 2021

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

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Column

May 2021

Ethics

The Retainer Paradox BY MARCIA TILLMAN

The issue of advance retainer fees and non-refundable retainers has plagued the legal field for some years. A true retainer is a payment solely for the attorney’s availability and is nonrefundable regardless of how much work is done. Clients like the ability to call up their attorney, frantically request answers to urgent questions, email a document for quick review, or secure immediate availability in the event an employment issue or personal injury problem rears its head. However, it is incumbent on the practitioner to ensure clients understand the difference between a non-refundable retainer and an advance fee, and that any employment agreement specifically distinguishes the two. Any payment meeting the requirements of a

true non-refundable retainer may be designated as such in the employment agreement and deposited directly in the lawyer’s operating account. The State Bar of Texas Professional Ethics Committee in Opinion 431 (June 1986) opined that non-refundable retainers are not inherently unethical “but must be utilized with caution.” Rule 1.04(a) of the Texas Disciplinary Rules of Professional Conduct provides that a lawyer shall not enter an arrangement for an illegal or unconscionable fee, and that a fee is unconscionable “if a competent lawyer could not form a reasonable belief that the fee is reasonable.” Rule 1.04(b) sets forth certain factors that may be considered, along with any other relevant factors not specifically listed, in determining the reasonableness of a fee for legal services. In the case of a non-refundable

Online Annual Evening Ethics Fest Thursday, May 13, 2021 | 5:30 – 8:30 p.m. Ethics 3.00 Free for DBA members! Non-members: $135 To register, log on to www.dallasbar.org. For more information contact Marcela Mejia at (214) 220-7410 or mmejia@dallasbar.org. Sponsored by the DBA Legal Ethics Committee

retainer, the following factor specified in Rule 1.04(b)(2) is of particular import: “the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer…” Opinion 431 described a “true retainer” as follows: “A true [non-refundable] retainer, however, is not a payment for services. It is an advance fee to secure a lawyer’s services, and remunerate him for loss of the opportunity to accept other employment … If the lawyer can substantiate that other employment will probably be lost by obligating himself to represent the client, then the retainer fee should be deemed earned at the moment it is received. If, however, the client discharges the attorney for cause before any opportunities have been lost, or if the attorney withdraws voluntarily, then the attorney should refund an equitable portion of the retainer.” The Committee indicated that a non-refundable retainer is not payment for services but is instead a payment to secure a lawyer’s services and to compensate the lawyer for the loss of other employment opportunities. Many employment agreements provide for an advance retainer fee and an hourly rate for work not yet complete. Any monies received for work not yet complete is an advance retainer fee and is refundable and earned based on work performed and billed at the rate agreed. It is important to inform the client signing the employment agreement with such an advance retainer fee, that the attorney will deposit the fee in a special “trust” or “escrow” account,

also known as an IOLTA (Interest on Lawyer Trust Account). IOLTAs were first established in the United States in the 1980s, and they serve as vehicles for raising money to fund civil legal services for indigent clients. As the attorney works on the case and logs hours spent, the client will be invoiced. Once the work is complete, the attorney may then transfer any earned fees from the client’s trust account into the attorney’s operating account. After the retainer fee is depleted, the attorney may require the client to deposit an additional sum in the trust account to cover additional billable time and expenses per the agreement. If all the issues related to the employment have been addressed, the client may even be entitled to a refund of any of the deposit remaining. Separating unearned client funds into a trust account ensures the true fiduciary nature of the attorney-client relationship. This segregation will not prevent an attorney who intends to misuse a client’s funds from doing so, but will prevent a client’s funds from being seized by a firm’s creditors. Avoid any appearance of impropriety. For solo lawyers, clients, and law firms of all sizes, understanding how client funds should be handled is an important part of maintaining transparency and trust in our profession. Educating clients on attorney trust accounts and related clients’ rights will result in fewer billing complaints and resultant disciplinary reviews. HN Marcia Tillman is a Municipal Judge with the City of Dallas. She can be reached at marcia.tillman@dallascityhall.com.

We built a state-of-the-art Zoom studio with HD broadcast-quality video, audio and lighting for hearings, web conferences, podcasts and client meetings.

Greg McAllister Business and Employment Law

May 2021

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

“In a return to normalcy, Connatser Family Law celebrates the opening of our new office at 2919 Welborn. Convenient location, same great service.”

—Aubrey Connatser

AUBREY M. CONNATSER, PLLC 2919 Welborn Street, Dallas, TX 75219 214 306-8441 | connatserfamilylaw.com info@connatserfamilylaw.com

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

Focus

May 2021

Solo & Small Firm and Mergers & Acquisitions

ADA Compliance for Solo and Small Firm Lawyers BY RICHARD HUNT

If a deaf client requests it, do you have to provide an American Sign Language interpreter at your expense? Do you have to provide braille copies of documents for clients who are blind? You have obligations to clients with disabilities going beyond the general duties imposed by the Disciplinary Rules of Professional Conduct because your law practice is a “public accommodation,” and public accommodations are required to be accessible to those with disabilities as defined by Title III of the Americans with Disabilities Act and Chapter 121 of the Texas Human Resources Code. The obligation is not—as people often believe—limited to larger businesses. A part-time solo practitioner working from home has exactly the same obligations as an international

mega-firm. Those obligations are not always obvious, and the cost of non-compliance can be an expensive lawsuit and the loss of business to your competitors. What does it mean for your practice to be accessible? Let’s start with your physical office, if you have one. If you control your parking, you must have at least one van-accessible parking space close to the entrance. Your entrance, whether your office is an old house or a high-rise, must be accessible to a person in a wheelchair, meaning no steps, a flat area in front of the entrance, a threshold of no more than 1/4”, halls with at least 36” of clear space, and restrooms that meet a host of specifications for the location of toilets, sinks, paper towel holders, etc. Luckily, law office accessibility usually requires meeting only a few of many hundreds of standards in the ADA

