Dallas Bar Association
HEADNOTES
Focus Antitrust & Trade Regulation/Business Ligitation
October 2018 Volume 43 Number 10
For the Love of Philanthropy Jerry and Sherri Alexander Support the EAJ Campaign BY MICHELLE ALDEN
Jerry and Sherri Alexander decided to celebrate their 35th anniversary in a new and different way: by generously contributing to this year’s Equal Access to Justice Campaign in the amount of $30,000! The Alexanders have a long and distinguished history of contributing to the Campaign. Including this gift, the Alexanders have donated more than $115,000 to legal aid for the poor since 2006, along with a $50,000 pledge to the DVAP Endowment. The Equal Access to Justice Campaign is the annual fundraising campaign which supports the activities of the Dallas Volunteer Attorney Program (DVAP). The Alexanders’ gift makes it possible for DVAP to continue to provide and enhance legal aid to the poor in Dallas, keeping the doors to the courthouse and our overall justice system open to many more people in our community. Since 1982, DVAP has provided, recruited, and trained pro bono lawyers to provide free legal aid to the poor in Dallas. Last year, a 16-member staff supported over 3,000 volunteers in their efforts to volunteer at legal clinics and advise and represent clients. The Alexanders are very involved in the Dallas legal community. Sherri Alexander is a prominent health care lawyer and a partner in the Polsinelli firm, working primarily out of the Dallas office. Jerry Alexander is President as well as a shareholder at Passman & Jones and focuses primarily on business litigation. He is a former President of the Dallas Bar Association (the 107th President), and is presently a Director on the Board of Directors of the State Bar of Texas. In response to the question, “why support DVAP?,” Sherri and Jerry offered up the following answers: Jerry: “First of all, it is a superlative pro-
Jerry and Sherri Alexander
gram. Not only does it have a good purpose, IT WORKS! There are so many ‘good ideas’ that never come to fruition because they are difficult to execute. DVAP is difficult to execute. Think about it. Attorneys have to be encouraged to volunteer, then matched up with a qualified client in need, and the services monitored and rendered successfully, and $1,000,000 needs to be raised every year to keep it going. “In some ways, it is like running and controlling a large law firm, except the attorneys do not work for you and the clients cannot pay. Last year 2,027 clients were served, which means 2,027 times willing volunteers were matched up with clients in need. That also means 2,027 minor miracles occurred for people who need help but cannot afford to pay. DVAP found attorneys willing to do just that. Awesome!” Sherri: “I know the Civil Trial Courts in Dallas County appreciate DVAP providing attorneys for litigants in civil matters who
cannot afford representation. These Judges are concerned about equal access to justice. Additionally, they care about the efficiency of their Court and litigants with attorneys can address the judicial process more quickly than pro se litigants. “Not only does the legal system function better, but the attorneys who provide these pro bono services are greatly enriched. Young people, graduating from law schools, are focused on helping others in the community, and DVAP is a perfect vehicle for them to accomplish their goals.” Jerry: “On any given day, 100 potential pro se litigants appear at the Dallas County Law Library really not knowing if they have a legal problem. These people, if they qualify, are encouraged to apply with DVAP for assistance, and there are volunteers there who help these people determine whether or not there is even a legal issue to be decided. “These people simply cannot be turned away. It is wonderful that they are coming
to a courthouse for justice instead of seeking it through other means. They need to be encouraged to use the wonderful legal system that we have in place, and DVAP is very important in doing that. If you turn 100 people away a day who are looking for justice, in a year you have turned away 25,000, and in four years you have turned away 100,000. Sooner or later, the negative societal impact of this would begin to manifest itself in other ways. “Instead, either at the library or at clinics, these people are greeted by volunteers who ask if they can help them and direct them either to DVAP, to lawyer referral if they can afford a lawyer, or to some other agency for assistance, since many of these people really do not necessarily have legal problems, but just do not know where to start. “That they think of the courthouse, which has courts and judges and lawyers in it as a place to go to look for help, is a good and hopeful thing for all of us. DVAP nurtures that.” The commitment of Dallas attorneys and the DBA to the Equal Access to Justice Campaign is impressive. Since 1997, the DBA and Legal Aid have joined forces to raise money for the program, with Dallas lawyers donating almost $13 million. Many thanks to Jerry and Sherri for their support, and the staff of DVAP and the DBA join in wishing them a very happy 35th anniversary! DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www.dallasvolunteer attorneyprogram.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
THANK YOU TO OUR MAJOR DONORS
The Dallas Bar Association and Legal Aid of NorthWest Texas kicked off their annual Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program. A number of Dallas firms, corporations, and friends have committed major support. Join us in recognizing and thanking the following for their generous gifts*:
Jerry & Sherri Alexander Hartline Dacus Barger Dreyer LLP CHAIRMAN’S COUNCIL (25,000) Anonymous Foundation
DIAMOND (15,000) Dallas Association of Young Lawyers PLATINUM ($10,000) Deans & Lyons, LLP Sidley Austin LLP GOLD ($5,100+) American Academy of Matrimonial Lawyers, Texas Chapter Hon. Lewis R. Sifford
Law firms, corporations, and individuals wishing to make a pledge will be prominently recognized beginning at the $5,000 level each month through January. To donate, contact Michelle Alden, aldenm@lanwt.org. For more information about the Campaign visit www.dallasbar.org/dvapcampaign. *Donors as of press time.
Inside 7 Hon. Barbara Lynn Selected for Professionalism Award 11 “Oh Snap!” A Loophole Around the Forum-Defendant Rule 18 Texas Citizens’ Participation Act Update 20 Pro Bono Attorney & Firm of the Year
2019 DBA COMMITTEE PREFERENCES Please take a minute to submit your committee preferences online. Submit your preferences by Friday, October 19. Please note, if you are on a 2018 Committee you must still sign up again if you wish to continue to serve on a Committee in 2019. You will not be automatically assigned to Committees. Sign up online here: http://survey.constantcontact.com/survey/a07efl22jl0jka38q7w/start
2 He a d n o t e s l D a l l a s B a r A s s o ciation
October 2018
Calendar October Events FRIDAY CLINICS
OCTOBER 5-BELO Noon
“Litigation Tips and Strategies for Transactional, Business, and Corporate Attorneys,” Joshua Sandler. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
OCTOBER 12-NORTH DALLAS** Noon
“The World of Divorce-From Simple to Sophisticated,” Sally Bybee, Dr. Blake Mitchell, and Bryan Rice. (MCLE 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org. Directory photographer available 11:00 a.m.-1:30 p.m.
OCTOBER 19-BELO Noon
“What Every Lawyer Needs to Know About the Changes to the Grievance Process,” Suzanne Westerheim. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.
OCTOBER 26-OAK CLIFF CLINIC Noon
“Redemption From Disaster: How An Attorney Can Survive Life’s Challenges,” David Baker and Trey Dowdy. (Ethics 1.00)* RSVP sevans@dallasbar.org.
MONDAY, OCTOBER 1
Noon Tax Law Section “The Mixed Bag of Proposed §199A Regulations,” Stephen Beck and Tom Hineman. (MCLE 1.00)*
TUESDAY, OCTOBER 2
11:30 a.m. DVAP CLE “Landlord Tenant Law: A Primer for the Volunteer Attorney,” Maryann D’Aniello. (MCLE 1.00)* Noon
Corporate Counsel Section “2018 Employment and Labor Law Update,” Steven Rahhal. (MCLE 1.00)*
Legal Ethics Committee “An Inside Look at TX State Bar Grievance Panels (with Real Current/Former Grievance Panelists!),” Bryan Burg, Lawrence Praeger, and Marcia Tillman. (Ethics 1.00)*
Tort & Insurance Practice Section “Professional Identity, Legal Education and the UNT Story,” Hon. Royal Furgeson. (MCLE 1.00)*
6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, OCTOBER 3 Noon
Employee Benefits & Executive Compensation Law Section “Investment Advisor RFPs may be Enhancing your Liability,” Heath Miller. (MCLE 1.00)*
Solo & Small Firm Section Topic Not Yet Available
Juvenile Justice Committee
DAYL Lunch & Learn CLE
2:00 p.m. Mergers & Acquisitions Section Topic Not Yet Available 5:30 p.m. Bankruptcy & Commercial Law Section Topic Not Yet Available
THURSDAY, OCTOBER 4
Business, and Corporate Attorneys,” Joshua Sandler. (MCLE 1.00)* RSVP to yhinojos@dallasbar. org.
Real Property Law Section “Data Protection & Ethics: A Different Kind of Dirt Law,” Charles Hosch and Kathryne “Kate” Morris. (Ethics 1.00)*
CLE Committee
Publications Committee
Christian Lawyers Fellowship
6:00 p.m. JLTLA Board of Directors Meeting
FRIDAY, OCTOBER 12 Noon
The Press and Public Trust: A Conversation with William McKenzie & Keven Ann Willey And presentation of The Stephen Philbin Awards for Excellence in Legal Reporting. Tickets: $50/$500 for table of 10. Register online at dallasbar.org. North Dallas Friday Clinic “The World of Divorce-From Simple to Sophisticated,” Sally Bybee, Dr. Blake Mitchell, and Bryan Rice. (MCLE 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org. Directory photographer available 11:00 a.m.-1:30 p.m. Trial Skills Section Topic Not Yet Available
MONDAY, OCTOBER 15
Peer Assistance Committee
Noon
Business Litigation/Entertainment Law Sections “From Murder to Museums: Current Controversies Over Nazi-Looted Art,” Raymond Dowd. (MCLE 1.00)*
Immigration Law Section “Overview of Eligibility for Cancellation of Removal (for Non-Permanent Residents),” Belinda Arroyo and Dan Gividen. (MCLE 1.00)*
Mergers & Acquisitions Section Topic Not Yet Available
Home Project Committee
Legal Ethics Committee
WEDNESDAY, OCTOBER 10
11:30 a.m. ADR/Family Law Sections “Money, Money, Money, Business Valuation and In Relation to the New 2018 Federal Tax Law,” Stephen Fuqua, Hon. Dennise Garcia, Autumn Kraus, Marilea Lewis, Hon. Craig Smith, and Robert Tobey. (MCLE 2.00, Ethics 1.00)*
Family Law Section Board Meeting
6:00 p.m. DAYL Annual Meeting
St. Thomas More Society
THURSDAY, OCTOBER 11
8:30 a.m. Juvenile Delinquency Advanced Topics Conference To register, go to www.dallasbar.org or contact mgarcia@dallasbar.org. Presented by the DBA
The Press and Public Trust
A Conversation with William McKenzie & Keven Ann Willey and presentation of The Stephen Philbin Awards
Keven Ann Willey
Dallas Morning News, retired
Moderated by DBA President, Michael K. Hurst
Friday, Oct. 12, 2018 | Noon at the Belo Mansion Tickets: $45 | Table for 10: $450
(early bird rate available until September 21)
After September 21: Tickets: $50 | Tables of 10: $500 TICKETS AVAILABLE AT WWW.DALLASBAR.ORG
Christian Legal Society
DAYL Animal Welfare Committee
Dallas LGBT Bar Association
3:30 p.m. DBA Board of Directors Meeting
FRIDAY, OCTOBER 19 Noon
Friday Clinic-Belo “What Every Lawyer Needs to Know About the Changes to the Grievance Process,” Suzanne Westerheim. (Ethics 1.00)* RSVP to yhinojos@ dallasbar.org.
DBA/DAYL Moms in Law. Butcher Block (Addison). RSVP to rociog@chalakilaw.com.
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Judiciary Committee
George W. Bush Institute
TUESDAY, OCTOBER 9
Minority Participation Committee
William McKenzie
Government Law Section “Ethics,” Hon. Brandon Birmingham. (Ethics 1.00)*
2:00 p.m. Entertainment, Arts & Sport Law Section At Angelika Film Center in Mockingbird Station. Annual EASL Boot Camp – Legal Issues in Documentary Films.” More information at dallasbar.org/content/sports-entertainment-lawsection. (MCLE 3.00, Ethics 0.50)*
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@ dallasbar.org.
