Dallas Bar Association
HEADNOTES |
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May 2022 Volume 47 Number 5
Focus | M&A/Solo & Small Firm Law
Debra and E. Leon Carter Support DVAP BY MICHELLE ALDEN
Longtime supporters of the Equal Access to Justice Campaign, Debra and E. Leon Carter generously supported the Dallas Volunteer Attorney Program (DVAP) with a gift of $25,500 this year. E. Leon Carter is a Principal at Carter Arnett. The firm serves clients around the world in a full range of litigation matters, including commercial disputes, antitrust, employment, securities, premises liability, product liability, serious personal injury, theft of trade secrets, and more. The Carters’ commitment to the EAJ Campaign is truly impressive, as they have contributed a total of $181,050 to legal aid since 2010. “As someone once said, ‘Our justice system is only as strong as the weakest person it seeks to protect.’ Debra and I both grew up in east Texas, and we both witnessed first-hand low-income people of all races not being able to obtain the justice that this country espouses. While we don’t envision an end to injustice in our lifetimes, we believe that we can each play a part in eradicating some of the barriers to achieving justice. Debra and I firmly believe that having access to justice is a basic human right, which is why we have supported Equal Access to Justice all of these years, and we will continue to do so,” Leon stated.
Focus
The Equal Access to Justice Campaign is the annual fundraising campaign that supports the activities of DVAP. The Carters’ gift makes it possible for DVAP to continue to provide legal aid to low-income people in Dallas, keeping the doors to the courthouse and our overall justice system open to many more people in our community. Since 1982, DVAP has provided, recruited, and trained pro bono lawyers to provide free legal aid to the poor in Dallas. The problem of access to justice in Dallas County is one that DVAP works to correct every day. 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 percent have a slim hope of affording an attorney. With annual poverty incomes of $34,687 for a family of four, justice is a luxury for low- and moderate-income families. DVAP’s volunteer attorneys can make a profound difference in the lives of lowincome people in the community, often by donating only a few hours of their time. In one recent case, Kevin hired a contractor to fix water damage in his home. The total cost of repairs was estimated at $38,000. The contractor asked for 50 percent of the total cost to be paid before starting the project. Based on the terms of the contract, Kevin’s insurance company agreed to pay 50 percent to
start the project. Two months into the project, the contractor asked Kevin for more money as the insurance company had refused to pay him. The insurance company did not release any more money because 75 percent of the work had still not been completed. Kevin sought to sue the contractor for not completing the job. Jonathan Bass, Associate at Greenberg Traurig, accepted the case and filed suit against the contractor under the Deceptive Trade Practices Act. During mediation, the contractor agreed to pay the client $3,500 for the work he had not completed. Kevin was grateful to recover some monetary compensation following this unfortunate ordeal. The Carters are happy to play a part in providing assistance to our low-income neighbors. As Leon said, “Debra and I are blessed, and we know that God expects us to be a blessing to others. We just pray that He continues to use us as His vessels to give back and bless others.” The commitment of Dallas attorneys and the DBA to the Equal Access to Justice Campaign is commendable. Since 1997, the DBA and Legal Aid have joined forces to raise money for the program, with Dallas lawyers donating over $18 million. DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its
Debra and E. Leon Carter
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.dallasvolunteerattorneyprogram.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
M&A/Solo & Small Firm
Retiring or Selling Your Practice Responsibly BY GREG SAMPSON
When the time comes to plan for the inevitable close, sale or other transition out of your practice, there are a few common methods to consider. As outlined in a Headnotes article last July on best practices for closing a solo or small firm, there are three basic forms of transition commonly used. These include recruiting a younger lawyer to mentor, who will take over the practice, merging with or joining another practice, or selling the practice. Each of these methods encounters similar challenges under our Rules of Professional Responsibility that must be carefully navigated. A preliminary step in any form of practice transfer or closing is preparing your client files for transfer or destruction. Rule 1.14 on safekeeping client property requires culling each closed file for any client property or original documents that must be returned. Of course, this includes identifying to whom all amounts held in your IOLTA account belong and returning any to terminated clients. Any successor lawyer should likewise safeguard and account for transferred client funds in an
IOLTA account. Before destroying a closed file, you should obtain client consent. This can be done upon termination of representation or in advance under your initial engagement letter. No client file should be destroyed without assuring that the client will not be harmed by doing so. That time period will differ depending on the representation, but you should at least wait until the four-year limitations period has run on any potential malpractice claim against you. Rule 1.05, dealing with confidentiality, requires protection of client files from the eyes of other lawyers outside of your firm without client consent. This necessitates caution when allowing potential buyers of a part or all of your practice to review the matters being transferred. Without advance client consent, only general information such as the type of case and revenue should be shared in an initial assessment. Again, the client’s consent may be accomplished in advance through your engagement letters, provided they fairly advise the client of the potential circumstances and need for such a transfer. When bringing lawyers into your practice
or joining other lawyers, rule 1.09 requires screening clients you represent for any conflicts of interest. This may require terminating representation on conflicted client matters or obtaining client waivers or consents when appropriate under the rules. Regardless of how the client file is transferred to new representation, any lawyer taking over must also be competent to handle the matter as required by rule 1.01. It is also essential before transfer under rule 1.03 on client communication, that the client be fully informed of the manner of transfer, who will be taking over the file, and given an opportunity to either consent or choose to take the file elsewhere. Should there be a change in the scope or other essential elements of a representation or terms of the engagement, rule 1.02 requires full disclosure and consent of the client. Rules concerning permissible fee arrangements must be carefully navigated in the sale of a practice. All fee agreements should be in writing and should clearly explain the basis or rate of the fee before or upon commencing representation under rule 1.04. Fee split-
Inside 8
Cybersecurity, Data Privacy, & Cloud Issues in M&A
14 Mental Health Awareness Month 20 Five Keys to Hiring a Rockstar Staff Member 25 Employment Laws Solos and Small Firms Need to Know About
ting is prohibited under rule 1.04. So, any sale of a part of a practice should be accompanied by a real practice-ending motivation, such as retirement, taking a judicial position, or exiting a particular practice area. A sale agreement should include provisions prohibiting a return to the practice being sold, and avoid any purchase payment that involves fee sharing without adequate contribution to the representation by the seller. These and other rules implicated in the closing, transfer, or sale of a practice are discussed more fully in the Succession Planning portal on the State Bar Law Practice Management website, together with related best practice tips and sample forms. www.texasbarpractice.com/lawpractice-management/plan. And although not a part of our Texas Responsibility Rules yet, ABA Model Rule 1.17 on the sale of a practice is a good guide for structuring a sale that meets most if not all of the rules outlined above. HN Greg Sampson is Senior Counsel at Gray Reed, Board Certified in Estate Planning and Probate Law, and Chair of the Law Practice Management Subcommittee on Succession Planning for the State Bar of Texas. He can be reached at gsampson@grayreed.com.
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/mentalhealthresources
2 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2022
Programs and meetings are presented Virtually, Hybrid, or In-Person. Check the DBA Online Calendar (www.dallasbar.org) for the most up-to-date information. Programs in green are Virtual Only programs.
Calendar May Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. Cannabis Law Study Group “Breaking Developments in Cannabis Law,” Richard Cheng and Rob Mikos. (MCLE 1.00)* Virtual only
ASIAN AMERICAN & PACIFIC ISLANDER HERITAGE MONTH
May is Asian American & Pacific Islander Heritage Month. For additional Heritage resources, visit the ABA’s website at https://bit.ly/3lPPCdG. To find out more about the Dallas Asian American Bar Association, visit www.daaba.org. For more on the DBA’s Diversity Initiatives, log on to www.dallasbar.org.
MAY 6 Noon
Noon
“Mental Wellness: The Key to an Attorney’s Bottom Line,” Doug Lang and Ryan Waller. (Ethics 1.00)* Co-sponsored by the CLE & Peer Assistance Committees. In person only
Tax Law Section “Recent Developments in Federal Income Taxation,” Prof. Bruce McGovern. (MCLE 1.00)* In person only Trial Skills Section “The Biggest Loser: What We Learned from Losing at Trial,” Elizabeth Fraley, Monica Latin, Dick Sayles, Hon. Dale Tillery, and moderator Julie Pettit. (MCLE 1.00)*
FRIDAY, MAY 6 Noon
Corporate Counsel Section “What’s Happening on the Hill,” Chris McCannell. (MCLE 1.00)*
10:30 a.m. Mother’s Day Brunch at Arts District Mansion Adults: $48.75, Children 6-12: $15. RSVP culinairesales@dallasbar.org or (214) 220-7404.
Noon
Morris Harrell Professionalism Committee. In person only
WEDNESDAY, MAY 4
Employee Benefits & Executive Compensation Law Section Topic Not Yet Available
Noon
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.
Business Litigation Section “Business Cases in the Fifth Court and the Fifth Circuit,” David Coale. (MCLE 1.00)*
Home Project Committee. In person only
WEDNESDAY, MAY 11 Noon
Criminal Justice Committee. Virtual only 5:00 p.m. Moms in Law Cinco de Mayo Happy Hour At Mesero, 7775 Firefall Way, Dallas. RSVP Kelly.bryan01@gmail.com
MONDAY, MAY 16 Noon
Labor & Employment Law Section “The Role of Apology and Forgiveness in the Workplace,” Lee Taft. (Ethics 1.00)* Virtual only
Bankruptcy & Commercial Law Section Topic Not Yet Available Family Law Section “Seven Persuasion Insights for Lawyers,” Shane Read. (MCLE 1.00)* In person only
DBA 100 Club - Join Today! WHAT IS THE DBA 100 CLUB? The DBA 100 Club is a special membership category that recognizes firms, agencies, law schools, and organizations that give 100% membership support to the DBA!
WHAT IS THE COST TO JOIN THE DBA 100 CLUB? IT’S FREE! HOW DO YOU JOIN? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments can qualify if all of their Dallas office attorneys are DBA members. To join the 2022 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Shawna Bush, sbush@dallasbar.org. Once approved, we will add your organization to the 2022 DBA 100 Club member recognition list!
Noon
Noon
Noon
TUESDAY, MAY 24 Noon
Energy Law Section Topic Not Yet Available
Legal History Discussion Group “Sex, Race, and Police Power from Segregation to Gentrification,” Anne Gray, PhD. (MCLE 1.00. In Person Only Probate, Trusts & Estates Law Section “Probate Judges Panel,” Hon. Brenda Hull Thompson, Hon. Ingrid Warren, and moderator, Chad McClain. (MCLE 1.00)*
WEDNESDAY, MAY 25 Noon
Collaborative Law Section Topic Not Yet Available
Entertainment, Art & Sports Law Section Topic Not Yet Available
Entertainment Committee
Noon
Science & Technology Law Section “Leveraging Analytics for Company Growth,” Robert Ruch. (MCLE 1.00)* Virtual only Securities Section Topic Not Yet Available
Antitrust & Trade Regulation Law Section Topic Not Yet Available
WEDNESDAY, MAY 18
Friday Clinic “Mental Wellness: The Key to an Attorney’s Bottom Line,” Doug Lang and Ryan Waller. (Ethics 1.00)* Co-sponsored by the CLE & Peer Assistance Committees. In person only
MONDAY, MAY 23
TUESDAY, MAY 17
Community Involvement Committee. Virtual only
Courthouse/Library Committee. Virtual only
Construction Law Section “Lincoln, Churchill, and the Power of Words,” Talmage Boston. (Ethics 1.00)* In person only
Trial Skills Section “Civil Jury Trials in the (Post-Pandemic) Dallas Courts: Observations and Insights from Federal and State Judges,” Hon. Barbara M.G. Lynn, Hon. Tonya Parker, Hon. Monica Purdy, and Hon. Brantley Starr. (MCLE 1.00, Ethics 0.25)*
Peer Assistance Committee
Relaunch Program. In person only
THURSDAY, MAY 5
FRIDAY, MAY 20
International Law Section “Solving Your International Supply Chain Problems – Without Getting Into (Potentially Serious) Trouble,” Fabio Leonardi. (MCLE 1.00)* Co-sponsored by the Government Law Section.