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Standards for Accessible Design. Still, those requirements are important and failure to meet them can give rise to a claim under the ADA for injunctive relief and under the THRC for damages as well. Physical offices are not the only thing related to your practice that the ADA requires to be accessible. Your website must be usable by people who are blind, have low vision, are deaf, and even those who have impairments in their ability to type or use a mouse, or those with cognitive impairments for whom distracting content (flashing banner ads, for example) might make use of the website difficult. You may have seen articles or CLE presentations about the legal controversies concerning websites and the ADA. The issues are fascinating, but the bedrock principle is well-established: websites and mobile applications of public accommodations must be accessible. Your marketing budget needs to include making your website and mobile applications genuinely accessible. On the subject of the internet, you may also be responsible for the accessibility of third-party referral and promotional websites like AVVO, LinkedIn, and Lawyers. com. There have been thousands of lawsuits filed against hotels based on deficiencies in the websites of booking services, and eventually a firm that specializes in website lawsuits will turn its attention to lawyers. There are fascinating legal issues here as well, but do you want to be the test case? This is one of many reasons for you to be careful about where you appear online. A website is really just one way to communicate, and the ADA and THRC require that your practice be able to effectively communicate with those who have disabilities. How much time and expense you are

required to spend on accessible communications depends very much on the circumstances. ASL interpreters are not always required for clients who are deaf, but in some situations they may be. On the other hand, you and your staff need to know how to recognize a call placed with a TTY or video relay service so you do not hang up because it sounds like a sales call. You should probably also investigate on-demand ASL interpretation so you are ready if it is required. Braille documents are very rarely required, but in the age of electronic documents you should be able to create accessible PDF versions of your documents so that blind or low-vision clients can read them with a screen reading program like JAWS or VoiceOver. As lawyers, we are required to be communicators and that means we should be familiar with the tools needed to communicate effectively with clients, potential clients, and anyone else who may have a disability. We also have to know how to help our clients when they go to court, appear for a deposition, or participate in mediation if appropriate communications tools are not available. Accessibility under the ADA and THRC is one of those things like trust accounting and keeping time records that just is not that much fun and seems like a distraction from what you went to law school to do. However, just like trust accounting and keeping time records, making sure your law practice is accessible to those with disabilities is not just a good idea (because inaccessible firms lose business), but also a requirement of state and federal law. Think about the issues and make a plan. Today. HN Richard Hunt, of Hunt Huey PLLC, may be reached at rhunt@ hunthuey.com.

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May 2021

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

Focus

May 2021

Solo & Small Firm and Mergers & Acquisitions

M&A Earnouts Increase During COVID-19 Pandemic BY JORDAN BETHEA, PATRICK ROSE, AND KELLY WRAY

The economic ripple effects of the COVID-19 pandemic in the U.S. and around the world have greatly increased uncertainty concerning the condition, performance, and prospects of businesses in a variety of industries. For businesses that are targets of M&A transactions, this uncertainty has exacerbated potential buyers’ already-challenging efforts to value such businesses. At the outset of the pandemic, M&A market participants and commentators generally expected this uncertainty to result in more deals seeing a ‘valuation gap’ (i.e., a difference between the buyer’s and seller’s view of the proper valuation for the business) and argued that these valuation gaps, coupled with still large appetites for M&A, would lead to an increase in the use of so-called ‘earnouts’ to bridge the valua-

tion gaps and push deals forward. Based on empirical data collected and made available from M&A transactions that have been in process or closed during COVID-19, the expected increase in the use of earnouts has materialized. In addition, the market has seen an increase in the portion of the purchase price that is subjected to an earnout. An ‘earnout’ is a contingent portion of the purchase price that is paid after the closing of an M&A transaction if the acquired business meets certain negotiated goals or milestones. Earnout milestones are typically financial in nature, such as achieving threshold revenue or earnings before interest, taxes, depreciation and amortization (EBITDA) targets during a defined period, but can also be operational in nature, such as achieving regulatory approval for a product or opening a new business location. Buyers generally like earnouts because less

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cash is required at closing, and the contingency on payment reduces the risk of overpaying for the business and shifts at least some of buyers’ pricing risk to the sellers based on assumptions of continued post-closing performance of the business (one of buyers’ primary concerns due to COVID-19 and its effects). A seller may entertain an earnout because it allows the deal to move forward, while allowing the seller to ultimately receive its desired purchase price if the business performs as expected after closing. Yet for all the perceived benefits, M&A parties should consider several important issues when negotiating an earnout. First, consider the appropriate earnout period, or the period after the closing during which the business’s performance is measured for purposes of achieving the agreed milestone(s). Earnout periods often extend one or more years after closing. Sellers typically want a shorter period so they can be paid sooner, but must consider what amount of time will allow the business to meet the earnout milestone(s), which may be longer than desired due to continued COVID-19 uncertainty. Second, consider the earnout metrics— a business’s revenue or EBITDA during the earnout period are frequent metrics. If EBITDA is used, parties must consider what earnings, expenses, etc. should be included in (and which should be excluded from) the calculation of EBITDA. For example, a buyer would want to exclude funds from a forgiven PPP loan from revenue in calculating EBITDA, and a seller may want to exclude certain extraordinary or non-recurring expenses incurred under the buyer’s control. To avoid disputes at the end of the earnout period, the covenants

and defined terms in the agreement must be carefully drafted with respect to defining and applying the chosen metric. Parties should consider using an illustrative example of the earnout calculation and its components in the purchase agreement. Finally, a seller is often not involved in the business after closing and almost never maintains control over the business. To maximize the possibility that earnout milestones are achieved, a seller may request certain covenants from the buyer regarding operation of the business during the earnout period and rights of the seller to audit the business’s books. However, a buyer wants maximum flexibility to operate the business it just purchased and generally wants to limit any agreed restrictions on its ability to do so. Given earnouts often result from a buyer’s and seller’s disagreement on the value of the target business, there is inherent potential for dispute. In addition to matters raised in this article, there are many other business and legal issues to consider with an earnout. While trends show that more deals are employing earnouts and more money is at stake in these earnouts due to COVID-19 uncertainty, we will likely see increased M&A deal litigation in the years to come. To mitigate the chance of future litigation, transaction parties using an earnout should consider in detail its terms with their tax and M&A counsel and other advisors, and ensure the agreement is highly tailored to their specific intent, and precisely drafted. HN Jordan Bethea and Patrick Rose are Partners, and Kelly Wray is an Associate, at Baker & Hostetler LLP. They may be reached at jbethea@bakerlaw.com, prose@bakerlaw.com, and kwray@ bakerlaw.com, respectively.