Friday Clinic – Belo “Litigation Tips and Strategies for Transactional,
Noon
Legal History Discussion Group “Poor Innocent Lad: The Tragic Death of Gill Jamieson and the Execution of Myles Fukunaga,” Mike Farris. (MCLE 1.00)*
Construction Law Section Topic Not Yet Available
Noon
9:00 a.m. DAYL Legal Writing Seminar
MONDAY, OCTOBER 8 Noon
District Court of Appeals,” Justices David Evans, Molly Francis, Douglas Lang, Elizabeth Lang-Miers, and Craig Stoddart. (MCLE 1.00)*
Juvenile Justice Committee. (MCLE 6.00, 3.00)*
DBA/DAYL Moms in Law. Edith’s French Café (Upper Greenville). RSVP to rfitzgib@gmail.com.
Noon
FRIDAY, OCTOBER 5
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
Noon
Labor & Employment Law Section “NLRB Update for Non-Union Workplace,” Alex Stevens. (MCLE 1.00)*
DVAP Ad Litem Video “2017 Probate Guardian Attorney & Ad Litem Attorney.” RSVP to vallejod@lanwt.org. (MCLE 4.00, Ethics 1.00)*
SATURDAY, OCTOBER 20
6:00 p.m. JLTLA 66th Annual Scholarship Gala at Fairmont Hotel. More information at jltla.org. 8:00 p.m. DAYL Charity Ball at Hall on Dragon. More information at www.daylcharityball.com.
MONDAY, OCTOBER 22 Noon
Science & Technology Law Section Topic Not Yet Available
Securities Section Topic Not Yet Available
TUESDAY, OCTOBER 23
Noon Probate, Trust & Estate Law Section Powers of Dedication: Tax-Saving Strategies Under the Legislation Formerly Known as the Tax Cuts and Jobs Act,” Thomas Pauloski. (MCLE 1.00)*
DAYL Lawyers Promoting Diversity Committee
6:00 p.m. Annual Evening Ethics Program “Annual Evening Ethics Program,” Hon. Dennise Garcia, Kristin Brady, Jonathan Smaby, John Browning, and Frank Stevenson. DBA members: $40, Non-members: $90. RSVP required, contact yhinojos@dallasbar.org. (Ethics 3.00)*
WEDNESDAY, OCTOBER 24 Noon
Collaborative Law Section “Making a Better Arrangement: Negotiating Premarital, Post-marital and Cohabitation Agreements in the Collaborative Process,” Lindley Bain. (MCLE 1.00)*
9:00 a.m. Directory Photographer at Belo
DAYL Equal Access to Justice Committee
Noon
Antitrust & Trade Regulation Section Topic Not Yet Available
DAYL Foundation Board Meeting
Blockchain Law Study Group Topic Not Yet Available
DVAP New Lawyers Luncheon. RSVP to reedbrownc@lanwt.org.
Franchise & Distribution Law Section “SBA Lending in the Franchise Context—Tips, Tricks, and Common Pitfalls,” Justin Cho and Kerry Southerland. (MCLE 1.00)*
International Law Section “Challenges at the Border: Importing and Exporting Hemp, Cannabidiol and Kratom,” Chelsie Spencer. (MCLE 1.00)*
TUESDAY, OCTOBER 16
5:30 p.m. Labor & Employment Law Section “Annual Labor and Employment Year in Review,” Hal Gillespie and Mark Shank. (MCLE 1.50, Ethics 0.25)* 6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, OCTOBER 17
9:00 a.m. Jeff Coen Family Law Nuts & Bolts I & II Video “2017 Family Law Updates.” Contact reedbrownc@lanwt.org to register. (Part 1: MCLE 3.00, Ethics 1.00; Part II: MCLE 3.00, Ethics 1.00)* Sponsored by DVAP and DBA Family Law Section. Noon
Energy Law Section Topic Not Yet Available
Health Law Section “Hot Topics in the Business of Medicine and Dentistry,” Brad Adatto. (MCLE 1.00)*
Law in the Schools & Community Committee
Pro Bono Activities Committee
DAYL Politically Aware Committee
Non-Profit Law Study Group
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@ dallasbar.org. 6:00 p.m. JLTLA Financial Literacy CLE
THURSDAY, OCTOBER 18 Noon
THURSDAY, OCTOBER 25 Noon
Criminal Law Section Topic Not Yet Available
Environmental Law Section Topic Not Yet Available
DWLA Board of Directors Meeting
DVAP Probate CLE “Probate CLE.” (MCLE 3.00)* Co-sponsored by DVAP and DAYL Elder Law Committee.
FRIDAY, OCTOBER 26 Noon
Oak Cliff Friday Clinic “Redemption From Disaster: How An Attorney Can Survive Life’s Challenges,” David Baker and Trey Dowdy. (Ethics 1.00)* RSVP sevans@dallasbar.org.
Intellectual Property Law Section “Brands & Innovation: Advising Clients When Innovation Outpaces the Law(yer),” Theresa Conduah. (MCLE 1.00)*
MONDAY, OCTOBER 29
8:30 a.m. DBA Education Symposium “DBA & Caruth Institute for Children’s Rights Education Symposium: Improving the Lives of Children Through Advocacy. To RSVP contact mgarcia@dallasbar.org. (MCLE 4.75)*
DAYL Membership Committee
TUESDAY, OCTOBER 30 Noon
DVAP CLE “Termination & Adoption Basics for Attorneys,” Jenny Womack. (MCLE 1.00)*
DAYL Assisting Lawyers in Transition Program
WEDNESDAY, OCTOBER 31 Noon
Municipal Justice Bar Association
Appellate Law Section “Recent Cases Every Practitioner Should Know About and Tips for Practicing Before the Fifth
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.
O c t o b e r 2 0 18 â€
D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
October 2018
President’s Column
Headnotes
The Judiciary as Safeguard for Democracy, Civility, and Justice For All BY MICHAEL K. HURST
“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of political winds that are blowing.” –Caroline Kennedy As a young lawyer back in the days when Nirvana ruled the radio and everyone was watching Seinfeld on Wednesday nights, my colleagues and I would boast to one another whenever we were fortunate enough to say “hello” to a judge that we might have encountered at the courthouse or at our favorite burger joint. Judges can command that kind of respect, like celebrities. They not only preside over our clients’ important cases, their office is symbolic of impartiality, fairness, and the scales of justice. A recent amalgamation of events has had me reflecting on this respect, along with the role and importance of the Judiciary in our revered system of government. The new movie “RBG” about Ruth Bader Ginsburg has served as a source of both inspiration and reflection. The confirmation proceedings for Judge Kavanaugh have fascinated and saddened me. I have also been thinking this year about the Dallas Bar’s Mission Statement and what we do to honor and collaborate with the local Judiciary. Embarrassingly, until I watched RBG, I did not appreciate the ceilings Justice Ginsburg went through and the change she effectuated as a practitioner before being appointed as a Circuit Judge and later a US Supreme Court Justice. Like Thurgood Marshall, who had a transformational impact as a practicing attorney including arguing landmark cases like Brown v. Board of Education before being appointed to the U.S. Supreme Court, Justice Ginsburg argued many times in many forums, inter alia, about how gender-based discrimination hurts everyone, not just women. Judge Barbara Lynn is a local Federal Judge and one of the most shining examples of close friends and bar leader colleagues across Texas who have made significant impacts in our communities, and as lawyer advocates and agents of change. Having been hired and later becoming one of the first female partners in what had been a local “boys club” of law firms, Judge Lynn paved the way for countless women to be hired and promoted by law firms. It is not coincidental that many excellent judges were previously great practitioners and passionate about our profession and the advocacy opportunities that our profession provides us. But after these successful lawyer advocates take the bench, do they lose their platform to effectuate change? After all, many would say that when a judge puts on his/her robe, he/she should be blind to politics, activism, and ideology. I have expressed to one of my colleagues that I was surprised she took the bench rather than running for Congress or Mayor, where she could
better utilize her advocacy skills. Notwithstanding the constraints above, I observe with clarity that judges can and do make a huge difference every day, not only by their mere presence as the third prong of America’s glorious system of checks and balances, but also by their deeds and partnership with inns of court and bar associations. Judges effectuate change by enforcing rules of professionalism and civility, mentoring young lawyers, working to perpetuate our civil jury trial system, and ensuring access to our courts for all people, whether they can afford counsel or not. On the professionalism and civility front, judges across Texas were instrumental in ensuring the success of the 2018 Statewide Day of Civility. Justice Ginsburg tells us in RBG that every day begins at the Supreme Court by shaking each other’s hands because “congeniality is important.” That is the example. Many respected judges make it very known that they expect professionalism amongst all lawyers and will not tolerate incivility. When they act as enforcers of these tenets, judges foster good behavior and disincentivize clients from hiring the proverbial pit bull counsel. For her work in this regard and so much more, next month the DBA will present Judge Lynn with the prestigious Morris Harrell Professionalism Award. The DBA just enjoyed hosting the 27th Bench Bar Conference in Horseshoe Bay, where more judges and justices attended than in recent years, and where we raised over $100,000 for pro bono legal services. The DBA’s Mission Statement is: “to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.” We are proud of our partnership with the Judiciary. While fulfilling the DBA’s Mission Statement, we work with our judges on planning and presenting CLEs and programs, like the wildly successful Diversity Summit we just hosted, our Judiciary Committee “Saving the Civil Jury Trial” series, the Second Chair Program, and appointing a member of the Judiciary every year to the DBA Board. On December 5, we look forward to hosting a reception for all our local judges after hosting a program at the Belo for new judges. I am energized by the fact that I, members of the DBA Board, and members of the Judiciary and Bench Bar Committees have attempted to contact every judge in Dallas—state, federal, probate, civil, family, criminal, etc. —on multiple occasions and received feedback on what we are doing well and what we can do to improve. Regardless of whether Judges are the celebrities they sometimes seem to us trial lawyers, they are all public servants and deserving of our respect and gratitude. We need the judiciary as our third branch of government, and we appreciate the judiciary being accessible to the lawyers and the community. Let us thank them for all that they do and will do. Michael
THANK YOU for supporting DVAP!
