Dallas Bar Association
HEADNOTES
Focus Family Law
September 2018 Volume 43 Number 9
Dallas Bar Association Dear Association Members and
Non-Members:
I would like to thank all of our current Dallas Bar Associatio n (DBA) members for your ongo support of our programs and ing commitment to our community!
(Left to right) (First): Jeff Patterson, Melissa Dorman Matthews, C. Vernon Hartline, Jr., Stephanie Roark, Larry Grayson. (Middle): Kyle Dreyer, Wendy May, Jeff Cox. (Back): Pryce Tucker, Brian Rawson, Tom Jacks, and Scott Edwards.
Closing the Justice Gap Hartline Dacus Barger Dreyer Kicks Off 2019 EAJ Campaign BY MICHELLE ALDEN
The Dallas Bar Association is pleased to announce that Hartline Dacus Barger Dreyer, LLP (HDBD) is the kickoff donor for this year’s Equal Access to Justice Campaign, with a generous contribution of $30,500. The firm has a long history of supporting pro bono in Dallas through the Campaign. Including this gift, the firm has donated more than $93,000 to legal aid for the poor since 2007. The Equal Access to Justice Campaign is the annual fundraising campaign which supports the activities of the Dallas Volunteer Attorney Program (DVAP). The firm’s 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 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. HDBD focuses on general civil litigation defense, which includes product liability litigation, personal injury defense, commercial litigation, intellectual property litigation, labor and employment law, and a variety of other areas, but the lawyers make the extra effort to support the communities in
which they live and work. The firm’s Charitable Giving Committee is made up of Jeff Patterson (Managing Partner, Dallas), Brian Rawson (Dallas), Ann Hennis (Corpus Christi), and Peter Blomquist (Houston), and they have created a firm culture that prides itself on responding to the needs of their communities by investing the time, energy, and resources to ensure a lasting impact. Recent charitable work by firm employees includes going door-to-door in Houston to help fellow Texans devastated by Hurricane Harvey, supporting victims of sexual abuse in the Coastal Bend area, providing emergency school supplies for displaced grade-schoolers in Dallas, and ensuring that homeless veterans in Texas have access to free legal services. HDBD spearheads initiatives that provide financial support to charitable and civic organizations involved in health and social welfare, community, arts and culture, education, and legal advocacy activities. “Though our firm primarily represents large corporations, we are steadfast in our belief that all members of society are entitled to strong legal representation, especially those who cannot otherwise afford it,” Mr. Rawson said. The justice gap in Dallas County is daunting. In a country based on justice for all and access to our court system, over 25 percent of Dallas County residents live near the poverty level, and 42 continued on page 17
If you are not a current DBA member, I hope you enjoy this complimentary issue of our mon Headnotes publication and take thly advantage of the following spec ial membership offer! Newly joining members that join the DBA online during the month of September will over 30% on dues, which save includes up to 16 months of membership for the pric months. This special is available e of 12 to attorneys who are not curre ntly or recently a DBA member. Go to dallasbar.org and click on Join the DBA to sign up TOD AY! You can see an extensive list of our member benefits on page 17, but a few important ones are: FREE CLE CREDIT HOU RS IN PERSON & ONLINE – The Dallas Bar Association is the 2nd largest provider of CLE courses in the state of Texa s (See Page 2 for CLE courses) MAKING A DIFFERENCE . – Join one of our many Committ ees to work with other lawyers to provide legal services to the poor, volunteering withi n the community to build hom and donate needed items and es, resources. DIVERSITY – Mentor and collaborate with lawyers of all ages and backgrounds strengthen the fabric of our dive to rse legal community. COLLEGIALITY – Network with other lawyers who prac tice in your field at monthly Section meetings and attend CLE courses that relate direc tly to your practice. As a DBA Member, you will be able to take advantage of these valuable opportunitie learn, network, and make s to a difference. To find out more about the benefits of being member, please visit dalla a DBA sbar.org, or contact our Membership Director, Kim kwatson@dallasbar.org or (214 Watson, ) 220-7414. I hope you join today and look
forward to seeing you at the Belo
And again thank you to all our
Mansion, DBA headquarters!
current DBA members for your
Sincerely,
continued support!
Michael K. Hurst President Dallas Bar Association
2101 Ross Ave. ▪ Dallas
Focus
▪ TX ▪ 75201 ▪ (214) 220-741
4
Family Law
Intangible Assets and How to Divide Them BY KELLY MCCLURE AND ROBERT EPSTEIN
With the rise of computers, the Internet and Internet-based technology, intangible assets are becoming increasingly common in divorce and can provide novel issues when dealing with their characterization and division. In practice, some of the most common intangible assets that family law attorneys encounter are patents/intellectual property, goodwill, and royalties from oil and gas production. Recently, the term “intellectual property” has become an encompassing term that includes such things as patents, copyrights and trademarks. The first step in characterization under Texas community property laws is inception of title. For patents, title “incepts” when the creator actually or constructively reduces the invention to practice. The time the creator physically constructs the invention and it performs the task it was constructed to complete is when it is reduced to practice. Constructive reduction is when the creator effectively
describes the invention with sufficient specificity that a person knowledgeable in the field could reproduce the work. Copyrights are simpler in that title is incepted when the idea is reduced to “any tangible medium of expression.” 17 U.S.C. § 101. The point in time at which title incepts in the intellectual property or patent is what determines how it is characterized and divided in divorce. Specifically, the question is whether the intellectual property or patent is created before or during marriage. Of course, if the creation occurs prior to marriage, the intellectual property or patent is the separate property of the spouse who created it. However, if the creation occurs during marriage, complex and intriguing division issues often arise. If the non-creator spouse seeks to be awarded the rights associated with the intellectual property or patent created during marriage, the courts have held that the income, royalties and other continued on page 26
Inside 8
DBA Community Day of Service
14 Breaking Up is Harder To Do 17 DBA Online CLE—There’s an App for That 27 What Do I Do When I Suspect Child Abuse or Neglect?
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
Septem ber 2018
Calendar September Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
SEPTEMBER 7-BELO Noon
FRIDAY CLINICS
“An Introduction to Blockchain Technology and Key Issues for Lawyers Advising Clients in That Space,” Jim Cox, Mark Rasmussen, and Melissa Saldana. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
SEPTEMBER 14-NORTH DALLAS** Noon
“Dos and Don’ts of Engagement Letters,” Robert Tobey. (Ethics 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.
SEPTEMBER 21-BELO Noon
“Ethics Audits & Risk Management,” Susan Fortney. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.
SEPTEMBER 28-OAK CLIFF CLINIC Noon
“Community Prosecution: Legal Innovation to Improve Neighborhoods and Related Ethics Issues,” Chhynny Chhean, Jill Haning, and Andrew Rollo. (MCLE 1.00, Ethics 0.50)* Oak Cliff Chamber of Commerce, 1001 N Bishop Ave, Dallas. RSVP to yhinojos@dallasbar.org.
MONDAY, SEPTEMBER 3
Key Issues for Lawyers Advising Clients in That Space,” Jim Cox, Mark Rasmussen, and Melissa Saldana. (MCLE 1.00)* RSVP to yhinojos@ dallasbar.org.
DBA Offices closed in observance of Labor Day
TUESDAY, SEPTEMBER 4 6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, SEPTEMBER 5 Noon
Employee Benefits & Executive Compensation Law Section “Ethics Issues for Employee Benefits Attorneys,” April Goff and Karen Suhre. (Ethics 1.00)*
DBA/DAYL Moms in Law. Sixty Vines in the Crescent (Uptown). RSVP to rociog@chalakilaw. com.
MONDAY, SEPTEMBER 10 Noon
Alternative Dispute Resolution Section “Public Policy and Dispute Resolution: Getting Across the Finish Line at Dallas City Hall,” Adam McGough. (MCLE 1.00)*
Evaluation,” Ellen Hutton. (MCLE 1.00)*
Legal Ethics Committee “Standards & Practices: New Rules of the Road for Texas Lawyers,” Jerry Hall and Jeanne Huey. (Ethics 1.00)*
Admissions & Membership Committee
Bench Bar Conference Committee
Juvenile Justice Committee
Dallas Asian American Bar Association
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@ dallasbar.org.
THURSDAY, SEPTEMBER 13 Noon
CLE Committee
Publications Committee
Christian Lawyers Fellowship
3:30 p.m. DBA Board of Directors Meeting
FRIDAY, SEPTEMBER 14 Noon
North Dallas Friday Clinic “Dos and Don’ts of Engagement Letters,” Robert Tobey. (Ethics 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.
Solo & Small Firm Section “Criminal Defense 101 For Attorneys Who Have Tried To Avoid It,” Sheridan Lewis. (MCLE 1.00, Ethics 0.50)*
Real Property Law Section Topic Not Yet Available
Public Forum/Media Relations Committee
DAYL Judiciary Committee
DAYL Where Have all the Women Lawyers Gone?
Tax Law Section “You Mean People Go to Jail for That? Hidden Dangers of Handling a Trust Fund Recovery Penalty Investigation,” Richard Christian, Libby Koch, and Tom Rhodus. (MCLE 1.00)*
DVAP Probate CLE “Where There Isn’t a Will, There is a Way,” Jack Wilburn. (MCLE 1.00)*
MONDAY, SEPTEMBER 17
5:30 p.m. Bankruptcy & Commercial Law Section “Confirmation Chaos: Getting Through Plan Confirmation and Cleaning Up Afterward,” Jane Gerber, Rachel Smiley and Frances Smith. (MCLE 1.00)*
THURSDAY, SEPTEMBER 6 Noon
Construction Law Section “Body Language Basics – Nonverbal Clues for Litigation,” Worthy Walker. (MCLE 1.00)* Saving the Jury Trial Program “Proposed Trial Innovations,” Hon. Amos Mazzant III, Hon. Tonya Parker, Michael Sawicki, Aaron Z. Tobin, and Hon. Martin Hoffman, moderator. (MCLE 1.00). RSVP to bavina@dallasbar.org.
Family Law Section Board Meeting
St. Thomas More Society
FRIDAY, SEPTEMBER 7 Noon
Peer Assistance Committee
TUESDAY, SEPTEMBER 11 11:30 a.m. Courthouse Committee Noon
Business Litigation/TIPS “The Secret History of Atticus Finch,” Joseph Crespino. (Ethics 1.00)* Sponsored by the Business Litigation, Corporate Counsel, TIPS, and Trial Skills Sections.
Immigration Law Section “Labor Certification (PERM) 101,” Michelle Alonzo and Noaman Azhar. (MCLE 1.00)*
Mergers & Acquisitions Section “Purchase Price and Disputes,” Vanessa Salinas Beckstrom, Ashley Davis, Rachel Evans, and Courtney York. (MCLE 1.00)*
Lawyer Referral Service
A Discussion with the Dallas District Attorney Candidates John Creuzot and Faith Johnson. RSVP to jsmith@dallasbar.org.
Friday Clinic – Belo “An Introduction to Blockchain Technology and
Noon
Home Project Committee
Family Law Section “Preparing the Client for a Child Custody
DBA wins ABA Partnership Award
Trial Skills Section “Building Your Trial Plan,” Karen Burgess. (MCLE 1.00)*
Minority Participation Committee
Christian Legal Society
DAYL Animal Welfare Committee
Dallas LGBT Bar Association
Dallas Women Lawyers Association CLE
1:00 p.m. Dallas Women Lawyers Association Board Meeting
FRIDAY, SEPTEMBER 21
8:30 a.m. DBA Diversity Summit Featured speakers include Dennis Archer, Brittany Barnett-Byrd, Regina Montoya, Dr. Garica Sanford, and many more. Presented in person and via Live Stream. Register online at www. dallasbar.org/diversitysummit. Noon
Friday Clinic-Belo “Ethics Audits & Risk Management,” Susan Fortney. (Ethics 1.00)* RSVP to yhinojos@ dallasbar.org.
DBA/DAYL Moms in Law. Ziziki’s at Preston & Forest (North Dallas). RSVP to rfitzgib@gmail.com.
MONDAY, SEPTEMBER 24 Noon
Securities Section “Is Mandatory Real-Time Disclosure Really Mandatory? A Comparison of Real-Time Disclosure Frameworks and Enforcement,” Tim Johnston. (MCLE 1.00)*
Science & Technology Law Section Topic Not Yet Available
Morris Harrell Professionalism Committee
DAYL Membership Committee
TUESDAY, SEPTEMBER 25
Senior Lawyer Committee “Ethically Closing or Selling a Law Practice,” Gregory W. Sampson. (Ethics 1.00)*
Probate, Trust & Estate Law Section “Guardianship Update: New Training, Registration, and Background Check Requirements and 2017 Legislative Changes that People Missed,” Brian D. Hill and Ellen Daniel Williamson. (MCLE 1.00)*
DBA Community Service Fund Board Meeting
American Immigration Lawyers Association
JLTLA Financial Literacy CLE
DAYL Lunch & Learn CLE
TUESDAY, SEPTEMBER 18
DAYL Lawyers Promoting Diversity Committee
Labor & Employment Law Section “Joint Employer Issues,” Courtney Barksdale Perez. (MCLE 1.00)*
9:00 a.m. Crisis Management for Attorneys & Their Clients Presented by Bruce Hennes, Hennes Communications. (MCLE 1.00)* RSVP to kzack@ dallasbar.org.
