Dallas Bar Association
HEADNOTES |
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May 2020 Volume 45 Number 5
Bar Mourns the Passing of Karen McCloud BY ANDREW M. JONES
Focus
Focus | Criminal Law/Trial Skills
Criminal Law/Trial Skills
Teasing Truth Out of Deep Fakes BY SANFORD HOLMES
Lawyers in Dallas and beyond are mourning the passing of Karen Danielle McCloud, whose service to the legal profession and community was enormous and will not be forgotten. McCloud, who passed away on April 9, had recently commenced her role as First Vice President to the Dallas Bar Association, which per custom put in her line to serve as DBA President in 2022. This final role followed years of exceptional involvement and service to the Dallas Bar and other legal organizations, and to the community in general. “We lost the heartbeat of the Dallas Bar Association with Karen’s passing,” noted President Robert Tobey at the DBA’s April board meeting. “She did things that no lawyer has done before,” he explained. “She was a force, a steady presence, a mentor, and a friend.” Born and raised in Houston, McCloud attended the Incarnate Word Academy. She went on to earn a degree in political science from the University of Texas in 1994, and she remained a proud Longhorn fan for life. McCloud received her law degree from Georgetown University in 1999 and returned to Texas, where she practiced law and served her community for more than 20 years. McCloud practiced employment law with a focus on employees. She practiced in large firms, boutiques, and as a sole practitioner. She was admitted to the U.S. District Courts in the Northern, Eastern, and Southern Districts of Texas, and to the U.S. Bankruptcy Court for the Southern District of Texas. She was a member of the DFW-National Employment Lawyers Association and the Texas Employment Lawyers Association. While a successful attorney, McCloud had a heart for service. In this regard, she provided consistent leadership in a multitude of professional organizations, including her role as President of the Dallas Women Lawyers Association (DWLA) in 2004 after many years of service to the organization, and to the J. L. Turner Legal Association (JLTLA), for which she served as President in 2010. Among her notable accomplishments with JLTLA were her efforts with other attorneys and the local judiciary to establish a JLTLA Trial Academy. Also very active in the Dallas Association of Young Lawyers (DAYL), Karen served as Director of DAYL for several years and received the DAYL Outstanding Director Award in 2007. She went on to serve as DAYL President in 2008. Notably, McCloud provided mentoring and leadership as a Facilitator for the DAYL Leader-
Karen McCloud
ship Class for more than 14 years. She was involved with the DBA’s Equal Access to Justice Campaign for many years, eventually serving as CoChair for the 2016-2017 campaign, in which more than $1 million dollars was raised in support of legal services to the underprivileged. She was also an active participant in the Dallas Volunteer Attorney Program for many years. McCloud served on the DBA Board of Directors for more than 12 years, with assorted positions culminating in her most recent position as Fi rst Vice President. Previously, she served as Chair of the Judiciary, Judicial Investiture, and Lawyer Referral Service Committees, Chair of the Solo & Small Firm Sction, and as Board Advisor to the Family Law Section, just to name a few. She is a Life Fellow of the Dallas Bar Foundation and a Founding Fellow of the DAYL Foundation. McCloud’s efforts and service resulted in a number of awards and honors. In recognition of her service, McCloud received the DBA JoAnna Moreland Outstanding Committee Chair Award and the DAYL Outstanding Board of Director Award. She also received the DBA’s Outstanding Minority Attorney Award, the JLTLA Outstanding Mentor Award, the 2015 DWLA Outstanding Lawyer/Small Firm Award, and the 2019 JLTLA Dallas Black Women Attorneys Charlye O. Farris Award. McCloud was the third AfricanAmerican, and only the second AfricanAmerican female, to attain the position First Vice President of the DBA in its 147year history. She is also the only attorney to have served as President of DWLA, DAYL, and JLTLA, and to have served as First Vice President of the DBA. The DBA will host an appropriate ceremony to honor Karen McCloud’s legacy and service at a later date. HN Andrew M. Jones is Senior Director, Legal Counsel for Epsilon Data Management, LLC (Publicis Groupe) and CoChair of the DBA Publications Committee. He can be reached at andrew.jones@epsilon.com.
The landscape is shifting for trial evidence. Recent changes to FRE 902 (13) and (14) represent an early effort to head off a real authentication issue on the legal horizon presented by the ability of Artificial Intelligence to alter and create false images, recordings, and video. Litigators can find their investigators misled and their discovery efforts significantly delayed. More disconcertingly, jurors and other fact finders may come to doubt the trustworthiness of an evidence type they have come to rely on heavily. Deep fakes are a troubling media trend made possible by advancements in artificial intelligence and machine learning over the past few decades. Notorious for their spread in the pornographic arena—where perpetrators paste the faces of celebrities or private citizens onto the bodies of porn stars—they have also been used to generate false news reports or perpetrate hoaxes involving public figures. Deep fakes use video, sound, or as few as 300 images to digitize a likeness. Artificial intelligence then maps crucial points on a target video and matches them to the digitized likeness in a manner reminiscent of the movie magic behind The Lord of the Ring’s Gollum or the digital key used to unlock a mobile phone. Improved processing power and widely available programs have democratized and sped up this process, so what was once a million-dollar Hollywood trick is now available to the creative hobbyist, the determined internet troll, or seemingly any immoral public actor with an internet connection. What happens when these creations are purposefully or unwittingly introduced to a lawsuit? They present numerous complications for both civil and criminal litigators, whether proving or disputing the authenticity of video evidence, maintaining jurors’ faith in video evidence, or expending time shoring up proof that once spoke for itself. What steps should you consider and how do you use the 2017 amendments to FRE 902 effectively? First, practitioners should be aware that Federal Rule of Evidence 902 was amended in 2017 to include a method for self-authentication of electronic data/records. Specifically, Rule 902, Paragraph 13 provides for authentication of electronic records by a qualified person when produced by a reliable electronic process. Paragraph 14 provides for authentication of data by a process of digital identification and certified by a qualified person. Crucially, these amendments encourage the determination of admissibility before trial, thus serving
Inside 8 Criminal Law 101 14 Mental Health Awareness Month 18 Staying “Reasonable” with 18.001 after September 1, 2019 27 Judicial Clemency vs. Expunction vs. Nondisclosure
to minimize the doubt induced in the trier of fact. (Practitioners should understand that Texas has not adopted its own state version of this Rule.) Second, practitioners should utilize an ounce of prevention. Endeavor to shorten the chain of custody on all authentic video to: 1) the recording device, 2) qualified eDiscovery storage companies, and 3) the eyes of the jury. Make chain of custody a standard part of your discovery requests to opposing parties. Understand the storage protocols of your eDiscovery company. Where and how is data kept? How do they record any access or alterations to that data (e.g., using a Blockchain-type ledger system)? Third, evaluate media by multiple methods. Begin by assessing the media’s metadata (device used, date created/modified, location) and request such data if it was not accurately provided with the original. Review all media as soon as it is received for completeness, changes in resolution, and other visual oddities. Visual cues include shadows in the wrong place or hair or clothing movement that is incongruous with the environment. Any such red flags—or suspicion of a particularly well-done fake—may call for the use of an expert skilled in more detailed analysis and deconstruction of video evidence. Fourth, FRE 902 (14) was intended to accommodate the use of established methods like hash values to authenticate an electronic copy, but it also allows for the use of future technologies. In today’s fluid environment, eDiscovery companies use high-powered processing and cutting-edge findings to analyze suspect videos. These sophisticated methods include identifying nearly invisible face-warping or inconsistent head poses created by deep fake processing. Thus, a reliable expert will be both analytical and creative when evaluating a suspect sample. Lastly, utilize a multi-layer trial strategy for your media evidence. Whether you are in state court or unable to self-authenticate, you’ll need a solid plan for admission and advocacy. The upshot is to keep the issue of the suspect media’s authenticity outside the presence of the jury whenever possible by pre-trial hearing, Motion in Limine, or another hearing outside their presence. If unsuccessful, your argument to the trier of fact must emphasize their role in deciding what is real in this new reality. Nonetheless, the goal should be to avoid making a jury answer that old Marx movie question: Who you going to believe, me or your lying eyes? HN Sanford Holmes is the principal at the Law Office of Sanford Holmes and can be reached at attyholmes@gmail.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/mentalhealthresources
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 2020
All meetings and events subject to change in connection with the ongoing coronavirus situation. Please check www.dallasbar.org and DBA Online enewsletter for current notices.
The DBA has formed a Coronavirus Task Force, which will provide members with up-to-date information in one location about legal ramifications of COVID-19, including CLE, legal research, and Dallas courts’ COVID-19-related orders and procedures. Go to www.dallasbar.org/COVID19Resources to see the DBA’s new webpage on COVID-19.
CHECK OUT THESE UPCOMING CLES May 1 - An Entertaining, Informative and Helpful Look into the Importance of Attorney Wellness May 7 - Coverage Issues for a Policyholder: A Primer on Basic Principles May 8 - Generational Differences in Communication in the Workplace May 12 - Crisis Communication: Now What Do We Do?