Mergers & Acquisitions Section “R&W Insurance – Trends and Market Update,” Matthew Unterlack. (MCLE 1.00)* Virtual only
Public Forum Committee. Virtual only
Publications Committee. Virtual only
FRIDAY, MAY 13 Noon
Appellate Law Section “Appellate Counsel’s Role in Preventing the Injection of Explicit and Implicit Bias into Jury Trials,” Shelby Hall and Gino Rossini. (MCLE 1.00)* In person only
4:00 p.m. DBA Board of Directors
Real Property Law Section “How COVID Has Impacted Real Estate Litigation,” Hon. Melissa Bellan, Hon. Martin Hoffman, Hon. Sasha Moreno, Julie Pettit, and Lynnsee Starr. (MCLE 1.00)*
Immigration Law Section “Best Practices for Running a Modern Law Firm, 2022 and Beyond,” Ruby Powers. (MCLE 1.00, Ethics 0.25)* Virtual only
Allied Bars Equality Committee. In person only
Noon
Alternative Dispute Resolution Section “Mediation for Big Construction Disputes: A Lively Discussion of the Good, the Bad, and the Ugly,” Joe Canterbury, Rhonda Caviedes, Jason Martin, Neal Sweeney, and moderator Barry Wernick. (MCLE 1.00, Ethics 0.25)* Virtual only
TUESDAY, MAY 10
Solo & Small Firm Section “What Small Businesses—and Law Firms—Need to Know about Employment Law in 2022,” Jennifer Spencer. (MCLE 1.00)* Co-sponsored with Labor & Employment Law Section.
Noon
CLE Committee. In person only
5:30 p.m. Online Annual Evening Ethics Fest Free for DBA members; Non-members $145. (Ethics 3.00)* Register at dallasbar.org. Sponsored by the Legal Ethics Committee
SUNDAY, MAY 8
Tort & Insurance Practice Section “Texas Supreme Court Update,” Justice Debra Lehrmann. (MCLE 1.00)* In person only
Noon
Friday Clinic “Don’t Make a Mock of Your Mock,” Keith Frost. (MCLE 1.00)*
MONDAY, MAY 9
TUESDAY, MAY 3 Noon
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.
“Don’t Make a Mock of Your Mock,” Keith Frost. (MCLE 1.00)*
MONDAY, MAY 2 Noon
Summer Law Intern Program Committee. Virtual only
8:00 a.m. Intellectual Property Law Section “Strategies in Developing a Global Patent Portfolio and Ethical Considerations in Patent Prosecution,” Srini Chakravarthi. (MCLE 1.00, Ethics 0.25)* In person only. Location TBD
THURSDAY, MAY 12
FRIDAY CLINICS
MAY 20 Noon
Bench Bar Conference Committee. In person only
THURSDAY, MAY 19
THURSDAY, MAY 26 Noon
Criminal Law Section Topic Not Yet Available
Environmental Law Section Topic Not Yet Available
Health Law Section “Legal and Valuation Developments in Healthcare: 2022 and Beyond,” Phil Kim, Adam Lkein, Corey Palasota, and Adam Portacci. (MCLE 1.00)* Virtual only
Intellectual Property Law Section “Patent Prosecution Practice Tips for Emerging Technologies,” Elizabeth Iglesias and Ben Nise. (MCLE 1.00)*
Pro Bono Activities Committee. In person only
Minority Participation Committee. Virtual only
4:00 p.m. Special CLE & Social Hour “Handling Financial Experts - Exposing and Addressing Expert Assumptions,” Vincent Biemans and David Douglass. (MCLE 1.00)* Join us for a CLE program from 4:00-5:00 p.m. and then a happy hour from 5:00-6:00 p.m. Sponsored by BRG. In person only
FRIDAY, MAY 27
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.
DBA closed in observance of Memorial Day
DBA CSF Board of Directors
No DBA Events Scheduled
MONDAY, MAY 30
Handling Financial Experts
Exposing and Addressing Expert Assumptions Wednesday, May 18, 2022 at Arts District Mansion 4:00 to 6: 00 PM ■ MCLE: 1.00 Speakers: Vincent Biemans and David Douglass Join us for a CLE program from 4:00-5:00 p.m. and then a happy hour SPONSORED BY from 5:00-6:00 p.m.
WHAT ARE THE PERKS?
Our 2022 DBA 100 Club members will be recognized in Headnotes, the 2023 DBA Pictorial Directory, and at our Annual Meeting.
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
May 2022
D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2022
President’s Column
Headnotes Published by: DALLAS BAR ASSOCIATION
Our Stories Matter BY KRISI KASTL
“Be who you were created to be, and you will set the world on fire.” St. Catherine of Siena
A Mother’s Strength
I am a strong woman because a strong woman raised me to be true to myself. On May 8 we celebrate motherhood and its influence on society. I cannot help but think of my own mother’s daily impact on my life. Patricia N. Kastl can get to the heart of the matter quickly and does not suffer fools. She is gifted with seeing an individual’s true nature and capacity for good. She has influenced the person I am and the kind of lawyer I chose to be. In kindergarten, I distinctly remember coloring a sun purple because one of my classmates choose that color. My Mom immediately recognized my compulsion and said, “Krisi, you know who you are, and you know what color the sun is. You don’t need to copy.” It was an important lesson to believe in myself and my capabilities. My mom initially wanted me to be an educator. She is my greatest teacher and often leads by example. My Mom does everything well. She was never late, she made sure we were dressed and ready for our daily activities, which was no small feat for a family of nine. Collectively my husband Sean and I have 12 nieces and nephews and are godparents to eight children. I recognize and appreciate how my brothers- and sisters-in-law navigate the complexities of the world as parents. I feel honored to be a part of my godchildren’s lives. I admire the maternal force as a guiding agent in society.
The Story of the Law
As lawyers, we are consummate storytellers whose job is to extract and refine the details to present the clearest truth. This enterprise is foundational to a lawful society and propels a system of justice. We dare to ask; is it possible to see a story another way? Like a maternal figure, we advocate and counsel, ensuring our client’s story is heard and understood. It is a sacred calling with a rich lineage. In Henry VI, Shakespeare famously said “Let’s kill all the lawyers.” That adage may cast a shadow over our profession, but that is not the whole story. In addition to many business dealings at the advice of counsel, Shakespeare’s estate grew after his acting troupe was granted a Royal Patent by King James. The stories we refine for our clients intrinsically reveal greater truths. We cultivate personal relationships with our clients. We become part of their personal or business family. The details of their story make a difference in their case.
A Legacy of Encouragement
Elizabeth (Liz) Lang-Miers is a compelling chapter in the DBA’s history. She was the third female president of our organization in 1998 following President Molly Steele in 1997. Her sister-in-law, Harriet E. Miers, was the first woman president of the DBA in 1985. The first chapter of her legal career began in Missouri where she became a law clerk for the Honorable James A. Finch. He greatly impacted her career trajectory. After her time in the heartland, Justice Lang-Miers came to Dallas and became one of our city’s most prominent attorneys. Justice Lang-Miers started as an associate at Locke Lord LLP. Her time as President of the DBA was marked by focusing on the needs and wants of the Dallas community. During her presidency, she led the fundraising campaign to raise funds for the Dallas Volunteer Attorney Program. A key program during her term was a celebration of the DBA’s 125th year. Her keynote speaker at the celebration was U.S. Supreme
Court Justice Anthony Kennedy. In 2002 she received the Sam Williams Leadership Award from the State Bar of Texas. Texas Governor Rick Perry appointed her in 2003 as a Justice for the Fifth District Court of Appeals. There she heard civil and criminal cases in six counties and participated in decisions for a variety of case types. After she retired from the Court of Appeals, she returned to the practice of law that she loved so much. She is currently a partner at Locke Lord LLP and a member of the Panel of Arbitrators of the American Arbitration Association. She was fair and trustworthy in her office as president. Justice Lang-Miers continues to be a pillar of the legal community. She is a devoted wife and mother, and her passion for the law is reflected in her two children who are both lawyers. She also Liz Lang-Miers enjoys spending time with her six grandchildren. Justice Lang-Miers is the recipient of many awards and accolades. Most of all, she is a fierce promoter and a supporter of other women. One of my fondest memories of her support was receiving an email of encouragement pledging to help me during my term as president of the Dallas Women’s Lawyers Association (DWLA). I later discovered she offered the same mentorship to every President of the DWLA. As with other past presidents, her legacy of support continues.
Looking Ahead
May is an exciting month to be part of the Dallas Bar Association. In addition to the many online and in-person CLEs, we are celebrating mothers, diversity, and the arts. On May 1, the DBA Equality Committee is inviting members to attend, the production of the play Ten Seconds, presented by the Dallas Children’s Theater. The production tells the story of Ray and Jimi, high school students in Washington, DC who are navigating their young adult worlds and what it means to be young black men in the city. On May 8, the DBA will welcome families everywhere in celebration of Mother’s Day. The beautiful Arts District Mansion will house a culinary tour including complimentary champagne. Please check our website, dallasbar.org for further details. My husband Sean and I will welcome the month with the DBA’s trip to The Netherlands. We will be accompanied by several colleagues, including the eighth female president of the DBA, Sally Crawford. The DBA has arranged a delegation to Holland and Amsterdam. I am relishing the opportunity to both relax and learn about this fascinating culture and am grateful to the DBA for providing this adventure. May is also mental health awareness month and I am encouraged to cultivate a sense of mental wellness to be the best person I can be. For some insight and suggestions related to mental health awareness, be sure to take a look at pages 14-15 in this month’s issue. The mission statement of the Dallas Bar is to “serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.” Let’s strive to live that mission daily. Wishing you a beautiful month ahead. HN
IP H S K R LE C R E SUMMROGRAMS P www .dalla sbar. org
June 3, Noon Summer Associates Pro Bono Luncheon
June 7, Noon Law Student Professionali sm Program MCLE 2.00
June 24, Noon Minority Clerkship Luncheon
Learn about the broad range of opportunities in Dallas and what the DBA & DVAP have to offer.