5:00 p.m. Alternative Dispute Resolution Section “How to Become and Stay a Successful Mediator: Personal Experiences & Lessons Learned,” Mark Gilbert, Mike McCullough, Tom Noble, Ken Rubenstein, and John Shipp. (MCLE 1.00)*
Noon
Blockchain Law Study Group Topic Not Yet Available
5:30 p.m. Pro Bono Awards Celebration Help the Dallas Volunteer Attorney Program celebrate! RSVP to vallejod@lanwt.org.
International Law Section “Strategic Imperatives of Doing Business in Mexico Post-Election 2018,” Andrew Barker. (MCLE 1.00)*
WEDNESDAY, SEPTEMBER 26 Noon
Collaborative Law Section “Using Mediation in Collaborative Cases,” Suzanne H. Wooten. (MCLE 1.00)*
Entertainment, Arts & Sports Law Section “Panel Discussion on Trending Legal Issues in Intercollegiate Athletics,” Kyle Conder and Lee Tyner. (MCLE 1.00)*
6:00 p.m. Dallas Hispanic Bar Association
Immigration Law Section Awards Luncheon
WEDNESDAY, SEPTEMBER 19
Sister Bar Voting Rights Forum
DAYL Equal Access to Justice Committee
DVAP New Lawyers Luncheon. RSVP to reedbrownc@lanwt.org.
Municipal Justice Bar Association
Community Involvement Committee
Entertainment Committee
Dallas Bar Foundation Board Meeting
Noon
Energy Law Section “Discussion of Recent Retained Acreage Clause Cases at the Texas Supreme Court,” Ryan Clinton. (MCLE 1.00)*
Health Law Section “Qui Tam Actions: a Perspective from Both Sides,” Rachel Rose. (MCLE 1.00)*
Law in the Schools & Community Committee
Pro Bono Activities Committee
Non-Profit Law Study Group
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@ dallasbar.org.
THURSDAY, SEPTEMBER 20
On July 31 in Chicago, the DBA was awarded the prestigious ABA Partnership Award for our DBA We Lead program. (Left to right): DBA Executive Director Alicia Hernandez, DBA President Michael K. Hurst, and Pamila J. Brown, Chair, ABA Standing Committee on Bar Services and Activities.
Noon
Noon
Legal Ethics Committee
WEDNESDAY, SEPTEMBER 12
Transition to Law Practice “Interview with a Legal Legend,” Justice Douglas Lang, interviewed by Kathryne “Kate” Morris. (Ethics 1.00)*
6:00 p.m. JLTLA Board of Directors Meeting
Noon
Appellate Law Section “Supreme Court Review: It’s the End of the World as We Know It. Who Feels Fine?” Byron Henry and Jason Steed. (MCLE 1.00)*
Government Law Section “Panel Discussion: Dockless Bike and Scooter Sharing in Dallas,” Nick Barber, Casey Burgess, and Jared White. (MCLE 1.00)*
THURSDAY, SEPTEMBER 27 Noon
Criminal Law Section Topic Not Yet Available
Environmental Law Section “Environmental Enforcement Update,” Carrick Brooke-Davidson.” (MCLE 1.00)*
FRIDAY, SEPTEMBER 28 Noon
Oak Cliff Friday Clinic “Community Prosecution: Legal Innovation to Improve Neighborhoods and Related Ethics Issues,” Chhynny Chhean, Jill Haning, and Andrew Rollo. (MCLE 1.00, Ethics 0.50)* Oak Cliff Chamber of Commerce, 1001 N Bishop Ave, Dallas. RSVP to yhinojos@dallasbar.org.
Intellectual Property Law Section “Section 101 Patent Eligibility Panel Perspectives from the Litigator, the Prosecutor, and the Portfolio Manager,” Ted Baroody, David Carstens, James Ortega, and David Taylor, moderator. (Ethics 1.00)*
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Grecia Alfaro at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2018
President’s Column
Headnotes Published by: DALLAS BAR ASSOCIATION
Dallas Bar Leads Through Diversity, Inclusion & Empowerment While I have said it before and since, I stated emphatically at my Inaugural in January that “for you who identify as diverse in race, color, religion or orientation, this is your Bar Association.” While the DBA has been committed to fostering diversity and inclusion in our profession for as long as I have been involved, we have never been more steadfast and resolute in supporting and being relevant to all 11,000 plus members of the DBA, regardless of our genetic differences. In meeting and preparing over the last year for our transformative Diversity Summit that will take place on September 21 at the Belo, thanks to the efforts of our amazing Committee, my eyes have been further opened to the distinction between diversity and inclusion. “Diversity” refers to the differences between people and how they identify in relation to key areas such as gender, ethnicity, religion, sexuality, age, and disability. “Inclusion” occurs when people feel valued and respected, with similar access to opportunities and resources and where everyone has the opportunity to contribute meaningfully to their organization or profession. We do not realize the benefits of diversity without inclusion. Last month, after I wrote about how partisanship in our Country seems to be overpowering statesmanship, I was reminded of President John F. Kennedy’s statement that “If we cannot now end our differences, at least we can help make the world safe for diversity.” The Dallas Bar and our profession-at-large need to continue to be at the front of the line in these efforts. The Diversity Summit will not just be symbolic of these efforts, but will open minds by educating, memorializing, and facilitating dialogue about moving our profession, community and Country towards widespread inclusion. The Summit is a sequel to the outstanding summit hosted by then DBA President Paul Stafford in 2012, and this year’s event will be led by DBA Past President Rhonda Hunter. The blue-ribbon committee that is making this happen includes Kim Askew, Shonn Brown, Victor Corpuz, Lacy Durham, Al Ellis, Chris Johnson, Darrell Jordan, Elizabeth Julian, Monica Lira Bravo, Hon. Tonya Parker, Hon. Audrey Moorehead, Rudy Rodriguez, Adam Seidel, Hope Shimabuku, Paul Stafford, Ron White, and Michele Wong Krause, along with DBA Executive Director, Alicia Hernandez. Speakers/panelists will include former ABA President Dennis Archer, Elizabeth Alvarez, Nnamdi Anozie, Brittany BarnettByrd, Marilyn Booker, Cece Cox, Lacy Durham, Hilda Galvan, Regina Montoya, Hon. Tonya Parker, Dr. Sheron Patterson, Elizabeth Cedillo-Pereira, Sandra Phillips Rogers, Dr. Garica Sanford, Julia Simon, former 7th Circuit Judge Ann Williams, and Frances Waters, among others. “The Summit will bring together great minds with long-standing careers who have seen the American justice system evolve alongside young minds who deal with today’s social media, perceptions, and techno-society to generate ideas on how we can improve our institutions and our daily lives,” said Rhonda. “Talking about our faults and deciding what we can do to overcome them can lead our diverse city to be an exemplary beacon of light for the Country. The Diversity Summit will provide an atmosphere of encouragement for each of us to be agents of change for an improved world.” While many law firms and lawyers are committed to diversity and inclusion because they are wise to the inherent benefits of a diverse workforce, much of corporate America is demanding it.
Crisis Management for Attorneys & Their Clients September 18, 2018 9:00-10:00 a.m. at Belo MCLE: 1.00 RSVP to kzack@dallasbar.org Facebook, Twitter, Instagram, Snapchat and YouTube are now the places where a reputation built up over years of good work can be shattered in an instant. This fast-paced talk by veteran crisis management and communications specialist Bruce Hennes, from Hennes Communications in Cleveland, Ohio, will focus on a highly-strategic approach to crisis management and crisis communications for a wide variety of situations, offering methods to establish and maintain “control of the message,” enabling attorneys to help their firms and clients move messages forward or mount a defense against an outraged public, unhappy customers or a sudden press onslaught.
Toyota Motor North America’s General Counsel and Chief Legal Officer Sandra Phillips Rogers says: “It takes a village to make great strides in diversity and inclusion in law firms. While each firm has to fundamentally accept this responsibility and jump in with both feet, corporate legal departments also play a critical role. We work with our partner firms to encourage them to staff important projects, such as depositions and court appearances, with diverse lawyers and where possible, we will split the cost for the training opportunity. To achieve the diversity in the legal profession that is needed to sustain and enhance it, we all have to do our part. We cannot throw the challenge over the fence and expect success.” Rudy Rodriguez, Chief Legal and Human Resources Officer for CEC Entertainment, adds that “Improving diversity in the legal profession requires a genuine commitment and focus not just by private attorneys, but also by in-house counsel and the larger business and political communities. The DBA Diversity Summit recognizes this and will bring representatives of each group together for a discussion that I know will be meaningful and productive.” The DBA does not just lead through the one-day Summit. The Minority Participation Committee, led this year by Earsa Jackson, continued its tradition by hosting two Minority Clerkship Luncheons to introduce diverse law clerks to the practice of law in Dallas, focusing on the broad scope of opportunities for lawyers ranging from large firm practice, to in-house counsel, solo practice, and law school professor to practical tips on networking for lawyers. The Committee also presented a CLE on Spanish Sources of Texas Law, featuring Dallas Court of Appeals Justice Jason Boatright, and also sent out a Boarder Crisis Resource page to members beckoning the assistance of our members. For 33 years, the Dallas Bar’s Bar None led by Martha Hardwick Hofmeister, Tom Mighell, and Rhonda Hunter has raised money for diversity scholarships in a total amount of nearly $2 million. Talking about diversity, the cast includes diverse talents of singing, dancing, acting and, this year me, with no talent whatsoever. We need to follow our enlightened leaders in our profession and communities. Darrell Jordan reminds us that “diversity implies fairness and opportunity. In the context of law firms and businesses, they are made better when they include people of different races and ethnic backgrounds among their attorneys and workforces. Clients and customers expect and should require their professionals and suppliers to embrace and demonstrate diversity.” Committee member Adam Seidel adds “Diversity within the Bar should be a priority, because a successful bar is one that mirrors the diversity of the entire community which it serves. Individuals and entities needing lawyers are best served by a legal community that can relate personally to the challenges clients face on a daily basis.” We have a long way to go, but I do have optimism and faith in our Country. Like former President George H.W. Bush said: “We are a nation of communities... a brilliant diversity spread like stars, like a thousand points of light in a broad and peaceful sky.” We need to ensure inclusion and empowerment to this diversity. I do not want a world of one color. I like lots of colors. Reach within and help feed the change in our culture. I look forward to seeing you on September 21, if not before. Michael
BY MICHAEL K. HURST
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. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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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
Septem ber 2018
A BIG THANK YOU TO OUR 2018 DBA 100 CLUB MEMBERS! We would like to once again recognize the following organizations for their 100% support of the Dallas Bar Association as members of the 2018 DBA 100 Club! The DBA 100 Club is a distinguished membership recognition category that reflects a commitment to the advancement of the legal profession and the betterment of the community. The DBA 100 Club consists of firms with two or more attorneys as well as corporate legal departments, organizations, law schools, and government agencies that have 100% membership in the DBA. Recognition is free and given to the 2018 DBA 100 Club members in our Headnotes publication, at our Annual meeting in November and in the 2019 DBA Membership Directory. Please note that the DBA 100 Club is FREE recognition and open for renewal annually. We do not automatically renew an organization’s recognition due to changes in attorney rosters each year. You can still be included as a member of the 2018 DBA 100 Club! Submit your request via email including a list of all lawyers in your Dallas office to Kim Watson, kwatson@ dallasbar.org. Once approved, your organization will be added to the 2018 DBA 100 Club for recognition at our Annual Meeting and the 2019 DBA Directory!