More information at www.dallasbar.org. Miss a recent COVID-19 webinar? Find it at onlinecle.dallasbar.org/category/covid19
May 15 - How Lawyers Can Use Social Media & Technology: The Legality & Ethical Ramifications May 15 - Mental Health Series: Working Through Mental Health Issues May 29 - The Witness Woodshed In The (New) Roaring 20’s- Ethics, Tips, Tricks & Traps
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Grecia Alfaro at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
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May 2020
President’s Column
Headnotes
The DBA Has Your Back BY ROBERT TOBEY
As I write this column in early April, we have been “sheltering in place” and “social distancing” for more than three weeks—with at least four more to go. These are unprecedented and difficult times. But we will get through them together. Our way of doing things always has involved lawyers coming to the Belo Mansion at noon to hear great CLE, meet and work with other lawyers with similar practice areas and interests, and enjoy lunch. That changed overnight when we closed the Belo on March 12. Vice-Chair of the DBA Board Bill Mateja called me on March 19 with the idea of forming a Coronavirus Task Force. We formed the task force the next day with Bill as the chair and DBA President-Elect Aaron Tobin, DBA Second VicePresident Cheryl Murray, DBA Board members, Amy Stewart and Vicki Blanton, and DBA members, Ladd Hirsch and Jeff Tillotson. The task force is providing members with news, resources, and online CLE offerings. When you go to www.dallasbar.org, the first option is “COVID-19 Resources.” Since March 19, the website and scope of the Task Force has expanded. We have 12 categories on the webpage ranging from “Announcements” to “White Papers and Articles.” Many thanks to our amazing Executive Director, Alicia Hernandez, and the fantastic DBA staff who put all of this information together very quickly! We are presenting virtual CLEs each week dealing with legal aspects of the Coronavirus pandemic via Zoom. Our attendance numbers have been substantial, so we clearly are meeting a need. Zoom has proven to be a great tool to allow our sections and committees to carry on their important work since the Belo closed. We encourage sections and committees to continue meeting remotely while we are “sheltered in place.” I miss going to the Belo almost every day, greeting old friends, and making new ones. To keep in touch with our members, I have started making short video announcements on Friday mornings with key developments and a description of what we are doing the next week. We want to hear from our members with ideas, thoughts, questions, CLE topics, papers, etc., by emailing us at covid19@dallasbar.org. We also have a Community Outreach section that has many opportunities for our members to give back to the community. I am proud to say that our members have stepped up in a big way. The Coronavirus crisis has crushed the airline, hotel, and restaurant industries. A raging price war over oil prices may put
2020 Law Day VIRTUAL LAWDAYCELEBRATION
many energy companies out of business. The unemployment rate is soaring. Our profession will not be spared from layoffs and firm retrenching. The DBA’s online Career Center is a great resource to utilize to search for, or post, a position. We are also exploring other ways to have seasoned lawyers assist young lawyers with guidance and support on job needs. What we have missed most about not having access to the Belo is our sense of community. I took a walk with my daughter the other day and asked her if she thought that living in 1900 would have been similar to the current situation. She said communication is much better now, so that is a big difference. Of course, she is right. But we miss face-to-face encounters—and I don’t mean ones that are six feet apart. We are isolated, and the familiar routine of going to the office, going to court, going to the Belo, going out to eat, going to the gym, or going to a movie stopped with almost no warning. Lawyers suffer from substance abuse and depression in a much higher percentage than the public at large. In addition to the isolation of sheltering in place, even with modern communication tools many of our members are dealing with childcare, schooling, cooking, and cleaning on a daily basis. These responsibilities are piled onto the stresses and challenges of doing legal work efficiently and accurately, while remotely. Here are some suggestions. Lawyers in firms need to check on each other as well as their staff members. Their needs are critical to the current and future success of our firms. Everybody should be reminded that with everything in play, it is okay not to be perfect; just do your best! It is also important to let lawyers know that they need to clock out for meals and sleep. Just because we are home doesn’t mean that we are on the clock 24/7. It is one thing to have family around you to break the sense of isolation, but very different to be alone. If you know someone who is alone, please call them just to check in and give them some much needed human contact. Finally, if you are struggling, please get help! If you know someone who is struggling, please get them help. Our webpage contains a link to the Texas Lawyers Assistance Program. It is a model for wellness programs around the country. If you are getting help for someone else, it is anonymous. You may save a life by doing so! Please remember, we are all in this together. Hopefully, not long after you read this column, I will see you in person at the Belo! Until then, please stay safe! Robert
HOW CAN YOU HELP THE COMMUNITY?
During this time of uncertainty and social distancing, here are some ways to help your fellow Dallasites. Volunteer for the DBA LegalLine E-Clinic Donate to the DBA Home Project Donate supplies to Dallas County CPS workers Donate food to Minnie's Pantry or to the North Texas Food Bank via Virtual Food Drives Participate in the Senior Living Facility Drive Volunteer to Video Read to children at Vogel Alcove
Details available at https://tinyurl.com/DBACOVIDCommunityHelp
Friday, May 8, 2020 Noon - 1:00 p.m.
Adaptability in the New Normal Rob Crain
with
Crain Brogdon Rogers, LLP
Al Ellis
Sommerman, McCaffity, Quesada & Geisler, L.L.P.
Mark Shank
Diamond McCarthy, LLP
Paul K. Stafford ThompsonKnight
Rhonda Hunter
Frank Stevenson, II
Harriet Miers
Robert Tobey, Moderator
Law Office of Rhonda Hunter Locke Lord LLP
Locke Lord LLP
Johnston Tobey Baruch, P.C.
Register at tinyurl.com/DBALawDay2020
ONLINE WEBINAR | ETHICS 1.00 THURSDAY, MAY 14, NOON
An Entertaining, Informative, and Helpful Look into the Importance of Attorney Wellness SPEAKERS: JOHN MCSHANE, DAVID WILLIAMS & TLAP DIRECTOR CHRIS RITTER Log on to www.dallasbar.org for seminar link. Sponsored by the Peer Assistance Committee
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: Robert L. Tobey President-Elect: Aaron Z. Tobin First Vice President: Karen D. McCloud Second Vice President: Cheryl Camin Murray Secretary-Treasurer: Rocio García Espinoza Immediate Past President: Laura Benitez Geisler Directors: Vicki D. Blanton, Rob Cañas, Jonathan Childers, Hon. Tina Clinton, Stephanie Culpepper (President, Dallas Women Lawyers Association), Isaac Faz (President, Dallas Hispanic Bar Association), Sakina Rasheed Foster, Justin Gobert (President, Dallas Association of Young Lawyers), Hon. Martin Hoffman, Krisi Kastl (Chair), Kate Kilanowski, Bill Mateja (Vice Chair), Hon. Audrey Moorehead, Lindsey Rames, Mary Scott, Andrew Spaniol (President, Dallas Asian American Bar Associations), KoiEles Spurlock (President, J.L. Turner Legal Association), Amy M. Stewart, and Mary Walters Advisory Directors: Whitney Keltch Green (PresidentElect, Dallas Association of Young Lawyers), Marissa Hatchett (President-Elect, J.L. Turner Legal Association), Stacey Cho Hernandez (President-Elect, Dallas Asian American Bar Association), Jennifer King (PresidentElect, Dallas Women Lawyers Association), and Javier Perez (President-Elect, Dallas Hispanic Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, Rebekah Brooker, Rob Crain, Michael K. Hurst, David Kent HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: Andy Jones and Beth Johnson Vice-Chairs: James Deets and Elisaveta (Leiza) Dolghih Members: Timothy Ackermann, Logan Adcock, Wesley Alost, Stephen Angelette, Michael Barbee, David Black, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Jonathan Bridges, Amanda Brown, Angela Brown, Eric Buether, Casey Burgess, Cory Carlyle, Paul Chappell, Charles Coleman, Wyatt Colony, Shannon Conway, Natalie Cooley, Daniel Correa, G. Edel Cuadra, Jerald Davis, James Dockery, Angela Downes, Sheena Duke, Charles Dunklin, Alex Farr, Dawn Fowler, Juan Garcia, Britaney Garrett, Michael Gonzales, Andrew Gould, Jennifer Green, Kristina Haist, Susan Halpern, Bridget Hamway, Edward Harpole, Meghan Hausler, Jeremy Hawpe, Lindsay Hedrick, Marc Hubbard, Brad Jackson, Kristi Kautz, Thomas Keen, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravik, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jordan McCarroll, R. Sean McDonald, Kathryn (Kadie) Michaelis, Elise Mitchell, Terah Moxley, Daniel Murray, Jessica Nathan, Madhvi Patel, Keith Pillers, Kirk Pittard, Laura Anne Pohli, Luke Radney, Mark Rasmussen, Pamela Ratliff, David Ritter, F. Colby Roberts, Bryon Romine, Kathy Roux, Stacey Salters, Joshua Sandler, Matthew Sapp, Justin Sauls, Mazin Sbaiti, Mary Scott , Jared Slade, Thad Spalding, Jacob Sparks, John Stevenson, Scott Stolley, Elijah Stone, Amy Stowe, Adam Swartz, Ashley Swenson, Robert Tarleton, Paul Tipton, Michael Tristan, Tri Truong, Pryce Tucker, Adam Tunnell, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Director: Biridiana Avina LRS Program Assistant: Marcela Mejia LRS Interview: Viridiana Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Director: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Star Cole, Tina Douglas, Carolyn Johnson, Andrew Musquiz, Alicia Perkins, ShaJherika Whitfield Community Engagement Coordinator: Marísela Martin Copyright Dallas Bar Association 2020. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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Column
May 2020
Ethics
The Ethics of Negotiation: When Does It Cross the Line? BY JEANNE M. HUEY
When does a tough negotiating position turn into something else—something on the wrong side of the law and the ethics rules? That is the question posed when lawyers lose track of the line between tenacious advocacy and unethical or even illegal conduct while negotiating for their client. Granted, the line is sometimes not as hard and fast as we would like it to be, and various factors can affect why and when negotiations go off the rails. In order to avoid crossing over into questionable conduct, it is important to know the relevant rules and keep a watchful eye on the line to make sure it does not get crossed either by you or someone on your team. First, remember the difference between tough negotiations and extortion. Extortion is a crime in Texas and is generally defined as a demand for money or property backed up by a threat to accuse someone of a crime, damage their reputation or credit, expose them to ridicule or property damage or physical violence. Likewise, blackmail is a crime involving demands similar to extortion but lacking threat of physical violence. In either instance, the threats made do not have to be made in person, but can be made via letter, telephone or online—through email, text, social media, or chat. In addition to the criminal aspects of extortion, Disciplinary Rule 4.04(b) forbids threatening criminal or disciplinary charges solely to gain advantage in litigation. What one lawyer might think of as “tough” negotiation can easily be per-