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May 2021

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

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12 He a d n o t e s l D a l l a s B a r A s s ociation

May 2021

MENTAL HEALTH AWARENESS

Mental Health Awareness Month 2021: Crisis Fatigue BY TERRY BENTLEY HILL

Not that I am a genius, but when this whole COVID-19, Pandemic, Coronavirus, Shelter-in-Place, Social Distancing, Face Mask phenomena occurred, I knew the pandemic’s second wave of devastation would be on mental health. Reportedly, emotional distress is up 1000 percent in the U.S., with half of Americans reporting that the pandemic crisis is affecting their mental health. Alcohol use is up; family violence is up; electronic screen time is up; lawyers working longer hours is up; and experts warn this is the tip of the iceberg. In the past 14 months we have added new words to our lexicon (see above), but it is the marriage of “crisis” and “fatigue” that most aptly describes

the oldest of the old and the youngest of the young. We are all tired. Crisis fatigue is chronic stress created by life quakes or life disruptors, which overtime can lead to intense emotions, such as fear, anxiety, and anger. This unrelenting stress can leave people feeling emotionally numb and tired. Symptoms include hyperarousal or high anxiety (easy to spot) or withdrawing or isolation (much harder to spot). Frighteningly, crisis fatigue can precipitate life altering decisions like divorce, job changes, and suicide. Aptly, May is Mental Health Awareness Month, and perhaps it is apropos to take a mental health inventory just like taking an inventory of your business, your pantry and refrigerator, your physical health and all the deposits

from the 2020 postponed vacations. 1. Wait a year before making major life decisions. 2. Share your fears, anxiety, and concerns with a trusted person. 3. Stay connected with friends and family. 4. Preserve routines (make your bed). 5. Limit media exposure. 6. When you arrive home, leave your troubles on the trouble tree. 7. Engage in activities you like to do. Something that will take you to a better place. 8. Turn off notifications on your phone. 9. Practice physical wellness: nutrition, sleep, exercise, and sex. 10. Replace feelings of anger and

hatred with feelings of appreciation and love. 11. Perspective is a choice. We are powerless over people, places, and things, but we can choose how to look at those things. For example, my college roommate’s husband perished in a housefire in October. The morning after watching the house burn down around him, I heard her respond to a comment about how horrible 2020 was. She said, “No, 2020 wasn’t horrible, we’ve had a wedding and grandbaby this year.” 12. Gratitude (Always) HN Terry Bentley Hill is Co-Chair of the Peer Assistance Committee and in July will be Vice-Chair of the Texas Lawyers Assistance Program. She may be reach at terry@ terrybentleyhill.com.

10 Self Care Tips During COVID-19 BY TERRY BENTLEY HILL

1. Stay Active 150 minutes a week of exercise is like taking an antidepressant 2. Take 10 to be Zen Mindful meditation means keeping your head where your feet are. For help with mindfulness try Apps like Calm, The Mindfulness App, Smiling Mind

3. Chat with your Mates Defeat isolation with connection. Schedule social gatherings with friends via Zoom or FaceTime. Check on your colleagues, friends and family. 4. Make a Homemade Meal Nutrition, Nutrition, Nutrition. Make conscious decisions about healthy food. Eat when you’re hungry. Not when you’re stressed.

5. Take a Break from the News Duh

8. Watch or Read Something Uplifting Cat videos are not a fluke

6. Make a Musical Playlist. Create Art Music changes the moods. (Alzheimer's patients respond to music; See Ninety-yearold ballerina react to Swan Lake).

9. Drink Lots of Water Water is like oxygen for our cells. It improves cognition, sleep and energy

7. Declutter for 5 Minutes Instant gratification. No need to tackle that mess all at once.

10. Stop Minding Your Own Business Helping others gets you out of self. The world is bigger than our individual universe.

TLAP SERVICES ADD THESE TO YOUR READING LIST: By Their Side & Working By Their Side Lara Lyn Bell Depression, Anxiety, and Other Things We Don’t Talk About, Ryan Casey Waller People Can’t Drive You Crazy if You Don’t Give Them the Keys, Mike Bechtle The Self-Care Solution, Dr. Jennifer Ashton When Life Feels Like a House Fire, Marcy McKay The Dance of Connection, The Dance of Anger & The Dance of Intimacy, Harriet Lerner The Best Lawyer You Can Be: A Guide to Physical, Mental, Emotional and Spiritual Wellness Stewart Levine Shhh! Don’t Talk About Mental Health, Arjun Gupta

l Custom CLE program l Confidential Services l 24-hour hotline and crisis counseling l Confidentiality and immunity protections under Texas Health and l Peer contact and support Safety Code, Chapter 467 l Referral to resources including lawyer l Consultation and compliance support groups services relating to TDRPC, Rule 803 l Stress management education “Reporting Professional Misconduct”

Outer Order, Inner Calm, Gretchen Rubin Gift from the Sea, Anne Morrow Lindbergh Don’t Overthink It, Anne Bogel Maybe You Should Talk to Someone, Lori Gottlieb The Midnight Library, Matt Haig A Girl Walks Out of a Bar, Lisa Smith

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Thank you for your support of the Dallas Bar Association!

May 2021

D al l as Bar A ssoci ati on l Headnotes 13 MENTAL HEALTH AWARENESS

Taking Wellness to Work BY KELLY RENTZEL

It is difficult to speak about mental health no matter where you are. It is even tougher at work. Even after delivering dozens of speeches on the subject, I find myself instinctively whispering when I tell people I have bipolar disorder and have to laugh at myself. If I have so much trouble, how can one start a wellness conversation at work?

Step 1: Don’t Shut Wellness Talk Down Before It Starts

Even if it hasn’t come up directly, you have probably already heard coworkers talk about mental health. I have been told the following in past workplaces (not while working for my current employer): “He’s being treated for depression—I guess he couldn’t handle the pressure at work.” “My ex-husband gets angry and yells at me a lot, so he’s probably bipolar.” “We’re considering representing a guy who was injured in an explosion. He’s bipolar, but even bipolars don’t deserve to get burned.” Statements like these are both uninformed (depression can arise from a variety of factors, including biology, and plenty of non-bipolar people yell when angry) and/or cruel. Even worse, they have a chilling effect on fact-based mental health discussions, telling any listener with a mental health issue that he or she is not wanted in the workplace. You can pave the way to future productive wellness conversations by encouraging your co-workers to be as factual and fair when they talk about mental health as they are when discussing other sensitive topics.

Step 2: Start with a Story…End with an Ask

As opposed to the chilling statement, a story brings warmth to a conversation. Your story should: (1) introduce the idea that everyone has faced a mental health challenge; and (2) demonstrate that these challenges can be overcome. If you are comfortable doing so, it is best to use yourself as an example, but you can also go to the “Success Stories” tab at www. tlaphelps.org to find inspiring stories of recovery in print and both audio and video recordings. As for the ask, again, it is best to begin with yourself if you are comfortable doing so. “If I seem to be struggling, I want you to tell me. I promise I will not be upset with you for telling me because I know it will be coming from a good place. I promise, in turn, that I will let you know if I think your mental health is at risk. I will do that because I care. We will look out for each other.”