THANK YOU FOR YOUR SUPPORT OF THE DALLAS BAR ASSOCIATION! DBA 100 Club Members as of August 1, 2018 2 to 5 Attorneys A. William Arnold III & Associates, P.C. Ackerman & Ramos, L.L.P. Adair, Morris & Osborn, P.C. Addison Law Firm P.C. Aldous \ Walker Alexander Dubose Jefferson & Townsend LLP Alexandra Geczi PLLC Altaffer & Chen PLLC Anderson & Brocious P.C. Anderson Beakley, PLLC Ashcraft Law Firm Atkins, O’Toole & Briner, L.L.C. Atwood Gameros LLP Bisignano Harrison Neuhoff LLP Blackwell & Duncan, PLLC Blackwell, Blackburn & Singer, LLP Blankenship, Wiland & O’Connor, P.C. Broden & Mickelsen Calloway Norris Burdette Weber & BaxterThompson, PLLC Campbell & Associates Law Firm, P.C. Carlock & Gormley Chen Dotson, PLLC Christiansen Davis LLC Clark Law Firm Clark, Malouf & White, LLC Curtis | Castillo PC Darrell W. Cook & Associates PC Davenport & Epstein, P.C. Davis Stephenson, PLLC Duke Seth, PLLC Edwards & de la Cerda, L.L.C. Espinar Law, PLLC Fisher & Welch, P.C. Francis & Totusek, L.L.P. Fuller Mediations Gauntt Koen Binney & Kidd, LLP Gillespie Sanford LLP Goldfarb PLLC Griffith Barbee PLLC Grogan & Brawner P.C. Grau Law Group, PLLC Gussio Law Office Hahn Law Firm, P.C. Hamada Smith, PLLC Hamilton & Squibb, LLP Hance Law Group Hayward & Associates PLLC Henley & Henley, P.C. Herrera & Herrera Hitchcock Evert LLP Hollingsworth Walker Holmes Firm PC Horton & Archibald, P.C. Houser Law Firm, PC Hunt Huey PLLC
Hunter & Kalinke Jameson & Powers, P.C. JEE Law, PLLC Jenkins & Watkins, P.C. Johnston Tobey Baruch, P.C. Jordan Monk Reber, PC Kabani & Kabani, PLLC Kellett & Bartholow PLLC Kendall Law Group, LLP Kinser & Bates, L.L.P. Koning Rubarts LLP Lan Smith Sosolik, PLLC Langley LLP Law Office of Andrew & Mark Cohn Law Office of Jodi McShan, PLLC Law Offices of Maduforo & Osimiri Law Offices of Otstott & Jamison Law Offices of Richard A. Gump, Jr., P.C. Law Offices of Terrence G. Turzinski, P.C. Lawrence Law PLLC Lee & Braziel, LLP Lemons & Hallbauer, LLC Letteer & Mock, P.C. Leu & Peirce, PLLC Lidji Dorey & Hooper Lillard Wise Szygenda PLLC Little Pedersen Fankhauser LLP Madson Castello, PLLC Mahomes Bolden PC Malouf & Nockels LLP Manning & Kass Maris & Lanier, P.C. Marshall & Kellow, LLP McDowell Hetherington LLP McElree | Smith Miller Mentzer Walker, P.C. Mincey-Carter, PC Mitchell & Jenkins PLLC MKim Legal Mosser Law PLLC Mullin Hoard & Brown, L.L.P. Musgrove Law Firm, P.C. Nesbitt, Vassar, & McCown, L.L.P. Okon Hannagan, PLLC Olson Nicoud & Gueck, L.L.P. Orenstein Law Group, PC Owen & Fazio, P.C. Pace & Pace, L.L.P. Peeples & Kohler, P.C. Perry Law P.C. Potts Law Firm, LLP Prager & Miller, P.C. Quaid Farish, LLC Raggio & Raggio, P.L.L.C. RegitzMauck PLLC Richardson Koudelka, LLP Riney Packard PLLC Ritter Spencer PLLC Rogaliner Law Offices, P.C.
Rosenberg Paschall Johnson LLP Ross Barnes LLP Russell & Wright, PLLC Ryan Law Partners LLP Sawicki Law Schubert & Evans, P.C. Schuerenberg & Grimes, P.C. Seltzer Chadwick Soefje & Ladik, PLLC Sessions Fishman Nathan & Israel LLP Shamieh Law PLLC Sheils Winnubst, PC Sherman & Yaquinto, L.L.P. Silverman Goodwin, LLP Simon | Paschal PLLC Skierski Jain PLLC Smith Kendall P.C. Smith, Stern, Friedman & Nelms, P.C. Sorrels Hagood Spector & Johnson, PLLC Spencer & Johnson, PLLC Spencer Scott pllc Starr Law Firm, P.C. Stromberg Stock, PLLC Taherzadeh, PLLC Talcott Franklin PC The Bhatti Law Firm, PLLC The DeLoney Law Group, PLLC The Korn Diaz Firm, LLP The Law Office of Ray R. Singh The Perrin Law Firm The Pettit Law Firm The Richman Law Firm The Swartz Law Firm, PLLC The Vermillion Law Firm, LLC Theirl Wilson PLLC Thomas, Cinclair & Beuttenmuller, PC Travis Law Group, P.C. Tremain Artaza PLLC Turton & Pinkerton, PLLC Van Wey Law, PLLC Walker & Long Warren | Rhoades LLP Webb Family Law Firm, P.C. Westerburg & Thornton, P.C. Whalen Law Office Wisener Nunnally Roth LLP Withers & Withers, P.C. Wolff Law, PLLC Wolfish & Newman, P.C. Woolley <> Wilson, LLP. Yarbrough & Elliott, P.C. 6 or More Attorneys Ackels & Ackels, L.L.P. Amy Stewart PC Asiatico & Associates PLLC Baker Botts, L.L.P. Bell Nunnally & Martin LLP Boyle & Lowry, L.L.P.
Bragalone Conroy PC Brousseau Naftis & Massingill Brown Fox PLLC Buether Joe & Carpenter, LLC Burdette & Rice, PLLC Burford & Ryburn, L.L.P. ByrdAdatto Canterbury, Gooch, Surratt, Shapiro, Stein & Gaswirth, P.C. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Carter Arnett PLLC Cavazos Hendricks Poirot, P.C. Coats Rose Cobb Martinez Woodward PLLC Connatser Family Law Cooper & Scully, P.C. Cowles & Thompson, P.C. Cozen O’Connor Crain Lewis Brogdon, LLP Crawford, Wishnew & Lang PLLC Cutler-Smith, P.C. Deans & Lyons, LLP DeHay & Elliston, L.L.P. Diamond McCarthy Duffee + Eitzen LLP Elliott Thomason & Gibson, LLP Estes Thorne & Carr PLLC Fee, Smith, Sharp & Vitullo, L.L.P. Figari & Davenport, L.L.P Fletcher, Farley, Shipman & Salinas, LLP Fox Rothschild LLP Godwin Bowman & Martinez PC Goranson Bain, PLLC Griffith Davison & Shurtleff, P.C. Guida, Slavich & Flores, P.C. Hankinson LLP Harper Bates & Champion LLP Hedrick Kring, PLLC Hiersche, Hayward, Drakeley & Urbach, P.C. Hoge & Gameros, L.L.P. Jones Carr McGoldrick L.L.P. Jones, Allen & Fuquay, L.L.P. Kelly, Durham & Pittard, LLP Key Harrington Barnes PC Koons Real Estate Law KoonsFuller Lynn Pinker Cox & Hurst, LLP Malouf Nakos Jackson & Swinson, P.C. McCathern, PLLC McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Mullin Law, PC Munck Wilson Mandala, LLP Munsch Hardt Kopf & Harr, P.C. Orsinger, Nelson, Downing & Anderson L.L.P. Parsons McEntire McCleary PLLC
Passman & Jones, P.C. Peckar & Abramson, P.C. Rochelle McCullough LLP Sargent Law, P.C. Sayles Werbner, P.C. SettlePou Sheppard Mullin Richter & Hampton LLP Skiermont Derby LLP Stacy Conder Allen LLP Staubus & Randall, L.L.P. Steckler Gresham Cochran LLP Steed Dunnill Reynolds Bailey Stephenson LLP Stuber Cooper Voge, PLLC The Ashmore Law Firm, P.C. The Blum Firm, P.C. The Hartnett Law Firm The Law Offices of Frank L. Branson, P.C. Thiebaud Remington Thornton Bailey LLP Thomas, Feldman & Wilshusen, L.L.P. Thompson & Knight LLP Tollefson Bradley Mitchell & Melendi, LLP Udashen Anton Verner Brumley Mueller Parker, P.C. Vincent Serafino Geary Waddell Jenevein, P.C. White Wiggins & Barnes, LLP Winstead PC Zelle LLP Corporate Legal Departments Austin Industries, Inc. Buckner International Capital Senior Living, Inc. Compatriot Capitol Inc. Dunhill Partners, Inc. El Rancho Inc. Front Burner Restaurants, LP Gaedeke Group HighGround Advisors KidKraft, Inc. Klein Tools, Inc. LALA U.S., Inc. North Texas Tollway Authority Tenaska, Inc. Government Agencies, Law Schools & Organizations City of Irving Dallas Baptist University Dallas County Probate Courts Mosaic Family Services Inc. UNT Dallas College of Law Special Recognition Students of the UNT Dallas College of Law
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Sep t e mb e r 2 0 1 8 â&#x20AC;
D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2018
Fourth Annual Day of Service: A Call to Action for Our Community BY CHELSIE SPENCER
Martin Luther King stood before the gathered crowd in Montgomery, Alabama, in 1957 and posed a simple yet profound question to those in attendance: “What are you doing for others?” Dr. King instructed his listeners that this is “[l]ife’s most persistent and urgent question.” Despite the persistence and the urgency of that compelling call to action, the U.S. Department of Labor continues to report an overall decline in volunteerism rates in the United States. This decline continues even though numerous studies have shown that volunteering provides a myriad of benefits such as health benefits, which can be greater than routine exercise and a healthy diet, a sense of purpose, and a sense of community.
A Call to Action
In light of the decline in volunteerism, I pose this question to my fellow community of lawyers: What are we doing for others outside of our respective practices? On October 20, 2018, you can answer that question with affirmative action by joining the Dallas Bar Association’s Community Involvement Committee (CIC) for the Fourth Annual Day of Service. The Day of Service provides an opportunity for attorneys to go out into the community, to give back their time, and to expand their own communities through networking with their local nonprofits, fellow bar members, and local judges. CIC is issuing a call to action for all local firms to engage their partners, associates, and staff to participate in this year’s event. However, the Day of Service is not limited solely to those of us in the legal field. If you have a school age child in need of community service hours, a
friend to catch up with, or a client connection to make, all are encouraged to attend and volunteer at one of the events.
This Year’s Events
Volunteer opportunities will be available with the following partners: • BonTon Farms • Cedar Hill State Park • CC Young and the Senior Source • DVAP East Dallas Clinic • New Friends New Life • North Texas Food Bank As we approach the Day of Service, more volunteer events may be opened as needed.
UNT Dallas College of Law volunteers at North Texas Food Bank
Firm Sponsorship Opportunity
Firms may elect to sponsor an event with no monetary commitment on a firstcome, first-serve basis. However, sponsorship does require a commitment from the sponsoring firm that its employees and staff will participate in the Day of Service. If your firm is interested in sponsoring one of the events listed above or if your firm has a specific volunteer event in mind, please contact Kathryn Zack at kzack@dallasbar.org.
Individual Volunteer Sign-Ups
Registration sign-ups for the various volunteer opportunities will open in August. The link for sign-ups will be sent electronically to the email address associated with your DBA account. Please share this link with anyone outside of the Dallas Bar that you may encourage to join us and save the October 20, 2018 date on your calendar. We look forward to serving with you. HN
Chelsie Spencer is an attorney at Ritter Spencer PLLC. She can be reached at cspencer@ritterspencer.com.
Volunteers at Dallas Animal Services
Greenberg Traurig volunteers at Bonton Farms
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D al l as Bar A ssoci ati on l Headnotes 9
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Septem ber 2018
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8/11/2017 3:57:49 PM
Dallas Bar Association’s 2018
Diversity: Shaping Agents of Change
Diversity Summit September 21 | 8:30 a.m. - 5:00 p.m. Belo Mansion
RSVP to lhayden@dallasbar.org
Featured Speakers Include
Elizabeth Alvarez The Law Office of Elizabeth Alvarez
Cece Cox
Chief Executive Officer Resource Center
Nnamdi Anozie
Dennis Archer
Brittany Barnett-Byrd Attorney at Law
Hilda C. Galvan
Regina Montoya
Partner Dennis W. Archer PLLC White Wiggins & Barnes LLP President, American Bar Association, 2003-2004
Lacy L. Durham Deloitte Tax LLP
Dr. Garica Sanford Training Director Momentous Institute
Partner-in-Charge Dallas Jones Day
Julia A. Simon
Chief Legal Officer and Corporate Secretary Mary Kay Inc.
Attorney at Law
Rhonda Hunter
Diversity Summit Chair
Marilyn F. Booker
Elizabeth Cedillo-Pereira
Hon. Tonya Parker
Dr. Sheron C. Patterson
Managing Director Urban Markets Group Morgan Stanley
116th District Court
Director, Dallas Office of Welcoming Communities and Immigrant Affairs
Senior Pastor Hamilton Park United Methodist Church in Dallas
Michael K. Hurst DBA President
RBMKFL18_KFL_DBA_Headnotes_Full Page Bleed Ad_01db.pdf
Sep t e mb e r 2 0 1 8
1
7/9/18
2:03 PM
D al l as Bar A ssoci ati on l Headnotes 11
The KoonsFuller Dallas Team: R1: Rick Robertson*, Ike Vanden Eykel* (Managing Shareholders) R2: Rebecca Armstrong*, Rebecca Tillery Rowan*, Fred Adams*, Liz Porter* (Shareholders) R3: Laura Hayes*, Daniel Jones, Lindsey Underwood, Reagan V. Riddle, Lindsey Vanden Eykel, Richard Gray and Sally Pretorius* (Associates).