RAISED
$43,832
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: Michael K. Hurst President-Elect: Laura Benitez Geisler First Vice President: Robert L. Tobey Second Vice President: Aaron Z. Tobin Secretary-Treasurer: Vicki D. Blanton Immediate Past President: Rob D. Crain Directors: A. Shonn Brown (Vice Chair), Jonathan Childers, Chalon Clark, Stephanie Culpepper, Isaac Faz (President, Dallas Hispanic Bar Association), Sakina Foster, Ashlei Gradney (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Krisi Kastl, Dan Kelly, Shruti Krishnan (President, Dallas Asian American Bar Association), Bill Mateja, Karen McCloud (Chair), Kate Morris, Cheryl Camin Murray, Stephanie Osteen (President, Dallas Women Lawyers Association), Hon. Irma Ramirez, Jennifer Ryback (President, Dallas Association of Young Lawyers), Mary Scott, and Victor D. Vital Advisory Directors: Charles Gearing (President-Elect, Dallas Association of Young Lawyers), Erin Nowell (President-Elect, J.L. Turner Legal Association), Javier Perez (President-Elect, Dallas Hispanic Bar Association), Sarah Rogers (PresidentElect, Dallas Women Lawyers Association), and Jason Shyung (President-Elect, Dallas Asian American Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, Rob Crain, David Kent, Gregory Sampson, and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Alexander Farr and Carl Roberts Vice-Chairs: Andy Jones and Beth Johnson Members: Timothy Ackermann, Logan Adcock, Wesley Alost, Stephen Angelette, Michael Barbee, David Black, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Jonathan Bridges, Amanda Brown, Angela Brown, Eric Buether, Casey Burgess, Cory Carlyle, Paul Chappell, Charles Coleman, Wyatt Colony, Shannon Conway, Natalie Cooley, Daniel Correa, G. Edel Cuadra, Jerald Davis, James Deets, James Dockery, Elisaveta (Leiza) Dolghih, Angela Downes, Sheena Duke, Charles Dunklin, Dawn Fowler, Juan Garcia, Britaney Garrett, Michael Gonzales, Andrew Gould, Jennifer Green, Kristina Haist, Susan Halpern, Bridget Hamway, Edward Harpole, Meghan Hausler, Jeremy Hawpe, Lindsay Hedrick, Marc Hubbard, Brad Jackson, Andrew Jones, Kristi Kautz, Thomas Keen, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravik, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jordan McCarroll, R. Sean McDonald, Kathryn (Kadie) Michaelis, Elise Mitchell, Terah Moxley, Daniel Murray, Jessica Nathan, Madhvi Patel, Keith Pillers, Kirk Pittard, Laura Anne Pohli, Luke Radney, Mark Rasmussen, Pamela Ratliff, David Ritter, F. Colby Roberts, Bryon Romine, Kathy Roux, Stacey Salters, Joshua Sandler, Matthew Sapp, Justin Sauls, Mazin Sbaiti, Mary Scott , Jared Slade, Thad Spalding, Jacob Sparks, John Stevenson, Scott Stolley, Elijah Stone, Amy Stowe, Adam Swartz, Ashley Swenson, Robert Tarleton, Paul Tipton, Michael Tristan, Tri Truong, Pryce Tucker, Adam Tunnell, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Marcela Mejia, Viridiana Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Director of Legal Education: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Andrew Musquiz, Jamie Odom, Carmen Perales, Alicia Perkins, Dominick Vallejo Program Assistant: Patsy Quinn Secretary: Debbie Starling Copyright Dallas Bar Association 2018. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association.
Thanks to your support during North Texas Giving Day, DVAP raised $43,832! You can still donate to the Equal Access to Justice Campaign. Visit www.dallasbar.org/dvapcampaign or contact Michelle Alden, aldenm@lanwt.org.
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.
October 2018â€
D al l as Bar A ssoci ati on l Headnotes 5
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
October 2018
Antitrust & Trade Regulation/Business Ligitation
Attorney Immunity—Who Me? Couldn’t Be. BY MELISSA L. JAMES
A husband and wife’s divorce decree, procured with the assistance of their attorneys, makes the wife responsible for taxes on the couple’s airplanes. The wife’s attorney then assists her with a sale of the airplanes, falsifying the bill of sale in such a way that puts the tax liability squarely on the husband. The husband has a claim against the wife’s attorney, right? Wrong. These were the facts alleged in Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), in which the Texas Supreme Court decided that fraud is not an exception to the attorney immunity doctrine. More recently,
the Dallas Court of Appeals decided that not even purportedly criminal conduct is an exception to attorney immunity. Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 2018 WL 2434410 (Tex. App.—Dallas May 30, 2018, no pet.). Under this well-established doctrine, attorneys are immune from suit by non-clients for conduct that is part of the discharge of that attorney’s duties to his or her client. This is because an attorney does not owe a duty of professional care to third parties with whom the attorney does not have an attorneyclient relationship. “Put differently,” the Texas Supreme Court recently explained, “an attorney may be liable to
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nonclients only for conduct outside the scope of his representation of his client or for conduct foreign to the duties of a lawyer.” Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). As such, attorney immunity applies to claims brought by any non-client and is not limited to an adversarial context. Texas courts have applied this immunity to countless theories of recovery, including fraud, tortious interference, and conspiracy. How a claimant chooses to label its cause of action is irrelevant. It is the kind of conduct that is controlling. If it is the kind of conduct in which an attorney engages when discharging duties to his or her client, the conduct is protected by attorney immunity and is not actionable. For example, the Youngkin v. Hines plaintiff complained about the entry of a Rule 11 agreement and preparation of a land deed, which the court explained “were part of [the attorney’s] responsibility to his clients, even if done improperly,” such that the attorney was entitled to dismissal. Id. at 683. The court went on to explain that other potential repercussions for attorneys who engage in wrongful conduct may exist, including sanctions, contempt, and attorney disciplinary proceedings. The elements required to establish the applicability of attorney immunity include the existence of an attorneyclient relationship (with someone other than the claimant), and the type of conduct that requires the skill or training of an attorney that was performed on the client’s behalf. In some cases, including Youngkin v. Hines, these elements have been shown through undisputed facts without the need for the introduction
of evidence. Attorney immunity is entirely separate from the merits of a case. It is intended to not only protect attorneys against liability to non-clients, but also against incurring the costs of defending a lawsuit. While attorney immunity is broad, courts have explained that it is not without limits. Frequently used examples of conduct that falls outside the scope of acting on behalf of a client that would not be protected by attorney immunity include assaulting opposing counsel during trial and participating in a fraudulent business scheme with a client. Attorneys should encourage their clients to make sure that an attorneyclient relationship exists with any attorney on whom the client or wouldbe client is relying. It is always best if that relationship is documented in an engagement letter. Similarly, attorneys should clearly document who their client is—and who their client is not. A short, written statement can add clarification around otherwise confusing circumstances. E.g., “You have hired our law firm to represent the partnership. We do not represent the individual partners.” The attorney immunity doctrine promotes loyal, faithful, and aggressive representation by attorneys. Attorneys can take comfort in their zealous representation of clients without accountability to non-clients for actions taken during the course of that representation. HN Melissa L. James is a senior associate at Vinson & Elkins LLP. She can be reached at mjames@velaw.com.
October 2018
D al l as Bar A ssoci ati on l Headnotes 7
Chief Judge Barbara Lynn to Receive Professionalism Award BY ANDREW JONES
The Honorable Barbara M.G. Lynn, Chief Judge of the U.S. District Court for the Northern District of Texas, has been named this year’s recipient of the Morris Harrell Professionalism Award. Presented by the Dallas Bar Association and Texas Center for Legal Ethics and Professionalism, the award honors attorneys who best exemplify, “by conduct and character,” professional traits that members of the bar emulate and admire. Judge Barbara Lynn has led a life of barrier-breaking achievement and service. The first woman lawyer of the prestigious Dallas firm Carrington Coleman Sloman & Blumenthal, L.L.P, where she practiced for nearly 25 years, she has also served as a federal district judge since 1999. Barbara Golden earned her bachelor’s degree with Highest Distinction from the University of Virginia in 1973. There, she also became the first woman admitted to the Jefferson Literary and Debate Society, a highly prestigious school organization whose famous members include Edgar Allen Poe. It was at the University of Virginia where Barbara Golden also met her future husband, Mike, two years her senior. Their marriage took them both to Dallas, where each attended Southern Methodist University School of Law. She recalls law school with fond memories, and she also recounts the stress of exams and living on frozen dinners. Lynn graduated first in the Class of 1976, a few years behind her husband. Both embarked on the practice of law and have been going strong ever since. With her impeccable academic achievement, Lynn was hired as the first woman associate of Carrington Coleman Sloman & Blumenthal, L.L.P in Dallas. “We had a firm policy to never hire stu-
C ARTER A RNETT . COM
Hon. Barbara M.G. Lynn
dents right out of law school,” mentor Jim Coleman told the Dallas Morning News. “But once we saw Barbara’s résumé and once we met and interviewed her, we eliminated that policy. And it was one of the best decisions we ever made.” She was named partner in 1983—also its first woman partner, no less—and continued a successful practice, joining the firm’s executive committee less than two years after becoming partner. Lynn’s practice included defending labor and employment and legal malpractice matters, with some plaintiff-side cases as well. Lynn was appointed to the bench of the Northern District of Texas in 1999 by President Clinton. Since then, she has presided over many high-profile cases including the criminal prosecution of Hosam Smadi, for planning a terrorist bombing of the Fountain Place Tower in downtown Dallas in 2009. Judge Lynn noted that her caseload has varied tremendously over the years, making her job
very interesting, and that the proportion of criminal cases she handles has gotten steadily higher. On the list of her priorities is taking steps to help ensure that young attorneys are afforded meaningful opportunities in the courtroom. In scheduling orders, she encourages litigation teams to commit to significant participation by young attorneys in cases, to ensure that the next generation of lawyers will enter courtrooms with experience and confidence. Judge Lynn was appointed Chief Judge of the Northern District in 2016, which is comprised of about 20 district and magistrate judges and their staff. Through that appointment, Judge Lynn broke yet another barrier—becoming the first female chief judge in all of Texas. Judge Lynn and her husband were described by Dallas Morning News reporter Mark Curriden as Dallas’ “legal power couple” in a 2014 article describing their respective highly successful careers. Mike is a very effective and well-known trial lawyer who began his career at Akin Gump. His successes include a massive 2014 jury verdict of more than $300 million. The Lynns enjoy spending time with their daughters and grandchildren. Judge Lynn also enjoys playing golf and a good game of Words with Friends. Judge Lynn has served in numer-
ous professional organizations, including as chair of the American Bar Association’s Section of Litigation and of its Judicial Division, the Dallas Chapter of the International Women’s Forum, and the Committee on the Administration of the Bankruptcy System of the Judicial Conference of the United States. She is also a past president of the Patrick E. Higginbotham Inn of Court, and she currently serves as an American Inn of Court Foundation board member and secretary. She also sits on the Executive Board of the Dedman School of Law, and she is a member of the ABA Commission on the American Jury. Judge Lynn has received many accolades over the years, including SMU Law School’s Distinguished Alumni Award for private practice and the State Bar of Texas Women and the Law Section’s Sarah T. Hughes Woman Lawyer of Achievement Award. In 2012, she was named recipient of the Dallas Bar Foundation Fellows Award. Many congratulations to Chief Judge Barbara Lynn, who will be presented her award at the DBA’s Awards Luncheon on Tuesday, November 6 at the Belo Mansion. HN Andrew M. Jones is Co-Vice Chair of the DBA Publications Committee and can be contacted at andrewmilamjones@gmail.com.