ceived by another—the Chief Disciplinary Counsel, for example—as an extortionate threat. It is all too easy to suggest that, if no deal can be made, the tax authorities will be informed, or that you will take your case to social media. Perhaps more important, making threats during negotiation rarely accomplishes the client’s goal since successful negotiations are almost always founded on some degree of trust. It is also a strategy fraught with personal risk to the lawyer. If a negotiation fails because the parties could not find a middle ground, it is the client’s loss. If the negotiation results in a grievance or criminal charges, it is the lawyer who loses. No lawyer wants to be in the position of defending themselves himself against a criminal charge or grievance because he crossed the line while negotiating via a phone call. And do not think you are in the clear just because you did not make the threat in writing. Texas Ethics Opinion No. 575 reminds us that it is not a violation of any disciplinary rule if opposing counsel is secretly recording every conversation we have with them—including those involving negotiations. A common ethical risk in negotiation arises when the result benefits both lawyer and client. It is not uncommon for negotiations in civil suits to include both client damages and attorneys’ fees that are offered by the opposing side as a single lump sum. It is critical to make sure the client understands how a lump sum settlement will be divided under the fee agreement and to discuss how various outcomes will affect their recovery and your fees as negotiations proceed. In every negotiation that involves both
DBA 28 TH ANNUAL DBA 28 TH ANNUAL
money to the client and money to the lawyer, there is the very real prospect of a direct conflict of interest between the client and lawyer under Rule1.06(b) (2). It is important to make sure that your client understands not only what they will get and what you will get in settlement, but also to make sure they understand that your own interest is not diminishing your willingness to bargain for what is best for them. If you are negotiating with an attorney who is crossing the ethical or legal lines during negotiation, you may need to ask why the lawyer would violate their duties to the client and even risk being found criminally liable for extortion? Extreme financial stress, addiction, or mental health issues could all contribute to an otherwise good lawyer
crossing into unethical or illegal territory, but it may also be a matter of culture and training. Regardless of the reason, when the line is crossed, you cannot attempt to fight fire with fire or threat with threat. It does your client no good if both lawyers end up facing grievances. Negotiating any deal for a client raises a variety of questions about the important ethical challenges every lawyer faces when the stakes are high and negotiations are tough. Knowing the rules and keeping the client’s interests first and foremost go a long way towards making sure you are successfully able to chart a course through even the toughest negotiation. HN Jeanne M. Huey, of Hunt Huey PLLC, is Chair of the DBA Legal Ethics Committee. She can be reached at jhuey@hunthuey.com.
WE NEED YOUR HELP! The Dallas Bar Association Community Involvement Committee is sponsoring a virtual food drive for
MINNIE'S FOOD PANTRY Minnie’s Food Pantry is a 501c3 non-profit organization that and red-
The items on this list are in immediate resources needprovides during the healthy COVID-19 meals, epidemiceducational as carpet staying treatment Minnie's fights to continue open to families in need. while donations decrease and food drives halt. Please note our high priority needs our spaghetti noodles, spaghetti sauce, jelly in non-glass containers, and cereal.
Donate at tinyurl.com/minnieswishlist
Minnie's Food Pantry is a 501c3 non-profit organization that provides healthy meals, educational resources and red-carpet treatment to families in need.
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Focus
May 2020
Criminal Law/Trial Skills
Criminal Law 101 BY MESSINA MADSON AND KENDALL CASTELLO
It seems like anytime someone has a legal question they turn to the lawyer they know best and trust most for guidance or a referral to another attorney. Most of us, as lawyers, want to direct those we care for to an attorney that specializes in the area of law called for by their need. Unfortunately, with criminal law we do not always have the luxury of time before the caller has to make some incredibly important decisions. With this in mind, we offer four general principles to guide your advice to a family member, friend, or professional acquaintance until you can get
that person connected with a criminal practitioner—or better yet, share it with them now, before they need it.
Four General Principles
Be Respectful and Courteous: When interacting with law enforcement, it is wise to treat them with courtesy and respect. You can rarely hurt yourself by being kind, but being rude or combative creates greater tension in the moment and presents poorly when replayed in front of a prosecutor, judge, or jury. This is true even when the law enforcement officer is not handling him or herself with appropriate civility. You are far better off with law enforcement being “the bad guy.” We
ANNUAL EVENING ETHI C S FEST Wednesday, May 13, 2020 at Belo Check-In and Dinner begins at 4:45 p.m. Program begins at 5:30 p.m. (3.00 Ethics) DBA members: $65 early registration | $95 late registration Non-members: $135 early registration | $155 late registration 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
promise, you will never regret being nice. Do Not Consent Without an Attorney Present: Request that your attorney be present before you consent to anything, say anything, or offer any kind of evidence or samples. We want you to be courteous but still firmly assert your rights. Many have a general notion of what their fourth (no unreasonable search or seizure) or sixth (right to counsel) amendment rights are. However, in this digital age, it is more important than ever for people to understand their rights. Waiting for counsel, who is familiar with these rights, to be present before speaking with law enforcement puts an accused on more equal footing. Many are shocked to learn that law enforcement officers are given wide discretion to obtain evidence for use in a criminal prosecution. This discretion includes the ability to misrepresent facts to try and obtain more information. Although there are compelling reasons for allowing this type of discretion, an unrepresented person is always at a disadvantage when speaking with law enforcement. And an innocent accused can unwittingly make critical admissions to law enforcement making himself more susceptible to misplaced prosecutions. Assume You Are Being Recorded: Between in-car cameras, body cameras, and other types of recording devices, you should assume that any interaction you have with law enforcement is being recorded. Act accordingly. This is true both before and after arrest. A note for attorneys, if an arrest has occurred, the
person may be contacting you from a jail. It is very likely that the phone call is being recorded and can be accessed by law enforcement. This is NOT the time to talk about what happened. It is helpful to get a name, date of birth, and the location where the person is being held. This is the information a bonding company will need to get that person released on bond. Seek Counsel Immediately: We have never said to a client, “I wish you had called me a little later in the process.” The sooner a good criminal defense attorney gets involved, the better for the client. We regularly resolve cases before they are filed by the law enforcement agency, accepted by the prosecution office, or indicted. If a person is aware of an investigation but no arrest has been made, that person might assume that she does not yet need an attorney. In reality, the earlier an attorney gets involved, the more opportunities that attorney has to assist the client and counsel him on the advantages and risks of any actions taken. And remember, what an attorney says on your behalf is not admissible evidence against you, but what you say is. Obviously, this article can only skim the surface of all the advice that should be given. If you have additional questions, please call a criminal defense attorney you trust before the need actually arises. HN Messina Madson and Kendall Castello are partners at the firm of Madson Castello. They can be reached at messina@ madsoncastello.com and kendall@madsoncastello.com, respectively.
May 2020â€
D al l as Bar A ssoci ati on l Headnotes 9
10 H e a d n o t e s l D a l l a s B a r A s s ociation
Focus
May 2020
Criminal Law/Trial Skills
Tips for a Better Direct Examination BY JOHN ADAMS AND PAULETTE MINITER
Direct examination is a critical opportunity to tell your client’s story and build credibility. To do so, the examination should be clear, direct, memorable, persuasive, and invulnerable to cross examination.
Clear and Direct
A hallmark of direct examination is that leading questions are generally not permitted. That is, the question cannot suggest the answer to the witness. But this is not an excuse for meandering testimony. So, use short pointed questions to keep your witness on track and as guideposts for the jury. Don’t ask “what, if anything, happened next?” Instead, ask “after the crash, did the car stay or leave?”; “what direction did it leave in?”; “how fast was it travelling?”; “who was driving?” These bite-sized chunks will be clearer to the jury. An exception to the general rule against leading on direct examination is Rule of Evi-
dence 104. Under Rule 104, the evidentiary rules do not apply to “preliminary question[s]” about whether evidence is admissible. Using this rule helps focus your examination. Otherwise, you may lose a jury’s attention with archaic-sounding “foundation” questions. For example, most lawyers lay a business records foundation through a series of questions that confuse the witness and the jury. But under Rule 104, one compound, leading question usually suffices: Ms. Smith, “Exhibit 1” is a record made and kept in the course of your company’s regularly-conducted business activity, right? Another way to make your examination clear is through “signposts” to keep the jury and witness tethered to your main points. For example, you can transition by saying, “Ms. Smith, now that we have talked about your background, I would like to ask you about the contract you signed.”