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KOONSFULLER: DIVORCE, CHILD CUSTODY, PROPERTY DIVISION, PREMARITAL AGREEMENTS, PATERNITY, APPEALS
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12 He a d n o t e s l D a l l a s B a r A s s ociation
Focus
Septem ber 2018
Family Law
Child Support Considerations When Disabled Children Receive SSI BY ASHLEI D. GRADNEY
At times, child support can be daunting on clients. Whether one is representing the custodial or non-custodial parent, child support in and of itself is not always cut and dry. One such instance is when a child receives Supplemental Security Income (SSI). The custodial parent is usually counting on the child support payments from the non-custodial parent to supplement the custodial household; while the non-custodial parent is attempting to budget his or her household understanding there is an obligation of financial support to a child outside his or her home. This becomes more difficult when there is a child with special needs and disabilities. The Texas Family Code gives a general guideline for child support payments; however, it is important for parents of disabled children receiving SSI to understand how child support payments may impact
the child’s SSI eligibility. The savvy family lawyer must merge his or her understanding of the Texas Family Code with the SSA’s definition of “child,” “income,” and “child support” and use the Social Security Code’s formula to determine how child support payments effect the child’s SSI eligibility. Pursuant to the SSA, “child support” is defined as a payment from a parent to meet the child’s needs for food and shelter. Child support can be in cash or in-kind; it can be voluntary or court ordered. SI §830.420(a) (1). A “child” is defined as neither married, nor the head of a household, and is either under the age of 18, or under the age of 22 and a student regularly attending school, college, or training designed to prepare him or her for a paying job. SI §830.420(a)(3). An “adult child” is a son or daughter who no longer meets the definition of a child. The SSA will consider child support payments income of the child. This directly impacts how much the child will receive in
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financial means per month. The importance of SSI goes beyond monetary support and provides many other benefits such as necessary health insurance when the cost of coverage or medication would be astronomical. This is important because the child support received counts as income for SSI eligibility purposes. The difference between when the SSA considers a child a minor or an “adult” determines how much of the child support is considered actual “income” of the child. The SSA begins with its Federal Benefit Rate (FBR), which at the time of this article is $750 per month. Any income received by the SSI child recipient is deducted from the FBR. It is possible for the child to have a diagnosis making him or her eligible for SSI, but the child support payments received on their behalf may disqualify them from the benefit altogether. SSA calculations for child support differ between minor children and adult children. If a disabled person is still considered a child pursuant to the SSA’s definition, then one-third of the child support received is excluded. However, once the child becomes an adult child, 100 percent
of all payments will be considered income belonging to the child, even if the payments are not received by the child. This is a very important consideration for those ordered to pay life-long child support for a disabled adult child. If the child support received is more than $750 per month, then the disabled individual is at risk of losing their SSI benefit altogether. The older the SSI child recipient, the more important SSI may be to their survival. If a client is faced with this type of scenario and they are the payee of both child support and the child’s SSI, the amount the payee actually receives will be the same. Only the source changes. There are ways to shelter the potential impact child support could have on an SSI recipient, such as a Special Needs Trust, but that goes beyond the scope of this article. In conclusion, it is important for practitioners to keep in mind that the court will consider the best interest of the child, and that child support is more than a mere numbers game. HN Ashlei D. Gradney is the owner of Gradney, PC. She can be reached at agradney@gradneylegal.com.
The 2018 DBA Membership Directory is now available in print & online. Check out the directory and legal resource guide used by Dallas attorneys!
Hon. Martin Hoffman Hon. Amos L. Mazzant III 68th District Court United States District Moderator Judge, Eastern District of Texas
Hon. Tonya Parker 116th District Court
Michael Sawicki Sawicki Law
RSVP to bavina@dallasbar.org
Aaron Z. Tobin Condon, Tobin, Sladek Thornton PLLC
To view the Online Directory and Legal Resource & Expert Witness Guide, go to www.dallasbar.org/pictorial and login. To request a copy of the new directory, contact pictorial@dallasbar.org.
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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
Septem ber 2018
Family Law
Breaking Up is Harder To Do BY DAWN BUDNER
For couples considering divorce, Congress just made breaking up harder to do. The Tax Cuts and Jobs Act of 2017 (TCJA) removes a long-standing tax benefit for alimony payments. The change will not apply until January 1, 2019, but its potential impact is already creating controversy and concern.
The Alimony Deduction
For over 75 years, divorcing couples have had incentive to include alimony as part of their property settlement. Under current tax laws, alimony payments are deductible by the paying spouse and taxed as income to the receiving spouse. For couples with disparate income levels, this is a win/win. Consider John and Mary, who divorce after 25 years of marriage. In the traditional model, John has been the wage-earning spouse, climbing the corporate ladder to achieve a significant income level. Meanwhile, Mary left the workforce 20 years ago to focus on raising children and managing the household. In this scenario, Mary may need additional education and/or training to become financially independent, and that is not likely to happen overnight. Alimony can provide a financial cushion during the transition. Apart from mere altruism, John may be motivated to pay alimony because (1) he can deduct alimony from his taxable income, and (2) while Mary must report the income, she is taxed at a lower rate than John. This “tax differential” means John and Mary collectively pay less tax on the same income. Score for John and Mary. But not for long.
Disappearing Divorce Subsidy
Critics have characterized the alimony deduction as a divorce subsidy, and even a penalty on marriage that undermines family values. With passage of the TCJA, the deduction will disappear for divorces finalized after December 31, 2018. TCJA proponents predict a resulting $8.3 billion in tax revenues over 10 years.
If Mama Ain’t Happy
But whose apron pockets will empty to fill the tax coffers? Recent census data reveals that 98 percent of alimony payments are made to former wives—only 2 percent to former husbands. In Texas, women already face a significant wage gap, earning only 79 cents for each dollar paid to men. For 150 years, Texas public policy prohibited court-ordered alimony. In 1995, facing widespread criticism as the only state lacking courtordered alimony, Texas finally adopted “spousal maintenance” under limited circumstances. In general, maintenance is available only after a spouse proves she cannot earn sufficient income to pay for minimum reasonable needs (not current lifestyle), if the marriage has lasted at least 10 years. Maintenance must be awarded for the shortest reasonable period, with a maximum of five years for a 10+ year marriage, seven years for a 20-30 year marriage, and ten years for a 30+ year marriage. Finally, monthly maintenance is capped at the lower of (i) $5,000, or (ii) 20% of the husband’s average monthly gross income. These provisions are out of step with the standard of living for many Texas families. As a result, divorcing couples often enter settlement agreements that
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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
include contractual alimony payments of greater value or longer duration than the court-ordered structure. Unfortunately, Congress just eliminated one of the strongest motivations for doing so.
Nobody’s Happy
Opponents criticize removal of the alimony deduction as “such [an] awful public policy that it is hard to believe that the people who proposed it understand the consequences of what they propose. For 75 years there has been a recognition that a divorced couple has financial burdens. The GOP is simply going to ignore those burdens.” See Stuart Levine, Tax Policy, Getting Into the Weeds on the Tax Bill, The Reality Based Community Blog (Nov. 4, 2017), www. samefacts.com/2017/11/tax-policy/getting-into-the-weeds-on-the-tax-bill/. Divorce divides one household in two, doubling certain expenses and increasing others. Often, the result is financial stress during an already trying time, with a disproportionate impact on women. Recall our divorcing couple, John and Mary. John will exit the marriage with an earning capacity built over 25 years. In contrast, Mary will exit as a middle-aged woman who has been unemployed outside the home for more
than two decades, lacking relevant job skills and experience. True, Mary shares the financial estate amassed during the marriage, but savings may be insufficient to cover Mary’s future living expenses. Nevertheless, Texas courts expect Mary to dust off her boots and get back in the saddle.
Poverty is Not a Family Value
Family dynamics have evolved over recent decades, with many fathers taking a more active role in child-rearing. Despite this progress, the “traditional” family structure is still prevalent, with many women leaving the workplace during what might otherwise be their most productive years. The alimony deduction may not have appeared to foster family values, but its elimination certainly undercuts them. With 50 percent of marriages ending in divorce, a stable and constant parental presence at home may be a luxury few families can afford. Let this serve as a call to action for all Texas parents: protect your financial future with the same degree of vigilance you would bring to protect your child’s safety. HN
Dawn Ryan Budner is a partner at Calabrese Budner. She can be reached at dawn@calabresebudner.com
Spanish for Lawyers: Sign Up Now! 10-Week Course Fall 2018 | Cost: $180 • September 4 – November 7, 2018 Levels: Beginning, Intermediate/Advanced, and High Beginning/Low Intermediate For more information, contact Grecia Alfaro at galfaro@dallasbar.org or (214) 220-7447
DVAP’s Finest ANDREA BROYLES
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 Puerto Rico Legal Services, Inc. know 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.
Sep t e mb e r 2 0 1 8
D al l as Bar A ssoci ati on l Headnotes 15
We’re ready to collaborate and prepared to litigate.
Left to right: Lené Alley DeRudder, Ashley E. Jones, Dawn Ryan Budner, Carla M. Calabrese, Lauren S. Harris, Natalia Duque
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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
Septem ber 2018
DBA Dedicates 28th Habitat House On July 21, DBA dedicated its 28th Habitat for Humanity home to the Beyene Yimer family. Robert Tobey, DBA First Vice President, handed over the keys to the family. Thank you to all the DBA members and firms who volunteered this year, and a special thank you to DBA Home Project Co-Chairs David Fisk and Michael Bielby, Jr. To participate in the project for next year, contact Mr. Fisk at dfisk@krcl.com.
This O d Dog Happens To Know A Few Tricks. Rely on a trial lawyer with 45 years of experience and 175 trials. When your case needs to be mediated, call Al Ellis, a trial lawyer who has the experience to help you creatively resolve any dispute. His vast experience in the courtroom gives him comprehensive insight that allows him to understand the different perspectives of each case. Al is one of only 500 U.S. members of the International Academy of Trial Lawyers, a former President of the Dallas Bar Association, and the recipient of the Morris Harrell Professionalism Award — evidence that he has earned the respect of peers on both sides of the docket. Once Al gets his teeth into a case, he won’t let go, working tirelessly until he negotiates a fair, mutually agreeable deal. When it’s time for mediation, there’s no one better to have at your side. Voted one of D Magazine’s Best Lawyers of 2015 for Alternative Dispute/Mediation
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D al l as Bar A ssoci ati on l Headnotes 17
DBA Online CLE— There’s an App for That STAFF REPORT
The DBA now offers Online CLE courses as your newest DBA Member Benefit. The course offerings can be found online at onlinecle.dallasbar.org. While the majority of our Section and Committee CLEs will still be offered on-site at Belo, the DBA understands the necessity of offering its members some courses available online. Right now you will find more than 75 courses in a variety of areas of law, and we will continually update the catalog. This is a great opportunity for members who are located in the surrounding counties of Dallas who may not be able to make it downtown to the Belo for a CLE. As a member benefit, DBA members will receive 6 courses a year for free (January-December). Every two months a coupon code will be shared via the DBA Online enewsletter. The code is good for one free CLE in our “Free Member Benefit” category. You can also download the Mobile App which allows you to watch your programs on the go. Take your learning and CLE time to your commute, the plane, the gym, or anywhere in between. Just download the app at itunes.apple.com/us/app/ce21mobile/id1162585300?mt=8 or click the icon in your Online CLE account. In addition to these free offerings, DBA members will be able to purchase online CLEs for $20 (for normal one-hour or less CLEs), whereas the non-member rate will be $75. These costs will help support the infrastructure of the program and to make this opportunity possible for the DBA and for you—our members. Want to
sign up for an online CLE for your whole department or firm? It is easy for office admins to add multiple participants to an online CLE order. Section and Committee Chairs are encouraged to schedule their CLEs to be recorded. If you are interested, contact DBA Director of Legal Education
percent have slim hope of being able to afford an attorney. With annual poverty incomes of $31,375 for a family of four, justice is a luxury for low and moderate income families. “DVAP’s efforts towards closing the justice gap cannot be overstated. We have seen first-hand the impact that DVAP has had on those in need in our community. Contributing to this cause was an easy decision for us; we are proud to kick off this year’s Campaign,” added Mr. Patterson. 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
1. Over 400 FREE CLE courses offered each year and now includes access to 6 hours of ONLINE CLE for FREE! Our 30 substantive law Sections meet monthly at Belo during lunch or in the evening. 2. Members receive a free copy of our Headnotes monthly publication and weekly Dallas Bar Online e-newsletter that lists upcoming CLE programs and events. 3. Join a DBA Committee for FREE and start building relationships, take on leadership roles, and help plan community service programs, CLE’s and social events. 4. You will be included in the DBA Pictorial Directory available for free, in print and online, to DBA members.
5. Volunteer with the Dallas Volunteer Attorney Program (DVAP) and assist low-income residents obtain legal services. 6. Join the Home Project Committee and help members build a new home for Habitat for Humanity each year. Kathryn Zack at kzack@dallasbar.org for all details related to cost, procedure, and guidelines. This is a great opportunity to raise the profile of your Section or Committee and your speakers online—both locally and nationally. We will include a link to each Section or Committee’s webpage within the video description as additional promotion. Whether you need that last hour of ethics before your birthday deadline approaches or you find a topic that fits exactly what you were looking for…the DBA Online CLE Catalog can help. HN
Closing the Justice Gap CONTINUED FROM PAGE 1
program, with Dallas lawyers donating almost $13 million. DVAP is pleased to announce that Julia Simon, Chief Legal Officer and Secretary of Mary Kay, Inc., is serving as the Honorary Chair for this year’s Campaign. 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.dallas volunteerattorneyprogram.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
7. Get involved with various DBA Mentoring Programs that pair new lawyers with seasoned attorneys. 8. Join a DBA Section for monthly CLE programs and network with lawyers in your area of practice to generate referrals.