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8 He a d n o t e s l D a l l a s B a r A s s o ciation
October 2018
The Press and Public Trust A Conversation with William McKenzie and Keven Ann Willey BY JESSICA D. SMITH
The media landscape has changed significantly in the past few years. New ways of reporting, fake news, conflicting reports. Who can you trust? How can we wade through the muck to find true facts and reliable reporting? Find the answers to these questions and more as the DBA hosts A Conversation with William McKenzie and Keven Ann Willey: The Press and Public Trust in an Age of Fake News. William McKenzie is the Editorial Director for the George W. Bush Institute, where he also serves as editor of The Catalyst: A Journal of Ideas from the Bush Institute. He also teaches an education policy class at SMU’s Simmons School of Education and Human Development. Before joining the
William McKenzie
Keven Ann Willey
Bush Institute, Mr. McKenzie served 22 years as an editorial columnist for The Dallas Morning News (DMN) and led the newspaper’s Texas Faith Blog. The University of Texas graduate’s columns appeared nationwide and he has won a Pulitzer Prize and commentary awards from the Education Writers Association, the American Academy of Religion, and the Texas Headliners
Foundation, among other organizations. Before joining the DMN, he earned a master’s degree in political science from the University of Texas at Arlington and spent a dozen years in Washington, D.C., during which time he edited the Ripon Forum. Mr. McKenzie has served as a Pulitzer Prize juror, on the board of a homeless organization, and on governing committees of a Dallas public school. He is also an elder of the First Presbyterian Church in Dallas, where he lives with his wife and their twin children. Keven Ann Willey is a 38-year newspaper veteran—15 years of which she worked at The Dallas Morning News. The recently retired journalist was Vice President and Editorial Page Director for the DMN. She served on the Pulitzer Prize Board for nine years, including serving as Co-Chair, and she is also a past president of the Texas Associated Press Managing Editors. Editorial pages under her direction have won the Pulitzer Prize once and been finalists three other times at two newspapers. She has won individual awards for news, column and editorial writing—including National Headliners honors from the Press Club of Atlantic City and awards from The Associated Press Managing Editors Associ-
ation, the Best of the West contest and the Arizona Press Club. Mrs. Willey studied briefly in Europe and Mexico before graduating magna cum laude from Northern Arizona University. She is a graduate of the Management Development Program sponsored by the Kellogg Graduate School of Management and the Medill School of Journalism at Northwestern University; and in 2001 was named a Hoover Fellow at Stanford University. She and her husband, Georges Badoux, are currently touring the United States in their 17-foot Casita trailer. During her travels she is writing a blog titled: Postcards from the Perimeter: A Year on the Edges of America. The Conversation with William McKenzie and Keven Ann Willey will take place during the 35th Annual Stephen Philbin Awards Luncheon at the Belo Mansion on Friday, October 12, at noon. The Stephen Philbin Awards recognize excellence in legal reporting. Winners in various news categories will be announced at the luncheon. The luncheon honors not only the local media, but also the memory of Stephen Philbin who lost his battle with leukemia in 1982. A long-time member of the Dallas Bar Association and a partner with Locke, Purnell, Boren, Laney & Neely, at the time of his death, Mr. Philbin was a leading authority on media law in Texas. In honor of Mr. Philbin, his family, acting through the Dallas Bar Foundation, funds the awards each year. To reserve your seat and receive the early bird rate of $45 per ticket or $450 per table of 10, register by September 21. After September 21, tickets increase to $50; and tables of 10 can be purchased for $500. No walk-ins will be accepted. Purchase your ticket by logging on to www.dallasbar.org or by contacting Judi Smalling at jsmalling@ dallasbar.org. HN Jessica D. Smith is the DBA Communications/Media Director. She can be reached at jsmith@dallasbar.org.
October 2018
D al l as Bar A ssoci ati on l Headnotes 9
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10 H e a d n o t e s l D a l l a s B a r A s s ociation
October 2018
Visa Options: Business Immigration BY ELVIA MUNOZ
Although there is a visa named after almost every letter in the alphabet, employers needing to hire foreign national employees may nonetheless find it difficult to find a visa suitable for their company’s needs. The following are a few scenarios in which employers may find themselves and the visa options available that may provide an appropriate solution. Employer: U.S. company needs to hire a software developer to assist with everyday technical needs. The company identifies the perfect candidate, who is in need of authorization sponsorship. Visa option: H-1B visas typically are available to foreign workers who will be employed in a specialty occupation requiring a Bachelor’s or higher degree
or its equivalent—which the applicant must already possess. Employer: U.S. company with its parent company located in Switzerland seeking to transfer a manager currently employed by the parent company to its U.S. office for a temporary period to assist in management of the U.S. operations. Visa option: L-1 visas are available to both executive/managerial and specialized knowledge (professional) workers with at least one year tenure with a foreign company related to a U.S. business. The U.S. company must be doing business in the U.S. and one other country, and the foreign employee must have been employed abroad in an executive or managerial position or in a position involving specialized knowledge. Employer: Multinational company
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in France needs its French employees to receive temporary training of proprietary software developed at its U.S. affiliate office. Visa option: H-3 visas allow trainees to receive training in any field of endeavor, other than graduate medical education or training, not available in the foreign national’s home country. The U.S. employer must demonstrate that the foreign national will not be placed in a position which is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed; workers will not engage in productive employment unless such employment is incidental and necessary to the training; and the training will benefit the beneficiary in pursuing a career outside the U.S. Employer: U.S. company would like to hire an engineer for its U.S. operations. Strong candidates are Canadian nationals. Visa option: The TN category was created under the North American Free Trade Agreement (NAFTA) in order to simplify U.S. business and employment entries for Canadian and Mexican professionals. TN visas allow professionals engaged in designated occupations to work in the U.S. Employer: Healthcare organization in the U.S. seeks to hire a well-renowned doctor from China specializing in neurosurgery. Visa Option: O-1 visas are for foreign nationals of “extraordinary” ability in— and with national or international recognition for—the sciences, arts, education, business, or athletics. The beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the U.S. to continue work in the area of extraordinary ability and possess
a level of expertise indicating that the person is one of a small percentage who has risen to the very top of the field of endeavor. Employer: Austrian national helped start a company in the U.S. and invested a significant amount of capital in the business, now wishes to come to the U.S. to help direct the company. Visa Option: E visas allow nationals of a country with which the U.S. maintains a treaty of commerce and navigation to go to the U.S. to carry on substantial trade, including trade in services or technology, principally between the U.S. and the treaty country; or to develop and direct the operations of an enterprise in which the national invested or is in the process of investing a substantial amount of capital. Employer: Swedish company wishes to send one of its employees to work on a client project in the U.S. for a two month period. The 65,000 H-1B cap has been reached. Visa Option: B-1 in lieu of H-1B visas allow foreign companies to place employees at a U.S. location for short-term projects to perform productive H-1B-caliber job duties without going through the administrative complexities and costs of obtaining an H-1B visa. The worker’s salary must be paid by the foreign company, and the money cannot come from a U.S. source. While it may seem that there are endless visa options available, immigration regulations are complex and visas have strict eligibility criteria. As such, companies should carefully craft their plan of action when considering sponsoring a foreign worker for employment, to ensure the most appropriate visa is selected. HN Elvia Munoz is an associate at Munsch Hardt Kopf & Harr PC. She can be reached at elviamunoz@munsch.com.
October 2018
Focus
D al l as Bar A ssoci ati on l Headnotes 11
Antitrust & Trade Regulation/Business Ligitation
“Oh Snap!” A Loophole Around the Forum-Defendant Rule BY JOHN POLZER AND DEREK CARSON
Under what is known as the “forumdefendant rule,” a lawsuit that is otherwise removable solely on the basis of diversity jurisdiction may not be removed to federal court “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b) (2) (emphasis added). “Snap removal” refers to an emerging litigation tactic used to circumvent the forum-defendant rule. Here is how snap removal works: A non-forum defendant in a state court case removes the case to federal court on diversity grounds—even though one of the co-defendants is a forum defendant—by filing the notice of removal before the plaintiff has had an opportunity to formally serve the forum defendant. This tactic seizes on the language in § 1441(b)(2) limiting application of the forum-defendant rule to situations where a forum defendant has been “properly joined and served” as a defendant. If no forum defendant has been served as of the date of removal, the argument goes, then the forum-defendant rule does not bar removal. In Breitweiser v. Chesapeake Energy Corporation, No. 3:15-CV-2043-B, 2015 WL 6322625, at *1 (N.D. Tex. Oct. 20, 2015), the Honorable Jane J. Boyle, United States District Judge of the Northern District of Texas (the Breitweiser Court or the Court), addressed the legitimacy of snap removal in some detail. After surveying available authorities on the subject, the Breitweiser Court observed that district courts across the country had reached competing conclusions about the viability of snap removal, that appellate courts had not yet had an opportunity to address the issue, and that Congress remained silent on the question when it adopted the Federal Courts Jurisdiction and Venue Clarification Act of 2011. The Court noted that the approach taken in the few cases from the Northern District of Texas that addressed snap removal (or what the Court called quasisnap removal) had either denied remand or had granted remand on another basis. The Breitweiser Court then turned to the plain language of § 1441(b)(2). Reading the removal statute as a whole, the Court observed that the “properly
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joined and served” language appearing in § 1441(b)(2) also appeared in § 1446(b)(2), where it is required that all defendants generally must join in or consent to removal if they have been “properly joined and served.” The Court observed that Fifth Circuit precedent had construed § 1446(b)(2) as meaning that a defendant’s consent is not required until he has been served. Applying the plain text of § 1441(b)(2), the Breitweiser Court concluded that the non-forum defendant’s snap removal was proper. The Breitweiser Court rejected the plaintiffs’ argument that applying the statute’s plain language would lead to absurd results. The Court also noted that the relevant legislative history was inconclusive and that allowing a non-forum defendant to utilize snap removal did not undermine the policies of diversity-based jurisdiction—even though it was apparent that the defendants’ snap removal to federal court bore “the telltale signs of gamesmanship and forum manipulation.” There are various implications and
nuances to the rules governing snap removal that the Breitweiser Court thoughtfully explored or noted in dicta or footnotes. Here are some principles that can be distilled: For purposes of the forum-defendant rule, courts generally do not consider unserved forum defendants. If a nonforum defendant removes the case to federal court while any (and all) forum defendants are still unserved, the unserved forum defendants are ignored for purposes of the forum-defendant rule. Snap removals can occur only in cases where diversity jurisdiction is the sole basis of removal and where complete diversity of citizenship exists because (1) the forum-defendant rule does not apply to removals based on federal question jurisdiction, and (2) absent complete diversity, courts can simply remand for lack of subject matter jurisdiction. Appellate case law addressing snap removal is scarce and will continue to be. A district court’s order remanding a case is generally “not reviewable by appeal or
otherwise.” 28 U.S.C. § 1447(d). Even where remand is denied, plaintiffs generally must litigate their case to final judgment before they can appeal. A plaintiff cannot avoid snap removal by refraining from serving the non-forum defendant. Once the non-forum defendant files an answer in the state court, he is deemed to have made a general appearance under Texas law, which means he is treated as having been “served.” At that point, he can remove the case to federal court if it is otherwise removable. Allowing a forum defendant to engage in snap removal would lead to an absurd result. But this could never happen because a defendant, to remove a case, has to appear and answer in the state court. Once the forum defendant files an answer, he is deemed “served” under Texas law and cannot remove the case under § 1441(b)(2). HN John Polzer is a partner at Cantey Hanger LLP. He can be reached at jpolzer@canteyhanger.com. Derek Carson is an associate at the firm and can be reached at dcarson@canteyhanger.com
12 He a d n o t e s l D a l l a s B a r A s s ociation
Column
October 2018
SBOT President’s Update
Celebrating Pro Bono BY JOE K. LONGLEY
The State Bar of Texas is joining with groups across the country to mark the 10th annual National Celebration of Pro Bono during the week of October 21. This year’s theme is disaster resiliency, and lawyers and other legal professionals are encouraged to do their part by participating in legal clinics or other disaster relief and preparedness events in their communities. 2017 was the most expensive year on record for natural disasters in the United States. Our friends and colleagues in southeastern Texas are still recovering from Hurricane Harvey, which killed at least 68 people and brought historic flooding across the region. More recently, severe storms and flooding prompted a major federal disaster declaration this summer in Hidalgo, Cameron, and Jim Wells counties in South Texas. Survivors of these and other disasters are grappling with situations that involve multiple legal issues—insurance disputes,
Joe K. Longley
FEMA appeals, landlord-tenant matters, consumer fraud, health and education benefits, and more, said Bob Carlson, president of the American Bar Asso-
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ciation, in an announcement about the national pro bono celebration. “But even before a disaster strikes, lawyers can help people prepare with business continuity planning, securing title documents, and obtaining adequate insurance,” he said. Of course, not all pro bono opportunities stem from natural disasters. The federal government’s separation of asylum-seeking families at the border created a pressing need for pro bono lawyers—particularly Spanish-speaking attorneys with experience in immigration law—and many have answered the call. I personally visited the McAllen area in June to meet with legal aid and pro bono groups and learn how the State Bar could best promote equal access to justice and the rule of law in the midst of the crisis. The State Bar is maintaining a list of border-related pro bono opportunities and resources at texasbar.com/volunteer. In my experience, pro bono work is extremely rewarding. It’s also vitally needed. Although Texas attorneys admirably provide about 2.5 million hours of pro bono services each year, the truth remains that nine out of 10 Texans who need civil legal aid are turned away due to lack of resources. The State Bar has a longstanding commitment to fostering a culture of pro bono service in our state. To that aim, the bar created ProBonoTexas.org, an extensive depository of pro bono opportunities,
training, support, and other resources. There is also a new, convenient pro bono opportunity available through the State Bar. Texas Legal Answers (TexasLegalAnswers.org) is a free online legal clinic that allows attorneys to log in from anywhere, at any time, and answer civil legal questions posted by low-income Texans. The ABA, a partner in the program, provides malpractice insurance for all lawyers answering questions through the Texas Legal Answers site. In 2017-2018, the program’s first year of operation, more than 550 lawyers— including nearly 60 in Dallas—volunteered and answered over 3,100 questions through Texas Legal Answers. Dallas solo Jack Fan is an especially active volunteer; alone, he accounted for more than 1,000 of the answered questions! To volunteer with Texas Legal Answers, contact Hannah Allison at probonotx@texasbar.com. In Dallas, you have an excellent pro bono organization in the Dallas Volunteer Attorney Program, a joint effort of the Dallas Bar Association and Legal Aid of NorthWest Texas. Every year, DVAP attorneys donate tens of thousands of hours of free legal aid to low-income residents in the Dallas area. I encourage you to get involved with DVAP by contacting Dominick Vallejo at vallejod@lanwt.org. HN Joe K. Longley, a solo practitioner in Austin, is the 2018-2019 president of the State Bar of Texas.