Memorable and Persuasive
During direct examination, it is not
Need Referrals? Take out an Area of Practice and/or Foreign Language Proficiency listing in the 2020 DBA Member Directory to get great exposure for your practice. For just $25 per listing you will be included in both the printed and online DBA Member directory. Listing Cost: $25.00 For more information and an order form contact Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.
DBA Bench Bar Conference
enough to introduce evidence—your themes and main points must be apparent to the jury throughout. For example, many examinations begin with a witness’s background. Often, this line of questioning is either a brief introduction “for the record”—as if the jury were not even there—or it becomes a slog through the witness’s entire CV. Instead, use a witness’s background to establish credibility. The jury is more likely to trust a witness who is a nurse who worked at the same hospital for 20 years with glowing reviews than if she is just, “Ms. Smith.” But also remember that your introduction of a witness must tie her to the case. That is, before diving into Ms. Smith’s background, the jury must understand if Ms. Smith is an eye-witness or an expert accountant. Testimony is also made memorable and persuasive through artful repetition. Do not pretend you missed that bit of key testimony to ask the witness to repeat it, and do not just “loop” back the witness’s answer into each next question. Instead, follow up and set the scene with rich detail: “when the driver sped away, could you tell what she was wearing?”; “did the car make a noise as it left?”; “was your view unobstructed?”; “how far away were you when you saw the car leave the scene?” Vivid details are memorable and persuasive, and details allow you to slow down to focus on a narrow issue without being repetitive. Another way to achieve artful repetition and be more persuasive is through your use of documents. First, ask the witness to recall facts about an issue. Then, use supporting documents like a citation or footnote to corroborate the testimony— enhancing the witness’s credibility. You will be effectively reiterating the witness’s
important testimony by referencing the document. Perhaps the best way to make testimony more memorable and persuasive is through demonstrative aids. Many people are visual learners, and studies show that people learn better when they see as well as hear. Moreover, demonstrative aids let you repeat your witness’s key testimony in a more digestible format. For example, if your witness testifies about a series of events, and the chronology is important, a timeline will be helpful. After your witness testifies about what happened, draw a line on a flipchart or ELMO, go back through the key events, and populate your timeline to help the jury understand the chronology. Even better, ask your witness to help draw the demonstrative to bring their testimony to life. If your demonstrative helps the jury and accurately summarizes the witness’s testimony, it may even be admitted into evidence for the jury’s use during deliberations.
Invulnerable to Cross-Examination
It is essential to address “bad facts” or limitations during direct. Ideally, any “bad facts” are incorporated in a way to make them “good facts,” but you should always anticipate those facts being addressed during cross. You will not only blunt the force of those bad facts, but by eliciting those facts on direct, you enhance your most important asset as an advocate: your credibility. HN
John Adams and Paulette Miniter are trial lawyers at Lynn Pinker Cox & Hurst. They can be reached at jadams@lynnllp.com and pminiter@lynnllp.com, respectively.
May Friday Clinics May 8
May 15
Generational Differences in Communication in the Workplace
How Lawyers Can Use Social Media & Technology: The Legality & Ethical Ramifications
May 15
May 29
Mental Health Series: Working Through Mental Health Issues
The Witness Woodshed In The (New) Roaring 20’s- Ethics, Tips, Tricks & Traps
Be sure to check www.dallasbar.org for up-to-date information.
SEPTEMBER 23-25, 2020 HORSESHOE BAY RESORT 7.5 Hours of INNOVATIVE CLE Excellent Networking Meet your Judges Sponsorships and Exhibit Space
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May 2020
D al l as Bar A ssoci ati on l Headnotes 11
TWO WORDS:
PROVE IT. I N T R O D U C I N G C H R I S L E W I S & A S S O C I AT E S Those who know Chris Lewis know that his record as a criminal defense lawyer speaks for itself. In more than 250 state and federal jury trials across the country, Chris has not only dominated — he has achieved one of the highest acquittal rates in the state of Texas. Chris has been described as “a master in the courtroom.” Attorneys and clients call his approach to trials “strategic, creative and brilliant,” saying his examinations are “…unpredictable and tremendously effective.” There’s no doubt that Chris Lewis & Associates can handle any type of criminal charge — everything from white-collar crimes and drug conspiracies to violent felonies. They’ve handled them all. They’ve got your back, and they are ready to prove it.
RE F E RRAL S WE L C O ME D C O NS ULTAT IO NS AVAIL AB L E 214.665.6930 LEWISDEFENSE.COM
12 He a d n o t e s l D a l l a s B a r A s s ociation
Focus
May 2020
Criminal Law/Trial Skills
New Persuasion Insights for All Lawyers from Behavioral Science BY SHANE READ
Next time you go to court or walk into a meeting, leave your arguments at the door. This advice is contrary to what we were taught in law school, but it is based on the latest behavioral science research and how great lawyers win today. From the first day in law school, we were wrongly taught that we should argue in order to win. Webster’s gives two definitions for an argument: “1) a coherent series of reasons, statements, or facts intended to support or establish a point of view and 2) an angry quarrel or disagreement.” Lawyers often do the first and sometimes both. If the judge or juror’s brain were a computer that made an unemotional decision based on which lawyer had the best argument, our law school training would be perfect for the real world. But behavioral science research proves that
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our training is wrong and sheds light on how the human brain makes imperfect decisions based on emotions—not perfect decisions based on facts and reasons. One of the causes of imperfect decisions is a condition called confirmation bias. That is, the brain forms a belief and will sift through subsequently conflicting information to find only the evidence that supports the initial belief. Although there was no research regarding confirmation bias hundreds of years ago, the principle existed. In 1620, Francis Bacon said, “Once a human intellect has adopted an opinion (either as something it likes or as something generally accepted), it draws everything else in to confirm and support it. Even if there are more and stronger instances against it than there are in its favor, the intellect either overlooks these or treats them as negligible or does some line-drawing that lets it shift them out of the way and
Support the DBA Home Project Help us reach our goal of $90,000 to build our 30th house for Habitat for Humanity. For more information, log on to www.facebook.com/DBAHomeProject or contact Co-Chairs David Fisk (dfisk@krcl.com) or Mike Bielby (mbielby@velaw.com). Make checks payable to Dallas Area Habitat for Humanity and mail donations: c/o Grecia Alfaro Dallas Bar Association 2101 Ross Avenue Dallas, TX 75201
reject them.” Today, Robert Cialdini in his book Pre-Suasion explains that the research on confirmation bias shows that “the best persuaders become the best through pre-suasion—the process of arranging for recipients to be receptive to a message before they encounter it. The answer lies partly in a poorly appreciated tenet of all communication: What we present first changes the way people experience what we present to them next.” Mark Lanier, internationally recognized as one of the best plaintiff ’s lawyers in the country, told me that whenever he walks into a courtroom, he “thinks of presentations, not arguments.” His presentations start with a powerful theme—what I like to call a bottom-line message—because he knows the power of confirmation bias. In a two-month trial against Johnson & Johnson in which he represented plaintiffs who had defective hip replacement implants, Lanier used this theme in his opening statement: “This is a case about six people who trusted a product, trusted a doctor, and got terrible results.” What makes Lanier’s bottom-line message better than a heated argument? First, it provides a framework for how the jury will perceive the rest of the facts and reasons he presents. Second, brevity speaks loudly. Third, it is memorable because it uses alliteration (repetition of the same letter at beginning of closely connected words) and anaphora (repetition of same word or phrase at beginning of successive clauses). Finally, Lanier uses the “Rule of Three,” which is a time-tested prin-
ciple that people remember ideas better when they are grouped in a set of three. Most important, it stirs jurors’ emotions. To do that, it must convey a core human value. Lanier uses “trust” as his human value. In addition to having a bottom-line message at the beginning of your presentation that takes advantage of confirmation bias, you need to think about the tone of your delivery. Dale Carnegie believes that the only way to win an argument is to avoid it. Bryan Stevenson, one of this country’s most successful civil rights lawyers whose career was featured in the recently released motion picture Just Mercy, shared with me that when he appears for oral arguments, he never thinks of arguing with the justices or the opposing side. Instead, he believes that to win, you should “have a conversation with the court.” Lisa Blatt, who holds the women’s record for most appearances before the United States Supreme Court (33 and counting), told me that to win, lawyers should not focus on making an argument but instead “channel your client” so that the justices realize that their decision effects a real client. In short, the next time you are in court or a meeting, use confirmation bias to your advantage. Forget about arguing. Instead, start with a powerful bottom-line message that encompasses a human value. As you deliver your presentation, have a conversation and speak from your heart to persuade. HN Shane Read is a trial lawyer and author. He can be reached at shane@shaneread.com.