9. Post job openings, search resumes and jobs through our online DBA Career Center. Sign up on DBA website. 10. DBA members can save up to 25% off credit card processing fees through LawPay. For more information, call (866) 376-0950 or visit lawpay.com/dallasbar. 11. DBA members can join the Lawyer Referral Service (LRS) for only $100 and assist the public in obtaining legal help while growing your solo practice or small firm client base.
12. Members receive discounts on Texas Rangers game tickets. 13. Receive a 15% discount on clothing from Brooks Brothers and 20% at JoS. A. Bank. For discount codes, send request to membership@dallasbar.org. 14. Receive up to 30% off hotel rates at LaQuinta Inns & Suites in Texas. Visit DBA website for more details. 15. Members receive enrollment/monthly dues discount with TELOS Fitness Center. 16. 15% discount on ABA Publications. For a list of titles or to place an order, go to abanet.org/abastore
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
17. DBA Members receive discounts on events held at the Belo Mansion. Questions? Contact Kim Watson, Membership Director, (214) 220-7414 or kwatson@dallasbar.org
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
Septem ber 2018
New IRS Tax Audit Rules and Divorce Agreements BY CHARLES D. PULMAN AND MATTHEW L. ROBERTS
Divorce property settlement agreements often involve interests (partnership interests) in partnerships or limited liability companies (LLC). Sometimes all of the partnership interest is awarded to one spouse; sometimes the partnership interest is awarded in some portion to each spouse. Prior to 2018, the tax consequences of the division of a partnership interest for post- and pre-divorce years were straight forward: tax liabilities arising out of such partnership interest for post-divorce years were the responsibility of the spouse owning the partnership interest during the post-divorce year; tax liabilities arising out of such partnership interest for pre-divorce years were the responsibility of whichever
spouse the property settlement agreement stated was liable for pre-divorce year taxes. Beginning in 2018, these straight-forward rules no longer apply.
New Audit Regime
The new IRS rules (Audit Regime) apply to a tax audit of an entity taxed as a partnership for federal income tax purposes, including joint ventures and LLCs taxed as partnerships. The Audit Regime does not apply to entities that are disregarded for federal income tax purposes. These new IRS rules are complex and subject to IRS Regulations that are not final and are still being issued by the IRS. Prior to 2018, the IRS conducted a partnership audit at the partnership level and imposed the resulting tax on the persons who were partners in the year that
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was audited (Audit Year). Under the new Audit Regime, the IRS conducts a partnership-level audit and assesses and collects the resulting tax from the audited partnership in the year the audit is final. Thus, under the new Audit Regime, the economic burden of the tax is borne by the persons who are partners in the year the partnership pays the tax and is not borne by the persons who were the partners in the earlier year that was audited. There are certain elections (not discussed here) that the partnership can make to shift the tax resulting from the IRS audit back to the Audit Year partners. The new Audit Regime requires careful drafting of property settlement agreements and divorce decrees (Divorce Instruments) to address the shifting of tax liabilities resulting from the partnership audit of a pre-divorce year, and the economic consequences of the tax, from a pre-divorce year to a post-divorce year. Generally, Divorce Instruments contain provisions that make one or both spouses responsible for federal income tax liabilities incurred prior to the year of divorce. Divorce Instruments also typically contain indemnity provisions where one spouse indemnifies the other spouse for the payment of pre-divorce tax liabilities. Because the new Audit Regime generally imposes the tax on the partnership, with the economic consequences of the tax falling on the partners during year the tax is paid, the intent of the parties, and the Divorce Instruments, must be clear as to which party bears the consequences of an IRS audit of the partnership for a pre-divorce year.
Example
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Assume SF and SM are divorced in the year 2021 and one of the assets is a 40 percent community property interest in P partnership. The Divorce Instruments
award the 40 percent interest to SF but states that SM is responsible for all federal income tax liabilities of the parties from the date of marriage through December 31, 2020. The IRS concludes in 2022 a tax audit of P for 2019 and proposes adjustments to the partnership return, resulting in a tax deficiency of $200,000, of which SF’s share is $80,000. P pays the tax in 2022. It is not clear whether the tax is a pre- or post- divorce year tax. At first blush, it would seem that the $80,000 is a “tax liability of the parties” which SM is required to pay and indemnify SF since the tax relates to the tax return of the parties for pre-divorce year 2019. However, the $80,000 may be a post-divorce year tax because the tax is assessed against the partnership, and not SF, in a post-divorce year. In the latter case, SF will bear the economic consequence of the tax paid by P, which is exactly opposite of what the result would have been if the audit year had been in 2017 (a pre-Audit Regime year).
Conclusion
The New Audit Regime significantly changes the obligations and liabilities of the parties with respect to the economic consequences of an IRS audit of the partnership. If the parties want the economic consequences of the audit and related obligations and liabilities to be what they would have been prior to the application of the new Audit Regime, the tax section of Divorce Instruments will need to be drafted carefully to achieve that result as the customary tax language in Divorce Instruments do not address these new issues. HN
Charles D. Pulman and Matthew L. Roberts are attorneys with Meadows, Collier, Reed, Cousins, Crouch & Ungerman, LLP. They can be reached at cpulman@meadowscollier.com and mroberts@meadowscollier.com, respectively.
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D al l as Bar A ssoci ati on l Headnotes 19
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
Focus
Septem ber 2018
Family Law
What Is the Status of Permanent Injunctions in Family Law? BY DENNIS M. SAUMIER
The Texas Family Code (TFC) mandates that unless otherwise provided, in suits affecting the parent-child relationship, “proceedings shall be as in civil cases generally.” Tex. Fam. Code Ann. § 105.003(a) (West 2014). There is an apparent split among the appellate courts about whether a party needs to plead for a permanent injunction in a family law case. The most common statutory grounds for injunctive relief in civil cases are found in CPRC §65.011. The Texas Rules of Civil Procedure (TRCP) state in relevant part, “[t]he judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.” Tex. R. Civ. P. 301. The dispute regarding permanent injunctions in family law cases is how much has the TFC replaced the equitable principles under the civil rules. The TFC requires that parties in child custody cases must include in their peti-
tion a “statement describing what action the court is requested to take concerning the child and the statutory grounds on which the request is made.” Tex. Fam. Code Ann. §102.008(b)(10). The TFC also states that “[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Tex. Fam. Code §153.002. So how tightly did the Legislature intend to tie the hands of a trial court to protect the best interest of a child with regard to permanent injunctions? The Texas Supreme Court has held that the trial court is given wide latitude in determining the best interests of a minor child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The Fifth Court of Appeals has held that a trial court has broad authority to place conditions on visitation that are in the child’s best interest. Peck v. Peck, 172 S.W.3d 26, 34 (Tex. App.—Dallas 2005, pet. denied). So, balancing the best interest of the child with the requirement that the parties in child custody
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cases are to describe what action the court is “requested” to take has caused confusion and an apparent split among the appellate courts in Texas. Those who argue that a permanent injunction must be pled for and tried, as in other civil cases, point out that the TFC contains specific sections for temporary restraining orders and temporary injunctions that differ from temporary restraining orders and temporary injunctions in other civil cases. See Tex. Fam. Code. Ann. §§6.501, 6.503 & 105.001; Tex. R. Civ. P. 680-684. In light of the TFC not having a specific section covering permanent injunctions, the Fort Worth Court of Appeals has held that the normal requirements for permanent injunctions apply to family cases. Finley v. Finley, No. 02-1100045-CV, 2015 WL 294012, (Tex. App.—Fort Worth, Jan. 22, 2015, no pet.). Both Houston District Courts of Appeal have also found that permanent injunctions not pled for could not be in the final order. King v. Lyons, 457 S.W.3d 122 (Tex.App.—Houston [1st Dist.] 2014, no pet.); Flowers v. Flowers, 407 S.W.3d 452 (Tex.App.—Houston [14th Dist.] 2013, no pet.). But Dallas, Corpus Christi, and Tyler Courts of Appeal have reached the opposite result, holding that the ordinary requirements do not apply
in child custody matters. Peck, at 34; MacCallum v. MacCallum, 801 S.W.2d 579, 586 (Tex.App.—Corpus Christi 1990, writ denied); In re B.H.J.-T., No. 12-09-00157-CV, 2011 WL 721511, at *2 (Tex. App.—Tyler 2011, pet. denied) (mem. op.). The Court in Peck summarized their reasoning by stating, “whether the trial court entered an injunction—as in this case—or a simple order that made the same prohibition within the divorce decree appears to be a distinction without a difference.” Peck, at 35-36. As it stands, in our own backyards Dallas and Fort Worth seem to have different results to this question. This issue balances protecting children in a family law case with proper pleadings. TRCP 301 allows the trial court to apply equitable principles to final orders, and TFC §153.002 requires the court to always put the best interest of the child first. But TFC §102.008(b)(10) requires the petition to include the requested relief concerning the child and the statutory grounds. To date, neither the legislature nor the Texas Supreme Court has offered clear guidance to this issue. In short, if you want a permanent injunction in a child custody case, plead for it and put on evidence, that approach is not in dispute. HN Dennis M. Saumier is owner of Saumier Law Firm, P.C. He can be reached at dennis@saumierlaw.com
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22 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
Septem ber 2018
Family Law
A Business Litigator’s Guide: Marital & Premarital Agreements BY VICTOR D. VITAL AND ELIZABETH C. BRANDON
When company owners and business executives need family law services, their first call is often to their retained lawyer: a business litigator. If the business litigator agrees to assist with the family matter, he or she will be well-served to team up with a family law specialist who can help identify and navigate the differences between family and commercial litigation. This is especially true when it comes to litigating marital and premarital agreements, which, although they constitute enforceable contracts, cannot be treated like contracts in the business tort context. Under Texas law, marital and premarital agreements are unique statutory creatures that are governed by the Texas Family Code. Under the Family Code, there are two important points that business litigators must know. First, marital and premarital agreements are enforceable without consideration. Tex. Fam. Code §§ 4.002, 4.104. Second, there are only two defenses to their enforceability: a marital or premarital agreement is not enforceable if it was (1) signed involun-
tarily, or (2) unconscionable when signed and signed without receiving fair disclosure of the other party’s property. Id. §§ 4.006, 4.105. The involuntariness defense can embrace concepts from other contractual defenses often asserted in business tort disputes. Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 695–96 (Tex. App.— Austin 2005, pet. denied) (declaring that traditional common-law defenses “could bear upon the ultimate determination of voluntariness”). For example, in Moore v. Moore, the Dallas Court of Appeals explained that evidence of fraud and duress may provide proof of involuntariness, even though fraud and duress are not themselves defenses to the enforceability of a marital or premarital agreement. 383 S.W.3d 190, 195 (Tex. App.— Dallas 2012, no pet.). The court in Moore also stated that a number of factors may impact a finding of involuntariness, including: (1) whether a party has had the advice of counsel; (2) misrepresentations made in procuring the marital agreement; (3) the amount of information provided pre-execution; and (4) whether information was withheld. Id. The unconscionability defense, for its
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part, has two prongs. First, the court will decide as a matter of law whether the agreement was unconscionable when signed. Tex. Fam. Code §§ 4.006(b), 4.105(b). Although aspects of the unconscionability defense will be familiar to business litigators, courts will consider factors specific to family law, such as “the maturity of the individuals, their business backgrounds, their education levels, their experiences in prior marriages, their respective ages, and their motivations to protect their respective children.” Marsh v. Marsh, 949 S.W.2d 734, 739 (Tex. App.—Houston [14th Dist. 1997, no writ). If the court finds that the marital or premarital agreement is unconscionable, then the trier of fact must determine whether the agreement is unenforceable under the second prong. The agreement is unenforceable under the second prong if the party against whom enforcement is sought proves that, before signing the agreement, he or she: (a) was not provided fair and reasonable disclosure of the property or financial obligations of the other party; and (b) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (c) did not have and reasonably could not have had adequate knowledge of the property or financial obligations of the other party. Tex. Fam. Code §§ 4.006(a) (2), 4.105(a)(2); see Texas Pattern Jury Charge, Family & Probate §§ 207.2C, 207.3C.
Drafting Counsel
Lawyers who represent clients in negotiating and drafting marital and
premarital agreements can take steps to ensure the agreements survive future litigation in the event of an enforceability challenge. From the outset, both parties should be represented by separate, independent counsel, with family law experience and qualifications. The drafting lawyer should keep a detailed inventory of all documents and information regarding the property that the parties disclosed and/or exchanged throughout the negotiation process before execution of the agreement. Doing so ensures a well-documented record of the fair and reasonable disclosure of property information.
Litigation Counsel
Lawyers who represent clients in litigating the enforceability of a marital or premarital agreement should endeavor to interview both the client and the client’s drafting lawyer early to understand the facts surrounding the execution of the agreement. The litigating lawyer should also obtain the drafting lawyer’s complete file on the client, as well as serve a subpoena duces tecum to the opposing party’s drafting lawyer to obtain their complete file. The issue of privilege has to be navigated—e.g., dealing with and litigating the offensive-use doctrine. Finally, business litigators seeking to uphold the enforceability of a marital or premarital agreement should utilize summary judgment practice to resolve the purely legal question of the Family Code unconscionability defense to narrow the scope of issues to voluntary execution. HN
Victor D. Vital and Elizabeth C. Brandon are partners at Barnes & Thornburg LLP. They can be reached at victor.vital@btlaw.com and ebrandon@btlaw.com, respectively.