October 2018â€
D al l as Bar A ssoci ati on l Headnotes 13
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
October 2018
Antitrust & Trade Regulation/Business Ligitation
Avoiding Antitrust Pitfalls in M&A Due Diligence BY THOMAS D. YORK
Parties to a merger, acquisition, or joint venture routinely share substantial information during due diligence. The buyer needs to know what it is buying; the seller wants to get the deal done. But when the transaction involves competitors, otherwise routine due diligence can implicate antitrust laws. Careful work can get the parties to closing on time and with low antitrust risk.
Gun-Jumping and Improper Information Exchanges
The federal antitrust laws require that parties to a transaction continue to act as separate and independent companies until the transaction closes. Parties may engage in legitimate due diligence information exchanges and other information exchanges to assist in transaction planning, but this “legitimate due diligence” does not give competitors free rein to open their books and decision making to one another. Antitrust laws impose two practical restrictions on merging parties. First, merging businesses must remain separate companies prior to closing. Parties cannot combine their operations or hold themselves out as a single company, and the buyer cannot begin to control the business activities of the seller. No “jumping the gun” is permitted. Unlike certain other federal antitrust laws, gun-jumping does not require an anticompetitive effect; this procedural violation can result in fines of up to $41,484 per day, without proof of any impact on competition. Government investigations to determine whether gun-jumping has occurred can
delay closing of the transaction. Second, parties must be careful not to share competitively sensitive information during due diligence in a way that might lessen competition between them. Section 1 of the Sherman Act, which also prohibits collusive activity such as price fixing and market allocation, applies prior to closing, including during pre-signing diligence, throughout post-signing integration planning, and otherwise pre-consummation. Exchanging competitively sensitive information, such as current or future prices, strategic plans, individual customer or supplier details, or employee compensation information, may implicate Sherman Act § 1 if it lessens competition between the parties. While gun-jumping and informationsharing enforcement actions are rare, the Federal Trade Commission (FTC) and Department of Justice will aggressively pursue violations if they are uncovered, either during mandatory Hart-ScottRodino (HSR) review of notifiable transactions or in a separate investigation. These restrictions apply equally to nonHSR-reportable transactions; smaller transactions are not exempt.
Practical Tips for Avoiding Antitrust Pitfalls
To avoid antitrust issues, parties to an M&A transaction should implement several straightforward guiderails to protect both buyer and seller, and ensure timely closing of the transaction. Share the least amount of information needed for legitimate due diligence. There is greater competitive risk in exchanging information that is more detailed and more current or forward looking.
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Parties should redact customer identities or aggregate sensitive information to minimize the risk that the information exchange could be used to lessen competition. Use “clean teams” to exchange competitively-sensitive information. If the parties need to exchange competitively sensitive information, they should only do so through third-party consultants or internal “clean teams” to minimize the risk of the exchange. While third-party consultants may be appropriate for more complex transactions, a less-costly alternative is to use internal “clean teams” of employees whose responsibilities do not cover competitive activities like pricing and marketing. Nondisclosure agreements or other agreements not to share information should be used to prevent clean team employees from sharing competitive information more broadly within their organization. Wage and salary information can be competitively-sensitive. The antitrust agencies have increasingly focused on improper exchanges of wage and compensation information between competing employers. For example, the FTC recently alleged two Dallas/Fort Worth staffing companies
violated federal antitrust laws by, among other things, exchanging employee compensation rates. Companies that are employer-side “competitors” in labor markets should avoid sharing employee- or job title-specific compensation rates outside of a clean team, particularly in specialized industries like health care. Operate independently until close. Merging parties may not control or limit each other’s premerger marketing, pricing, or other competition. Neither party should make current commercial decisions based on information learned in due diligence. And parties should not coordinate with respect to customers or suppliers before completing their transaction. In conclusion, parties to an M&A transaction must remain vigilant to avoid antitrust issues in mergers and acquisitions. While most due diligence information exchanges are appropriate, parties should exercise caution where there may be risk. They should seek guidance from counsel on questions, as often there is a way to accomplish the business goal with limited antitrust risk. HN Thomas D. York is an associate at Jones Day. He can be reached at tdyork@jonesday.com.
DBA Annual Meeting The Annual Meeting is Friday, November 2, in the Pavilion. A reception begins at 3:30 p.m. and the meeting begins at 4:00 p.m. If you have prior DBA service and wish to run for a position, you must contact Alicia Hernandez (ahernandez@dallasbar.org (214) 220-7401), no later than Thursday, November 1, at 5:00 p.m. to receive information about service on the Board. You are required to complete a biographical form prior to the meeting. Following the meeting all DBA resident members with an e-mail address on file will receive an online ballot. If you wish to vote online, please make sure the DBA has your e-mail address by visiting the DBA website at www.dallasbar.org, or call Kim Watson at (214) 220-7414 before 5:00 p.m. on Thursday, November 1, 2018. Please update your spam software to allow the e-mail ballot to enter your inbox from DallasBar@BallotBoxOnline.com.
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October 2018â€
D al l as Bar A ssoci ati on l Headnotes 15
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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
Column
October 2018
Ethics
Keeping Client Confidences: A Look at Texas Ethics Opinion 673 BY JEANNE M. HUEY
Two heads are better than one, or so the saying goes, and lawyers love to talk about legal problems and issues. Naturally there are rules about what we can and cannot say when we are talking to lawyers outside our own firm. We cannot mention a client by name, or mention case specific facts because we could easily run afoul of the prohibitions against revealing client confidences found in Texas Disciplinary Rule 1.05 or even unwittingly help an opponent. But otherwise, turning to others for their opinions and experience is a good thing for our clients because they get the benefit of knowledge we do not have and perhaps could obtain only at considerable cost. Unfortunately, in the information age, brainstorming legal problems with other lawyers has become much more complicated. A new Texas Ethics Opinion (No. 673, August, 2018) recognizes the value of turning to others outside of our own firm for information and advice, but also cau-
tions that this requires careful thought, and it is likely that what we can and cannot say without revealing client confidences is actually very limited. Let us start with the basics. Confidential information under Rule 1.05 is not limited to information that is “secret” or “privileged”, and the most recent opinions at the state and national level all affirm that everything we learn in connection with representing a client is confidential— including information that is public. That is one consideration. The other is the widespread availability of information that in the past would have been hard to find. Any lawyer with the right local district court or Pacer account can learn in a few minutes the names of all the pending cases in which we appear as an attorney of record and the names of our clients in those cases. Recognizing that getting information from other lawyers outside our own firm may be helpful to our clients, Opinion 673 observes that existing exceptions to the
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strict rule of confidentiality allow disclosing confidences for the benefit of the client if we have client consent or if it can be implied. That seems to leave a good deal of room for brainstorming questions with our trusted lawyer friends or online lawyer group if we assume the client just does not want its name associated with the question. As the Opinion notes, generally, a question about the law or statute itself—without any attendant facts—will not result in the disclosure of confidential information. But that is rarely the kind of question that lawyers want to discuss. And therein lies the problem. The more interesting the question, the more likely it is that it can be tied to a specific pending or threatened lawsuit. Moreover, in business litigation as in other specialized practice areas, the lawyers with the most expertise relevant to us and our clients are also the ones most likely to be our opponents. The phrase “I’ve got a case with a tricky problem of removal jurisdiction” is enough by itself to tell an opposing lawyer something about our strategy and concerns, and give them all they need to find the case and client if they are so inclined. There are other ways to get feedback from lawyers outside the firm and protect
our client’s confidential information. After all, the best opinions are going to come from those that have a fully formed view of the facts of our client’s case, and maybe even have past experience in the particular area of law involved. Those lawyers can be hired and paid for an hour or two of their time if we want their advice, which will keep everything we tell them and their advice both confidential and privileged. In theory, as in Opinion 673, there are exceptions to the rule protecting client confidences that allow us to seek casual advice from lawyers outside our own firm. In practice it may be almost impossible if we understand the risks involved, including the extent to which the lawyer to whom we put the question is or will become adverse. The realities of what any other lawyer outside of our firm can learn about our clients and cases from our posing hypotheticals or even small talk over coffee suggest that we need to be very cautious when seeking advice or feedback of this type. For full details of the new ethics opinion, log on to www.legalethicstexas.com/EthicsResources/Opinions/Opinion-673. HN Jeanne M. Huey is the Managing Partner at Hunt Huey PLLC and can be reached at jhuey@hunthuey.com.
8:30 a.m.-4:00 p.m. at Belo
UPCOMING DBA EVENTS
6 hrs CLE and 3 Ethics
ADD THESE TO YOUR CALENDAR!
Questions?
Contact Melissa Garcia At mgarcia@dallasbar.org
Or (214) 220-7484
October 12: A Conversation with Keven Ann Willy and William McKenzie October 20: DBA Community Day of Service October 29: DBA Education Symposium November 2: DBA Annual Meeting November 6: DBA Awards Luncheon, Honoring Members November 13: DBF An Evening with Ron Chernow
For more information, or to register, visit www.dallasbar.org.
wit h
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Tuesday, November 13, 2018
Cocktail Reception at 6:30 pm • Dinner at 7:15 pm Benefiting the Sarah T. Hughes Diversity Scholarships For ticket in f or mation: DA L L A S BA R FO UNDATI ON (214) 220-7487 B el o Man s i on and Pav ilion / 2101 R oss Ave. / Dallas
DVAP’s Finest
IDA L. AGOSTO-SERRANO How did you first get involved in pro bono? Once I was admitted to the Puerto Rico Bar and began to practice law as a solo practitioner, one of the first things I did was to let know Puerto Rico Legal Services, Inc. of my availability to accept pro bono cases. After resigning as an Assistant State Attorney in Puerto Rico to come live in Texas, I attended a Pro Bono Orientation Luncheon and got involved with the DVAP’s pro bono cases with enthusiasm and commitment.
Why do you do pro bono? Because as part of the legal community in Texas (or in Puerto Rico) I have the responsibility to give the poor equal access to justice. I strongly believe that sometimes you are the one who makes the difference in the life of a person who is a victim of an injustice just because he cannot afford to pay a lawyer, and you provide that person’s only opportunity to succeed in his legal claim. What impact has pro bono service had on your career? Since the beginning of my career, I felt that pro bono cases would help me develop as a lawyer while using my skills and training, but I immediately discovered something that was more important for me as a human being: that each case would help me develop into a better person. What is the most unexpected benefit you have received from doing pro bono? The great feeling of helping others, and as DVAP says, “pro bono: it’s like billable hours for your soul,” and I thank DVAP for the opportunity of considerable and significant billing hours.