May 2020
D al l as Bar A ssoci ati on l Headnotes 13
David Finn
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Kathy Archuletta
George Milner III
Thomas Wynne
Aggressive Experienced Trusted Dallas Criminal Defense Attorneys FEDERAL • STATE • JUVENILE
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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
May 2020
MENTAL HEALTH AWARENESS
The Ethics of Mental Health Awareness BY JENNY L. WOMACK
As lawyers, we all face a number of stressors every day, in our professional lives as well as our personal lives. Unsurprisingly, a 2016 study of approximately 13,000 lawyers by the ABA in conjunction with the Hazelden Betty Ford Foundation found that lawyers experience problematic alcohol use at higher rates than other professions and further that depression, anxiety and stress are significant problems for our profession. Clearly mental and psychological health issues are a concern, but what does this have to do with ethics? I believe being aware of mental and psychological health and
wellness is not only an issue of personal importance, but of professional ethics. The first rule governing our professional conduct is our duty to provide competent and diligent representation to our clients. Tex. Disciplinary R. Prof. Conduct 1.01. If a lawyer is impaired due to mental or psychological health issues, including but not limited to substance abuse, then he or she may not be able to provide competent and diligent representation. In fact, Rule 1.15 specifically says a lawyer should decline to represent a client (or withdraw if representation has already commenced) if the lawyer’s “physical, mental or psychological condition materially impairs
the lawyer’s fitness to represent the client.” [emphasis added] Further, as lawyers, we have a duty to report our fellow lawyers (or judges for that matter) if we have knowledge of or suspect they are “impaired by chemical dependency on alcohol or drugs or by mental illness,” though we can (and I assert should) report them to “an approved peer assistance program” (i.e. TLAP) rather than to a disciplinary authority. Tex. Disciplinary R. Prof. Conduct 8.03(c). So not only do we have a duty to ourselves and our clients, we have a duty to our peers to be alert to mental and psychological health concerns. As a lawyer who has struggled with
depression since my teens, I am certainly NOT saying every lawyer struggling with mental or psychological health issues is impaired or violating their duty to their clients. What I am saying is that we should all be aware that such problems, if left unaddressed, can (and often do) impact our ethical duties to our clients and to each other. So it is not only important, but also ETHICAL, to take care of our mental and psychological health, to seek help if needed, and if we see someone else struggling, to encourage them to seek help. HN
should take in response. (Organize the discussion as you would if you had diabetes and were explaining the signs of insulin shock and how to address it.) Grant your colleague permission to intervene if a symptom presents itself. Such intervention can take many forms: opening a dialogue with you, reaching out to your loved ones, obtaining medical assistance, etc. The benefit of enlisting a co-worker’s aid is that he or she is likely to interact with you frequently and, therefore, may be in the best position to spot symptoms. However, I fully acknowledge that there
is risk in sharing private health information with a co-worker. If you are uncomfortable with talking to a colleague about a mental condition, share your symptoms with family and/or friends—and grant them permission to intervene if symptoms arise. You don’t just owe it to your peers; you owe it to yourself. HN
Jenny L. Womack is a solo practitioner at Jenny L. Womack, P.C. She can be reached at jenny@womackadoptions.com.
Taking Responsibility BY KELLY RENTZEL
Over the years, the Peer Assistance Committee has asked lawyers to bear the responsibility of assisting their colleagues who face mental illness. These presentations have prompted me to wonder: as a lawyer with a mental illness, what responsibilities do I owe my peers? There are many ways to cope with mental illness responsibly, but I believe that, in addition to the basics of therapy and/or medication, the following are critical: 1. Accept that you have a mental ill-
ness. If all indications point to a diagnosis (and you have received said diagnosis), acknowledge that you have a mental illness. Only by accepting your condition can you begin to manage it. 2. Educate yourself about your condition. Work to understand what factors may trigger your condition and how you can minimize their impact or (possibly) avoid them entirely. 3. Help others help you. Talk to a trusted colleague about your illness, being sure to describe: (1) the symptoms that might indicate a flare-up of a mental condition; and (2) the actions your co-worker
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. KINDESS: 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.
TLAP SERVICES
l Confidential Services l 24-hour hotline and crisis counseling l Peer contact and support l Referral to resources including lawyer support groups l Stress management education
Kelly Rentzel is general counsel of Texas Capital Bank, N.A., mother to a vivacious 10-year old, and a 24-year veteran of bipolar I disorder. She can be reached through her website, bipolaroz.com, which is a haven for those dealing with mental health issues.
l Custom CLE program l Confidentiality and immunity protections under Texas Health and Safety Code, Chapter 467 l Consultation and compliance services relating to TDRPC, Rule 803 “Reporting Professional Misconduct”
Peer Support Resources TLAP: CONFIDENTIAL. RESPECTFUL. VOLUNTARY (Health & Safety Code §457) Contact: 1.800.343.8527 | TexasBar.com/TLAP Dallas Bar Association Peer Assistance Committee Where: 2101 Ross Avenue, Dallas Texas 75201 When: Committee Meetings the 2nd Monday of the month. Phone: 214.220.7400 Lawyers Concerned For Lawyers – Dallas Chapter Where: First United Methodist Church. 1925 San Jacinto When: Thursdays 12 p.m. – 1:00 p.m. Lawyers Concerned For Lawyers – North Dallas/Plano Chapter Where: Meridian Business Center Boardroom, 555 Republic Dr. Suite 200, Plano, Texas When: Tuesdays 12 p.m. – 1:00 p.m. Confidential Support Group For Depressive Attorneys Attendance limited to: Attorneys currently depressed and those seeking to maintain remission for the disease. Where: Doubletree Hotel Campbell Centre. 8250 N. Central Expressway, Dallas When: 2nd Monday of the month. 6:15 p.m. – 8:00 p.m. Women’s Confidential Mental Health Support Group Meeting: Attendance limited to: Women Attorneys who have experienced depression, bipolar disorder, PTSD or other mental illnesses. Where: Central Market Café. 5750 East Lovers Lane. Upstairs, Community Room B When: 3rd Thursday of the month 11:45 a.m. – 1:15 p.m. Phone: Renda Miller – 214.202.2800
May 2020
D al l as Bar A ssoci ati on l Headnotes 15 MENTAL HEALTH AWARENESS
The Power of One: Stop Minding Your Own Business BY TERRY BENTLEY HILL
It is not easy being a lawyer. The competitive, pressurized, adversarial, combative, win-at-all-costs legal profession practiced by smart, type-A, personalities is driving many attorneys to drink…literally. Attorneys work in a pressure-filled profession that for many, in order to cope, leads to substance use disorders, depression, and anxiety. By now most attorneys have heard the startling statistics regarding attorney wellness, so to the 21 percent of attorneys with drinking problems, the 61 percent experiencing anxiety, the 46 percent living with depression, and the 11 percent with suicide ideation: You are not alone and there is help.
The Language of Depression
The State Bar of Texas has long addressed the impact of substance use disorders on the profession. More recently, with the increase in attorney suicides, the Bar’s focus includes mental wellness, mental health issues, and suicide prevention. Depression speaks a language, of which most people are not familiar. Many people experiencing depression and suicide ideation telegraph their distress in several ways:
Stop Minding Your Own Business
Often people struggling with depression do not realize they have depression. The onset can be slow and gradual, effectively becoming a new normal as the condition worsens. Couple that with substance overuse as a coping mechanism, and you have a progressive disease that can be fatal if left untreated. For these reasons, it takes us, the collective legal community, to willingly step
Verbal
Depression
Substance Use Disorder
All or Nothing Thinking
Consistent feelings of sadness or hopelessness.
Using alcohol or drugs to bolster performance.
Everyone will be better off without me.
Lack of interest in people, things or activities previously enjoyed.
Using substances on the job.
I am a burden to my family, friends and colleagues.
Increased fatigue or loss of energy., restlessness or irritability.
Failing to show for appointments, meetings, depositions, court appearances.
I have no friends.
Change in appetite, weight or sleep patterns
Failing to return phone calls.
I wish I could die.
Isolation
Declining quality of work.
Life is too hard. No one would miss me if I were gone.
Diminished ability to remember, think clearly, concentrate or make decisions
Avoiding law partners, staff, colleagues, clients, friends and family.
I am a complete failure. I’ve let everyone down. I might as well die.
Thoughts or expressions of death or suicide.
Making excuses for, or lying about, frequency or amount.
out of our comfort zone when we spot the symptoms and compassionately approach the sufferer and ask one simple question: Are you ok? That question can save a life. Struggling with mental health issues can be isolating and lonely. Loneliness is an affliction that one person can cure. Do not fear asking your friend, family member or colleague: 1) if they are thinking of hurting themselves, 2) if so, do they have a plan, and 3) if they have means to carry out the plan. The idea will not plant an idea in their head, they are already thinking it. Then suggest they call their family or doctor or 9-1-1.
There is Help
Studies show the most effective treatment for depression and other mental health issues is three-fold: 1) medication, 2) cognitive behavior therapy, and 3) peer support.