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D al l as Bar A ssoci ati on l Headnotes 23
Honored to be recognized as a Lawyer of the Year by our peers. Year after year.
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KRIS ALGERT Best Lawyers® 2013 Lawyer of the Year Collaborative Law: Family Law Austin
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KELLY AUSLEY-FLORES Best Lawyers® 2012 Lawyer of the Year Family Law Austin
PAULA LARSEN Best Lawyers® 2011 Lawyer of the Year Collaborative Law Family Law Dallas
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Recognition as a Lawyer of the Year means that our awarded attorneys have received the highest overall peer rating for their specific practice area and location. We’re grateful for the accolades. Providing outstanding representation to clients is a value our lawyers will always exemplify.
D A L L A S 2 1 4 . 3 7 3 .7 6 7 6 | P L A N O 2 1 4 . 4 73 . 9 6 9 6 | A U S T I N 5 1 2 . 4 5 4 . 8 7 9 1 | G B F A M I L Y L A W . C O M
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
Septem ber 2018
The Trouble with Joint Representations BY JOSH SANDLER
The phone rings. On the other end is your client, a general counsel you previously impressed by resolving several business litigation issues for his company, NewCo. Although normally calm and relatively low-key, you note an almost immediate tone of anxiety in his voice. He proceeds to tell you that NewCo has just been enjoined by way of a temporary restraining order by OldCo, NewCo’s chief competitor. Why is OldCo suing NewCo? Because NewCo just hired Jeff, OldCo’s all-star sales associate, and OldCo is asserting that both NewCo and Jeff conspired to misappropriate OldCo’s trade secrets and breach Jeff’s employment agreement, which includes promises by Jeff not to solicit any of OldCo’s former or current clients should Jeff go to work someplace else. To make matters worse, NewCo has been served with OldCo’s expedited discovery and responses are due in a few days. Your client naturally wants to move quickly and wants to schedule a conference call this afternoon with your cli-
ent, Jeff, and some other key players with NewCo. You are immediately thrust into an ethical and litigation strategy situation that requires quick thinking. The gating issue is whether you will be representing both NewCo and Jeff. I have been retained in situations such as the above on numerous occasions and I have seen legal representation effectuated in a variety of ways: the company and the new hire may use the same attorney, without issue, to defend the suit; the company and the new hire may utilize separate counsel from the beginning; or the company and the new hire may use the same attorney until a conflict arises. The last scenario is a terrible result for the client as it forces one or more clients to incur additional costs to obtain new counsel. Further, the time it takes new counsel to get up to speed in the litigation is a clear setback. And in a case like NewCo’s, a setback of that magnitude could be detrimental due to the expedited nature of the discovery and motion practice. Likewise, a conflict of interest that arises during the joint representation of two clients can be terrible for the attorney. Remember, an attorney
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cannot be adverse to a former client on the same or substantially related matter. Tex. Disciplinary R. Prof’l Conduct 1.09; see also Tex. Disciplinary R. Prof’l Conduct 1.05. In the event a conflict arises during litigation, many attorneys mistakenly believe that a simple waiver from the clients pursuant to Rule 1.06 of the Disciplinary Rules will suffice. However, the commentary to Rule 1.06 indicates that a client’s consent to a conflict of interest is improper if a “disinterested lawyer would conclude that the client should not agree to the representation under the circumstances.” Tex. Disciplinary R. Prof’l Conduct 1.06 cmt. 7. Thus, a conflict of interest that arises in the midst of the attorney’s joint representation might ultimately preclude that attorney from representing anyone in the matter. It could also open the door to potential malpractice claims against that attorney for not properly advising the clients about the risks of conflicts of interest that may arise during the joint representation. Accordingly, in my view, the safest approach for proceeding in the case of OldCo v. Jeff and NewCo is for you, the attorney, to immediately help Jeff obtain separate counsel—one that will cooperate with you. It is simply not worth risk-
ing your ability to represent any of the clients due to a conflict of interest that develops during the joint representation. Furthermore, many of the advantages that flow from joint representation (e.g., controlling the defendants’ factual narrative and keeping litigation costs down) can be achieved with a good joint defense agreement where defense counsel can communicate with each other to further the interests of their respective clients, combine resources and reduce the duplication of legal work, control information flow, and present a coordinated and united defense front. Moreover, under the allied litigant doctrine, communications are generally protected under Texas Rule of Evidence 503(b)(1)(C). In re XL Specialty Ins. Co., 373 S.W.3d 46, 51-53 (Tex. 2012). Therefore, before you attend that afternoon emergency telephone conference with your clients (and Jeff), try to get Jeff an attorney who can move quickly and attend the telephone conference as well. Otherwise, remove Jeff from the equation until he can get lawyered up. Your continued representation of your client may very well depend upon it! HN Josh Sandler is a Partner at Lynn Pinker Cox & Hurst LLP. He can be reached at jsandler@lynnllp.com.
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Dallas Bar Association’s new Oak Cliff Friday Clinic at Oak Cliff Chamber of Commerce 1001 N. Bishop Avenue Dallas, TX 75208 Community Prosecution: Legal Innovation to Improve Neighborhoods and Related Ethics Issues Speakers: Chhunny Chhean, Chief of Community Prosecution, City of Dallas Jill Haning, Dallas City Attorney's Office Andrew Rollo, City of Dallas Code Inspectors
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RSVP to Yedenia Hinojos yhinojos@dallasbar.org
Sep t e mb e r 2 0 1 8
Focus
D al l as Bar A ssoci ati on l Headnotes 25
Family Law
Recent Trends and Questions in Family Law Settlements BY CONSTANCE A. MIMS AND BRYAN BALLEW
The Courts in Texas, especially with respect to Family Law, have long favored the finality of agreements. The institution of Texas Family Code Sections 6.602 and 153.007 regarding the binding effect of mediations were definitely a trend toward limiting the Court’s power to interfere with the parties’ ability to contract. However, recent trends in case law tend to demonstrate that the Courts seek to limit the ability to contract to specific circumstances. For instance, recently, in In re Minix, 543 S.W.3d 446 (Tex. App.—Houston [14th Dist.] 2018) the parties sought, at a certain juncture in the case, to agree to set aside a mediated settlement agreement (MSA), and at least one party asserted that the parties did so in open court. However, in this case, the 14th Court of Appeals held that the plain meaning of the statute, which read that the MSA would be “binding on the parties” where certain conditions had been met, would not allow the parties to make any subsequent agreements contrary to those in the MSA. In Minix, the court held that the express language of the statute provides that a party is entitled to judgment on an otherwise statutorily compliant MSA ‘notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.’” Minix was distinguished by In re Marriage of Harrison, No. 14-15-00430-CV, 2018 Tex.App. LEXIS 4201 (App.— Houston [14th Dist.] Feb. 15, 2018), where the same court determined that where the trial court entered an “interim” order on the terms of the MSA, and then
subsequently modified that order on petition of a party, based on facts and circumstances that happened subsequent to the agreement, Minix did not apply because it was not a matter of the parties’ agreement; rather, the trial court granted a modification. Consistent with the trends in Family Law with respect to finality of MSAs, authority exists, with distinctions, where the courts seek to limit the ability of parties to alter the property division contained in a final divorce decree using an agreement under Texas Rule of Civil Procedure 11. For instance, in Gourley v. Gourley, 2018 Tex. App. LEXIS 4354 (App.—Fort Worth June 14, 2018), the parties executed three separate divorce decrees, each of which had been signed (entered) by the trial court in succession. However, almost 20 years after the third and last decree was entered, when the parties were to begin payment on the husband’s military retirement, the husband petitioned the trial court to void the two last divorce decrees, as both were detrimental to his share of the military retirement. The wife in Gourley sought to enforce the third decree as a Rule 11 Agreement that had been confirmed and ordered by the Court. A Rule 11 agreement must touch any suit pending. Tex. R. Civ. P. 11. The Supreme Court of Texas held agreements do not require ‘slavish adherence’ to the rule’s literal language and two courts have adopted an expansive view of “any suit pending”. Kennedy v. Hyde, 682 S.W.2d 525 (Tex. 1984). First, parties litigated a dispute regarding an easement and several years after the final judgment one party filed an enforcement. Coale v. Scott, 331 S.W.3d
829, 830 (Tex. App. – Amarillo 2011, no pet.). The parties then entered into an agreement that ultimately expanded one of the party’s rights. Id. at 830–31. The court stated, “Irrespective of whether a trial court lost its plenary jurisdiction over its judgment, the trial court’s authority to approve a Rule 11 agreement does not depend upon whether it has such jurisdiction.” Id. At 831. Additionally, “[A] settlement agreement . . . executed while the parties were attempting to sway the trial court to enforce its judgment logically falls within the scope of “any suit pending” for purposes of Rule 11.”Id. The Second Court of Appeals in Fort Worth expressed a similar view in another circumstance. The court cited the Coale decision in the context of a case on appeal. Cunningham v. Zurich Am. Ins. Co., 352 S.W.3d 519 (Tex. App.—Fort Worth 2011, pet. denied).
The court noted that even though the trial court did not have plenary power at the time of the agreement, the case had not been finally disposed of, as the trial court did have authority to enforce the judgment. However, the Second Court of Appeals recently distinguished the concept of “pending” in Gourley, holding an agreement made during a Nunc Pro Tunc proceeding where no appeal had been filed would impermissibly vest the court with subject matter jurisdiction. This recent decision, as in the Minix case, presents a conundrum with respect to the parties’ ability to make agreements in Family Law cases. HN Constance Mims is the Senior Managing Attorney and Member at the Beal Law Firm, PLLC, is Board Certified in Family Law by the Texas Board of Legal Specialization; Bryan Ballew is a Senior Associate Attorney at the firm. They can be reached at cmims@ dfwdivorce.com and bballew@dfwdivorce.com, respectively.
DBA & Caruth Institute for Children’s Rights Education Symposium Improving the Lives of Children through Advocacy Monday, October 29 ~ 8:30 a.m. ~ Belo Mansion The Jack Lowe Sr. Award for Community Leadership will be presented during the luncheon. Contact Melissa Garcia at (214) 220-7484 or mgarcia@dallasbar.org for more information.
26 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
Septem ber 2018
Family Law
The Gray Divorce BY KENNETH G. RAGGIO
Have you seen James Corden’s carpool karaoke with Paul McCartney when they sang the Beatles song: “When I’m sixty four?” When the Sgt. Peppers album came out in 1967, sixty-four looked a long way away. Now, with medical and other factors dramatically increasing lifespans, divorces involving spouses over fifty (commonly called gray divorces, silver separations, or Boomer divorces) have significantly increased— accounting for about one in four divorces, according to a study by Bowling Green State University. Although gray divorces present similar issues faced by younger couples, gray divorces do not usually involve child-custody issues. Rather, the main issues concern custody of the money, retirement accounts, and addressing towards-the-end-of-life health issues. The parties may realize that they have outlived the original purposes of the marriage: to raise and rear a family; to be involved in the community, careers, and civic and religious activities; and then to retire or die around the age of sixty-four. Many couples are plainly outliving the “useful” part of their marriage, and for those who can overcome the often religious “until-death” commit-
ment, they may choose to end their marriage and seek different paths for their golden years. While competency to file for divorce might be an issue for any petitioner, this issue arises more frequently in gray divorces. When questions about a client’s ability to direct the filing of a divorce petition—and more pointedly, to enter a binding retainer agreement with an attorney—the lawyer should send the client to a general treating physician for a “gatekeeping” competency test, consisting of thirty questions and, if passed, will satisfy the “low bar” for competency to enter into contracts and, for that matter, sign testamentary documents. (The gray client definitely should have a will! And, if the other spouse is a beneficiary, change that!) Other concerns faced in gray divorces include the potential need for special accommodations for mobility, hearing and vision loss, emotional or mental challenges, or the client’s need to rely on family or friends to “assist them” through the divorce. This reliance potentially causes confidentiality issues that must be addressed with the client, and the client must understand that attorneyclient confidentiality is lost when the third party is present. After establishing the attorney-client
relationship, the older client may need continued support and assistance from family, friends, or medical and mental health professionals, in addition to whomever has been handling the parties’ finances and tax returns. If such professional help is not present, the lawyer should hire a consultant and, often, an expert to show how the parties got to their current financial situation. This need is especially important when representing the sixty-four-year-old homemaker who has never held a job. Many gray divorces involve people who are already on Medicare and receiving Social Security. Although Social Security cannot be divided, its receipt should be considered by the court if there is a request for spousal maintenance, which may continue for up to ten years, after proving the non-monied spouse’s need and the monied spouses’ ability to pay. Further, the parties (and the court) should consider the soon-to-be-single spouses’ health needs. After obtaining enough knowledge about the parties’ financial situation and future needs’ projections, out-of-court resolution opportunities arise, at which point competency issues should again be considered. As in most divorces, gray divorces will usually have a “leavor” and a “leavee.” The
leavee spouse may have a hard time making friends or dealing with the realities of life after divorce and may even become fond of the attorney and look to the attorney as a friend. The attorney needs to be aware of the duty to continue in the neutral-lawyer role or have a clearly-drafted termination-of-representation letter. Nevertheless, most former gray divorce clients appreciate occasional check-ins after the divorce. Finally, sometimes there is a chance for remarriage. Many widowed parties choose to cohabitate, rather than marry, to avoid the issues with retirement, Social Security, and medical coverage. Gray couples wishing to marry will very likely consider a premarital agreement, so each party’s estate remains clear of the community property claims that will accrue if not eliminated by a properly prepared and executed premarital agreement, thereby protecting the spouses’ assets and ensuring the assets go to the spouse’s children or other intended beneficiary. The gray divorce is here and can have special challenges. But, it can also be a liberation for one, if not both, parties. Do your part well. HN Kenneth G. Raggio is a partner at Raggio & Raggio, P.L.L.C. and can be reached at kenneth@raggiolaw.com.