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
October 2018â€
D al l as Bar A ssoci ati on l Headnotes 17
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
October 2018
Antitrust & Trade Regulation/Business Ligitation
Texas Citizens’ Participation Act Update BY HALEIGH JONES AND DAVE WISHNEW
The reach of the Texas Citizens’ Participation Act (TCPA) is stretching with no signs of deflating soon. In 2015, the Supreme Court rejected the notion that a communication must be “public” to be subject to the TCPA, holding that any communication that is “in connection with” a matter of “public concern” is subject to the TCPA. Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015). In 2017, the Court rejected the requirement for a “nexus” between the communication and the matter of public concern, holding the statute requires only a “tangential relationship” between them. ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017). Most recently, in Hersh v. Tatum, 2017 WL 2839873 (Tex. 2017), the Court held a defendant can show that
a claim is “based on a communication” where the defendant himself denies making the purported communication. Commentators and trial courts have awaited a solution to what they see as an overexpansion of the TCPA’s application beyond what the Legislature intended. Many of them were hopeful the commercial speech exemption to the TCPA could provide such a solution. The Supreme Court disappointed them in April, resolving a split of authority and narrowing the applicability of the commercial speech exemption. Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018). The Court held that commercial speech is exempt from the TCPA’s application only where four conditions are met (1) the defendant was primarily engaged in the business of selling goods; (2) the defendant engaged in the con-
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duct on which the claim is based in the capacity as a seller of those goods; (3) the conduct arose out of a commercial transaction involving the kind of goods the defendant provides; and (4) the intended audience were actual or potential customers of the defendant. Id. Notably, the statutory exemption does not require the speech arise out of the defendant’s sale of goods, or that the defendant be acting in its capacity as a seller of those goods. Following Castleman, the plaintiff seeking to invoke the commercial speech exemption must show the speech arose out of the defendant’s sale of goods. This holding changes the law in Texas and broadens application of the TCPA. Polito v. Moldovan, DC-15-03069 is a good example of a case that might have ended differently under Castleman analysis. In Polito, the defendants were a married couple, and the wife was a professional blogger. The couple made defamatory statements about plaintiffs to the news media, on social media and others. The trial court held that the statements were subject to the commercial speech exemption because the defendant wife, was “primarily engaged in the business of selling social media services through her personal blog.” Now, under Castleman, the court may reach a different result on the commercial speech exemption issue because the defamatory statements arguably were not posted in connection with the sale of goods or in Defendants’ capacity as sellers, although the couple’s statements to the media were posted on the wife’s blog and social media. The analy-
sis would be particularly muddled for this case under Castleman because the line between a lifestyle blogger or social media influencer’s personal and professional life is, by nature, blurred. Following Castleman, similarly situated commercial plaintiffs should expect the TCPA to apply to most cases involving commercial speech and be prepared to satisfy the statute’s rigorous requirements. This means gathering evidence of the defendant’s conduct before suing. One helpful tool is the ability to seek a deposition under Texas Rule of Civil Procedure 202 to obtain testimony for use in an “anticipated suit” or to “investigate a claim.” Unfortunately, this rule has lost some of its teeth in recent years as some courts of appeal have determined a 202 petition may not be used to request documents. Nonetheless, the ability to commit the defendant to his conduct under oath is a powerful tool in the plaintiff’s pre-suit arsenal. And of course, a wellpled complaint that particularly states the facts supporting the plaintiff’s claims can dissuade the defendant from the oftenexpensive endeavor of filing a TCPA motion where it appears the plaintiff can overcome his burden. In sum, following Castleman, commercial plaintiffs’ lawyers will have to flex some creativity to discourage TCPA motions and investigate claims before suit as the TCPA is likely to apply. HN Haleigh Jones and Dave Wishnew are attorneys at Crawford, Wishnew & Lang PLLC. They can be reached at hjones@cwl.law and dwishnew@cwl.law, respectively.
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PUB: Headnotes CONTACT: Jessica D. Smith, Headnotes Editor Communications/Media Director (214) 220-7477 jsmith@dallasbar.org
For more information, contact yhinojos@dallasbar.org.
RELEASE: 9/13/18 INSERTION: October
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D al l as Bar A ssoci ati on l Headnotes 19
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20 H e a d n o t e s l D a l l a s B a r A s s o ciation
October 2018
Hunton Andrews Kurth Named Pro Bono Law Firm of the Year Reed Allmand Named Pro Bono Lawyer of the Year STAFF REPORT
At the Annual Pro Bono Awards Reception on September 25, the Dallas office of Hunton Andrews Kurth LLP was recognized as Pro Bono Law Firm of the Year. Each year, the Dallas Volunteer Attorney Program (DVAP), a joint project of the Dallas Bar Association and Legal Aid of NorthWest Texas, honors the lawyers, judges, and other legal professionals who donate pro bono legal services. Hunton Andrews Kurth donated nearly 6,000 hours to pro bono this year. The firm considers the commitment to providing pro bono services a tradition since its founding in 1901. It remains a core value today. They have
tackled DVAP pro bono projexceeded the goal of providects including volunteering at ing more than 3 percent of its DVAP Small Business Clinbillable time to pro bono serics, Veterans Clinics, East Dalvices. Between 2009 and 2017, las Clinics, and assisting with 100 percent of Hunton & a Wills Clinic at The Senior Williams’ full-time U.S. lawSource for the past several yers participated in pro bono years. projects. Within the same “Pro bono service has time span, the firm’s lawyers helped further my career across its domestic and interdevelopment by providing national offices donated more me the opportunity to lead a Reed Allmand than 45,000 hours of service variety of pro bono initiatives at Hunton to low-income and charitable clients. In Andrews Kurth LLP, present to and addition, Dallas associate Louis M. Stahl engage with teams from various service was recognized as this year’s Outstanding organizations looking to augment their Veterans Clinic Attorney. pro bono services, and expand my subject matter familiarity/expertise,” said Fawaz Bham, an associate who serves on the Reed Allmand, of the Allmand Law firm’s Pro Bono Committee and has been Firm PLLC, was named Pro Bono Lawrecognized as one of DVAP’s Finest. yer of the Year. For years he has taken Between 1993 and 2017, Hunton up to five Chapter 7 Bankruptcy cases & Williams, a signatory member of the each month, for a total of 49 total cases Law Firm Pro Bono Challenge©, met or so far—which DVAP Director Michelle
Lawyer of the Year
Moms in Law Events October
Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is going on its third year of being a no pressure, no commitment, informal, fun, support group for lawyer moms. The October events are: October 5: Noon, Edith’s French Café (Upper Greenville) RSVP to rfitzgib@gmail.com October 19: Noon, Butcher Block (Addison) RSVP to rociog@chalakilaw.com Email christine@connatserfamilylaw.com to join the Moms in Law email listserv.
2018 Pro Bono Awards Lawyer of the Year Reed Allmand Allmand Law Firm PLLC Law Firm of the Year Hunton Andrews Kurth LLP Pro Bono Appreciation Award Michael K. Hurst Lynn Pinker Cox & Hurst, LLP Hartman Judicial Pro Bono Service Award Hon. Tena Callahan 302nd District Court Ken Fuller Outstanding Mentor Attorney of the Year Brandy Baxter-Thompson Calloway Norris Burdette Weber & Baxter-Thompson, PLLC Gold Award for Pro Bono Service Alston & Bird LLP Sidley Austin LLP Norton Rose Fulbright US LLP Haynes and Boone, LLP Silver Award for Pro Bono Service Husch Blackwell LLP Squire Patton Boggs Baker Botts L.L.P. Thompson & Knight LLP Bronze Award for Pro Bono Service Drinker Biddle & Reath LLP Akin Gump Strauss Hauer & Feld LLP Winstead PC Pro Bono Coordinator of the Year Andrea Broyles Bracewell LLP
Outstanding Support Volunteer Ruth Kaiser, Dallas County Outstanding Bilingual Attorney Nina Orendain Akin Gump Strauss Hauer & Feld, L.L.P. Outstanding Solo Practitioner Ida Agosto-Serrano, Attorney at Law Outstanding Clinic Sponsor Winston & Strawn LLP Outstanding Clinic Attorney Volunteers West Dallas Clinic William Milne, Attorney at Law Garland Clinic Sid Weatherford, Attorney at Law South Dallas Clinic Charles Katz, Attorney at Law East Dallas Clinic Andre Craig, Jr. Law Offices of Kevin B. Ross, P.C. Outstanding Veterans Clinic Attorney Louis Stahl, Hunton Andrews Kurth, LLP Pro Bono Court Reporter of the Year Elizabeth Griffin 302nd District Court Outstanding Court Personnel Twyla Weatherford 302nd District Court
Alden says are “extraordinary contributions to DVAP’s pro bono program.” “I understand and empathize with their predicament and use the legal system to help them hold on to their assets, dignity, and sanity,” said Mr. Allmand, who has saved numerous homes from foreclosure. “My philosophy is ‘help good people through bad times.’” Mr. Allmand, a 2000 graduate of Texas Wesleyan University School of Law, is a member of the Dallas Bar Association, Dallas Association of Young Lawyers, the American Bar Association, the National Association of Consumer Bankruptcy Attorneys, American National Bankruptcy Institute, and the American Consumer Bankruptcy College. “I have been blessed in life and giving back to the community I am a part of is my way of helping others and thanking God for my good fortune,” he added. DVAP congratulates Hunton Andrews Kurth and Reed Allmand! HN
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DVAP’s Finest FAWAZ BHAM
Fawaz Bham is an associate with Hunton Andrews Kurth LLP. His practice focuses on the acquisition, development, leasing, and disposition of real estate nationwide. Describe your most compelling pro bono case initiative. To date my most meaningful pro bono initiative has been to improve the quality of life for entrepreneurial low-income populations by providing pro bono law resources to microenterprises and non-profits. The aim of these clinics is to allow such entrepreneurs to have a one-on-one sit down with two attorneys from different fields of practice to engage in a productive discussion regarding legal issues the business or non-profit may be facing. This initiative allows such entrepreneurs to use the volunteering attorneys as a sounding board to identify the “real” and “exact” issues the business or non-profit is facing, along with other relevant matters that the entrepreneur may not even have thought about. The clinic provides tangible resources for entrepreneurs to take with them after the consult. Entrepreneurs walk away oriented to pursue further paid legal advice if needed, and empowered to pour their efforts into their ventures again. Why do you do pro bono? All of us work on important and complicated matters that yield small pivotal victories for our clients, but it only takes a limited interaction with a pro bono client to remember how fundamental and essential a pro bono client’s needs can be and come to the realization of how your small drop in the pro bono service bucket ripples into an incredible wave of relief in their lives. Pro bono helps you expand your scope of knowledge, helps you with business development, and helps you re-energize your legal soul. Pro bono is an indispensable part of being an amazing lawyer, period. What impact has pro bono service had on your career? Pro bono service has helped further my career development by providing me the opportunity to lead a variety of pro bono initiatives at Hunton Andrews Kurth LLP, to present to and engage with teams from various service organizations looking to augment their pro bono services, and expand my subject matter familiarity and expertise. What is the most unexpected benefit you have received from doing pro bono? The appreciation from clients months after you have concluded your assistance to them. Pro bono clients remember and it is always nice to know that there may be someone in the community sending positive vibes your way at any given point of time. Paying it forward is the only way we all move forward.