For Texas attorneys, judges and law students, the Texas Lawyers Assistance Program offers crisis counseling, coaching and referrals. The calls to TLAP are respectful and confidential. Know the number: 800343-8527. TLAP provides struggling attorneys with help, not discipline, and by call-
ing TLAP it fulfills our ethical obligation to report under 8.03 of the Texas Disciplinary Rules of Professional Conduct. HN Terry Bentley Hill is a Dallas Criminal Defense Attorney. She is CoChair of the DBA Peer Assistance Committee and TLAP volunteer. She can be reached at terry@terrybentleyhill.com.
Online Webinar May 14, at Noon | Ethics 1.00
Join John McShane, David Williams and TLAP Director Chris Ritter for an Entertaining, Informative and Helpful Look into the Importance of Attorney Wellness Log on to www.dallasbar.org for online seminar link. Sponsored by the CLE and Peer Assistance Committees
or Text “TLAP” to 555888
HELP & RESOURCES FOR:
•DEPRESSION •ANXIETY •SUBSTANCE USE •GRIEF AND MORE
STRICTLY CONFIDENTIAL
TLAP HELPS WWW.TLAPHELPS.ORG
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
May 2020
We miss you DBA members! We miss seeing you all at the Belo. Until we are together again, here are some photos from our members work-at-home setups, homeschooling, and how they are taking mental health breaks. Thank you for being part of our #DBACommunity.
Abigail and Madeleine Bravo celebrating Easter
Olivia Ortiz takes Tae Kwon Do vía Zoom while Mom, Mey Ortiz, works on couch
Judge Tonya Parker in her home office
Saba Syed, Ira Perez, and Brent Turman present a DBA Webinar via Zoom
Chief District Judge Barbara M. G. Lynn gets in a workout with Dakota
FEDERAL & STATE CRIMINAL DEFENSE FEDERAL & STATE CIVIL TRIAL MATTERS
Knox Fitzpatrick ✯ Jim Jacks ✯ Bob Smith ✯ Mike Uhl ✯ Ritch Roberts 500 NORTH AKARD STREET, ROSS TOWER, SUITE 2150 DALLAS, TEXAS 75201-6654 | 214-237-0900 *Independent Law Offices
May 2020â€
D al l as Bar A ssoci ati on l Headnotes 17
Thank you for being part of our #DBACommunity
Keith and Truett Pillers (11 weeks old)
Zoe Alaman helping mom work
Steve Gwinn - Monday means dress to impress
Savannah Perez, 4, showing off her chalk art
Rusty Watson #workfromhomehelper #aussieatattention #pleasepetme
Scarlett Leatherberry, 5, sharing her letter to the mail carrier thanking him and a thank you poster for all delivery people, mail carriers, healthcare workers, trash men, etc.
Baxter working at home with mom Sakina Rasheed Foster
Hudson Ryback watching the DBA webinar on force majeure clauses with mom Jennifer Ryback
Olive Ullrich, who thinks climbing in mom Rachel's lap during important conference calls is fun.
Terry Bentley Hill #texasstrong #dallasstrong
Lindsay Hedrick's son Griffin Galose filling out the 2020 Census as part of his social studies lesson for the day.
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18 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
May 2020
Criminal Law/Trial Skills
Staying “Reasonable” with 18.001 after September 1, 2019 BY LAURA BENITEZ GEISLER AND ALEXANDRA RISINGER
With the 2020 election cycle in full swing, the debate over how to handle the rising and variable cost of healthcare is a hot election topic. In personal injury cases, the healthcare cost debate often spills into the courtroom because claims for past medical expenses must be supported by evidence that the service was “necessary” and the charges “reasonable.” What a healthcare provider charges or is ultimately paid for a service can vary depending on the payor—private health insurance, Medicare/Medicaid workers’ compensation, or from the proceeds of a personal injury claim. The variability of charges opens to debate the “reasonableness” of medical bills in personal injury claims. Plaintiffs can establish the “reasonableness and necessity” of past medical expenses through expert testimony, or in accordance with section 18.001 of
the Texas Civil Practice and Remedies Code. Section 18.001 allows for a nonexpert records custodian to establish the reasonableness and necessity of medical services by affidavit. Recent changes to section 18.001 affect the manner and method by which 18.001 affidavits can be used or challenged in cases filed after September 1, 2019. Establishing the reasonableness and necessity of medical costs through Texas Civil Practice & Remedies Code § 18.001. Section 18.001 was enacted as a procedural vehicle to streamline the proof needed to establish the reasonableness and necessity of medical expenses. When uncontroverted, a plaintiff can avoid the inconvenience and expense of hiring an expert to prove up medical damages (although plaintiffs still must present evidence linking the occurrence to the medical expense). Defendants have the option of controverting a plaintiff’s 18.001 affidavit evidence by meeting the substantive and pro-
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cedural requirements set forth in the statute which, among other things, requires controverting affidavits to be authored by a qualified expert. Because charges for services vary widely depending on who pays, the reasonableness of a charge is often the basis for a controverting affidavit. Amendments to section 18.001. Recent changes to section 18.001 went into effect for cases filed on or after September 1, 2019. The amendments are important because they affect the applicable deadlines and procedure for filing and challenging section 18.001 affidavits. Before September 1, 2019, a plaintiff could serve 18.001 affidavits at any time up until 30 days before trial. A party wishing to controvert an 18.001 affidavit had to do so within 30 days of receiving a copy of the 18.001 affidavit and at least 14 days before trial. Because plaintiffs could serve affidavits at any time up until 30 days before trial, defendants often complained that the deadlines for filing and controverting 18.001 affidavits gave plaintiffs an unfair advantage by allowing them to serve the affidavits early, in piecemeal fashion or on the eve of trial. For cases filed on or after September 1, 2019, the deadlines for serving 18.001 affidavits vary based on when the subject medical treatment occurs. If the plaintiff received treatment before the defendant filed an answer, then the affidavit must be served either 90 days after the defendant answers or by the plaintiff’s expert designation deadline—whichever is earlier. Defendants must serve their counteraffidavits within 120 days after the initial answer is filed or by its expert designation date—whichever is earlier. If a plaintiff received medical treat-
ment for the first time after a defendant has filed an answer, then the plaintiff must serve their 18.001 affidavit by their expert designation deadline, in which case the defendant has either 30 days or until its controverting expert’s designation deadline—whichever is later. If a plaintiff is still treating with a provider after serving their 18.001 affidavit, the plaintiff has until 60 days before trial to file a supplemental affidavit, and the defendant has up until 30 days before trial to controvert. Additionally, parties now must file a notice with the clerk that an affidavit or controverting affidavit has been served in accordance with the statute. Dealing with the changes to 18.001. The new deadlines will require plaintiffs to have their medical and billing record affidavits ready much earlier in the lawsuit and, when the plaintiff’s treatment is ongoing, work to ensure that any supplemental affidavits are timely obtained and served. The amendments also do not address what happens when there are multiple defendants who file answers on different dates or who are added at different times. Because section 18.001(i) specifically permits the Court or the parties to change the deadlines, one way to address these issues is in an agreed scheduling order. While the parties may not agree on what is a “reasonable” cost for service, a scheduling order that addresses deadlines for filing and controverting affidavits may be something that all parties can agree upon. HN Laura Benitez Geisler and Alex Risinger and trial attorneys at Sommerman, McCaffity, Quesada & Geisler, L.L.P. They can be reached at lgeisler@textrial.com and arisinger@textrial.com, respectively.
37 36 18 3.8 2.8
May 2020
D al l as Bar A ssoci ati on l Headnotes 19
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20 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
May 2020
COVID-19
HIPAA, Telecommuting, and Force Majeure During COVID-19 BY RACHEL V. ROSE
In light of the Coronavirus pandemic, persons should be familiar with its impact on HIPAA, telecommuting and force majeure provisions.
HIPAA
The HIPAA Privacy Rule and Security Rule are still applicable during this pandemic. The Privacy Rule has always had an exception for health providers to report certain diseases or conditions of an individual patient to various state and federal government agencies, such as a state’s Department of Health and Human Services or the Centers for Disease Control and Prevention (CDC). 45 CFR § 164.512(b)(1)(i). The transmission of the patient’s information still needs to occur in accordance with the Security Rule. The U.S. Department of Health and Human Service’s comment on disclosing CoVID-19 patient related information
underscores these notions: “In general, except in the limited circumstances described elsewhere in this Bulletin, affirmative reporting to the media or the public at large about an identifiable patient, or the disclosure to the public or media of specific information about treatment of an identifiable patient, such as specific tests, test results or details of a patient’s illness, may not be done without the patient’s written authorization[.]”
Telecommuting
First and foremost, organizations should already have natural disasters or government declared emergencies in its policies and procedures, including its Disaster Recovery and Business Continuity Plans. For workforce members who already work remotely, a checklist and attestation, as well as training, should already be in place. For workforce members who typically do not work from home or away from the local office, organizations should have the person complete a checklist, verify that
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the attestations are truthful, provide additional training and install any software that other remote employees have in place. It goes without saying that secure Wi-Fi is one of the requirements on the checklist, as well as using a room outside of the purview of other family members and friends and having a cross-cut shredder. Employers should keep workforce members up to date on government directives and changes in hours of operation. Overall, ensuring continuing compliance with the Security Rule’s technical, administrative and physical safeguards is vital.