Step 3: Reinforce, Reinforce, Reinforce

Make checking in on each other’s mental health part of the culture. Ask how people are doing—no, how they are really doing. Tell your co-workers to raise a red flag if they are overwhelmed; then follow through with assistance. Reach out to the DBA’s Peer Assistance Committee for program ideas. With time, your whispers will diminish, and you will start to find your voice. HN

Top 10 List of Recovery Truisms 1. GRATITUDE: A daily gratitude list of the things for which we are grateful keeps our minds focused on what we have, and not on what we don’t have. 2. KINDNESS: Like most antidepressants, kindness stimulates the production of Serotonin, the chemical that heals wounds, calms, and makes one happy. 3. GRIEF: You never get over it; you just get better. 4. HOPE: There is no situation too great to be bettered and no unhappiness too great to be lessened. 5. FIRST THINGS FIRST: Do the next right thing. 6. PERSPECTIVE: There is an island of opportunity in the middle of every difficulty. 7. OPENNESS: Our secrets keep us sick. 8. AWARENESS: Keep your head where your feet are. 9. HEALING: Being a little kinder, a little slower to anger, a little more loving makes life better, day-by-day. 10. FAITH: A spiritual connection determines how well many deal with life.

3 Mistakes Law Firms Make Dealing with Attorney Addiction • Failing to have a plan

• Not offering help early on • Not planning for a return Read the full article online at www.law360.com/articles/1143110/3-mistakes-law-firmsmake-dealing-with-attorney-addiction

Kelly Rentzel is General Counsel & Corporate Secretary for Texas Capital Bank, N.A., and serves on the DBA Board as well as Co-Chair of the DBA’s Peer Assistance Committee. She may be reached at kelly.rentzel@texascapitalbank.com.

Friday, May 21, Noon via Zoom “The Doctor and The Lawyer: A Prescription for Mental Wellness Fighting Stress, Depression, and Anxiety in The Legal Profession” Speakers: Dr. Madhukar Trivedi, Department of Psychiatry, UT Southwestern Ryan Waller, Waller Counseling and Consulting

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

Focus

May 2021

Solo & Small Firm and Mergers & Acquisitions

Non-Disclosure Agreements and Letters of Intent BY BYRON EGAN

Confidentiality, or non-disclosure agreements (NDAs), and letters of intent are important early-stage documents for an M&A transaction, which require precise wording to avoid unnecessary litigation. The NDA is typically the first stage of the due diligence process of a merger or acquisition transaction, as parties generally are reluctant to provide confidential information to the other side without having the protection of an NDA. In RAA Management, LLC v. Savage Sports Holdings, Inc., 45 A.3d 107 (Del. 2012), the Delaware Supreme Court held that non-reliance disclaimer language in an NDA was effective to bar fraud claims by a prospective buyer. During the early discussions, the seller told the prospective buyer that seller had no significant unrecorded liabilities, but due diligence showed otherwise. The NDA provided that seller made no representations regarding any information provided thereafter and that buyer could only rely on express representations in a definitive acquisition agreement, which was never signed. After deciding not to pursue a transaction, the buyer sued the seller to recover its due diligence costs. The Delaware Supreme Court held that

buyer’s complaint was properly dismissed due to the non-reliance disclaimer language in the NDA. A letter of intent is often entered into between a buyer and a seller following the successful completion of the first phase of negotiations of an acquisition transaction. A letter of intent typically describes the purchase price (or a formula for determining it) and certain other key terms that form the basis for further negotiations. In most cases, the letter of intent provides that the buyer and seller do not yet intend to be legally bound to consummate the transaction, and that the letter of intent will be superseded by a definitive written acquisition agreement. Many lawyers prefer to bypass a letter of intent and proceed to the negotiation and execution of a definitive acquisition agreement. NDAs and letters of intent often contain provisions stating that the parties will not be bound to consummate a transaction unless, and until, they each have negotiated and executed a definitive agreement, which is intended to address the risk of a dispute concerning whether the parties, by their conduct, have agreed to or otherwise committed themselves to a transaction. Texas law embraces the principles of freedom of contract and

NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/lawyerreferralservice or call (214) 220-7444.

allows parties to condition their obligations to be bound by a contract. The Texas Supreme Court confirmed these principles in Energy Transfer Partners, L.P. v. Enterprise Products Partners, L.P., 593 S.W.3d 732 (Tex. 2020), which involved a series of preliminary agreements between Energy Transfer Partners, L.P. (ETP), a Dallas based Delaware master limited partnership (MLP), and Enterprise Product Partners, L.P. (Enterprise), a Houston-based Delaware MLP. ETP and Enterprise entered into these preliminary agreements with a view to forming a joint venture to build and operate a large pipeline which would transport oil to the Gulf Coast of Texas. The preliminary agreements provided that the obligations of the parties were conditioned on the execution of a definitive joint venture agreement and approvals by their respective boards of directors. Although no definitive joint venture agreement had been signed, the parties proceeded to spend time and money on the project, they communicated publicly that a joint venture had been formed, and they even marketed the pipeline to potential customers. The parties’ marketing efforts did not produce enough commitments to utilize the proposed new pipeline to meet their agreed minimum threshold. Enterprise terminated its participation in the project and shortly thereafter joined forces with another large pipeline company for an alternative

crude oil pipeline. ETP sued Enterprise in state court alleging this breached Enterprise’s contractual obligations and fiduciary duties to ETP. Notwithstanding the express provisions in preliminary agreements that no party was bound unless and until definitive agreements were signed, ETP convinced the jury that the parties’ ensuing conduct served to form a Texas law general partnership and that Enterprise’s negotiation and agreement with the other pipeline breached its fiduciary duty of loyalty to ETP. A judgment for $535 million was entered in favor of EYP. The Texas Supreme Court reversed, holding that no partnership was created because the NDA and letter of intent provided that no party was bound to proceed with a transaction unless and until a definitive agreement was executed by the parties after the approval thereof by the governing authorities of the parties, which never happened. This holding makes it clear that Texas embraces the principles of freedom of contract among sophisticated businesses, and that they can trust that their legal documents will be enforced as written. Thus, Texas companies can rely on conditions precedent to avoid an unintended partnership or joint venture, which should be set forth in an NDA or letter of intent. HN Byron F. Egan is a Corporate Partner at Jackson Walker LLP, and thanks Zachary Ward, an Associate at the firm, for his help in preparing this article. Mr. Egan may be reached at began@jw.com.

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most recently in 2019, 2020, and 2021. Kevin is a 2003 graduate of THE UNIVERSITY OF TEXAS AT AUSTIN. Kevin earned his law degree from THE JOHN MARSHALL LAW SCHOOL (Chicago, IL) in 2006, serving on the Executive Board of the Law Journal. More information about Kevin C. Moran can be found at http://theholmesfirm.com. Please welcome Kevin to the firm by reaching out to him at kevin@theholmesfirm. com, or (469) 916-7700 ext. 120.