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: Krisi Kastl President-Elect: Cheryl Camin Murray First Vice President: Bill Mateja Second Vice President: Vicki D. Blanton Secretary-Treasurer: Liz Cedillo-Pereira Immediate Past President: Aaron Z. Tobin Directors: Lauren Black, Rob Cañas, Jonathan Childers (Chair), Stephanie G. Culpepper, Rocio Garcia Espinoza, Hon. Dennise Garcia, Ashlei Gradney (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Andrew Jee, Andy Jones (President, Dallas Association of Young Lawyers), Jennifer King, Jonathan Koh (President, Dallas Asian American Bar Association), Elsa Manzanares (President, Dallas Hispanic Bar Association), Hon. Audrey Moorehead, Timothy Newman, Marisa O’Sullivan (President, Dallas Women Lawyers Association), Kelly Rentzel, Sarah Rogers (Vice Chair), Drew Spaniol, and Amy M. Stewart Advisory Directors: Alison Ashmore (President-Elect, Dallas Women Lawyers Association), Carla Green (President-Elect, Dallas Hispanic Bar Association), Amber Hamilton Gregg (President-Elect, J.L. Turner Legal Association), Nadia Haghighatian (President, Dallas LGBT Bar Association), Nicole Munoz Huschka (President-Elect, Dallas Association of Young Lawyers), and Janet Smith (President-Elect, Dallas Asian American Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Chad Baruch, Rebekah Brooker, Michael K. Hurst, Mary Scott, Robert Tobey HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: James Deets and Joshua Smeltzer Vice-Chairs: Elisaveta (Leiza) Dolghih and Ted Huffman Members: Logan Adcock, Benjamin Agree, David Brickman, Catherine Bright Haws, Ian Brown, Srinivasan Chakravarthi, Gracen Daniel, Lindsay Drennan, Alexander Farr, Dawn Fowler, Neil Issar, Beth Johnson, Andrew Jones, Alexandra Jones, Krisi Kastl, Jon Kettles, Brian King, Jared Knight, John Koetter, Alan Lightfoot, Margaret Lyle, Derek McKee, Majed Nachawati, D. Mason Parham, Keith Pillers, David Ritter, Carl Roberts, Sarah Rogers, John Shipp, Jared Slade, Sarah Spires, Jay Spring, Sarah-Michelle Stearns, Scott Stolley, Robert Tarleton, Paul Tipton, Anastasia Triantafillis, Pryce Tucker, Kathleen Turton, Peter Vogel, Benton Williams, Jason Winford DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Jessie Smith Legal Education Coordinator: Viridiana Rodriguez Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Elizabeth Hayden Executive Director, DBF: Elizabeth Philipp LRS Director: Biridiana Avina LRS Interviewer: Giovanna Alvarado LRS Program Assistant: Marcela Mejia Marketing Coordinator: Mary Ellen Johnson Membership Director: Shawna Bush Publications Coordinator: Judi Smalling Receptionist: Araceli Rodriguez Staff Assistant: Yedenia Hinojos Texas High School Mock Trial & Law Related Education Director: Melissa Garcia DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Carolyn Johnson, Suzanne Matthews, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Program Assistant: Laci Payton Secretary: Charnese Garrett Copyright Dallas Bar Association 2022. 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 800 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 $4.00, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
May 2022
D al l as Bar A ssoci ati on l Headnotes 5
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
May 2022
Ethics
Riding Out the Storm: Creating a Resilient Law Practice BY JEANNE M. HUEY
As recent history has reminded us, disasters are unforeseen and unavoidable. The problem is that, as lawyers, we are charged with maintaining the highest level of professionalism at all times. There are no excuses and no exceptions when it comes to legal ethics. To avoid falling short of your professional obligations to your clients when emergencies strike, take steps now to protect your practice from disruption. Start with a business continuity plan. You likely have such a plan for your personal life and your law practice deserves the same kind of protection.
Helpful resources are plentiful: The ABA and the SBOT both have disaster preparedness materials on their websites, and ABA Formal Opinion 482 specifically addresses advance planning to avoid an ethics breach. Consider making a plan for varying degrees of disaster. A temporary inability to work due to local or personal disruptions requires a different action plan than more extreme disruptions like a weather event or long-term health crisis that impacts your ability to get to your office, connect to the internet, or contact your clients. The first priority in a disaster plan is maintaining communication among your firm and clients. In a true disas-
Virtual Evening Ethics Fest Thursday, May 12, 5:30-8:30 p.m. Ethics 3.00 Speakers include: Rita Alister, State Bar of Texas Prof. Martin Camp, SMU Dedman Law School Paul Coggins, Locke Lord LLP Jerry Hall, Campbell & Associates Law Firm, P.C. Hon. Martin Hoffman, 68th District Court Mike Koenecke, Attorney & Counselor Deborah “Debby” Mackoy, Mackoy Hernandez Qualls Jones & Wood, LLP Roy Petty, Roy Petty & Associates, PLLC Carrie Phaneuf, Cobb Martinez Woodward PLLC
Free for DBA Members. Non-Members: $145 Sponsored by the DBA Legal Ethics Committee
ter—like a tornado or flood—you will want to first determine where everyone is and if they are safe. If a client or their business has been compromised, you will want to know about it and offer to help if you can. To do this without the internet, you will need a piece of paper with firm and client information where you can quickly access it. You need a plan to keep the firm’s essential functions and processes running. How will you monitor court and case information, including orders coming from local judges or the Supreme Court? You need to contact opposing counsel to get any upcoming events rescheduled so that your clients’ matters are not neglected (Rule 1.01). And if you cannot reach your active clients by phone or email, you need a plan for meeting your duty to communicate with them regarding their legal matters (Rule 1.03). You will also want to check in with your insurance company, bank, landlord, and significant vendors, including your payroll service. If you are a true solo, with no staff or other lawyers to back you up, planning for continuity of your practice requires that you employ the “buddy system” with a colleague or two. This is a cooperative arrangement whereby you each agree to assume responsibility for the others’ practice in the event of a sudden or short-term emergency. At its most basic, it means you have someone who has agreed to get your mail and check your email and voicemails for a couple of days to make sure that clients are attended to and bad things do not happen while you are unavailable. In a larger disaster situation it is
more likely that other lawyers in your area will be affected, but even then it is important to have a short list of colleagues with whom you can share information and resources to weather the storm until you can get up and running again. If you are not confident that you could meet your duties in a disaster to safeguard client property (Rule 1.14), including stored confidential client information (Rule 1.01 comment 8, Rule 1.05), you are not alone. The nature of technology is such that most of us could benefit from updating our computer and cloud storage systems regularly; taking the time now to learn more about the technology you rely upon and to make any changes necessary will keep you compliant with your duty of competence in your daily practice as well as in a disaster. Finally, do not forget to put a succession plan in place. Go to the SBOT succession planning page and fill out the forms and instructions necessary to designate who will step in and take care of your clients in the event you are suddenly unable to do so on a more permanent basis. None of us could have foreseen the changes that COVID-19 has brought to the practice of law and we cannot know what new challenges lay ahead. Advance planning is the only way to make your law practice resilient and reduce the risk of violating your professional obligations to your clients when the unexpected happens. HN Jeanne M. Huey, of Hunt Huey PLLC, can be reached at jhuey@hunthuey.com.
Dallas Neutrals
Mediators. Arbitrators. Neutral Evaluators. Problem Solvers.
Hon. Glen M. Ashworth (Ret.)
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Paul A. Bruno, Esq., FCIArb
Lisbeth M. Bulmash, Esq.
Hon. P. Oswin (Os) Chrisman (Ret.)
Hon. Jeff Kaplan (Ret.)
Hon. Harlan A. Martin (Former)
Patrick McManemin, Esq.
Cecilia H. Morgan, Esq.
Hon. Linda B. Thomas (Ret.)
To schedule an in-person, hybrid or virtual mediation or arbitration, please visit jamsadr.com/dallas or call 214.744.5267.
Gary Fowler, Esq.
Robb L. Voyles, Esq.
Jerry Grissom, Esq.
Hugh E. Hackney, Esq.
Hon. Mark Whittington (Ret.)
Hon. Karen Brown Willcutts (Former), FCIArb
May 2022
D al l as Bar A ssoci ati on l Headnotes 7
CONGRATULATIONS TO THE 2022 HONOREES
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8 He a d n o t e s l D a l l a s B a r A s s o ciation
Focus
May 2022
M&A/Solo & Small Firm
Cybersecurity, Data Privacy, & Cloud Issues in M&A BY PETER S. VOGEL
Everyone is well aware that all businesses use Cloud computing to manage their data and operations, so it is critical that all lawyers better understand cybersecurity and data privacy in Cloud computing. Of course, it is even more critical in M&A since we have to help our clients conduct proper due diligence whether we represent the buyer or the seller. Cloud computing is really pretty simple and has actually been around since 1964, when the use of remote computers over telephone lines was referred to as “TimeSharing,” which first came into public view at Dartmouth University. The only major change from Dartmouth Time-Sharing of remote computer resources is that now we access remote computers over the Internet. Also, most businesses, including law firms, used to keep computers in their offices which in the technology area is referred to “On-Premises” (On-Prem for short). But over the past few years, most clients and lawyers have migrated to using Cloud computing offered by many large, well-known technology companies such as Amazon (Amazon Web Services or AWS), Google (Cloud),
Microsoft (Azure), IBM (Softlayer), and Rackspace.
Reading Terms of Service
Why is reading your Cloud provider’s Terms of Service, Click Agreements, and Privacy Policies (Online Terms) important? It is likely that no one reading this article has ever taken the time to review Online Terms on any website, let alone Cloud computing websites. I have polled audiences during speeches for years and determined that only about 1 percent of people regularly read Online Terms. In addition, because my practice focuses on eCommerce, Information Technology, and privacy I have drafted and negotiated Online Terms for many years. Since about half of my practice is focused on trial and the other half on transactions, I have had opportunities over the years to both negotiate and litigate Online Terms. From a cybersecurity perspective lawyers need to review Online Terms to understand if the Cloud service provider is in compliance with the highest cybersecurity standards, including the AICPA Standards of Operations (SOC), National Institute of
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Standards and Technology (NIST), and/or the International Standards Organization (ISO). Cloud providers engage consultants to determine compliance with SOC and ISO standards, or, if the US government is involved, NIST standards. For example, in M&A due diligence I recommend that lawyers review a Cloud provider’s SOC 2 Type II Audit Report or ISO 27001 Report to understand the Cloud cybersecurity compliance. But of course, in the M&A context it is important to ask the seller to provide these reports so you can determine compliance with these standards.
Warranties about Cybersecurity
Online Terms should include warranties about cybersecurity and privacy. Another important area to investigate in due diligence is what warranties do, or do not, exist regarding cybersecurity and privacy. Privacy is very complicated because there are so many U.S. states and countries with different privacy laws, and many are in conflict with one another. Accordingly, it is critical in due diligence to understand where the data resides, whether in the U.S. and/or in foreign countries. Cloud providers operate computer systems all over the world, and since the law of the country where the Cloud data is stored controls, it is imperative that lawyers determine where the data of customers or the buyer or seller happens to be located—particularly since the buyer or seller has to demonstrate whether it is in compliance with privacy laws which may apply. For example, I am certain that everyone is well aware of the 2018 EU General Data Pri-
vacy Regulation (GDPR) which applies to all EU citizens wherever they may be located around the world. Therefore, a buyer or seller that holds or transfers personal information about EU citizens has a legal duty to comply with GDPR. It is critical during M&A due diligence that lawyers learn whether the buyer or seller can comply with the GDPR. As mentioned above, US states like California have also passed privacy laws that impact personal information, and as part of the duediligence lawyers need to understand which privacy laws may apply.