Intangible Assets and How to Divide Them CONTINUED FROM PAGE 1
economic benefits that derive from the ownership of a patent are subject to division by the Court. Royalties from oil and gas production
are also an intangible asset that Texas practitioners often encounter. To determine the characterization of the royalty interest, one must first look to the ownership of the oil and gas itself. A typical community property characterization approach applies, but the
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interesting part comes when the oil and gas interest is the separate property of a spouse. Typically, income from separate property is community property. However, because royalties from oil and gas production are considered an extraction of land or sale of realty, if the underlying oil and gas interest is separate property, the royalties will also be considered separate property. Goodwill has been defined by the International Glossary of Business Valuation Terms as an intangible asset that arises as a result of name, reputation, customer loyalty, location, products and similar factors not separately identified. Further, goodwill can be categorized into two different types: commercial and personal. If the goodwill is determined to exist independently of the personal ability of the spouse and if the goodwill is found to exist, then it must be determined whether that goodwill has a commercial value in which the community estate is entitled to share. Personal goodwill is nontransferable and attaches to the person who created it; therefore, upon divorce, it is not subject to division. However, both types of goodwill are subject to the traditional characterization rules, such as the community presumption and inception of title. Characterization is not the final step in
the advocacy process. Being able to explain to a client why they do or do not want to be awarded an asset is an important skill. For most intangible assets, valuation is the key component and a complex valuation analyses should be completed by a trusted financial expert. However, as a rule of thumb, the earlier in the life cycle of the intangible asset, the more risk there is associated with retaining an interest in it. The upside of retaining an interest in an intangible asset is that the value can increase at any time due to new technology or changes in market. The downside is that making sure one’s client receives the value they bargained for can be difficult due to the variability in demand for the asset he or she owns and the fact that the asset is not a tangible object. Obtaining a grasp on the basic concepts of intangible assets can be a great tool to have in practice, and with the growing presence of intangibles, it is likely that clients will be needing additional assistance on this matter for years to come. HN Kelly McClure, CEO and Managing Partner of McClure Law Group, PC, and her law partner Robert Epstein are both Family Law Board Certified by the Texas Board of Legal Specialization and can be reached at kmcclure@mcclure-lawgroup.com and repstein@mcclurelawgroup.com, respectively.
Sep t e mb e r 2 0 1 8
Focus
D al l as Bar A ssoci ati on l Headnotes 27
Family Law
What Do I Do When I Suspect Child Abuse or Neglect? BY LAURA H. CASTON
In 2017, the Texas Department of Family and Protective Services reported 14,955 child abuse or neglect investigations in Dallas County. This article discusses reporting requirements for attorneys, including penalties for a failure to report, and offers resources for reporting a good-faith suspicion of child abuse or neglect.
Mandatory Reporting Requirement
Attorneys are mandatory reporters of suspected child abuse or neglect. The Texas Family Code heightens the reporting requirement for an attorney working with a child in a professional capacity, such as serving as an ad litem for a child. At minimum, the reporting party must provide the name of the child and details of the suspected child abuse or neglect.
Reporting & Attorney-Client Privilege
Due to strong policies protecting children, if you represent a client who informs you, in the course of representation and under the protection of attorney-client privilege, he or she abused or neglected a child, you are still obligated to report this suspected abuse or neglect. However, such evidence, by itself, may be insufficient to protect a child if no exception to the attorney-client privilege exists under the Texas Rules of Evidence. Specifically, the Texas Family Code protects communications between an attorney and a cli-
ent in a “proceeding regarding the abuse or neglect of a child.” But the Texas Family Code also provides reporting requirements apply “without exception to an individual whose personal communications may otherwise be privileged, including an attorney….” Texas courts have found an attorney’s failure to report suspected abuse or neglect of a child violates Texas reporting laws.
Conflict of Interest
The rules do not clarify whether a report made by an attorney against a client of suspected abuse or neglect of a child creates a conflict of interest requiring withdrawal. The reporting statutes do not even mandate disclosure by an attorney of a report, nor do they require withdrawal from representation. If you suspect a client abused or neglected a child, the best practice is to advise the client of your obligation to report the suspected abuse or neglect in writing. The decision to withdraw would require an assessment of the specific facts of your client’s case and a determination of whether your report will materially affect your client during your representation by subjecting him or her to civil and criminal charges, applying the rules regarding a conflict of interest set forth by the Texas Disciplinary Rules of Professional Conduct. Notably, if a conflict does exist, a client cannot waive this conflict due to the associated penalties.
Reporting Is (Usually) Confidential
Generally, the identity of a person reporting abuse or neglect remains con-
fidential (except to law enforcement). However, a court may still order disclosure of the identity of the person reporting child abuse or neglect. Also, a reporting party has the option to waive confidentiality in writing when making the report or any time after the report is made. In addition to the near absolute confidentiality protection, such person is also provided other protections under the law, such as protection from employment discrimination, termination, or suspension.
Consequences of Failing to Report (and for Reporting)
A person who fails to report suspected child abuse or neglect may face criminal penalties. A failure to report the first time is usually classified as a Class A misdemeanor. Warning: Be thoughtful about the basis for your report. The Texas Family Code does not protect a person reporting abuse or neglect from civil or crimi
nal liability if that person is reporting his or her own abuse or neglect of a child or intentionally files a false report against someone else.
Reporting Suspected Child Abuse or Neglect
The Texas Department of Family and Protective Services, reporting directly to the Governor of Texas, is required to investigate all reports of child abuse or neglect. If you have a good-faith suspicion of child abuse or neglect, report your suspicion to any local or state law enforcement agency, the Texas Department of Family and Protective Services, or the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred. More information on reporting can be found at: www.dfps.state.tx.us/ Contact_Us/report_abuse.asp. HN
Laura H. Caston is a family law attorney at Quilling, Selander, Lownds, Winslett & Moser, P.C. She can be reached at lcaston@qslwm.com.
Save the Date! October 11, 2018 8:00 a.m.-4:00 p.m. at Belo Questions? Contact Melissa Garcia At mgarcia@dallasbar.org Or (214) 220-7484
28 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2018
The Dallas Hispanic Bar Association: Moving Adelante BY ISAAC FAZ AND JAVIER PEREZ
As we kick off Hispanic Heritage Month, the Dallas Hispanic Bar Association (DHBA) celebrates its culture and commitment to the community. The DHBA honors the camino recorrido, “the path traveled,” but also looks adelante, “up the road ahead.” Since 1969, the DHBA (then-known as the Mexican American Bar Association of Dallas) has united attorneys from across the Metroplex to promote the social, economic, educational, and civic advancement of the Hispanic community. These efforts, whose inception was sparked by the Civil Rights movement, endeavor to make our legal system more accessible to the Hispanic community and responsive to its needs. The DHBA was founded by seven local trailblazing attorneys. Frank P. Hernandez, Manuel Almaguer, Florentino “Tino” Ramirez, Adelfa Botello Callejo, William F. Callejo, Adolph P. Canales, and Eugenio Carorla spent their careers working tirelessly to improve community access to a judicial system that was out of reach for
DHBA board members sign the endowed scholarship agreement with Texas A&M Foundation to benefit law students at Texas A&M School of Law.
far too long. Recently, the DHBA helped sponsor the memorial monument of Adelfa B. Callejo and congratulated Tino Ramirez on receiving the DBA’s 2018 Martin Luther King Jr. Justice Award. Throughout its nearly 50-year history, the DHBA has been on the front lines to engage difficult issues that impact our com-
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2019 Competitions: Saturday, January 19th, Saturday, January 26th, Friday, March 1st - Saturday, March 2nd. All taking place at George Allen Courthouse. Questions? Contact the State Coordinator at texashsmocktrial@dallasbar.org or call 214-220-7484 www.texashighschoolmocktrial.com
Members of the DHBA board at the 2018 swearing-in ceremony and reception
munity—even, and especially when, it was not popular to do so. This year, the DHBA stepped forward on the issues of immigration and citizenship, which come with both controversy and opportunity. In responding to the issues of the moment, the DHBA sponsored DACA workshops, citizenship clinics, and a CLE to aid separated families at the border. In recent years, the DHBA also organized efforts to aid the 52,000 Central American children fleeing harm across our southern border. This committee mobilized attorneys who directly represented many unaccompanied children under the supervision of experienced immigration attorneys. DHBA’s ongoing efforts include a Latina Leadership Program aimed at addressing obstacles for Latinas in the legal field, a Youth Law Symposium where area high school students hear from a diverse set of legal practitioners, and the ever-popular Conozca Sus Derechos (Know Your Rights) community engagement series to educate the public about areas of the law that affect the Latino community. In pursuit of diversifying the profession,
the DHBA signed an agreement this year to create an endowed scholarship at Texas A&M School of Law (interestingly both writers of this article are Longhorns). This partnership stems from the DHBA’s Noche de Luz gala which supports pipeline initiatives. Mil gracias to our sponsors of all sizes who support Noche de Luz. Moving adelante, the DHBA asks you to join in these impactful efforts – specifically to diversify the legal profession with more Latinos, to increase access to justice for those who are undocumented and precluded from receiving much existing legal aid, and to increase civility and voter participation at all levels of government. You can begin by joining the DHBA at its Noche de Luz gala on September 22, 2018, at the Perot Museum of Nature and Science. Visit DallasHispanicbar.com and follow us on social media @DallasHBA for more information. HN Isaac Faz, DHBA President, is the Chief Legislative Counsel for the Dallas County Community College District and can be reached at isaac.faz@ dcccd.edu. Javier Perez, DHBA President Elect, is a partner at Scott Perez LLP and can be reached at javier.perez@scottperezlaw.com.
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STAFF AWARDS
to do their personal best. This year, the awards will recognize the court staff team (court clerks, court coordinator, bailiff, etc.) that has consistently demonstrated a friendly and polite attitude, helpfulness, professionalism, and spirit of cooperation. Awards will be presented at the DBA Awards Luncheon in November to court staff teams in each of the following categories: • Dallas Civil District Courts • Dallas County Courts at Law • Dallas Criminal District Courts • Dallas County Criminal Courts • Dallas Family Courts • Dallas Probate Courts For questions, contact kzack@dallasbar.org. Deadline to vote October 20. Visit: http://survey.constantcontact.com/survey/a07eflbvpzjjke2iqvr/start to vote!
Texas Elder Law Whether you are working on a specific legal or financial question or bringing in specialists in other disciplines to help you handle a client’s requirements, this comprehensive guide will enable you find solutions and act as effective quarterback of an overall plan. Texas Elder Law covers everything from dissolution of marriage to settling an estate. The book thoroughly covers the complex issues that plague estate planners and guardians. These include family and marital issues, paying for long-term care, dementia, Alzheimer’s disease, tax issues for the elderly, practical issues surrounding the death itself, and probate. In addition to providing choices for managing resources, it also details the tools that can be implemented, such as advance directives, wills, and trusts. The book informs the reader about the Texas elder rights and protections under both state and federal law. There is an appendix with helpful forms and sample documents. Vaughn E. James is the Judge Robert H. Bean Professor at Texas Tech University School of Law and an Adjunct professor at the University of Tennessee College of Law. He has taught various courses including Elder Law, Estate and Gift Taxation, Estate Planning, Wills and Trusts and more. An avid believer in the notion Equal Justice for All, James has been a member of the Texas State Bar Pro Bono College for several years.