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May 2021

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

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

Focus

May 2021

Solo & Small Firm and Mergers & Acquisitions

Cybersecurity Basics for Attorneys BY DAWSON LIGHTFOOT AND JONATHAN TRIMBLE

With average cybercrime costs skyrocketing from less than $2 million to $13 million in only nine years, the ever-increasing need for experts in cyberlaw and cyber operations will not soon relent. The average cost of a data breach for a small business is $200,000, according to a global specialist insurer. Further, a whopping 60 percent of small businesses fail within six months of a significant cyber-attack. Cybersecurity is not merely an IT or security issue; it is an ongoing corporate risk. Publicly-traded companies are required to document their cyber risk in annual 10-K reports to the SEC, and it would be prudent for smaller entities to take the first step in addressing this existential risk—accurately quantifying it. This includes determining what information must be most carefully safeguarded and which potential weaknesses actors are likely to attack. Many businesses will rely on legal counsel as their primary expert to assist in mitigating risk, including cyber risks. Some estimate that only 14 percent of small businesses are adequately secured from cyber-attacks. Worse, cybersecurity lawyers and cybersecurity specialists are often approached only after an intrusion. The targeted organization may desire an outside investigation of why its defenses failed, but likely also prefers to keep findings private to protect its reputation and manage litigation concerns. However, recent rulings in various jurisdictions have highlighted some

practical difficulties of ensuring that cyber-attack responses are covered by either the attorney-client privilege or the work-product privilege. Specifically, defendants are finding that reports generated under service agreements that predate a reasonable anticipation of litigation will normally not be shielded from discovery. Even when outside counsel commissions cyber response services after a breach, the reports may not be covered by the attorney-client privilege because the advice sought from the cyber operational specialist is cyber expertise rather than legal guidance. Fortunately, there may be a narrow path forward. Specifically, a multitrack investigative approach appears to be a possible solution. Investigations conducted, commissioned, or managed by cyberlawyers can yield reports protected from discovery when the reports are specific to the existing threat of litigation, if they are not crafted to also assess security failures and fixes. Thus, operational investigative efforts should be kept separate from those intended to address the threat of litigation. In a recent proceeding, a defendant who failed to adequately support their assertion of such a multi-track approach was compelled to produce a cyber-attack report that included both types of analysis. Businesses with data that needs protection should have access to trusted cybersecurity advisors, both legal and operational. But how do you identify the appropriate advisors? It is important to note that the Texas Board of Legal Specialization does not currently

DVAP’s Finest MONTAE CARR

Montae Carr is an attorney with Carr & Carr. How did you first get involved in pro bono? I volunteered for the legal help line. I realized I could do more with helping others who could not afford quality legal services. It has been a goal of mine to provide those services.

Describe your most compelling pro bono case. A disabled client seeking a divorce was abandoned by her spouse and couldn’t afford legal services. I was able to assist her. Why do you do pro bono? Giving back to those in need and never expecting anything in return is the best feeling. I enjoy helping those who can’t afford legal services. What impact has pro bono service had on your career? I would say networking has been a great benefit for me. What is the most unexpected benefit you have received from doing pro bono? It brings me happiness to see clients’ joy when I have been able to provide great legal services. It’s a rewarding Disney-storybook feeling for me.

Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.

recognize any cyber specialization. Accordingly, cyberlawyer competence is judged on experience or a formal certification, such as endorsement as a Certified Information Systems Security Professional. Cyber-operational specialists can similarly be vetted based on both overall career experience or certifications. Regardless of how competence is demonstrated, cybersecurity team members should make the effort to understand the needs of the business, ask questions without judgment, and not move directly to a canned solution or service. Every organization has different IT systems and specific information that requires protection, and an effective cybersecurity strategy cannot be developed without fully understanding the business’s circumstances. There is no perfect cybersecurity solution because the threat landscape is constantly changing. A proficient team works with leadership to help them understand their duty to discover and manage cyber risk. The team should work to develop a tailored solution. Standards organizations have developed internationally-accepted frameworks to assist in the development of cybersecurity strategies. These frameworks define common cybersecurity threats and appropriate controls for mitigating the risk. A proven and standardized framework enables a strategy

that effectively orchestrates a wide variety of risk-mitigating activities. Effective security strategies can prevent a disastrous cyber breach, but should never prevent a company from achieving its goals. Security controls inconvenience users, but proficient cybersecurity teams will strike a balance between security and inconvenience. When introducing new technologies, the team should consider how implementation will hinder business operation while simultaneously benefiting security. Even robust cyber teams should know their limits and be quick to incorporate other legal and operational experts when appropriate. In the legal realm, privacy law is often tied to cybersecurity. On the cyber front, defensive operations, cloud security, penetration testing, digital forensics, incident response, automation, and industrial control systems are among the various niches. While the world of cybersecurity will remain evergreen with new risks and responsive solutions, taking proactive steps to protect your clients and businesses with eyes wide open can both protect assets and minimize cyber risk liabilities. HN Dawson Lightfoot is a Partner at Lightfoot & Alford PLLC and can be reached at dawson@lightfootalford.com. Johnathan Trimble is the owner of Bawn LLC and can be reached at jonathan.trimble@bawn.com.

P I H S K LER C R E SUMMROGRAMS P www. dallas bar.or g June 11, Noon

June 25, Noon

Summer Associates Pro Bono Webinar MCLE 1.00

Minority Clerkship Webinar MCLE 1.00

July 23, Noon Law Student Professionalism Program MCLE 1.00

Learn about the broad range of opportunities in Dallas and what the DBA & DVAP have to offer.

May 2021

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

KoonsFuller Shareholders: R1: Liz Porter*, Charla Bradshaw*, Ike Vanden Eykel* (CEO), Rick Robertson*, and Heather King R2: Sean Abeyta*, Neda Garrett*, Brian Loughmiller*, Sally Pretorius*, Chris Meuse*, Jessica Janicek*, Fred Adams*, Julie Crawford* and Rob McEwan*

K O O N S F U L L E R : D I V O R C E , C H I L D C U S T O DY, P R O P E R T Y D I V I S I O N, M A R I TA L A G R E E M E N T S, PAT E R N I T Y, A P P E A L S

Have you heard? With more than thirty proven attorneys and four offices across Texas (Dallas, Denton, Plano and Southlake), KoonsFuller is one of the largest family law firms in the Southwest. You’ve probably also heard that we take remarkably good care of our clients. To learn more about us, visit koonsfuller.com.

As recognized among Tier 1 U.S. News – Best Lawyers® “Best Law Firms” in Dallas/Fort Worth for Family Law by U.S. News & World Report L.P.

Dallas** | 1717 McKinney Avenue, Suite 1500 | Dallas, Texas 75202 | 214.871.2727 *Board certiﬁed in family law by the Texas Board of Legal Specialization. **Principal ofﬁce.