What’s the Deal with Cyberinsurance?
Another important aspect of the due diligence for M&A is cyberinsurance, which of course everyone needs to understand and appreciate. We read headlines every day about governments and companies that are victims of malware where cybercriminals encrypt all of the data, and offer unencrypt if the government or the company pays a ransom. So, it is critical to know and understand what cybersecurity measures the buyer or seller has in place, such as regular training of employees about phishing and malware, and the use of Incident Response Plans (IRPs). Unfortunately, there is not enough training and few IRPs are tested regularly, which may impact the ability to make a cyberinsurance claim. As result of cyber threat actors, it is imperative that all businesses have adequate cyberinsurance, and it is critical that that is verified in the due diligence process. HN
Peter S. Vogel, is Of Counsel, Foley & Lardner LLP, and can be reached at pvogel@foley.com.
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May 2022
D al l as Bar A ssoci ati on l Headnotes 9
10 H e a d n o t e s l D a l l a s B a r A s s ociation
May 2022
We Look Forward to Seeing You in Person The DBA is hosting a variety of programs virtually, hybrid, and in person at the Arts District Mansion. Recent programs include the Dallas Minority Attorney Program, several Section CLEs, a DISD Mock Trial Luncheon, and the Mock Voir Dire held at the George Allen Courthouse. For a list of upcoming programs, log on to dallasbar. org. We hope to see you soon!
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D al l as Bar A ssoci ati on l Headnotes 11
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12 He a d n o t e s l D a l l a s B a r A s s ociation
Focus
May 2022
M&A/Solo & Small Firm
Challenging Your Property Taxes: A Crash Course BY JOHN BRUSNIAK
No. It is not your imagination. Your Texas property tax value is wrong. And what is worse, that value directly influences how much tax you will pay for the privilege of being a property owner. By wrong, it can be high or low but is almost never accurate. Poll after poll has shown the property tax is the most hated of all taxes. Why? This medieval wealth tax never goes away. Unlike modern taxes that are predicated upon periodic events or transactions, this tax is paid over and over on the same property, forever. It is based on a fictional determination of value and there is no connection between the tax and a property owner’s ability to pay it. It applies to both real and personal property unless that property has been exempted by the Texas Constitution. For years, the tax has been skyrocketing. Why is your value wrong? Appraisal
districts do not have the resources to individually appraise property as the law requires. So, nine times out of ten, the value is determined by an algorithm. It is like the way you buy fruit at a grocer, a price per pound. Instead, properties are divided by type, class, and neighborhood, valued on an averaged per square foot price and adjusted for the macro information the appraisal district has for your property (e.g., size, age, location, specific features). But that does not result in an individualized value for your property. Put another way, roughly half of taxpayers have values that are too high, and the other half have values that are too low. That problem is compounded by inaccuracies in the data the appraisal district uses in its algorithms. A tax appraisal is a value as of January 1. Chief among the issues with this fictional “market sales date” is that no transactions close on New
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Year’s Day. This requires data adjustment, i.e., extrapolating data from their first estimate to create a second estimate of value. In essence, this pricey tax is based not on reality, but on guesstimates. This means that you must play the game to obtain a reduction in value. However, you can win because you have better and more specific data pertaining to your own property. What are the rules for determining the actual value of your property? The Tax Code recognizes three methods. Sales prices of comparable properties are a significant method. The cost method is straightforward—that is the cost to replace the property less depreciation, which works best with new and unique properties. Appraisal districts also use this in personal property. The income method is geared toward commercial properties. A reasonable net profit is calculated and that is divided by a reasonable rate of return on a cash investment yielding an income value of the property. This approach is subjective between individual investors. In difficult cases, a blend of all three approaches can be used. How do you win your property tax challenge? Gather information and evidence. If the property needs repairs, get estimates to cure substantive issues. Photos are very beneficial. Second, ask a real estate professional for a comparative market analysis. This provides you recent, appropriate comparable sales to value your property. Third, send a written request to the appraisal district for their evidence. They are obligated to make it available to you 14 days before the hear-
ing. If they fail to do so, they cannot present it at your hearing. Fourth, reach out to the appraisal district staff. Most of them will work with you to determine an agreed value rather than go before an Appraisal Review Board (ARB). If you cannot reach agreement on a value, take your case to the ARB. At your hearing, remember that you are pleading a case objectively to a group of strangers. Avoid infusing emotion as this only aggravates the ARB. You will likely have no more than 10 minutes to present. Make salient, evidenced points they should consider in arriving at a fair value. Keep it simple. The ARB is a group of volunteers who are paid a small stipend to hear property tax protests and decide them on the merits. In practice, they tend to be retired residents of the county who do not have any previous experience in real estate. Make your argument as easy to follow as possible but be prepared for off-the-wall and unrelated information being presented by the appraisal district or the ARB panel. Maintain focus on the reason you are there: your property value is wrong. Even if the ARB disagrees with you, all is not lost. You have the right to appeal the matter to Binding Arbitration or State District Court. Evaluate the economic efficiency of such an appeal to avoid paying more than you might save in a tax reduction. And don’t fret. Next year, you will be better prepared when you challenge your wrong value again. HN John Brusniak is a Partner in Brusniak Turner Fine LLP and can be reached at john@texaspropertytaxattorneys.com.
Conference of the Professions “Mis- and Disinformation in the Professions: Vaccines, Voting, and Virtue” Friday, May 27, 9:00 a.m. – Noon | at SMU Campus Keynote Speaker: Christine Emba opinion columnist & editor, The Washington Post www.smu.edu/Provost/Ethics/Events/COP/COP2022
May 2022
D al l as Bar A ssoci ati on l Headnotes 13
Hard Divorce™
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14 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2022
MENTAL HEALTH AWARENESS
Defining and Maintaining Your Space While Practicing BY HEATHER GREY GRAM-CHAVEZ
As we find ourselves establishing new routines two years after the start of the COVID pandemic, I encourage you to consider the areas in your life where you require more space. We all need individual space as we balance the practice of law with our other responsibilities. “Space,” in this context, is not simply defined in the physical sense. We do require certain physical areas in which to work, rest, and live with our families. The invasion of one aspect into the other can cause stress as well as a lack of focus. COVID forced many of us to find creative ways of carving workspace into our homes, for better or worse. Whether at home or the office, we have developed strategies to alert others that we are not available—be it closing a door, posting a Do Not Disturb sign, etc. Where we are not as diligent in our efforts to maintain space by saying, “I am not available,” is through electronic communication. As lawyers, we may have several people vying for our attention at any given time. We usually have at least one “mini-computer” in our possession which is ready to buzz, beep, or alert us whenever anyone
wants our attention. We’ve trained ourselves to feel we must respond immediately; otherwise, dire consequences will be had! However, absent an emergency, very few requests for our attention are truly immediate needs. Challenge yourself to question what requires a response now and what can wait until you have the availability to respond. Too often, we equate a lack of being “busy” with availability. If you find yourself not giving yourself space in your time and availability, consider a Do Not Disturb option on your phone, or find ways to advise that you are unavailable and will respond when you are able. What happens when we do not allow ourselves proper space? If we lack physical space, we may feel cluttered, disorganized, and unfocused. If we lack mental space because we are too generous with our time and availability, we cannot mentally recuperate from our responsibilities.
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee
Consequently, we fail to maintain our own needs both mentally and physically. Exhaustion, like space, is not merely physical. The instant we reach exhaustion status, whether physically or mentally, we are no longer performing at our best. When we are exhausted, it is also increasingly difficult to manage our other mental and physical needs. We require energy to exercise, eat properly, and look after ourselves. In order to maintain wellness and ability to practice at our highest level, we must allow ourselves the time and space to regenerate. Once we are exhausted, getting back to better balance is crucial, albeit ever more challenging. At this point you may be thinking, “Sure, Heather—easier said than done,” and I wholeheartedly agree. Adjusting our responses and finding ways to establish space are not easy feats. A good place to start is with that noisy little box you either have in your hand or on a nearby surface. As mentioned before, find
TLAP Services l Confidential Services l 24-hour hotline and crisis counseling l Peer contact and support l Referral to resources including lawyer support groups l Stress management education
a way to silence that phone when you need some quiet time or are otherwise engaged with your loved ones. Put the phone away and out of sight when you do not need it. Normalize a response that states you are not available, without feeling the need to explain why you are not available. You are entitled to your space without having to explain, especially during non-working hours. Decide when you need time to yourself during your day and assert that need. Over time, you can utilize these strategies to reclaim your space both professionally and personally, one at a time. Lastly, if you find yourself overwhelmed and are struggling to balance wellness with practice, seek out assistance from loved ones or consider reaching out to TLAP. Seeking out assistance should never make anyone feel embarrassed or ashamed. In fact, seeking out help is an admirable first step when finding a path to wellness and better life balance. Stay well and guard your space, my friends. Encourage your colleagues to do the same. HN Heather Grey Gram-Chavez, Attorney at Law, can be reached at hdlgram@gmail.com.
l Custom CLE program l Confidentiality and immunity protections under Texas Health and Safety Code, Chapter 467 l Consultation and compliance services relating to TDRPC, Rule 803 “Reporting Professional Misconduct”
Ten Tips for Tipping the Balance Daily positive reading. (Daily Word, Don’t Sweat the Small Stuff, Courage to Change and many others). Listen to Buddha and practice the presence If you are depressed, you are living in the past If you are anxious, you are living in the future with your fears Live in the now and be happy where you are and who you are Attitude of Gratitude Develop boundaries, digitally detox and disconnect at a time certain.
ADD THESE TO YOUR READING LIST: By Their Side & Working By Their Side Lara Lyn Bell Depression, Anxiety, and Other Things We Don’t Talk About, Ryan Casey Waller People Can’t Drive You Crazy if You Don’t Give Them the Keys, Mike Bechtle The Self-Care Solution, Dr. Jennifer Ashton
Spend time with family, friends, and your dog (or cat or goldfish).
When Life Feels Like a House Fire, Marcy McKay
Physical fitness activity, no matter how small.
The Dance of Connection, The Dance of Anger & The Dance of Intimacy, Harriet Lerner
Mini/meditation and mindfulness. Breathe deeply. Go outside, experience nature, and relax for 5 to 10 minutes.
The Best Lawyer You Can Be: A Guide to Physical, Mental, Emotional and Spiritual Wellness Stewart Levine
When angered by a client, opposing counsel, a judge, family, friends or others, remember the three C’s: I didn’t cause it; I can’t control it; I can’t cure it.
Shhh! Don’t Talk About Mental Health, Arjun Gupta
Read something besides the law: Action-packed fast read novels, books of inspiration, or anything that keeps your attention.
Maybe You Should Talk to Someone, Lori Gottlieb
Let go and let _ (you fill in the blank). BONUS TIP: Watch an action-packed movie with lots of mindless action. Not your cup of tea? Just go to the movies. You won’t think about the law for the entire two hours and you will usually leave the movie relaxed, with a smile on your face.