Force Majeure
Finally, a common contractual provision that has come to the forefront is the force majeure clause. Black’s Law Dictionary defines force majeure as, “[a]n event or effect that can be neither anticipated nor controlled.” Force majeure clauses allocate risk between the contracting parties if performance becomes impossible or impracticable because of an unforeseen event. No doubt, a pandemic is an unforeseen event. Yet, like most interpretations of a contract, courts first look to the “four corners” of the document. The Parties should be as specific as possible when drafting this provi-
sion. An “act of God” could be and has been interpreted differently than a “emergency measures”. The most effective way to make sure an item is either included or excluded is to list it. Otherwise, it may be up to a court to apply an objective standard. In the pandemic situation and most other disasters such as Hurricane Harvey, the most cost effective and expeditious route is for the parties to reach an agreement. Otherwise, a court may rely on equitable remedies. In sum, from a practical standpoint, in order to thwart the spread of the Coronavirus, wash hands regularly, wipe down surfaces, limit face to face interactions and adhere to CDC guidance. Telecommuting also requires vigilance. Be certain to adhere to the Privacy Rule and the Security Rule. Providers may make disclosures to various health authorities, albeit in a secure manner. Finally, when considering contracts, be sure to list and define broad categories. Alternatively, if a contract is already in place, be certain to review case law in the jurisdiction. Above all else, be rationale and reasonable. HN Rachel V. Rose is a solo practitioner and teaches bioethics at Baylor College of Medicine in Houston. She can be reached at info@ rvrose.com.
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DVAP’s Finest EWA CHAMPAGNE
Ewa Champagne is an attorney at Baker & Hostetler LLP. How did you first get involved in pro bono? My life has been full of adventures, and one day, I landed in Dallas unexpectedly. With only a New York license, I turned to DVAP clinics to stay connected to the legal community while obtaining my Texas license, finding a job, and embracing Dallas as home. Describe your most compelling pro bono case. I helped a client prepare her will and powers of attorney. That might sound trivial, but what stood out most about this case wasn’t the legal work that I did for her, but rather the relationship that we formed. I confided in her that I was pregnant with my second child before I told anyone else. Even though I was supposed to be the one helping her, her kindness and care for me was overwhelming! She called me to checked on me, baked me goodies for my morning sickness, and we continue to keep in touch. Why do you do pro bono? I think the better question is why wouldn’t you do pro bono? It is the easiest way to use my legal skills to make a difference in another person’s life. It is a way to stay familiar with an area of practice that I enjoy, but don’t have an opportunity to work on otherwise. I’m also a big proponent to never stop learning, and taking on pro bono cases allows me to develop new skills. What is the most unexpected benefit you have received from doing pro bono? Estate planning and probate were previously a central part of my practice, and I derived deep personal satisfaction in helping clients with these important decisions. When my career trajectory changed directions, I was initially sad when I thought that I would never draft another will. However, to my surprise, through pro bono opportunities I have not only been able to continue helping clients with their planning, I’ve also been given the exciting opportunity to mentor and guide other colleagues with their first pro bono wills. I’m delighted to have the opportunity to serve the community, and even more delighted to help equip other attorneys do the same.
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
May 2020
D al l as Bar A ssoci ati on l Headnotes 21
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22 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2020
Litigation Financing: The New Litigation Asset BY IAN SHAW
Litigation financing is changing the way law firms handle litigation, and it’s giving companies and law firms a way to decrease their legal budgets while saving capital to invest elsewhere, whether internally or externally. According to a study done by Westfleet Advisors, over the past decade litigation financing has become a multibilliondollar industry, with $9.5 billion available for investment in the US and $2.3 billion invested annually in US commercial litigation finance. Two essential advantages that litigation financing provides are portfolio funding and risk management. According to a study done by Buford Capital—the Litigation Financing industry leader—66.9 percent of in-house attorneys agree that litigation is expensive, and companies benefit from reducing its impact on P&L by utilizing litigation financing. A litigation funder can offer companies portfolio funding. Through portfolio funding, a litigation financing company funds a company’s litigation expenses, which allows the company to remove the litigation costs from the liability section of its balance sheet
and reallocate it to the asset column. In turn, companies will have the capital to invest in internal operations or external business opportunities. For public companies, portfolio funding can help the balance sheet look more attractive to investors. Similarly, litigation financing can also help fund a law firm’s portfolio. According to Westfleet Advisors research, 47 percent of the capital committed has been allocated to funding law firm portfolios. To illustrate, a law firm that has several litigation cases with a potential for large judgments, can partner with a litigation funder who would fund the law firm’s fees and costs for those cases. In return for this nonrecourse investment, the litigation funder would take a substantial piece of the judgment. This will allow the law firm to use the capital that would initially be used to fund the cases and allocate it towards the firm’s operations. For example, law firms could use the newly freed capital to invest in office space, reward employees with higher bonuses, offer employees larger salaries, or invest in employee training. Furthermore, a litigation funder allows law firms to pursue claims that it wouldn’t normally pursue due to limited capital. Law
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firms tend to shy away from cases that might present very high potential awards if the costs of litigation, when considered against the prospect of not winning, presents too much risk for the firm. However, litigation financing allows law firms to pursue those claims. It allows law firms to worry less about the costs and more about the legal claims. In addition to freeing up capital, a litigation financer allows a company to hedge its risks. Companies are known to litigate more than individuals, which means large budgets and resources are allocated to litigation. Yet a litigation financer can help lower the risk that companies face when pursuing big claims. In Litigation: The News Corporate Finance Tool, Adam Grechen stated that a survey of legal officers at public and private companies in the United States and the United Kingdom revealed that nearly a quarter of the companies recently initiated a lawsuit with more than $20 million at stake. Companies that use a litigation funder can hedge those risks and allow the litigation financer to fund the lawsuits. Thus, the risk of spending large sums of capital on litigation is decreased. With less capital being spent on litigation, companies have more capital to allocate to other operations. The risk factor of spending large sums of capital on claims that could poten-
tially last for years, while draining the company’s budget is a major topic of discussion among shareholders. During the long, drawn out litigation process, companies risk spending substantial amounts of capital, expending resources and losing time, all of which make shareholders uneasy. The utilization of litigation financing allows companies to minimize that risk, while also propping up their balance sheets and increasing shareholder value. Additionally, litigation financing lowers the risk of companies having to depend on judgment awards from the court, and it decreases the risk of companies depending on an appeal to issue the final judgment, which could take years. Litigation financing is a game changer. Litigators who are well versed in litigation financing can use this tool not only for their own practice but to also offer their clients a business practice that could potentially save their clients millions of dollars. Litigation financing gives companies and law firms the ability to pursue claims they would not normally pursue because of limited capital; frees up capital to invest in their internal business operations; and lowers the risk of decreasing shareholder value. For the first time, litigation can be an asset. HN Ian Shaw is an associate at Brewer Attorneys & Counselors. He can be reached at ins@brewerattorneys.com
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May 2020
D al l as Bar A ssoci ati on l Headnotes 23
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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
Focus
May 2020
Criminal Law/Trial Skills
From Counsel to Co-Defendant: Beware of the Crime-Fraud Exception BY MARIO H. NGUYEN AND PAUL E. COGGINS
“That will never be me….” Admit it or not, this thought likely crossed every lawyer’s mind when news broke of the FBI’s raid of the offices of Donald Trump’s personal attorney, Michael Cohen. Last year was marked with high-profile prosecutions of attorneys like Michael Cohen—sentenced to three years’ imprisonment—and former Stormy Daniels attorney Michael Avenatti, who now faces —up to 42 years’ imprisonment. Texas has had its own attorney prosecutions too. Following a two-week trial in October 2019, an Eastern District of Texas jury convicted Austin-based attorney, Jamie Balagia, a/k/a “DWI Dude,” for [I believe it is “of”] conspiracy to commit money laundering, obstruction of justice, wire fraud, and attempt to violate the Kingpin Act for scamming over one million dollars from Colombian drug traffickers. On the opposite end of the spectrum,
an attorney could unknowingly find herself furthering a crime and being subject to the crime-fraud exception. Imagine, for example, the client who falsifies documents unbeknownst to his attorney and then produces the fake documents to a grand jury. Even if the lawyer was unaware of the falsified documents, the crime-fraud exception can destroy privilege. Extreme examples aside, the privilegepiercing crime-fraud exception makes it easier to end up in their shoes than you think. Here are some practical tips to avoid crossing the line from counsel to co-defendant.
What is the Crime-Fraud Exception?