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

May 2021

It’s Not Too Late to Renew! With hundreds of free CLE programs available each year, webinars, Sections, E-Communities and more— now is the time to join or renew your membership! Log on to www.dallasbar.org for more information. On March 23 the Public Forum Committee hosted a fireside chat with new Dallas Police Chief Eddie Garcia, interviewed by Koi Spurlock, and introduced by Public Forum Co-Chair Nnamdi Anozie.

In March, the Peer Assistance Committee presented “The Impact of COVID-19 On an Attorney’s Practice, Clients and Well Being, Part II,” with Al Ellis, Kelly Rentzel, and Richard Cheng.

DBA President Aaron Tobin interviewed Hon. Mary Murphy, retired Justice of the 5th District Court of Appeals, as the inaugural interview of the DBA’s Living Legends program.

The Bankruptcy & Commercial Law Section presented “Recent Retail Bankruptcies and Pandemic Valuation Issues,” with Dawn Ragan, Ian Peck, Robert Stark, Cathy Hershcopf, and Megan Clontz.

The Appellate Law Section hosted “View from the Appellate Bench,” with judges Bonnie Goldstein, Craig Smith, and Dennise Garcia, moderated by Jason Boatright.

On April 12 the DBA presented Implicit Bias 101, the first in a four-part series. Thank you to presenters Courtney Barksdale Perez, Dr. Salena Brody, and Jonathan Childers. Stay tuned for information on the next program.

The Dallas Hispanic Law Foundation

LegalLine Volunteers Needed LegalLine is seeking volunteer attorneys for our LegalLine E-Clinics on Wednesdays. Calls may be made between 4-8 p.m. from the comfort of their own homes.

Amanecer Luncheon

Participating attorneys will be emailed contact information for those who have submitted a request for a call.

www.DallasBar.org/LegalLine

May is Asian American & Pacific Islander Heritage Month. Keynote Speaker: Hon. Ken Salazar Former Secretary, U.S. Department of the Interior and Former United States Senator for Colorado

Sponsorships and information: www.DallasHispanicLawFoundation.com/events.html or contact the DHLF at dhlf.scholarships@gmail.com

A celebration of the culture, traditions, and history of Asian Americans and Pacific Islanders in the United States. The history of North America is shaped by the stories of immigrants from Asia and the Pacific and the native people of the Pacific Islands. While some of the earliest Asian immigrants arrived from China, Japan, India, and Korea, immigration reforms tied to U.S. civil rights legislation brought even more groups to the United States—such as Vietnamese, Cambodians, Laotians, Indonesians, the Hmong and other peoples from South and Central Asia.

M a y 22021 021 Date

DD alallas l as Bar ssoci ati BarAAssoci aton i on l l Headnotes He adnotes 119 1

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

Column

May 2021

TYLA President’s Update

TYLA Projects Honor Women, Offer Practical Help for Lawyers BY BRITNEY HARRISON

The 2020-2021 Bar year was not the year we all planned or expected. However, in the world of leadership, adaptability is key. This year, the Texas Young Lawyers Association (TYLA) completely pivoted to a virtual bar year. Though it had its challenges, our Board of Directors stepped up to the plate and created several amazing projects and initiatives that we would like to share with the members of the Bar and the public. I am highlighting just a few of them below.

Iconic Women in Legal History

Through the generous grant from the Texas Bar Foundation, we launched Iconic Women in Legal History. This interactive website focuses on the women in our state and nation’s history that paved the way in civil rights and fought for basic legal rights in this country. Our website features several women that are often overlooked or left out of general high school curriculum, including the African American suffragists that created the National Association of Colored Women, an organization mobilized after emancipation to fight for black women in America to also have the right to vote. Mary Church Terrell was the first President of the organization. Additionally, several of our featured Iconic Women are legal legends in the Dallas community, including the Honorable Barbara Lynn, Harriet Miers, and Louise Raggio. We also featured Gloria Allred, Dolores Huerta, and newest Iconic Woman, Vice President Kamala Harris.

Lawyer Resources

For the litigators, we created a quick reference Evidence Guide and a Predicates Guide for your trial notebook. These items are the first in a series of guides that will be developed over the next few months. The second portion of the series will feature guides based on the Federal Rules of Evidence and Britney Harrison Procedure. Additionally, we launched another season of our Young Gunners podcast that focuses on Business Development for the young lawyer. We learned a lot of theory and how to think like a lawyer in law school, but most of us learned very little about the business side of practicing law. We hope our podcast helps to provide some guidance on this much-needed skill set.

Guide to Garnishments and Partnership with DAYL

TYLA also partnered with the Dallas Association of Young Lawyers (DAYL) to assist law students who lost their summer clerkships due to the pandemic to create our Guide to Garnishments. This project was researched and authored by law students, Chloe Daniels and Mariel

Mock Vire Dire, Zoom style

Thames. Our hope is that this guide will help hundreds, if not thousands, of financially disadvantaged Texans who often have no idea what has happened, what to do, or who to turn to when their accounts have been garnished. All of the materials are available for free on the tyla.org website. This project would not have been possible without the hard work of Ms. Daniels and Ms. Thames. Additionally, we had several other law students participating in the DAYL program to help us update many of our existing guides and pamphlets. The additional students were Morgan Maeker, Braden Bullard, Briggs Howe, Ellie Feng, and Selina Chen. Their hard work was thoroughly appreciated, and we cannot wait to welcome these students into the profession.

Consequences of Vaping

We also created the Consequences of Vaping in Texas guide for adolescents and adults. The information in this guide is designed to explain the consequences of vaping and e-cigarette use. The bro-

chure overviews public health concerns, the criminal- and education-related consequences of vaping, and civil lawsuits pending against e-cigarette manufacturers in state and federal courts. We also include compelling videos featuring personal accounts from Malcolm and Tonya Williams-Walker and Dr. Panagis Galiatsatos of Johns Hopkins University School of Medicine. All of these resources will be available for free on the tyla.org website.

Friendly Competition

Additionally, in efforts to liven up the Zoom board meetings and generate some friendly competition, I brought my love of WWE wrestling to the TYLA meetings. Each quarter, one large city and one small city director is awarded the WWE Championship-style belt and gets to hold it for the quarter. Our current Large City Champ is Cali Franks (Dallas) and our Small City Champ is Courtney White (Amarillo). These ladies are standout first year directors and have contributed tremendously to the success of our initiatives. Though the Bar year is winding to a close, I am grateful for the good we had this past year and am hopeful for the future. I am proud of the work we accomplished, continue to accomplish, and believe the future of the Bar is bright. HN

Britney Harrison is the 2020-2021 president of the Texas Young Lawyers Association and is an attorney at GoransonBain Ausley, PLLC. She may be reached at bharrison@gbafamilylaw.com.