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
October 2018
Focus
D al l as Bar A ssoci ati on l Headnotes 21
Antitrust & Trade Regulation/Business Ligitation
Continued Limitations to Recovery of Attorney’s Fees BY TY M. SHEAKS
Since its enactment in 1985, Section 38.001 of the Texas Civil Practice & Remedies Code continues to be a source of misunderstanding by most practitioners. Section 38.001 allows a “person [to] recover reasonable attorney’s fees from an individual or corporation.” Despite the clear limitation to recovery from an “individual” or “corporation,” most practitioners rely on Section 38.001 to recover attorney’s fees from a variety of other non-corporate entities. The confusion for most practitioners likely stems from Section 38.001’s use of “person” to define whom can recover fees and ignoring the limitation of recovery from only an “individual” or “corporation.” Section 38.001 was enacted in 1985 to re-codify Article 2226 of the Texas Revised Civil Statutes. Article 2226 provided that “any person, corporation, partnership, or other legal entity” may seek attorney’s fees from such “person or corporation.” Section 38.001 was revised to omit “corporation, partnership, or other legal entity” from the description of a claimant because the Code Construction Act includes those entities in the definition of “person.” However, Section 38.001 was also revised to omit “person” in reference to an opposing party. By doing so, Texas courts have routinely held the legislature changed the terminology to retain a more restrictive meaning. Part of the continued confusion in application of this limitation likely stems from the fact it was not until 1997 that a Texas court even addressed
this issue. In Ganz v. Lyons Partnership, L.P., the Northern District of Texas held a limited partnership was not subject to an award of attorney’s fees under Section 38.001. According to Ganz, the legislature intended to exclude the prevailing party from recovering attorney’s fees from any entity other than an “individual” or “corporations,” because by definition individuals are humans and corporations are business entities formed under the Texas Corporations statute. Even after Ganz, it was not until 2014 that a Texas court of appeals addressed the applicability of Section 38.001 to non-corporate entities. In Fleming & Assocs. LLP v. Barton, the 14th Court of Appeals held Section 38.001 did not apply to a limited liability partnership. Since Fleming, many state and federal courts across Texas have unanimously adopted this rule and extended it to other noncorporate entities, including limited liability companies (LLC), limited liability partnerships (LLP) and limited partnerships (LP). See Hoffman v. L&M Arts LLC, (N.D. Tex. Mar. 6, 2015) (limited liability company is not an individual or corporation for purposes of § 38.001); Choice! Power, LP v. Feeley (Tex. App.—Houston [1st Dist.] 2016, no pet.) (§ 38.001 does not permit recovery against limited partnership). As recent as March 2018, in Sky Group, LLC v. Vega Street 1, LLC the Fifth Court of Appeals-Dallas reconfirmed its position that a trial court cannot order LLPs, LLCs or LPs to pay attorney’s fees under the plain language of Section 38.001.
In each of the two most recent legislative sessions bills were presented for consideration by the Texas Legislature to amend Section 38.001 to clarify and expand the application to non-corporate entities. For example, H.B. 744 proposed amending Section 38.001 to allow recovery of attorney’s fees from an “individual, corporation, or other legal entity.” However, none of the proposed bills have made it out of committee. Until the Texas Supreme Court or Texas Legislature weighs in to change or clarify Section 38.001, recovery of attorney’s fees under Section 38.001 appears to be limited to “individuals” and “corporations” only. Good news
for practitioners defending claims for other non-corporate entities, but bad news for practitioners seeking recovery. Because of the continued limitations on recovery of attorney’s fees under Section 38.001, the best course of action for practitioners representing contracting parties who wish to ensure that non-corporate entities may be held liable for attorney’s fees under a breach of contract claim should be sure to include appropriate fee-shifting provisions in their contracts (or invoices, etc.). HN Ty M. Sheaks is a partner at McCathern, PLLC. He can be reached at tsheaks@mccathernlaw.com.
22 H e a d n o t e s l D a l l a s B a r A s s o ciation
October 2018
Communication Skills Part II: Avoiding Mistakes in Communication BY CLAUDE DUCLOUX
For the third installment in our communication series, we will highlight some important habits that will help you avoid mistakes in communication.
Making Predictions “Off the Cuff”
A very dangerous situation presents itself whenever a client asks you to guess as to the outcome of a future event. Why? Because the client rarely will remember the “construct” of your opinion, just the best possible outcome predicted, and will hold you to that fictitious prediction. Your guesstimates frequently rely on unproven facts—facts often suggested by the client. The best advice I can give is to scrupulously avoid guessing about the future. The best I will do is to say “My job is to do the best I can for you, and based upon the facts I know today, [e.g., I am comfortable that we are on the right track].”
Civility in All Communications
Despite the nastiness you see on lawyer TV shows, every lawyer has a duty to attempt to keep all communications civil. Civility is a process. It avoids unnecessary confrontation and it relies on the Rule of Law. At this point, your eyes are glazing over thinking, “blah blah Rule of Law.” But let’s talk about that. What is the “Rule of Law?” Simply put, it is society’s social compact to resolve issues within frameworks and rules—to observe neutral methods to achieve best outcomes based upon
fairness, process, and opportunity to present facts. We choose to live in this society rather than to allow money, brute force, or guns and swords to dictate outcomes. That is exactly why we need to preserve it. Our first step in that preservation is civility. Civility depends upon communication; that is, keeping in touch and responding. Civility requires respect for all the participants: your clients, opposing counsel, and the judicial system. The most effective way to serve your client generally is maintaining a productive and problem-solving relationship with the opposing counsel. In this regard, the words you use matter. Thus: • “How do we solve this?” works better than “I demand you do this.” • “When may I expect the documents?” works better than “Once again, you blew by the discovery response deadline.” Always remember, you should never expect better treatment yourself than you are offering the other side. Finally, remember how dependent you are on the good will of the other participants of the legal system: clerks, administrators, and other state, county, or city employees who will review or handle your work. Be kind, gracious, and humble, appreciating that those people often have stressful jobs for unappreciative citizens.
Controlling the Narrative
One of the most effective ways to get yourself in trouble is to not respond to a communication from your client that changes a fact or incorrectly reports a condition. If a client reports that you promised to do something for a given amount, or in a given length of time, and you fail to respond and cor-
rect the client, that will be seen as a tacit admission that the client is right. Remember, you have the fiduciary duty to the client, and because of that, the surpassing duty to keep the record straight. I have handled scores of grievance complaints, and it is devastating to the accused lawyer to show a series of correspondence from the client for which there was no reply. Do not risk it. Practice defensively when setting the record straight.
Nonverbal Communication
As old fashioned as this sounds, please remember that a client will make an appraisal as to competence and confidence by how you present yourself. Bad press affecting you and your practice undermines confidence. If the negative images remind a client of how he/she is being treated, it is likely that client will change counsel.
Communication on Billings
If you use a billing system or simply bill by narratives make sure that you are smart. First, your accuracy in billing increases exponentially when you record time immediately, or as close to the event billed as possible. Here’s a short list of good billing habits to always keep in mind: • Remember your audience: use words your client will understand if you expect to be paid. • Again, keep in mind that your bills may be subject to third-party review in the event you are seeking reimbursement in court, or the client complains. That means you are unlikely to be able to redact, and therefore reveal no client confidences, but add enough information so a court or committee can evaluate what you did. • Add free events: “Called Bob to
remind him of pre-trial on [date]–.2 hours–NO CHARGE. • Be prepared to defend every event you are billing. Now, here’s a short list of bad habits: • Using meaningless techno-legal babble: “File review – .3 hours” • Overbilling: “Draft Original Petition for Divorce – 1.5 hours” Really? • Making your stapler a profit center: do not bill for office supplies. You are a lawyer, clients expect that you will have paper, paper clips, and staples and you did not have to run out to the office supply store just because they hired you!
Final Thoughts
To distill what we have discussed over the last three articles, always remember that it is your responsibility to appear professional, knowledgeable, and collaborative. Only sign-on to represent someone when you have a meeting of the minds as to reasonable expectations. Communicate in a way that connects you as a team member for your client’s reasonable goals. Finally, treat every person, firm, agency, and interest with respect and courtesy, observing your duty of civility. When stress arises, be “the adult in the room” who can control the emotion and act civilly and responsibly. If you follow these rules, you will likely have clients who will be friends for life and colleagues who will refer you more business because they have had a good experience working with you. In other words, you will be a success. HN
Claude Ducloux is the Director of Education at LawPay and is Board Certified, Civil Trial Law and Civil Appellate Law, Texas Board of Legal Specialization.
October 2018
Focus
D al l as Bar A ssoci ati on l Headnotes 23
Antitrust & Trade Regulation/Business Ligitation
Restrictive Use Provisions vs. Continuous Operation Covenants BY STEVEN W. HOPKINS
Your client, a lessor of commercial real estate, comes to you with a problem: We “B” Toys, an anchor tenant lessee in one of your client’s large retail shopping developments, has closed its doors and “gone dark” eight years into a 10-year commercial lease. Despite moving out several months ago, We “B” Toys has continued to pay all monthly rent as it comes due wand has indicated to your client that it will continue to do so throughout the remainder of lease term. Your client is concerned that the now vacant store front will decrease overall foot traffic in the development, cause sales to drop for other adjacent tenants, and cause some tenants to relocate to greener pastures. Incensed, your client points out that the lease says the “premises are leased to be used only as a retail store,” so surely the lessee cannot simply cease “using” the premises and close up shop in the middle of the lease term? Or is the lessee within its rights to do so, so long as it continues to pay rent as it comes due? Like many questions in the legal world, the answer is, “It depends,” and it will likely turn on whether the lease at issue contains a covenant of continuous operation, either express or implied. In Lubbock County Water Control v. Church & Akin, L.L.C., 442 S.W.3d 297, 303 (Tex. 2014), the Texas Supreme Court analyzed this issue, noting “the important difference between an agreement that restricts the use of property to a specific purpose
and one that requires the use of property for a specific purpose: ‘a provision in a lease that the premises are to be used only for a certain prescribed purpose imports no obligation on the part of the lessee to use or continue to use the premises for that purpose; such a provision is a covenant against a noncomplying use, not a covenant to use.’” (emphasis in original). Applying these principles, does your client’s lease require We “B” Toys to operate a retail store on the leased premises throughout the entirety of the ten-year lease term, or does it merely contain a restrictive use provision stating that so long as the lessee is “using” the premises, it shall be only as a retail store (as opposed to a bowling alley)? While this issue can vary from state to state, some general concepts emerge. A continuous operation requirement is a severe measure. It means that a lessee is precluded from using business judgment to cease operations, and must instead continue to operate a business throughout the lease term – in some cases for well over a decade – “even if it is disastrously unprofitable” to do so. Oakwood Village LLC v. Albertson’s Inc., 104 P.3d 1226, 1232-33 (Utah 2004). Accordingly, the Oakwood court noted a judicial reluctance to recognize covenants of continuous operation in the absence of clear language, and an even greater reluctance “to infer” such an obligation. Similarly, the Wisconsin Supreme Court held that a lease stating that “[t]he premises shall be occupied and used only” as a “retail warehouse store” constituted
a “restrictive use” clause as opposed to a “continuous operation” clause, and that “shall be used and occupied” language is, by itself, generally insufficient to create a continuous operation requirement. Sampson Invs. v. Jondex Constru., 499 N.E.2d 177, 179-81 (Wis. 1993). Fixed rent (as opposed to rent based on a percentage of sales) also indicates that no continuous operation requirement was intended or implied because the percentage rent is not relied upon by the lessor for compensation for leasing the property to the lessee. Schuberg, Inc. v. The Kroger Co., 317 N.W.2d 606, 608-10 (Mich. Ct. App. 1982). Finally, a restrictive use provision is not breached when a lessee moves out and leaves a store vacant. Serfecz v. Jewel Food Stores, Inc., 67
F.3d 591, 603 (7th Cir. 1995). In language that is sure to disappoint your client, the Serfecz court held that “allowing a store [leased to be used “only” as a supermarket] to remain vacant is different from operating a hardware or music store on the leased premises.” In sum, courts hesitate to require continuous operation absent unequivocal lease language to the contrary. Accordingly, the language in your client’s lease, without more (e.g., the lessee paying rent based on a percentage of sales), likely constitutes only a restrictive use provision that the lessee did not breach by leaving the store vacant while continuing to pay rent. HN Steven W. Hopkins is a commercial litigator with Sargent Law, P.C. and he can be reached at stevewh99@sbcglobal.net.