After the raid of Michael Cohen’s office, Donald Trump tweeted, “Attorney-client privilege is dead!” Quite the opposite. The crime-fraud exception is a wellestablished legal doctrine. The cloak of privilege shields attorneys when advis-
ing their clients regarding past criminal or fraudulent conduct to encourage full and frank communication in promotion of the broader public interests in the observance of law and administration of justice. Privilege does not shield advice advancing ongoing or future fraud or crimes. While the law varies by state, the crimefraud exception usually opens an attorney’s advice to scrutiny when the advice furthers an ongoing crime or fraud. Some jurisdictions even include certain torts or “other misconduct.” In other words, a mobster accused of bribery can consult an attorney about the facts of his alleged bribery without fear that the attorney will disclose those communications. However, the lawyer cannot deliver the bribe. The exception also applies to all crimes and frauds regardless of size. Some examples include unlawfully possessing a grand jury transcript, perjury, destroying evidence, or filing fraudulent court filings. A court need only find that a prepon-
Peter Barrett DAALLLLAASS CCRRIIM MIIN NAALL D D EE FF EE N N SS EE A A TT TT O OR RN N EE YY D
derance of the evidence indicates the attorney advised a client regarding an ongoing or future crime or fraud to apply the exception and destroy privilege. In upholding the crime-fraud exception, the U.S. Supreme Court has reasoned that employing an attorney to shroud illegal conduct in privilege would effectively immunize criminals from prosecution, corrupt the legal profession, and erode public confidence in the legal system. The D.O.J.’s Justice Manual nonetheless requires prosecutors to secure approval from high-level D.O.J. officials to use the crimefraud exception to subpoena or search an attorney’s practice. Beyond potential license consequences, an attorney who helps a client execute an unlawful scheme may be civilly and criminally liable for failing to disclose certain types of unlawful conduct to regulatory authorities or victims—or even as an accessory or co-conspirator to a client’s crime.
Tips to Avoid the Crime-Fraud Exception
Attorneys of all practice areas can help avoid falling into the exception with these tips: 1. When communicating with clients, ask yourself: would I be okay with a recording or written copy of my advice becoming public? 2. Proactively inform your clients that you cannot advise them related to ongoing or future crimes or frauds. 3. Clearly identify when you are providing legal advice and when you are declining to do so. 4. Address and document business advice separately from legal advice, if you advise clients on both. 5. Document any facts that serve as a premise for your legal advice, along with their corresponding sources. If your advice relies on any assumptions, identify them. If modifying those assumptions would materially alter your advice, say so. 6. Avoid giving legal advice based on facts that you have not independently verified. If, however, you must, note any unverified facts that are so material that a variance would significantly alter your advice, and specify how changes in those unverified material facts could affect your advice. 7. Understand the source and reliability of client documents and data before producing them. 8. Ask your client for proof of material facts—even if it is uncomfortable. 9. If you cannot get comfortable with the client or his willingness to follow your advice, be ready to terminate representation (even if it means foregoing a lucrative client). HN
Paul E. Coggins, and Mario H. Nguyen are attorneys at Locke Lord LLP. They can be reached at pcoggins@lockelord.com, and mario. nguyen@lockelord.com, respectively.
• Defending people for 25+ years from all variety of Federal & State Criminal Offenses • A/V Preeminent® - Highest Rating in Legal Ability/Ethics by Bar & Judiciary, 2019 • President of Dallas Criminal Defense Lawyers Association, 2004-2005 • Texas Criminal Defense Lawyers Association, 1995-Present
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May 2020
D al l as Bar A ssoci ati on l Headnotes 25
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26 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
May 2020
In The News
KUDOS
Paul Genender, of Weil, Gotshal & Manges LLP, has been appointed to a twoyear term on the Dallas Women Lawyers Association board of directors. Michael Taten, of Jackson Walker, has been appointed Managing Partner for the Dallas office. Joseph Guajardo and David Schlottman, with the firm, have been promoted to Partner. Lauren Black, of the Dallas District Attorney’s Office, coached a UNT Dallas College of Law mock trial team consisting of Maia Bartee, Samantha McDanel, and Abby Brown who won the TYLA NTC Regional Mock Trial Competition in Tulsa, OK. Marisa O’Sullivan, of Amy Stewart Law, has been promoted to Principal. Tracey Williams, of Peckar & Abramson PC, has been promoted to Senior Counsel.
Stephen Angelette, of Polsinelli PC, earned his board certification in health law from the Texas Board of Legal Specialization. Ashley Drummond, of Hunton Andrews Kurth, has been promoted to Partner.
ON THE MOVE
Seth Sloan joined Crowe & Dunlevy as Associate. Marissa Hatchett joined KoonsFuller as Associate. Dana Murphy joined Jackson Walker as Senior Counsel. Tim Johnston and Jim Marcus joined Haynes and Boone LLP as Partners. Marc Cabrera joined Polsinelli PC as a Shareholder. Jillian Loh joined the firm as Associate.
Gregory Deans and Katherine Stepp have formed Deans Stepp Law located at Republic Center, 325 North St. Paul St Ste 1500, Dallas, TX 75201. Courtney Bowline has joined the firm as Partner. Tisha Ghormley joined the Texas Department of Transportation as Right of Way Attorney. Michael Lyons and Chris Simmons have launched Lyons & Simmons, LLP located at Rosewood Court, 2101 Cedar Springs Rd Ste 1900, Dallas, TX 75201. Jeffrey Harvey joined Holland & Knight LLP as Partner. Joel D. Rich has moved the office of Joel Rich Law to 2225 E. Randol Mill Road, Suite 106, Arlington TX 76011. Jennifer Grinke and Dana Stewart have opened Grinke Stewart Law, PLLC, located at Mateo Office Park, 8501 Wade Blvd, Suite 1460, Frisco, TX 75034.
Ryan M. T. Allen and R. Anderson Sessions joined Coats Rose P.C. as Director and Associate, respectively. BakerHostetler LLP opened a Dallas branch with Shawn Cleveland as Managing Partner and L. David Anderson, Tamara D. Baggett, Jordan T. Bethea, Matt Hunsaker, Patrick H. Rose IV, Robert A. Schroeder, and Todd J. Thorson as Partners. The firm is located at 2728 North Harwood, Suite 300, Dallas, TX 75201. Sonja McGill joined Spencer Fane LLP as Partner. Katherine Clark, Jennifer Ecklund, Elizabeth Myers, and Nicole Williams have joined Thompson Coburn as Partners. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org
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May 2020
Focus
D al l as Bar A ssoci ati on l Headnotes 27
Criminal Law/Trial Skills
Judicial Clemency vs. Expunction vs. Nondisclosure BY PAUL SAPUTO
Thousands of people are arrested or charged with criminal offenses each year who turn out to be innocent of the crimes for which they are accused, but the effects of those accusations can linger for many years even if their cases are dismissed. While there are numerous ways under Texas law to help people get their records “cleared” after a criminal case is disposed, the options can be confusing. The mechanisms for clearing someone’s record vary both in terms of eligibility and effect. Judicial clemency, for instance, does not actually remove anything from the public record. Instead, it has the effect of dismissing the accusation, complaint, information, or indictment against the defendant. In the case of judicial clemency, the person is released from all penalties and disabilities resulting from the offense for which he or she has been convicted or pleaded guilty. The phrase “judicial clemency” does not appear in black letter law; instead, this term has been created by the appellate courts to describe the situation where courts are authorized by the Code of Criminal Procedure to change a conviction into a dismissal. This procedure is described in detail in Chapter 42A of the Code and is referred to as a “set aside” of the conviction. Judicial clemency is only available for people who have been placed on community supervision. The Code itself does not place any limitation on the timing of such an order, but it does place complete discretion in the hands of the court. People who have been placed on deferred adjudication community supervision are statutorily entitled to a dismissal and discharge similar to the one described by judicial clemency upon the expiration of their term of community supervision. But some people who are placed on deferred adjudi-
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cation community supervision are also eligible for an order of nondisclosure. An order of nondisclosure prohibits agencies from releasing information related to an arrest to most members of the public. The code does allow the release of nondisclosed records to government agencies and certain quasigovernmental agencies and boards (for instance, the State Bar). Some people are not eligible for orders of nondisclosure (for instance, people required to register as sex offenders). Also, under a new Texas law, some people are eligible for nondisclosure even though they received “straight” (not deferred) probation or were even convicted of the crimes for which they were arrested. Expunctions are the most powerful type of record-clearing device available under Texas law. If a court orders case records expunged, it requires state agencies and entities who purchase criminal justice records to actually destroy the records and allows the
petitioner to legally deny the fact that the arrest even occurred. Only district courts are allowed to issue expunction orders for non-municipal cases. Petitions for expunction are filed ex parte and there are only certain situations in which a person is eligible for an expunction. For someone to be eligible for an expunction, in general, the arrest must have resulted in a “straight” dismissal of all charges incident to the arrest or an acquittal. Dismissals ordered pursuant to a term of deferred adjudication probation are not eligible for expunctions. It is important to note that people must actually file petitions for expunction—the process is not automatic. Also, the clerks of court charge a filing fee. In the event of an acquittal, however, the state is required to pay the filing fee so long as the petition is filed within 30 days of the acquittal. Two issues can make expunctions complicated. First, a waiting period
may be required. If an arrested person waits for the expiration of the limitations period, the expunction is strongest, in the sense that there is no exception available for state agencies to retain the records. Of course, some offenses do not have limitations period (for instance, murder). In that event, petitioners must either obtain consent from the state or rely on a separate type of expunction that allows law enforcement agencies to retain records. The second issue that can make expunctions complicated is the fact that once records are expunged, there is actually no more record. So, if a person successfully gets an expunction and later discovers that someone did not comply with the expunction order, it can be difficult to enforce the order if neither the client nor the lawyer has an original copy of the order. HN Paul Saputo is a criminal defense attorney at Saputo Law Firm, PLLC. He can be reached at paul@saputo.law.
Headnotes May 2020_AI.pdf 28 H e a d n o t e s l D1a l 4/1/20 l a s B2:31 a r PMA s s o ciation
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