Outer Order, Inner Calm, Gretchen Rubin Gift from the Sea, Anne Morrow Lindbergh Don’t Overthink It, Anne Bogel
The Midnight Library, Matt Haig A Girl Walks Out of a Bar, Lisa Smith
May 2022
D al l as Bar A ssoci ati on l Headnotes 15 MENTAL HEALTH AWARENESS
Working During the Pandemic – Reflections BY THELMA S. CLARDY
March 13, 2020 is a day that burns in my mind. That was the day that national, state-wide, and local orders were issued shutting down the country due to the COVID-19 virus and requiring us to shelter in place and stay at home. All types of businesses—companies, schools, and other institutions–shut down in response to the orders. Suddenly, our communities looked like ghost towns—and I struggled to find bathroom tissue. Two years ago, I did not know what a pandemic was. Now I know all too well. We all had to come to grips with a situation that was so unimaginable that it was creating havoc in every aspect of our lives. All of a sudden, we were counting the number of lost lives creeping up by the hundreds, then thousands, and then millions. We also witnessed the impact on the economy, loss of jobs and closings of businesses, the fractured supply chain, etc. We as attorneys were fortunate as we were allowed to continue our practices as “essential businesses.” That fact, however, did not make us immune to the effects of the pandemic. Some of us have lost friends, relatives, and colleagues to the virus. And if we have not experienced personal loss, we know someone who has. When I caught COVID myself in the summer of 2020, I was fearful but thankful that it only affected me like a bad case of the flu. As a solo practitioner, I was personally affected by the inability to be around family, friends, and colleagues in person. Working from home was not new to me. But not being able to be around people other than immediate family was difficult. I missed that socialization. Going to the courthouse for the first time after the start of the pandemic to get some records seemed eerie, as the halls were empty. I missed going to the Arts District Mansion. Learning Zoom, Webex, and Microsoft Teams became a way of life, and while virtual meetings are better than nothing, they do not take the place of in-person contact; the ability to touch and hug someone. That is a part that is greatly missed with virtual practices. By the same token, some of my colleagues have
been happy about not having to travel to the courthouse frequently. No more parking problems, reduced wear and tear on our cars, and more time to do paperwork. And aren’t we glad that we don’t have to spend so much time going to the gas station? Yes, some of us have not enjoyed the isolation. On the other side, I heard remarks about being able to slow down from the rat race of a normal practice and spend more time with family members. Other colleagues have remarked about the difficulty of learning and trying to master new technology for virtual hearings. Then, for the practitioners who are parents, some stated that it has been more difficult than normal to balance work and family, with some having to home-school their children while the schools remained closed. In learning our “new normal,” we are glad to spend more quality time with family. This new opportunity has, quite frankly, been great for fathers who are often the ones who do not get to spend as much quality time with their children. On the other hand, more female colleagues remarked that it has been more of a challenge balancing work and home responsibilities with working from home, having school-age children at home doing virtual learning, and childcare challenges for younger children. In some ways, it has been a catch-22 for all of us who have to continue to work. Fortunately, I did not hear from anyone who has felt so stressed out that they had to resort to resources such as Texas Lawyer Assistance Program (TLAP). However, that is not to say that there are those who need that program or ones similar to it. In conclusion, I am thankful that I still have my sanity and the ability to support myself and help others when I have been able to do so. Undoubtedly, dealing with the pandemic has had its challenges, which has required us to be innovative as we continue to serve our clients. As lawyers, we are rising to the challenge, and that is a goal that we should all try to achieve, in spite of the pandemic. I pray that we will all be able to come back together in person soon. HN Thelma S. Clardy is a solo practitioner. She can be reached at thelclardy@aol.com.
3 Mistakes Law Firms Make Dealing with Attorney Addiction • Failing to have a plan
• Not offering help early on • Not planning for a return Read the full article online at www.law360.com/articles/1143110/3-mistakes-law-firmsmake-dealing-with-attorney-addiction
Mental Wellness: The Key to An Attorney's Bottom Line Speakers: Doug Lang and Ryan Waller
May 20, 2022, Noon, at the Arts District Mansion Ethics 1.00
What Happens at TLAP Stays at TLAP BY DANIEL P. GARRIGAN
Other than that, it’s not like going to Vegas, but the benefits are much greater. The Texas Lawyers’ Assistance Program (TLAP) of the State Bar of Texas is designed to help lawyers, judges, law students, and aging lawyers who may suffer from substance abuse or any type of mental health issue that adversely impacts a lawyer’s ability to practice law. TLAP keeps all communications confidential pursuant to the statutory confidentiality provisions of the Texas Health and Safety Code, Section 467. TLAP does not share any information it receives with the State Bar of Texas, Texas Board of Law Examiners, the Chief Disciplinary Counsel’s Office, or any other disciplinary agency or entity. Besides a dedicated staff of attorneys, TLAP has a list of lawyers around the state who have agreed to serve as TLAP volunteers to make contact with a person who may be suffering. If TLAP staff receives a call about a lawyer, judge, etc. who may be having an issue with alcohol, drugs, or mental health, a staff member will contact a volunteer lawyer in the area where the person practices and request that he/she (and usually another volunteer) visit with the person, share his/her experiences and let the person know that help is available. Lawyers Concerned for Lawyers are groups that are located in over
10 Texas cities and are available to help a suffering lawyer. They meet weekly and are made up of attorneys, judges, and law students who have substance abuse or mental health issues. Their format is based on meetings of Alcoholics Anonymous, but include all who suffer any of the above maladies. Funds are also available through the Sheeran-Crowley Trust to financially assist lawyers who suffer from substance abuse and mental health issues and may require in-patient treatment or other assistance. It is funded solely through lawyers’ contributions. If you believe that you or a colleague has an issue, contact TLAP at 1-800-343-TLAP (8527). Your call and any efforts TLAP makes through its staff and volunteers remain confidential. There is absolutely no downside whatsoever to the caller of the affected attorney from a call to TLAP or a visit from a TLAP Volunteer. Nothing about contact TLAP for yourself or a colleague will have any adverse effect on an attorney or the attorney’s license to practice law. If you think that you or a colleague needs help with any of these issues, call TLAP. They are trained, experienced, and compassionate. They will help you. Don’t wait. Call now. HN Daniel P. Garrigan, of the Law Offices of Daniel P. Garrigan, is Chair of the DBA Peer Assistance Committee. He can be reached at dgarrigan@garriganlaw.com.
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
May 2022
M&A/Solo & Small Firm
Living the Dream BY CARRON NICKS
Not everyone practices law in an office or even at the kitchen table. Some Texas lawyers do not even practice law on Texas soil. Here are three Texas solos who have figured out how to live their dreams and service their Texas clients from afar.
This Lawyer Lives in the Past, and the Future
Neil Goro isn’t your typical 9-to-5er. His workday starts closer to 9 pm than 9 am. That is because Neil lives and practices in Phuket, Thailand. It took a year of planning for Neil and his wife to make the move from their home in Richardson. “Before Covid we would spend about nine weeks a year traveling internationally. Her employment went fully remote
during Covid, and it allowed us to make a more permanent move.” Now, a U.S. income and the low cost of living in Thailand will likely allow them to retire within 10 years. In the meantime, Neil advises his Texas business clients from a time zone that is 13 hours (GMT+7) ahead of most of Texas, which means to accommodate his clients, he is up in the middle of the night in Thailand. His clients are “cool” with having an expat lawyer, firm revenue is up, and he is busier than ever. But he still has time to indulge his passion for SCUBA diving, photography, and exploring his hew home halfway around the world.
This Lawyer Takes a Dive, Regularly
Looking for premier SCUBA opportunities, Michelle DeLotto got the bug to move
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to Cozumel five years ago, long before the pandemic forced many lawyers to jettison their offices and learn to Zoom. Michelle maintains a family law practice in North Texas that requires regular court appearances. To make that work, she concentrates her in-person hearings and trials so that she only has to make the 2.5-hour flight to Texas once a month. The family law bar and courts in Tarrant County are familiar with her commute. “When I’m in Texas, I’m in court every day. If I’m there longer than a week or so, the judges ask why I’m still in Texas.” Michelle’s clients are happy to forgo visits to an office, and, they quickly take to Zoom hearings. Otherwise, Michelle only works about six hours a day, leaving plenty of time to indulge the reason she moved to paradise. While admitting that her lifestyle may be easier for her than for others, she insists it is worth the effort. “My father was just 61 when he died,” says Michelle. “I moved to Cozumel because I live deliberately and with intention. Time is precious.”
This Lawyer Takes Five
Travis Lindsey began his law career in Texas before moving to Colorado and finally settling in Spokane, Washington. Despite his moves, he continues to represent clients in Texas and Colorado and has added bar memberships in Washington, Idaho, and Montana. “Many of my oil and gas and natural resource clients have geographically diverse interests that cross state lines. It is a real benefit to them to have a lawyer admitted in those states.” Travis spent much of his career in-house or serving as general counsel. He is now transitioning to a first-party insurance litigation practice, which he says has benefited from the remote appearance policies adopted by many courts during the pandemic. “I haven’t traveled more than twice to court hearings in the last two years.”
For Travis, keeping up with paperwork of maintaining five bar memberships is more challenging than the logistics of litigation. He maintains an IOLTA account for each state, but takes advantage of online and inperson CLEs that he can apply to more than one CLE account. “Even so, the requirements don’t all match up. For instance, Montana still requires that most hours be taken live.” As Travis’s stable of multijurisdictional clients grows, Utah and Wyoming may be the next states on his tour of the West.
The Fine Print
ABA Formal Opinion 495 considers the issue head-on under ABA Model Rule 5.5. It concludes that a lawyer can practice law from a jurisdiction where he or she is not licensed, but must take pains to avoid establishing “an office or other systematic and continuous presence,” which can occur, for instance, if the lawyer provides local contact info on websites, letterhead, business cards, and the like. The Texas Supreme Court has not adopted ABA Model Rule 5.5, and the Texas Disciplinary Rules do not squarely address the issue of Texas attorneys living and working outside the state on behalf of Texas clients. Texas Ethics Opinion 597 invokes ABA Model Rule 5.5(B)(1) and admonishes multijurisdictional law firms to guard against allowing their non-Texas lawyers to establish “an office or other systematic and continuous presence” in Texas lest they be accused of engaging in the unauthorized practice of law.
For More Inspiration…
Itching to make a move yourself? I can put you in touch with these and other Texas lawyers who navigate the treacherous waters of living their dreams. HN
Carron Nicks is a writer and lawyer. She can be reached at carron@ thelegalwriter.com.