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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
October 2018
Antitrust & Trade Regulation/Business Ligitation
The European Union’s GDPR on Websites of American Companies BY RYAN A. STARNES AND J BAILEY
The General Data Protection Regulation (GDPR) is a set of guidelines established by the European Union (EU) to ensure the consent and protection of an individual’s personal data during the collection, processing, storage, and movement of said data. The GDPR applies to all companies processing personal data originating from the EU, even if the company has no physical presence within the EU. 2016 O.J. (L119) 33. The GDPR applies to both data controllers, a body that “determines the purposes and means of the processing of personal data,” and data processors, a body that “processes personal data on behalf of the controller,” outside of the EU where, (i) companies process personal data of EU persons regarding goods and services provided, or (ii) behavior of EU persons is monitored. Id.
Further, if using personal data to target data subjects within the EU, companies must be compliant. Companies attempting to market to EU users by having EU languages, displaying EU users, or accepting EU currency on their website must be compliant with the GDPR. If, however, the company does not market goods or services to EU persons, nor are they available to them on the website, the GDPR has no affect according to the territorial scope laid out in Art. 3 of the GDPR. Id. While this looks like a potential safety net for small businesses, caution is still recommended given the ease of browsing for, purchasing, and shipping of products online; especially considering, an actual purchase is not necessary. Once data is collected without express consent a company can be in violation.
Becoming Compliant
There is no standard procedure to
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becoming compliant. Understanding what type of personal data is being collected, the way in which it is being collected and processed, how it is being stored, and the duration of storage all are factors that must be ascertained before developing a plan to become compliant. The GDPR establishes that companies with less than 250 employees are not required to maintain a record of processing activities unless the processing is likely to risk the rights of the data subjects, it is not occasional, or if the data includes special categories like race, religious beliefs, and sexual orientation listed in Art. 9 & 10 of the GDPR. Id at 38-39. These companies must still be compliant with the GDPR, but do not require the same documentation of their processing. To be compliant with the GDPR, websites must ensure that personal data is processed fairly and transparently. The collection must be for a specified and explicit purpose. Furthermore, data must be kept in a form which allows for identification of data subjects only for the duration of the specified purpose. Once that purpose is complete the data must be deleted or made anonymous. Id. at 35-36. If using cookies to gather analytical data from website visits, informing the user of the cookies, their explicit use in monitoring website performance or activity, and allowing the user to consent to cookies is required for compliance. Additionally, users have the right to cease data collection at any time. As a result, an option should be available to the user so that consent can be withdrawn or the user’s “right to be forgotten,” (i.e. dele-
tion of personal data), can be expressed. Id. at 44.
Possibility of Fines
For American small businesses who do not market their products outside of the United States, allowing the website user to accept or reject cookies should be the extent necessary to avoid any GDPR violations. If there is no activity on the website from users who are living in the EU, being cautious could still be beneficial due to the hefty fines and sanctions that could be levied under the GDPR. The most serious infractions can see fines up to 20,000,000 euros or 4 percent of global company revenue. Fines are calculated based on the circumstances of each individual infraction. Circumstances can include but are not limited to, the type of personal data collected, the gravity of the infringement, and the intentional or negligent manner in which the infraction occurred. Id. at 83. The goal of the GDPR is to prevent the misuse of personal data, primarily by companies that collect vast amounts of personal data. They are likely to be more lenient to infrequent small-time offenders, but even this leniency is dependent on which EU member country handles the infraction. The takeaway for now is the GDPR shows a shift in policy and increased scrutiny on how personal data should be responsibly handled and, given the potentially severe fines, the consequences for misuse of the data. HN
Ryan A. Starnes is a Partner at Libby Sparks Willis Starnes PLLC. He can be reached at rstarnes@libbysparks.com. J Bailey is a second year law student at the University of Oklahoma College of Law. He can be reached at jbailey@libbysparks.com
October 2018
Focus
D al l as Bar A ssoci ati on l Headnotes 25
Antitrust & Trade Regulation/Business Ligitation
Living (and Suing) in the Grey Area – How to Make Bank BY ADAM M. SWARTZ
When suing to collect on unpaid accounts for a creditor, attorneys can include an alternative cause of action tagging the person/entity that benefited from the funds expended and extend the statute of limitations past four years to collect a debt. You will do your client a real solid if you know what to argue. This is particularly true when the defendant/ debtor claims that your corporate client has rested on its laurels or wants to file a counter-claim. That goes double if you are working on contingency or flat rate instead of billable hours.
History’s No Mystery – Look at What Citibank Did
In 2005, Citibank lost a credit card collection case based on three commonly asserted theories: breach of contract, sworn account, and quantum meruit. The credit card was not a sworn account because no title to personal property passed from the bank to the cardholder, and without a physical contract copy, Citibank had no donkey to pin the tail on. Citibank swerved their strategy. They began pushing the idea that credit card agreements could be litigated as common-law suits on accounts. Citibank convinced Courts to knock out a traditional common-law requirement: merchant involvement/sales transactions (as opposed to bank involvement, which is comprised of purely financial transactions, i.e., not merchant-based). Because there are periodic account statements, they argued, credit card accounts are
equivalent to ‘stated accounts.’ For authoritative emphasis, the word order was flipped to ‘Account Stated.’
What is an Account Stated?
The crackerjack cause of action known as Account Stated has been defined as: 1) any agreement, express or implied, between two or more persons or entities, 2) who have had previous transactions, 3) fixing the amount due in respect of such transactions, and 4) promising payment.
When Should You Use it?
a) When you file a breach of contract action (especially in Justice Court where discovery is barred without leave from your Judge). Elements overlap, so if you prove the former, you prove the latter. b) When you want to collect a debt but do not have a copy of the contract. There is a distinct difference regarding when the Courts say a statute of limitation begins to run for Breach of Contract and Account Stated. Knowing the differences can make your case. Four years is the limitation for both actions. When the period begins to run is another question. Breach of Contract: The date of last payment is what determines when the statute of limitations starts running. Account Stated: The cause of action accrues on the day that the dealings in which the parties were interested cease. The debtor has the burden of proof to conclusively establish the date upon which the parties’ dealings ceased and the cause of action accrued. The contours bend wide in favor of the
Plaintiffs with Account Stated, though— proof of the date of last payment, while a definite and objective point in time, has been held not to be conclusive evidence of the date upon which the parties’ dealings ceased. The statute of limitations runs only when the injured party elects to treat the contract as terminated. In other words, the creditor can determine (or fail to determine) that the relationship has terminated.
points of Account Stated cases. Personal information coupled with billing history or payments has been enough. Cases where one person makes an authorized purchase on behalf of another which enured to the purchaser’s benefit have been upheld. A delivery receipt was sufficient. A check on which payment was later stopped was sufficient. The bar is low.
Proof is in the Pudding
“If you know better, do better.” – Maya Angelou. If you are attempting to collect a debt, it behooves you to kill any argument opposing counsel may have regarding exceeding the statute of limitations to collect the debt or pointing a finger at an empty chair. Extend liability to all bad actors. You will save yourself time answering exhausting counter-claims and be quicker able to cut to the chase and increase your collection efficiency. Time is money…this is a way (or two) to make more of it. HN
The Big Takeaway
At a minimum, you will be required to prove up that professional services were rendered, and the prices charged were agreed to, or (in the absence of an agreement) that the prices charged were usual, customary, and reasonable. Texas has judicially lowered burdens of proof and increased the likelihood of success for high-volume litigants; Texas Appellate Courts have given the character of legal authority to this new twist on a common-law classic, which Texas trial courts are not at liberty to ignore. Courts have found implications sufficient for purposes of proving up the proper
Adam M. Swartz is principal owner of The Swartz Law Firm and can be reached at adam@theswartzlawfirm.com.
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October
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yers. Separate areas available for assistants or paraprofessionals. Three bench seat spaces available for daily or shortterm use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, Wi-Fi, notary, conference room, kitchen area, covered visitor parking, and free secured office parking. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 740-5033 for a tour and information. Virtual Office – Available Now! Ultracontemporary office space, 12222 Merit Drive, Suite 1200, offers 11 conference rooms, greeter, Internet service, mail service, parking, fully equipped breakroom. $500 – competitive rates! Computer work space included as well. Email Amy at arobinson@englishpllc.com or (214) 528-4300.
POSITION AVAILABLE
Personal Injury Trial Attorney. Large Tarrant County PI firm (established in 1982) is expanding to add an additional trial lawyer. Attorney with minimum two (2) years’ experience (more the better) is needed to handle docket of high-value personal injury cases. Email resume in confidence to lawyers@noteboom.com. Dallas Family Firm that helps people through divorce with empathy and unyielding representation seeks associate with 5+ years’ experience. Email resume to christina@katielewisfamilylaw.com; subject line should be your last name in all caps plus one word that describes you. Attorney with 3+ Years’ Experience. Seeking qualified applicants for a staff attorney position in our legal department and claims audit department. Ideal candidates will have 3+ years of experience, preferably in litigation, and seek a friendly, yet professional, atmosphere. The position requires a critical thinker who is detail-oriented, highly organized, and self-motivated. Excellent writing, analytical, research, and communication skills are musts. The office is in North Dallas and the position offers a standard Monday through Friday work schedule, competitive compensation, and an attractive benefits package. Please forward resumes to: scoston@diiasbestostrust.org. Ready to Own/Reposition Your Practice? Ready to take the keys from the big firm and own your own practice? Or are you overwhelmed by the headaches of running your solo office? We’ve been there and done that. Palmer & Manuel, PLLC provides a platform where you (and we) get to do what we love – practice law without the administrative hassles. Run your own practice, keep 95% of your fees, and pay a fixed, reasonable monthly overhead (includes legal assis-
tants, rent, Lexis, malpractice, supplies, etc.). See www.pamlaw.com or contact Larry Chek, Jeff Sandberg or Rebecca Manuel at (214) 242-6444. Downtown Defense Litigation Firm – Experienced Associate. Downtown mid-sized defense litigation firm looking for associate with 5+ years’ experience. Practice areas include overall defense litigation, premises liability, automobile, trucking, and subrogation (both workers’ compensation and ERISA). Experience representing insured parties in personal injury, wrongful death, and property damage a plus. Must have good communication skills, solid writing ability, and be able to work independently and with others. Great opportunity for a motivated, self-starting individual. Please submit resume with salary requirements to dwoodard@downsstanford.com.
POSITION WANTED
Briefing Contract Attorney AV-rated, UT Law honors, Review of Litigation. Trial court and appellate motions, briefs, responses and research on as-needed basis. State and federal experience. High quality work product for your firm with no overhead. Excellent references. attorney3503-7615@yahoo.com.
SERVICES
Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www.ProfessionalAncestryResearch.com. Wanda Smith, (972) 836-9091. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. IT Support Services - Newell Technology Solutions, LLC is a boutique company providing a full range of IT support to select Dallas firms since 2002. Please contact us at (972) 231-8780 or info@ newellsolutions.com. What’s your language? Are you ready to help your clients in any language you like. (or you must!). Just call +1 972 665 6295 OR +1 469 388 5899. Or send an email to simon.salman@mirora. com. OR visit www.mirora.com and see how we can help your clients at a time they need. Mirora Translations US LLC. MiroraUS@mirora.com | www. miroraus.com, To place an affordable classified ad here, contact Judi Smalling at (214) 2207452 or email jsmalling@dallasbar.org.
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee
28 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
October 2018
Crain Lewis Brogdon– By Your Side When life takes an unexpected turn, it is natural to be overwhelmed with anxiety and questions. This is particularly true for people needing a personal injury or criminal defense attorney. At Crain Lewis Brogdon, we help clients navigate difficult times while maximizing their results. We stand by our clients with the same commitment and zeal we would for our own loved ones. We appreciate you trusting us with your referrals.
crainlewis.com | 214.522.9404 Personal Injury | Criminal Defense