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advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. For more information, contact (214) 321-3238 or dba@legaldirectories.com

Thank you to the volunteers who helped make the Law in the Schools & Community Committee’s Mock Voir Dire a success. Held virtually on April 14 for more than 50 students from Dallas and Grand Prairie ISD, the event addressed the 2021 Law Day theme: Advancing the Rule of Law Now. (Above): Thank you to event organizers Maria “Marifer” Aceves, Law in the Schools & Community Committee Vice-Chair, and Judge Martin Hoffman. The mock voir dire panel was led by (left to right): Judge Hoffman, 68th District Court; Maria “Marifer” Aceves, Aceves Law, PLLC; and Michael K. Hurst, Lynn Pinker Hurst & Schwegmann. (Below) Special thanks to our panelists, many of whom were law school interns who dressed as pivotal players in the history of protests as part of the Law Day theme discussion. (Left to Right): Chad Baruch, Hon. Martin Hoffman, Maria “Marifer” Aceves, Samantha Favela, David Goldberg, Max Atchity, Morgan McPheeters, Peyton Dean, Frederick Barrow, and Derick Wallace.

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May 2021

Focus

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

Solo & Small Firm and Mergers & Acquisitions

Subchapter S Corporation Targets in M&A Transactions BY SANFORD M. BROWN AND BART W. NEBERGALL

The potential pitfalls involved in the acquisition of, or merger with, an entity that has elected to be taxed under Subchapter S of the Internal Revenue Code, often referred to as an S corporation, should not be underestimated or overlooked. While an S-corporation seller or target can provide significant tax benefits in a transaction, an improper election to be taxed as an S corporation by the target, also known as an invalid election, or the unintentional failure to comply with the requirements of an S corporation, also known as an inadvertent termination, can have even more significant negative consequences. For example, if an S corporation made an invalid election or caused an inadvertent termination, it or its successor may be liable for the taxes it would have paid in the previous three years had it been taxed as a C Corporation. Further, and less obviously, if a company acquires a qualified subchapter-S subsidiary, often referred to as a QSUB, from an S Corporation, it may seem as though any potential risks associated with an invalid S corporation would remain with the seller if that seller continues to exist following closing. However, the tax treatment of certain transaction structures involving S corporations can change depending on whether the seller is a valid S corporation. For example, the acquisition of a QSUB is generally treated as an asset transaction for tax purposes, but if the seller is not a valid S corporation, then the transaction could be taxed as a stock purchase, which could mean a loss of any step-up in basis in the underlying assets—an unwelcome surprise for any client. To avoid risks that may arise from an invalid election or an inadvertent termination, counsel should conduct thorough diligence of matters related to an entity’s status as an S corporation. For example, counsel should confirm that the entity has met the requirements of an S corporation at all times since its election to be taxed as such. Careful analysis is required in determining whether all owners are eligible shareholders and that the ownership structure does not violate the one class of stock rule. Further, counsel should ensure that the seller or target properly completed and filed the election to be taxed as an S corporation and that all elections for its subsidiaries were prop-

erly filed with the IRS. Additionally, counsel should review the history of the entity’s status as an S corporation since a conversion to an S corporation within the last five years could subject the entity to “built-in gains” tax. These diligence items are illustrative only and not exhaustive. Counsel may wish to seek the advice of tax specialists. If the seller or target may have inadvertently terminated its status as an S corporation, counsel can, among other remediation techniques, request a private letter ruling from the IRS stating that any such inadvertent termination did not result in the entity losing its status as a valid S corporation, which requires the entity to provide information concerning the potential issue, company history, shareholder information, and other matters related to the S election as well as affidavits from shareholders making certain attestations. The IRS is generally lenient in

providing favorable rulings in the case of inadvertent terminations; however, such letters can take six months or longer to obtain, which often does not align with desired transaction timelines. If there are potential issues concerning S corporation validity or if the purchaser does not wish to take on any risk associated with an inadvertent termination, the purchaser can shift the S corporation risk to the seller by requesting indemnification and placing a portion of the consideration in escrow specifically for such issues. Generally, such funds would be released following the receipt of a favorable private letter ruling from the IRS or once the statute of limitations lapses. Alternatively, the parties may agree to obtain tax insurance specifically covering S corporation matters. With the recent rise in representation and warranty and tax insurance, insurance for S-corporation matters has become more popular with premiums decreasing as insurance

Email cpleatherberry@gmail.com to join the Moms in Law e mail listserv.

Sanford M. Brown is a Partner and Bart Nebergall is a Senior Associate at Alston & Bird. They may be reached at sanford.brown@alston.com and nart.nebergall@alston. com, respectively.

AT THE HEART OF DALLAS

THE RIGHT MOVE Victor Vital

Litigation Partner What makes a happy, successful attorney take the leap to another law firm? For Victor Vital, it was the opportunity to grow and expand his practice on a nimble national platform with an attractive cost structure. So when Barnes & Thornburg opened its Dallas office almost six years ago, he jumped at the chance to get in on the ground floor of such a full-service firm. “Because of the firm’s national footprint, with offices all over the country, I’ve been able to steadily build my book of business on a national platform with low overhead and virtually nonexistent bureaucratic red tape,” he says. “And my clients enjoy access to a vast network of skilled attorneys.” Victor also values the firm’s long track record of revenue growth, profitability and rock-solid financial stability. That’s been especially important in the past year. “We’ve been so busy we didn’t even consider laying people off — in fact, we’ve actually added attorneys and staff, which is pretty remarkable, given the environment.” And the glue that holds it all together is the collegial culture at Barnes & Thornburg. “A lot of firms pay lip service to collaboration, but you still run into silos, bureaucracy and lack of trust. Here it’s different. When I pick up the phone, I get the help I need right away. And the marketing and professional support I receive is exceptional.”

DBA/DAYL Moms in Law 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 a no pressure, no commitment, informal, fun, support group for lawyer moms.

companies become more comfortable with the process. Insurance may not be practical for smaller transactions because many insurers have minimum premiums in the low six figures; however, some sellers are receptive to such a cost when the alternative may be a holdback equal to C corporation tax liability for the past three years or the potential loss resulting from no step-up in basis. While the solutions and risk tolerance of clients related to S-corporation issues can vary considerably, it is imperative that counsel identify and communicate the potential risks associated with S corporation sellers or targets; the risk can be fairly remote, but the consequences can be very significant. HN

Taken together, Victor says joining Barnes & Thornburg was one of the best career moves he has made. “This is a place where I can prosper, thrive and be happy in the company of a truly supportive team.”