Cannabis Law Study Group Webinar All members are invited to “Breaking Developments in Cannabis Law” Wednesday, May 11, Noon, via Zoom | MCLE 1.00 Speakers: Richard Y. Cheng, Weaver Johnston Nelson, PLLC Rob Mikos, Cannabis Law Professor at Vanderbilt University Hosted by DBA Cannabis Law Study Group
Benefiting Vogel Alcove Join the DBA’s donation drive benefiting Vogel Alcove, July 11 - July 29. Donate online by using Vogel Alcove’s Amazon wish list at www.tinyurl.com/2p8dutbv or deliver your donations to the Arts District Mansion July 11 through July 29. Vogel Alcove is a non-profit organization on a mission to help young children overcome the lasting and traumatic effects of homelessness. Sponsored by the DBA Community Involvement Committee
May 2022
D al l as Bar A ssoci ati on l Headnotes 17
Arts District Mansion Open House Culinaire, Int’l welcomed clients, wedding and meeting planners, and DBA members to their recent Open House highlighting the many talents of their staff and vendors! Guests were welcomed by a “sway pole” greeter as they arrived and sampled amazing food and drink by Chef Andrew and the Culinaire team. Live entertainment from a DJ, guitarist, and even an acrobat in the Pavilion ballroom, along with some delicious drinks kept everyone entertained all evening! If you are interested in finding out more information about how to host your event at the Arts District Mansion, email culinairesales@dallasbar.org.
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18 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2022
The Basics of Social Security Disability BY STANLEY DENMAN
There are several types of Social Security disability benefits: similar in some ways, but radically different in others. Attorneys who do not frequently handle disability cases may hear confusing reports about people’s experiences with disability applications and denials. One problem is that claimants seldom understand what disability programs they might qualify for, which leads to frustration. Social Security workers, who are trained to take the appropriate disability application, can help educate these individuals. Your role as an attorney also may put you in a position to advise. You do not need to know the details of every kind of Social Security disabilitybased claim to provide general advice to a disability claimant. Here are some basics: • Each Social Security disability benefit program requires the same medical disability determination: an applicant must have an inability (or anticipated inability) to engage in any work for at least 12 months or have a medical condition expected to end in death. • The primary differences among each
disability program turn on the basis for disability benefit payment. The different forms of payments include: (i) Supplemental Security Income (SSI) disability benefit payments based on financial need. (ii) disability benefit payments based on a worker’s insured status for Social Security disability insurance benefits (DIB) due to FICA tax contributions made through work. (iii) disability benefit payments based on the work record or FICA tax contributions of a family member. SSI and DIB are the main disability programs. Most disability benefits questions received by attorneys will involve SSI or DIB. • SSI is a welfare, needs-based program. SSI payments are not based on a recipient’s work records. • Programs based on FICA contributions—whether those of an actual DIB claimant or a family member—are entitlements or social insurance programs. These programs are in the same vein as Social Security retirement benefits. The financial circumstances of the benefits recipients are irrelevant.
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MARTIN
• The programs allowing for benefit payments based on a family member’s work record are limited. The main goal of these programs is to compensate family members who are dependent on a wage earner suffering a disability or to provide for the care of the wage earner’s minor child. These programs allow for the following benefits: 0 A spouse or minor children in the care of that spouse can receive “auxiliary” benefits based on the disability of a wage-earner parent. 0 A child who has never worked and became disabled before the age of 22 can receive disability benefits based on a parent’s work record when that parent is either deceased or has reached full retirement age. These benefits payments are confusingly dubbed “Disabled Adult Child” benefits. 0 A disabled widow(er) over the age of 50 can draw on the work record of a deceased spouse.
job, charity medical clinics, or a county indigent health care facility such as Parkland Hospital in Dallas County.
Social Security Disability Lawyers Work on a Contingent Fee Basis
Disability attorneys are paid from retroactive benefits on a contingent fee basis—so disability claimants do not need money to hire a disability lawyer. That said, many disability attorneys do not get involved if the claimant has not received a disability denial, while others will take the case from the start. Disability lawyer fees are paid from the claimant’s past due disability benefits once the case is won, and the fee is limited by law to 25 percent of the past due amount owed to the claimant. Most Social Security disability lawyers provide a free consultation and can assist with initial claimant concerns about filing and appealing denials.
Securing Disability Benefits is a Long-Term Project
Medical Insurance and Treatment under DIB/SSI
Medicare is available to DIB recipients after 24 months of entitlement to disability benefits. Medicaid is available to SSI recipients as of the date of their SSI application. Many claimants pursuing disability benefits have lost medical insurance coverage through employment and may be particularly motivated by Medicare or Medicaid coverage. It is a cruel irony, however, that it is very hard to win a disability case without ongoing and regular medical treatment. Disability claimants must seek continued medical coverage after leaving their job through COBRA-extended medical insurance coverage, coverage available through a spouse’s
Most Americans cannot go without a paycheck for more than a few months. Unfortunately, securing Social Security disability benefits typically takes over a year, and likely includes a hearing before an Administrative Law Judge (ALJ). Wellqualified disability applicants, however, continue to have a high chance of success—particularly at the ALJ hearing stage. Perhaps the greatest challenge for disability claimants is finding a way to survive while waiting for their disability benefits to be approved. Legal and other forms of assistance in the process are therefore very important. HN
Stanley Denman, of Denman Law Office, can be reached at standenman@hotmail.com.
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May 2022
D al l as Bar A ssoci ati on l Headnotes 19
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20 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2022
Five Keys to Hiring a Rockstar Staff Member BY KEVIN B. ROSS
A firm that has a plan in place to hire a great staff member, has a greater chance of finding a rockstar employee that will add value and profitability to the firm. Rockstar staff members are hard to find, and the hiring process can be frustrating, but it does not have to be. Below are five keys that can help you succeed in finding and keeping a rockstar staff member.
1. Write a Rockin’ Job Description
The job description should give potential job candidates a glimpse into the personality of the firm and why they would want to work at the firm. Carefully choose adjectives that describe the firm and the type of person the firm is looking to hire. Set the expectations and skill set needed by the candidates. Finally, create a process for them to follow in submitting their applications for the job. Ask for their resume, a cover letter, and references. If you have candidates submit their application by email, tell them what to write in the email subject line. This type of process will serve as a tool to screen for good candidates. If they are seri-
ous about the job, they will complete the steps you set out. You can review their résumés and cover letters and see how they write and communicate. This process also helps to determine if a candidate can follow simple instructions.
2. Prepare for Your Interview with the Candidate
Think about how you want your firm to be viewed by the job candidate. If you want the candidate to view your firm as organized, serious, professional, and personable, then act that way during the interview. Be prepared. Know the candidate’s name without having to look down at their resume. Have a set of open-ended questions that allows candidates to talk about themselves and their life experiences. Doing this will help you ascertain if they will be a good fit within the firm culture. To help truly vet their skills, at a second interview give candidates a timed task to see if they really have the necessary skills to perform.
3. Have an Onboarding Plan
You have found the right candidate, you made the job offer, and they have
accepted. What is next? Onboarding. An onboarding plan is probably the most overlooked and underdeveloped part of the hiring process. A proper onboarding process will educate and equip new hires with what the firm does, how the firm does it, and why the firm does what is does. A foundation is then laid to train and equip new hires with the tools they need to excel in their roles at the firm. Let them know why their roles are essential to the success of the firm. Every job or role in your firm should be viewed by upper management as critical to the efficiency, effectiveness, and profitability of the firm. People like to know that their job is meaningful, necessary, and important.
4. Have a Probationary Period
A common adage says to “hire slow and fire quick.” This may be why many firms employ a probationary period. During a probationary period, you can evaluate a new hire’s skill set, motivation, work ethic, and demeanor. Are they teachable? Do they complain? Are they positive and helpful? Do you they go the extra mile? You should learn these things early on. Maintain job performance expectations that are objective, clear, and measurable. Communicate these expectations to new staff members. This will help you evaluate them during the probationary
period. The probationary period should be a minimum of six weeks and no longer than six months. This should provide enough time to see if new hires are able to fill the role the firm needs. If they do not fit the role, then free them to find other jobs in which they can excel. The benefits of having a rockstar employee are priceless. When you find the right person, treat them well. They will reward you with quality work and invest themselves in the mission of the firm.
5. Welcome Them to the Team
The best way to make new staff members feel like part of the team is to make them feel welcome and appreciated. Create a welcome package with firm “swag.” Organize a staff lunch or happy hour to help new staff members get to know others in the firm and build relationships. Employees who like where they work and feel appreciated will make the firm better, more efficient, and more profitable. Whether your practice is growing, or recent staff departures have left open positions to fill, the five keys addressed above can help you give your firm the best chance of finding and keeping that new rockstar staff member.
Kevin B. Ross, of the Law Office of Kevin B. Ross, PC, can be reached at kbr@rosscrimlaw.com.
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/lawyerreferralservice or call (214) 220-7444.
DBA/DAYL Moms in Law
Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is a no-pressure, no-commitment, informal, fun, support group for lawyer moms. If you would like to join the listserv, email Christine Leatherberry at cpleatherberry@gmail.com. Upcoming events: • Cinco de Mayo Happy Hour, Thursday, May 5, 5:00-6:30 p.m. at Mesero at Preston Hollow Village (7775 Firefall Way, Ste 100). RSVP to Kelly at kelly.bryan01@gmail.com • Lunch at Mattito’s, (3102 Oak Lawn Ave, Dallas), Friday, June 3, Noon. RSVP to cpleatherberry@gmail.com
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May 2022
D al l as Bar A ssoci ati on l Headnotes 21
KOONSFULLER SHAREHOLDERS LEFT TO RIGHT:
R1: Neda Garrett,* Brian Loughmiller,* Liz Porter,* Charla Bradshaw,* Ike Vanden Eykel,* Rick Robertson,* Heather King,* Jessica Janicek,* and Julie Crawford* R2: Dana Manry,* Sean Abeyta,* Jessica Perroni,* Sally Pretorius,* Chris Meuse,* Fred Adams,* Rob McEwan,* Laura S. Hayes,* and Kevin Segler*
FAMILY LAW IS NOT ONLY WHAT WE DO. IT’S ALL WE DO. With more than thirty proven attorneys in four offices across North Texas, KoonsFuller is one of the largest family law firms in the Southwest. We offer clients a level of legal representation and range of resources unmatched by any other family law firm. Working together, as a fully integrated team, there is no case too large or complex for us to manage. To learn more about KoonsFuller, visit koonsfuller.com.
DALLAS** | 1717 McKinney Avenue, Suite 1500 | Dallas, Texas 75202 | 214.871.2727 DENTON | 320 West Eagle Drive, Suite 200 | Denton, Texas 76201 | 940.442.6677 PLANO | 5700 W. Plano Parkway, Suite 2200 | Plano, Texas 75093 | 972.769.2727 SOUTHLAKE | 550 Reserve Street, Suite 450 | Southlake, Texas 76092 | 817.481.2710 *Board certified in family law by the Texas Board of Legal Specialization. **Principal office.
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22 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2022
Starting Your Own Law Firm: What Do You Need? BY JOHN LEHMAN
If you are launching your own law practice in 2022, you should familiarize yourself with the systems and software you should have in place to help your firm run smoothly and ensure an ideal client experience. In this article, we will discuss three categories of systems you should consider obtaining as you begin the process of starting your own law firm.