To order, call 1.800.756.8993 or visit www.TexasLawyerBooks.com
Sep t e mb e r 2 0 1 8
Focus
D al l as Bar A ssoci ati on l Headnotes 29
Family Law
Commonly Overlooked Exceptions to the Hearsay Rule BY MELINDA EITZEN, GEORGE SHAKE, AND JODI BENDER
Texas Rules of Evidence Rule 803 provides the many exceptions to the hearsay rule, some of which are often overlooked and can be particularly useful when admitting evidence in your family law litigation. One of the most notable is the Business Records Exception in Rule 803(6). The Texas Supreme Court ruled on the admissibility of third-party business records almost 36 years ago. A witness can claim a third-party’s business records as their own, so long as the witness demonstrates personal knowledge of the activity recorded. The rule defines “business” so broadly as to include any regularly conducted activity, whether for profit or not. Therefore, records of a family’s regularly conducted activities, such as financial account statements and credit card statements, may fall under the business records hearsay exception. Business records must: (1) be kept in the course of business; (2) be relied upon for accuracy by the record holder; and (3) be trustworthy, as is indicated by the circumstances. Third-party records may fall under the exception if the family incorporated those records into their own records, relied upon their accuracy, and the records are otherwise shown to be trustworthy. Documents created for the purpose of litigation are generally not admissible under this exception. However, it is common for a document to be created for dual purposes. The fact that a document was created for litigation purposes is not a complete bar to admis-
sibility, but rather a factor to be considered. One federal court ruled that an audit report was admissible under this exception even though the report was prepared after a defendant was suspected of misappropriating funds. The records were admissible because the preparer was experienced in preparing audit reports, the contractor was a neutral third-party, and the report had significance apart from its use in litigation. Thus, it is important to be able to establish a purpose for the documents and their significance outside of litigation. Rule 803(8) governs the admissibility of public records. It does not provide an exception for records created for adversarial or investigative purposes. For example, police and CPS witness statements in reports are essentially hearsay-within-hearsay and only admissible with another hearsay exception. Under Rule 803(14), an interest in property can be established with one’s own copy of a properly recorded document. Attorneys often think of real property when applying this exception, but it can easily apply to personal property as well. An example is a handwritten list of property created for insurance purposes. When dealing with more substantial property, most courts require the document have some formal qualities. Rule 803(21)’s allowance of reputation testimony concerning character is another helpful exception. The rule is applicable when a party’s character is directly at issue, such as when a party is accused of something unsavory. A character witness need not even reside or work in the same “community” as the individual to whom the testimony relates.
Rule 803(3)’s state-of-mind exception can also be very useful. This exception operates to allow statements of a then-existing bodily condition, state of mind, or emotion in a given circumstance. Generally, statements indicating a present physical condition of a declarant are admissible, regardless of whether they are made to a physician or lay person. A sound recording of a decedent describing his physical pain made days before his death, or a statement made about an individual’s medical condition, would both be admissible under the “physical condition” portion of the exception. Moreover, a statement of one’s present state of mind or emotion is admissible if offered to prove a state of mind or emotion that is at issue in the case. Finally, the rule allows a statement of present state of mind—usually intent or plan—offered to prove subsequent conduct. Thus, a statement by a victim made two weeks before someone committed a crime
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duffee-eitzen.com
Melinda Eitzen, George Shake, and Jodi Bender are DBA Family Law Section members and partners at Duffee+Eitzen. They can be reached at meitzen@duffee-eitzen.com, gshake@duffeeeitzen.com, and jbender@duffee-eitzen.com, respectively.
Moms in Law Events September
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 September events are: September 7: Noon, Sixty Vines in The Crescent (Uptown) RSVP to rociog@chalakilaw.com September 21: Noon, Ziziki’s at Preston & Forest (North Dallas) RSVP to rfitzgib@gmail.com Email christine@connatserfamilylaw.com to join the Moms in Law email listserv.
Duffee + Eitzen ATTORNEYS AT LAW
against them would be admissible, so long as the statement is relevant to the subsequent conduct of the criminal. Overall, Rule 803(3) allows a showing of one’s physical or emotional condition, but does not permit a showing of why the condition occurred or existed. The exception applies only to statements of a declarant’s then-existing state of mind, emotion, physical condition, or sensation. Intent, plan, motive, design, mental feeling, pain or bodily health would all fall within the exception. Familiarity with the hearsay exceptions will help you admit crucial evidence, and ultimately help you win your case. Rule 803 is the ideal tool to help you answer every objection with an exception. HN
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30 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2018
Communication Skills Part II: Communicating During the Case BY CLAUDE DUCLOUX
For the second installment in our communication series, we will focus on the importance of communicating clearly with your client while working through a case.
Following Through
Once you have communicated and formed a bond of confidence and an impression in the client that you are competent to do the work, you need to follow through. Get started. Do the hard work. Stay late if other things get in your way. It goes without saying that communication is more than just the spoken or written word. It is the way you carry yourself, respond, and continue to encourage confidence in your performance. Early communication and updates following your initial interview seal the bond of
confidence that you are trying to encourage. It says, “You can count on me.”
Communication During the Case
A lawyer should always report each event in the case to clients to keep them informed of each process and allow the client the opportunity to ask questions. This serves not only to keep the client calm, but protects the lawyer from a claim of neglect. Obviously, in our adversarial system, not every case will go perfectly. There can be setbacks in terms of rulings, failures of evidence, and simply unexpected bad things happening. Each time, however, your communication can serve to either reassure the client that you have the matter under control or be a harbin-
ger of likely adverse outcomes. It is much better for the client to be warned well in advance of that likelihood long before it happens. And be aware, some clients recoil at hearing bad news and immediately want to blame the lawyer. When that inevitably happens, never respond with evidence of exasperation, frustration, or anger. Your communications are critical to the character you present. The bottom line is never write a letter you’d hate to see on a poster board. Also, if the adverse event is based upon a misrepresentation by the client or someone acting on the client’s behalf upon which the lawyer relied in appraising the case, the reasons for such outcome should be communicated (albeit diplomatically, as necessary) so that the client can understand the connection between the misrepresentation and the ultimate outcome. There are many examples of this. If a client assures you that a particular document will be available to prove timeliness of a condition precedent, and then the document turns out not to be available or doesn’t support the client’s statement, the lawyer should reference that disparity in their communication to the client. Here’s the undeniable truth, which I
mention at the outset: good communication habits make you a better lawyer. By this I mean that if you require yourself to have robust client communications, you’ll pay more attention to your cases, accomplish more, and do it faster. If you avoid communication, it unfailingly leads to neglect, mutual frustration, and a breakdown of your bond of confidence.
Requesting Second Opinions
Some lawyers are threatened by a client’s request in a case for a second opinion. Do NOT be threatened. I always welcome that opportunity. It is my theory that if a lawyer with equal or better specialized skills than me has a different perspective, I want to hear about it because we are “collaborating” to achieve the best outcome for a client and not simply preserve our dignity or pride. In my career, I have never had a bad outcome as a result of the client’s request for a second opinion. My only advice is to have the client ensure that the reviewing attorney has the requisite experience and skill. 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.
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Save the Date! Evening Ethics
200,000+ members and guests use the building each year and your contribu�on at the Sustaining Member level will help us con�nue the essen�al upkeep needed to preserve our beau�ful building—as the premiere bar headquarters in the na�on. Thank you for your support.
TUESDAY, OCTOBER 23, 2018 6:00 to 9:00 p.m. at BELO (Ethics 3.00, pending) $40 for DBA members. ($90 for non-members). Price includes CLE, light buffet, and parking.
All Sustaining Members will be prominently recognized in Headnotes and at our Annual Mee�ng.
For more information, contact yhinojos@dallasbar.org.
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Sep t e mb e r 2 0 1 8
Classifieds
D al l as Bar A ssoci ati on l Headnotes 31
September
EXPERT WITNESS
Economic Damages Experts - Thomas Roney has more than thirty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 5137113. troney@thomasroneyllc.com. “We Count.” Economic Damages Experts – HSNO is the Forensics Firm. Economic Damages Experts - HSNO is a CPA firm specializing in Financial Damages. The Dallas office of HSNO has five CPA testifying experts who specialize in the calculation of financial damages in most areas including commercial lost profits, personal lost earnings, business valuations, insurance litigation, intellectual properties and contract disputes. HSNO is qualified in most industries including, but not limited to; energy, manufacturing, hospitality, service, insurance, transportation, entertainment, product liability and construction. HSNO has 10 U.S. offices and an office in London. Contact Peter Hagen CPA CFF CEO at (972) 980-5060 or go to HSNO.com. Economic Damages Experts-GMCO Litigation Damages Firm. Economic Damages Valuation Experts. GMCO a CPA firm with significant testifying experience. George Mendez CPA CVA has more than twenty years’ experience providing economic damages, lost profits, damage calculation testimony in court, deposition and arbitration. The firm provides services regarding commercial damages, lost profits, intellectual properties, employment, personal injury/lost earnings wrongful death, and insurance litigation. George Mendez has experience in most industries including energy/oil & gas, manufacturing, transportation, hospitality, service, distribution, and construction. GMCO serves attorneys in Dallas/Ft. Worth, Houston, Austin/San Antonio. Contact George Mendez CPA CVA. Dallas/Ft Worth (469) 248-4477 or Houston (713) 8925037 experts@georgemendez.com.
FOR SALE
Contemporary Office Furniture Sale: Contemporary Italian dark gray wood L-shape desk with keyboard tray, matching credenza with lateral files, matching two drawer low file on wheels, all with chrome finish. Contemporary white lacquer bar table with 2 chrome finish white bar stools. Contemporary composite gray work table, 71 inches by 24 inches. Black adjustable desk chair. Green leather desk chair. Conference table (custom frosted
glass top) with 4 upholstered arm chairs. Table is 60 inches wide by 36 inches deep. Contact lwilkins44@yahoo.com for photos and pricing.
OFFICE SPACE
Turtle Creek Blvd./Hall St. Area executive office space available for lease in a professional, legal environment. Two large executive window offices available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or paraprofessionals. Three bench seat spaces available for daily or short-term use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, Wi-Fi, notary, conference room, kitchen area, covered visitor parking, and free secured office parking. 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. Office space available at 4054 McKinney Avenue. First floor suite with three offices, a file room and a sink. The space faces Cole Park, is 914 sq/ft and rents for $1,522.00 flat rate. Second floor corner suite with three offices and file room. This space is 1127 sq/ft and rents for $1,878.00 flat rate. Call (214) 520-0600 Near SMU: 4-Attorney Suite at 4849 Greenville Avenue has available one 3-window office with secretarial area and shared conference room, kitchen, copier, scanner, fax, DSL and phone equipment. Office mates would be 2 oil & gas attorneys and 1 civil litigator and their respective assistants. Includes covered tenant parking and free visitor parking. Contact John at (214) 373-4090. Lakewood Towers - East of Downtown. 1-2 Fantastic Offices in Highly Desired Lakewood Towers just East of Downtown. Free garage parking; Wi-Fi; conference, reception & break rooms; optionally furnished; flexible terms; walkable restaurants and stores; 18x11 ($950); 14x11 ($750); or both ($1500); dan@branumpllc.com (214) 537-8619 www.BranumPLLC.com. Executive office space available for lease in a professional Legal environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax and copy machines, two conference rooms, two kitchen areas and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa (214) 696-9253 for a tour.
Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference room. 2619 Hibernia Street and 2608 Hibernia Street, 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & Internet. Phone (214) 987-8240.
POSITION AVAILABLE
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 assistants, rent, Lexis, malpractice, supplies, etc.). See www. pamlaw.com or contact Larry Chek, Jeff Sandberg or Rebecca Manuel at (214) 242-6444. Experienced Transactional Attorney. Prestigious 40-year-old Fort Worth firm, located in the 7th Street area, is seeking an experienced transactional attorney to focus primarily on real estate, commercial and corporate transactions, construction and banking. Candidate must have a minimum of 5 years of experience and be able to work independently, but collaboratively in a team environment. Salary commensurate with experience. Benefits include health insurance, life insurance and 401(k). Submit resume to khbiz8390@ yahoo.com Family Law Attorney. Looking for an aggressive family law attorney, with excellent research skills, to join our team. New attorneys okay with minimum of 1 year family law experience. Email resumes at naylil@malik.law. Personal injury law firm with a 35+ year history seeking a Contract Attorney and a Legal Assistant/Paralegal in the Downtown/West End area in the 800 Jackson Street Building. Contract Attorney needed to assist with client intake, case development, and discovery. Legal Assistant/Paralegal needed to handle tasks including professional communications via phone and email, client intake, file organization, document production, correspondence and electronic court filings. We are seeking applicants who are eager to learn and who are interested in advancement based on performance and experience. The in-office hours will have flexibility. Please send email to Brown@ trialfirm.com. Personal Injury Trial Attorney. Large Tarrant County PI firm (established in 1982) is expanding to add an addi-
tional 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. Litigation Attorney – Dallas. Hall Render is seeking an associate-level attorney in our growing Dallas office. Candidates should have two to four years of experience in general litigation matters, including commercial litigation. Experience in professional liability defense also preferred. Candidate must be licensed to practice in Texas. Hall Render is the nation’s largest law firm focused exclusively on providing a broad range of legal services to healthcare organizations. Please submit resume and letter of interest to Brooke Beach, Recruiting Coordinator by email at bbeach@hallrender.com. Hall, Render, Killian, Heath & Lyman is an equal opportunity employer. No phone calls please.
SERVICES
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, 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. To place an affordable classified ad here, contact Judi Smalling at (214) 2207452 or email jsmalling@dallasbar.org.
A DISCUSSION WITH
Candidates for Dallas County District Attorney
Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
JOHN CREUZOT
FAITH JOHNSON
MODERATED BY
GROMER JEFFERS, DALLAS MORNING NEWS
FRIDAY, SEPTEMBER 7, NOON AT BELO RSVP to jsmith@dallasbar.org (for adequate seating) These forums are intended to educate Dallas lawyers and the public on the background and philosophies of the candidates. The DBA is a non-partisan organization. Sponsored by the DBA Public Forum Committee.
32 H e a d n o t e s l D a l l a s B a r A s s o ciation
ROB CRAIN
SARAH ROGERS
Septem ber 2018
CHRIS LEWIS
JOHN SPILLANE
QUENTIN BROGDON
LUKAS GARCIA
GREGG GALLIAN
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