Victor Vital is a proud partner in the Dallas office of Barnes & Thornburg, one of the largest law firms in the country, with more than 700 attorneys and other legal professionals serving clients worldwide.

See what sets us apart in Dallas at btlaw.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

May 2021

LAW DAY 2021 Advancing the Rule of Law Now

Each year, the American Bar Association sponsors Law Day, and regional bar associations, including the Dallas Bar Association, host various events, programs and contests to commemorate the chosen theme. Law Day not only educates students and citizens about our government, but also the legal system itself. One of its main goals is to focus students’ attention on important constitutional principles. As part of the DBA’s Law Day celebration, the association sponsors essay, art and photography competitions for Dallas ISD students in grades K-12. Here are some of this year’s winning entries, which depicted the Law Day theme of “Advancing the Rule of Law Now.” Not pictured is the winning essay, written by Jeff Fenlaw, 8th grader at William B. Travis Academy. HN

Biana Barrera, 8th Grade, Travis Vanguard Academy for the Talented & Gifted First-Place: (6th-8th Photography)

Raifah Reza, 8th Grade, William B. Travis Academy First-Place (6th-8th Poster Art)

De’Jone Perkins, 12th Grade, H. Grady Spruce High School First-Place (9th-12th Photography) Jace Jones, 3rd Grade, Walnut Hill Elementary School First-Place (K-3rd Poster Art)

Guess what’s back, back again... Bench Bar’s back, tell a friend! DBA Bench Bar Conference is back in the Hill Country! November 3-5, 2021 HORSESHOE BAY RESORT Up to 7 Hours MCLE including Ethics Meet your Judges Awesome networking Trial Lawyer of the Year Award Karaoke

May 2021

Focus

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

Solo & Small Firm and Mergers & Acquisitions

A Solo Practioner’s Reflections and Gratitude BY JILL TANANBAUM

None of us is thinking that a global pandemic is a positive event, but COVID-19 positively changed my perception of the DBA. I joined the Dallas Bar Association 25 years ago upon moving from Coudert Brothers in New York City to Jones Day in Dallas. After my first son Kyle was born, I decided to leave big firm life and take a break, which turned out to be short-lived. Almost by accident, I started a solo advisory and litigation practice, and then my second son Jason was born. Caring for my family, advising and representing my clients, pro bono work, and serving on non-profit boards was my universe. Learning more about the DBA’s offerings was always in the back of my mind, but it was a time challenge to leave the office, drive to the DBA, find a parking spot, grab a salad, and find a spot at a table where I felt comfortable. The intimidation factor definitely exists— most solo practitioners attend DBA programs alone as they do not have work colleagues in the office with whom they can attend. The DBA was quick to pivot (a word we no longer associate only with Ross directing Rachel and Chandler in the stairwell as they moved a sofa) by offering all-inclusive online programming and excellent CLE content. While all lawyers and firms were scrambling to figure out how to practice law after March 13, 2020, for solo practitioners this process was particularly overwhelming. The early pandemic presentations were invaluable for solos to learn the nuances of force majeure as it applies to helping our cli-

ents get out of, or enforce, contractual obligations, how to help clients obtain PPP funding, what level of PPE protection medical providers should provide to medical staff, and how some parents were interpreting their possession schedules in light of school closures following spring break. The programming also touched on new technology and equipment to make our now-virtual practices run smoothly. With online presentations, I saw faces up close and learned about the personalities of many local legal legends, young attorneys, judges, and other professionals with whom I normally do not interact. The first months of mandatory quarantine were isolating and scary. Restaurants, social clubs, gyms, theaters, and stores were closed. These shutdowns uniquely affected the solo practitioners’ work and social dynamics. I looked forward to the DBA Zoom CLEs and presentations as a way to connect with others in my profession while the way we practiced law was turned upside down or shut down. We were socially distanced, yet social. I remember one district court judge revealing to us that she held hearings between teaching her child and walking around the neighborhood, which is why she wore running shoes with her judicial robe. Another judge showed us the free weights she used because she could no longer work out at the gym. Several lawyers showed us their informal personas by sitting outside in their backyard retreats. Judges revealed what series they were watching and which books they were reading. I liked viewing the personal art collections on the walls behind the presenters. I was moved by one criminal defense attorney’s experience with

suicide in her family and the incredible advocate she is for mental health awareness and treatment. I was able to share common stories with previously unfamiliar opposing counsel following the 2020 virtual Bench Bar Conference, when it was revealed that my name was at the top of the leader board for the Bench Bar’s Gamification app. As a solo practitioner, we are often invisible at big conferences. Suddenly, with online presentations and the chat feature to ask questions, each person became more relatable to me. I became more familiar (albeit virtually) with many DBA members through the online CLEs, the mental health programming, the important race discussions, celebrating 100 years of women’s right to vote, the DBA President’s videos with the catchy jingle, and Amy Stewart’s “Rona Talks.” It took a quarter of a century and a pandemic, but I now feel comfortable “cold calling” other DBA members, elected officials, and federal appointees, no matter their level or stature in the legal profession. I have hired and recommended several legal specialists for my clients during the past 12 months specifically because of their online presentations and how they connected with the Zoom audience. Each displayed an impressive level of expertise, but also exceptional humanity, care, and concern for the DBA membership and our community. I feel more connected to the DBA today because we share common cares and concerns. There is so much good in the DBA. I have made a mental note of who I will want as part of my dream team of lawyers if I ever return to big firm practice. My yearlong virtual DBA experi-

ence greatly helped me and other solo practitioners. When the world reopens, I believe the DBA will implement many of the positives from our collective yearlong COVID-19 odyssey and continue to make its programming accessible to members all over the world. When my son Jason told me he had been randomly assigned as the on-campus student council representative to escort an attorney who came to speak about mental health and awareness, I knew right away who she was. He was surprised and said he now understands the benefits of “all those online DBA programs” I watched. Whether we are jurists, newly admitted attorneys, big firm lawyers, small firm lawyers, solo practitioners, or retired practitioners, the DBA proved important for all of us, and has helped to educate us about the evolving laws and new rules (who decided to implement new discovery rules during a pandemic?). Moreover, the DBA has educated us and engaged us in conversation about many significant issues and topics that have come to the forefront of our daily conversations over the past year. I am grateful for all the DBA has done since March 2020 to help members, particularly solo practitioners, stay connected and informed throughout the pandemic. When the DBA asks for donations for various causes, I am now quick to support them. To the Dallas Bar Association: Thank you for informing, educating, engaging, and entertaining us, and keeping us mentally healthy during a global pandemic. HN Jill Tananbaum is solo practitioner and may be reached at jill. tananbaum@gmail.com.

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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

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May 2021

May 2021 Headnotes

Articles inside

ASolo Practioner’s Reflections and Gratitude