Practice Management Software
Practice management software can prove critical for the busy new solo practitioner or small law firm. This technology makes it easy for you and your practice to keep your client data in one centralized location and provides significant advantages to your practice. Practice management software can increase efficiency when you have multiple individuals working together on a case, reduce risks of misplaced documents or information, and improve client satisfaction. A good case management solution should have several features, including: • Matter tracking and management, including the ability to share documents and data between different matters for the same client • Up-to-date forms and document templates • Custom checklist capabilities • Secure communication and filesharing within your practice and with clients • Time tracking • Calendaring and scheduling
• Email monitoring • Easy access to legal research and case law • Legal practice guides Many practice management solutions are web-based/cloud-based platforms, which means they are constantly updated in response to frequently changing ethical and legal requirements for client communications and storing of client data.
ing these services can also improve your ability to retain clients and improve your clients’ satisfaction because your clients always talk to a human every time, they contact your firm. Many legal intake and answering services can also provide multilingual representatives, which is useful if you intend to market yourself to prospective clients who may have difficulty communicating in English.
Legal Intake and Answering Services
Payment Processing Solution
Although not every law firm will need specialized legal intake and answering services, if you are starting your own law firm these services can offer great time savings and improve your new practice’s professional image. Some service providers offer only answering of client communications, while some of the more advanced services can also complete new client intake for you as well. These providers can tailor how they handle call answering and client intake based on your criteria and preferences. The benefits of these services include: • Ensuring any phone calls your practice receives are answered by a live human • Collecting all necessary information for you to call back when you cannot answer the phone • Performing the intake process for prospective clients so you can focus on legal work For a new law firm, outsourcing call answering and client intake will almost certainly prove more cost-effective than hiring receptionists, legal secretaries, or paralegals to perform this work. Hav-
Many legal clients want the option of being able to pay their lawyer’s invoices electronically, especially if they need to use a credit card. Consequently, if you are planning on starting your own law firm in 2022, you should consider adopting an online payment solution. Having an electronic payment option also helps law practices maximize the collection of their fees. Online payments eliminate the risk of a client losing paper invoices as well as the risk of paper checks getting lost in the mail or in the paper shuffle at your office. An online payment solution allows you to immediately invoice your clients and provide them with regular reminders of outstanding invoices. Clients can also immediately make
payment on your invoice upon receipt so there’s never any delay between performing work for a client, billing out for that work, and getting paid. An effective payment solution should integrate seamlessly with your case management, timekeeping, billing, and bookkeeping solutions. That way, you can ensure you are regularly invoicing for the work you perform for clients and that no billable work slips through the cracks to go unpaid. As payments are made, the relevant information should automatically transfer among your case management, invoicing, and bookkeeping software solutions so you don’t have to spend time logging into multiple different platforms or reconciling records to make sure you’ve been fully paid for the work you have done. Good payment solutions for law firms should also facilitate trust accounting compliance, such as providing the ability to funnel client payments between operating accounts and client trust accounts as necessary. Try to find an online payment solution built specifically for the legal industry, as this technology will have the necessary functionality to support the unique financial requirements of law firms. HN John Lehman is the Senior Copywriter at LawPay in Austin.
2022
Dallas Bar Association
DEI CLE Challenge The DBA encourages its members to aspire to complete 3 hours of CLE training in the areas of diversity, inclusion, and equity each calendar year. The DBA will recognize members who complete and self-report their 3 hours of DEI CLE by December 31, 2022. Programs that qualify will be identified on the DBA’s online calendar.
Join the Challenge
to be recognized in the February 2023 Headnotes, in DBA Online, and receive your electronic DEI CLE Challenge badge.
Scan to learn more and report your hours.
From the Bench JAMES C. HO
James C. Ho, U.S. Court of Appeals for the Fifth Circuit Why did you decide to become a Judge? I actually wasn’t planning to—I was enjoying private practice more than I expected to, and so for a variety of reasons, back in late 2016/early 2017, I decided not to apply. Instead, as vice chair of the Federal Judicial Evaluation Committee, I spent a great deal of time assembling and reviewing lists of potential nominees for each of the various federal judicial as well as U.S. Attorney vacancies throughout Texas for Senators Cornyn and Cruz and their staffs to consider. But I was deeply honored to receive a call from Senate staff asking if I wanted to be considered. I went to law school because of my passion for public service—and so it’s just not in my DNA to turn down a call for public service. Why do you participate in Bar programs? I’m always curious to learn more about new areas of the law and ways of thinking about, debating, and analyzing the law. There’s always so much new to learn. What are you currently reading? Sorry to give a boring answer, but the truth is: I’m reading a wide variety of judicial opinions from 2021, because I’m on deadline for my annual article about exemplary legal writing for a wonderful law journal called The Green Bag (I hope my editor sees this!). Fun fact about you: It horrifies Allyson when I hold the remote control and start to scroll through the DirecTV guide. Because she knows there are a few dozen movies that I will absolutely stop and watch for the umpteenth time if it happens to be playing. She is most terrified by Pitch Perfect and Pitch Perfect 2.
May 2022
D al l as Bar A ssoci ati on l Headnotes 23
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24 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2022
LAW DAY 2022 Toward a More Perfect Union: The Constitution in Times of Change
Each year, the American Bar Association sponsors Law Day, and regional bar associations, including the Dallas Bar Association, host various events, programs and contests to commemorate the chosen theme. Law Day not only educates students and citizens about our government, but also the legal system itself. One of its main goals is to focus students’ attention on important constitutional principles. As part of the DBA’s Law Day celebration, the association sponsors essay, art, and photography competitions for Dallas ISD students in grades K-12. Here are some of this year’s winning entries, which depicted the Law Day theme of “Toward a More Perfect Union: The Constitution in Times of Change.” Not pictured is the winning essay, written by Andy Park, 7th grader at DeWitt Perry Middle School.
Areun Holland, 11th Grade, H. Grady Spruce High School First-Place: (9th-12th Photography)
Jace Jones, 4th Grade, Walnut Hill Elementary School First-Place (3rd-5th Poster Art)
Lakshmi Jinkala, 9th Grade, Judge Barefoot Sanders Law Magnet Second-Place (9th-12th Poster Art)
Hope Habia, 10th Grade, Judge Barefoot Sanders Law Magnet First-Place (9th-12th Poster Art)
SAVE DATE
Cameron Hudlun, 11th Grade, Rosie M. Collins Sorrells School of Education & Social Services Second-Place: (9th-12th Photography)
DVAP’s Finest JUANITA DELOACH
Juanita DeLoach is a Partner at Barnes & Thornburg LLP. What types of cases have you accepted? For DVAP, I have accepted mainly simple divorce cases and a few wills. Through my firm Barnes & Thornburg, I have a Compassionate Release case in the District of Columbia, Criminal Division. I am not a family law or a criminal law attorney, but I love learning new legal skills through these experiences. Describe your most compelling pro bono case. My most compelling case is still ongoing. A few years ago, I spread my wings and accepted a divorce case with children. Unexpectedly, it turned into a contentious proceeding, but I have been successful in getting the mother visitation with her children she had not seen in over a year. It was a very happy day for my client when she had her first weekend visitation. This case has provided me an opportunity to get more state court experience and argue a few hearings. I cannot go into more detail about the case because it is ongoing. Why do you do pro bono? Pro bono is necessary. It is necessary because it benefits a community of people who may not otherwise have access to the legal representation we provide. Also, attorneys can get some good litigation, stand-up and briefing experience from pro bono work and expand their legal skillset and development as an attorney. What impact has pro bono service had on your career? In my very first divorce case, I saw the financial worksheet of the assets of the client, and for me, that moment really underscored the need for pro bono service. Pro bono has become part of my practice, and I do pro bono all year, consistently keeping a few cases on my docket. What is the most unexpected benefit you have received from doing pro bono? The most unexpected benefit is how much autonomy I have on these matters.
Pro Bono: It’s Like Billable Hours for Your Soul.
Registration opens soon • DallasBar.org
To volunteer or make a donation, call 214/748-1234, x2243.
May 2022
Focus
D al l as Bar A ssoci ati on l Headnotes 25
M&A/Solo & Small Firm
Employment Laws Solos and Small Firms Need to Know About BY JENNIFER SPENCER
As the owner of a firm with even one or two employees, your firm, and sometimes you or other managers individually, can be sued under a variety of employment laws. A few examples that can lead to liability for small firms include: not paying paralegals for overtime, terminating an employee because their age or illness causes the firm’s insurance premiums to increase, treating a worker as a contractor when they are really an employee, and paying a man more than a woman in the same position. Most large law firms have HR departments to keep them in compliance with workplace laws. For small firms and solos, however, the burden to know and comply with employment laws is often left to the lawyers (or lawyer) running the firm. With this in mind, you should be aware of some key employment laws that apply to employers of any size. Most may be familiar with the federal and state anti-discrimination laws regarding race, color, religion, sex, national origin, disability, or age, all applicable to employers with 15 or more employees. As of September 2021, however, the Texas Labor Code now prohibits sexual harassment by employers with even one employee. This includes potential liability for a manager making unwanted advances or the firm’s failure to take appropriate action when a report is made. Likewise, 42 U.S.C. § 1981 prohibits discrimination and retaliation based on race, color, or national origin by employers of even one employee, and even protects independent contractors. One of the newest federal laws, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, allows employees alleging sexual harassment and sexual assault to bypass arbitration clauses found in many
employment agreements or employee handbooks, and instead pursue a jury trial. All law firms can be sued for retaliating against an employee’s good faith report of the following, even if incorrect: • A workplace injury at a Worker’s Compensation subscriber, whether or not a WC claim was made. • A safety complaint under OSHA’s Section 11(c). • Potential tax fraud by an employer under the Taxpayers First Act. • Failure of the employer to pay overtime or minimum wages under the FLSA. Additionally, the National Labor Relations Act prohibits employers from discriminating or retaliating against employees who do not manage the work of others for participating in a “concerted activity,” such as discussing their salary or seeking to improve working conditions. The FLSA requires paying minimum wage and overtime to nonexempt employees, which courts routinely say includes paralegals. The FLSA also includes genderbased protections, including the Equal Pay Act, which requires paying men and women equally for the same work, and a provision requiring employers to provide nursing mothers with time and privacy to pump. Although less common, it is also unlawful to terminate an employee for needing to miss work due to jury duty or to comply with a subpoena or for refusing to engage in illegal activity (the “Sabine Pilot doctrine”). Veterans and members of the military are also protected. Under USERRA, an employee’s military status cannot be a factor in employment decisions, and time off work to serve is protected. Even the smallest of employers may also have to post notices about workplace pro-
tections. Check with the Texas Workforce Commission and the U.S. Department of Labor for posters and other requirements to notify employees about Worker’s Compensation, unemployment benefits, the Texas Payday Law, OSHA protections, the Earned Income Tax Credit, and the FLSA, among others. These agencies have many more, often free, resources and training materials for small employers. Incorporating your small firm or solo practice might not prevent you from being on the hook personally for violating employment laws. Section 1981, the FLSA, the Equal Pay Act, USERRA, and the new sexual harassment provision of the TCHRA can result in assessment of damages against supervisors personally if they were responsible for the violation or if they fail to take corrective action once they knew or should have known about the violation. Finally, employers of all sizes should be wary of firing employees for social media
posts. While the First Amendment does not apply to private employers, recent cases demonstrate that employees can be protected from discrimination or retaliation for posting: • Truthful statements about working conditions • Statements about joining or supporting a union • Messages to co-workers suggesting they contact a lawyer about workplace rights • Demographic information like race, color, and national origin • For all of the above reasons, when you need to terminate an employee, the reasons for termination should be written down and thought through carefully. Being aware of these laws and carefully documenting the reasons for all of your employment decisions may help you avoid or defend against a subsequent claim by the terminated employee. HN Jennifer Spencer is Managing Partner of Jackson Spencer Law. She can be reached at jspencer@jacksonspencerlaw.com.
Advertise Here! Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. For more information, contact (214) 321-3238 or dba@legaldirectories.com
JIM BURNHAM
State and Federal Criminal Defense Fellow in the American College of Trial Lawyers
Former President of the Dallas Bar Association
16 years as Dallas County Assistant District Attorney
Former DBA Trial Lawyer of the Year 2008
Former Top Assistant to the Dallas County DA
Former Chair of the State Bar Grievance Committee Law Offices of Jim Burnham, PLLC 6116 N. Central Expressway Dallas, Texas 75206 www.jburnhamlaw.com Office: (214)750-6616
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
May 2022
In The News KUDOS
John Browning, of Spencer Fane LLP, received the State Bar of Texas Litigation Section’s highest honor, the Luther (Luke) H. Soules III Award for Outstanding Service to the Practice. Megan LaDriere White, of Baker Botts, has been promoted to Partner. Lindsey Marsh Brown, Blake Dietrich, Lamar Dowling, Brian Oates, and Machir Stull, of Jackson Walker, have been elected Partners.
Taryn McDonald, Nick Monier, and Michael Stoner, of Haynes and Boone, LLP, have been promoted to Counsel. Jennifer Kreick has been promoted to Partner. Stephanie Urano has been promoted to Partner at Cherry Petersen Landry Albert LLP. Jennifer Ryback, of McGuire, Craddock & Strother, P.C., received the Texas Women Lawyers’ Brenda Tso Rising Young Lawyer Award.
Talmage Boston, of Shackelford, Bowen, McKinley & Norton, LLP, received the 2022 Dan Rugeley Price Memorial Award from the Texas Bar Foundation.
Marcos G. Ronquillo, of Fishman Jackson Ronquillo PLLC, has been named Texas’ Leading Hispanic Business Arbitration and Litigation Attorney of the Year by Acquisition International Magazine.
Daniel A. Knott, of Matthews, Shiels, Knott, Eden, Davis, & Beanland, L.L.P., has been elected to membership in the Fellows of the Texas Bar Foundation
Dick Sayles, of Bradley Arant Boult Cummings LLP, has earned National Board Certification as a trial lawyer advocate by The National Board of Trial Advocacy.
SUPPORT THE
DBA HOME PROJECT
Help us reach our goal of $90,000 to build our 32nd house for Habitat for Humanity. For more information, log on to
Chalon Clark, of Husch Blackwell, has been promoted to Equity Partnership.
ON THE MOVE
Attorneys + Counselors, 12720 Hillcrest Rd., Ste. 1042, Dallas, TX 75230. (214) 361-8885. www.coveragelawdallas.com.
Ashley Parrish, James T. Phillips and Lee Kirner have joined McGinnis Lochridge as Partners.
Scott A. Kitner and Martin Woodward have formed Kitner Woodward PLLC, 13101 Preston Road, Suite 110, Dallas, TX 75240. 214-443-4300.
Shelby J. White joined Durham, Pittard & Spalding, LLP as Of Counsel.
Don McDermett joined Winston & Strawn LLP as Partner.
Sean Royall joined Sidley Austin as Partner in the firm’s Dallas and Washington, D.C. offices.
Anne M. Johnson joined Tillotson Johnson & Patton as Partner.
Camille A. Avant and Makenzie Day Craft joined Crawford, Wishnew & Lang PLLC as Partner and Associate, respectively. Steven Greenfield joined Spencer Fane LLP as Of Counsel in the firm’s Plano office. Alexia Nicoloulias joined Burke Bogdanowicz PLLC as Associate. Linda M. Dedman and Paul R. Flick are proud to announce the firm Dedman Law PLLC is now DEDMAN | FLICK, PLLC,
Robert “Bobby” Lee has joined Clouse Brown as Senior Counsel. Thomas O. Anderson, Jr. and Michael E. Crafton have joined Cherry Petersen Landry Albert LLP as Senior Counsel and Associate, respectively. Sam Joyner joined Frost Brown Todd as Member. Trent Appleby joined Bradley Arant Boult Cummings LLP as Associate. R. Damon Rowe joined Meadows Collier as a Partner.
www.facebook.com/DBAHomeProject
or contact David Fisk (dfisk@krcl.com) or Mike Bielby (mbielby@velaw.com).
Make checks payable to Dallas Area Habitat for Humanity and mail to: c/o Araceli Rodriguez Dallas Bar Association, 2101 Ross Avenue, Dallas, TX 75201
May is Asian American & Pacific Islander Heritage Month. A celebration of the culture, traditions, and history of Asian Americans and Pacific Islanders in the United States. The history of North America is shaped by the stories of immigrants from Asia and the Pacific and the native people of the Pacific Islands. While some of the earliest Asian immigrants arrived from China, Japan, India, and Korea, immigration reforms tied to U.S. civil rights legislation brought even more groups to the United States—such as Vietnamese, Cambodians, Laotians, Indonesians, the Hmong and other peoples from South and Central Asia.
MOTHER’S DAY
Brunch
Sunday, May 8th | 10:30 A.M. - 1:30 P.M.
Adults $48.75++ | Children 6 - 12 $15.00++, Under 6 Free (Taxes, gratuity & parking not included) SELECTIONS FROM THE BUFFET INCLUDE: Assorted Danish • Muffins • Breads Chilled Seafood Station Made to Order Omelette • Waffle Station Chef Carved Prime Rib of Beef Variety of Salads Cakes • Pies Special Children’s Buffet Complimentary Mimosas & Champagne Reservations are required. To make reservations please contact: 214-220-7404 | CulinaireSales@DallasBar.org An exclusive event for members of the Dallas Bar Association sponsored by the DBA Entertainment Committee * Credit card required to hold reservation. No shows will be billed.
ECL Attorney Spotlight MORGAN RICHARDSON Richardson & Associates Law
Attorney Morgan Richardson has a passion for people and serving her community. After completing her law degree at UNT Dallas College of Law, Morgan worked at the Office of the Attorney General in the Child Support Division. While there, she saw a vast amount of people without representation in IV-D court. When Morgan had her first child in early 2021, she decided to start her own family law firm focusing on OAGinitiated child support cases. Morgan was selected for the Entrepreneurs in Community Lawyering program and launched Richardson & Associates Law in September of 2021. Her firm allows flexibility for her growing family and helps people access legal services at a reasonable rate. Morgan also volunteers with DVAP, leads workshops for entrepreneurs in the community, and makes herself available for the needs of others. Juggling new motherhood and full-time entrepreneurship is not easy, but Morgan’s tenacity and dedication has led to a thriving business (and a happy baby)!
May 2022
Focus
D al l as Bar A ssoci ati on l Headnotes 27
M&A/Solo & Small Firm
Indemnification Claims in the M&A Space BY ROB KIBBY
What are indemnification provisions in an M&A Agreement? In the sale of a business, or “M&A” transaction, buyer and seller often negotiate an extensive package of representations in the acquisition agreement about the business being sold. These “reps and warranties” are designed to inform buyer about the risks associated with the business, and they also serve to allocate risk between buyer and seller for problems that arise after closing. Lengthy indemnification provisions are typical because the dollar amounts at stake are high. Buyers and seller’s counsel therefore spend a significant amount of time negotiating the contours of these provisions.
Key Issues in Indemnification Clauses
Here are a few of the more important issues: • Who is liable for an indemnification claim? 0 If business being sold has more than one owner, consider: – If owners are liable for indemnification claims, will their liability be joint and several liability (as a group) or several and not joint liability (as an individual)? – And who will be responsible— all owners or just management owners? • Who has the right to defend and resolve an indemnification claim? 0 Seller often wants the option to resolve an indemnification claim involving a third party since seller
does not want buyer to run up a bill and stick seller with the tab. Buyers, on the other hand, have the following concerns: – If seller assumes defense of an indemnification claim, should it be required to admit responsibility for the claim in advance? Seller could assume the defense, mess things up, and then later resist liability for the mess it created. – Resolution of certain types of claims can have a negative impact upon the business. Examples include claims involving customers, the IRS, or criminal matters. Indemnification clauses often reserve defense solely to buyer for these types of claims. 0 If there are multiple owners of the business being sold, buyer will not want to negotiate with multiple sellers to resolve claims. Therefore, buyers often require sellers to designate a “seller representative” who is given authority to resolve all indemnification claims on behalf of all sellers. – In addition to inclusion of exculpatory language in favor of the seller representative, sellers’ counsel should consider whether to recommend that a limited liability entity be used as the seller representative. 0 Counsel for sellers may have represented the business before the closing, and post-closing claims resolution can put counsel into a conflict situation. – If the M&A transaction is struc-
tured as a sale of ownership interests in the business and the attorney-client privilege therefore runs with the business, consider whether the acquisition agreement should prohibit buyer from waiving the privilege as it applies to the resolution of indemnification claims or otherwise using attorney-client communications or work product against sellers in an indemnification claim. • How are damages from an indemnification claim to be measured? Counsel often negotiates whether to include or exclude the following: 0 Tax benefits. If buyer is entitled to take a tax deduction for the payment of an indemnifiable claim and then seeks reimbursement from sellers, should sellers be required to pay the gross amount or net after-tax amount? 0 Whether damages should be reduced by amounts collected from third parties, such as insurance carriers, net of costs of collection. 0 Whether to include or exclude: – Consequential, indirect, special, or punitive damages; – Damages based on diminution of value; or – Damages based upon some sort of a multiple. Since buyers typically value the business on the basis of a multiple of revenue, cash flow, or earnings, a claim for breach of a representation that no customers have been recently lost can far exceed the dollar amount of the lost customer rev-
enue or profit if the court applies a multiple to the loss. 0 Limitations on recoverability such as caps, baskets or deductibles, and eligible claims thresholds. Buyers often exclude a limited number of “fundamental reps” from these clauses. • Are the indemnification provisions in the acquisition agreement buyer’s exclusive remedy? 0 As sellers’ counsel have been successful in negotiating limits on indemnification, buyers’ counsel have become more creative in determining how to evade those limits. Therefore, the parties need to consider whether the indemnification provisions should be the sole remedy. – Acquisition agreements typically state that indemnification limits do not apply to fraud claims. Because courts have upheld claims for constructive fraud, a clever buyer could allege seller constructive fraud without proving intent to deceive. Therefore, sellers’ counsel should include a definition of “fraud.” – The law in several states allows a buyer to bring claims against sellers for misrepresentation regarding materials furnished outside the context of the acquisition agreement unless there is a disclaimer by buyer of reliance on those extra-contractual representations. HN Rob Kibby is a Shareholder at Munsch Hardt Kopf & Harr, P.C. and head of the Corporate Section at the firm. He can be reached at rkibby@munsch.com.
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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
May 2022