Dallas Bar Association
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October 2021 Volume 46 Number 10
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Focus | ADR/Collaborative Law
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Jerry and Sherri Alexander Support Access to Justice BY MICHELLE ALDEN
Jerry and Sherri Alexander have stepped forward to support this year’s Equal Access to Justice Campaign, with a generous contribution of $25,500. The Alexanders have a long and distinguished history of contributing to the Campaign. Including this gift, they have donated more than $189,000 to legal aid for low-income people in Dallas since 2006. The Equal Access to Justice Campaign is the annual fundraising campaign which supports the activities of the Dallas Volunteer Attorney Program (DVAP). Jerry Alexander practices complex business litigation at Passman & Jones, served as the 107th President of the Dallas Bar Association, and was Chair of the Board of the State Bar of Texas in 20192020. Sherri Alexander serves as Chair of the Health Care Litigation practice at Polsinelli. Together, the Alexanders believe in doing things that benefit the Dallas community. They also believe contributing to DVAP benefits the Dallas community in many different ways. Low-income Dallasites are always challenged to make ends meet, but they have faced the additional hardships of the pan-
Focus
Jerry and Sherri Alexander
demic and the winter storm this past year. Phoebe is a hardworking woman who recently came to DVAP for help, after being laid off due to the COVID-19 pandemic and struggling to pay her bills with her unemployment benefits. She was sued
for a credit card debt of $1,916, plus attorneys’ fees and court costs. She applied for help, and DVAP found volunteer attorney Jason Tyra to assist her in negotiating with the bank. Trial was set for February, and then postponed until June due to Winter
Storm Uri. With Jason’s help, Phoebe won at trial and was not required to pay anything towards the debt. As Jason said, “My client attempted in good faith to work out an arrangement with her lender before seeking help from DVAP, but the lender would not even speak with her unless she retained an attorney. The debt collectors in these cases tend to be aggressive to the point of sloppiness, with the result that some defendants ultimately are forced to pay debts that they don’t owe. I believe it is reasonable to expect citizens to pay their bills, but I also believe that lenders that use the court system ought to be required to do so in a legally sound manner. Phoebe was entitled to due process, and the case fell apart when the plaintiff was not able to meet that standard.” Relieved of this debt, Phoebe looks hopefully to the future. The reality is, helping people like Phoebe requires financial support. Jerry stated, “Dallas is a city that is growing incredibly quickly, even in these times. With that growth and the difficulties that the ‘start and stop’ COVID environment has caused comes the growing need for continued on page 12
ADR/Collaborative Law
Collaborative Practice and Civil Disputes BY DIANNE E. CARLSON
Your client calls about a dispute with its best supplier over a sudden, unexpected price change caused by distribution challenges arising from COVID-19 business interruptions. The two parties are at an impasse over these price changes and distribution challenges, not to mention the impact of Force Majeure clauses. They need help resolving their dispute. What options are available for your client? Your litigation team is at the ready with hammers held high. Mediators are ready to extract settlement based on threatened legal theories. But what your client really wants is to sit down with the supplier and work this out, face to face. Both sides have worked in the business long enough to realize they prefer
to stay together. Experience suggests that hammering out a solution in litigation usually means the relationship gets hammered. Enter civil collaborative law. Collaborative law is a structured way of engaging in open, candid discussions with opposing parties that can lead to both resolution of a dispute and reconciliation between the parties. Long tested on the battlefield of divorce and family law, collaborative law is making its way into the arsenal of the wellprepared business lawyer. Through the collaborative process, any civil dispute involving parties who want to remain in an agreeable relationship can be confidentially and creatively resolved with guidance from specially trained counsel. In Texas, collaborative law in civil settings is conducted by contract based on the
principles established by the Uniform Collaborative Law Act and best practices. The parties play a central role in making the collaborative process successful. The parties, their counsel, and any shared neutral experts are signatories to the Participation Agreement (PA), which outlines important distinctions between this process and other traditional settlement processes. The most important distinction between this process and other forms of settlement discussions is the attitude of both the parties and counsel. The PA includes a commitment from all parties and their counsel to resolve the dispute within the collaborative process. Importantly, the attorneys for each party must agree to withdraw from representing the client should the process fail to come to a resolution and the par-
ties choose to engage in litigation. These measures ensure that thoughts and strategies essential to litigation do not hinder or derail the commitment to resolution. No one is listening for an admission or the production of the “smoking gun.” The parties contractually agree to full and voluntary disclosure, negating the need for formal discovery. Documents exchanged, information shared, and statements given are all made in the context of collaborating on a solution, not for any other purpose. The process offers a number of financial incentives when compared with traditional litigation. If experts are needed to help understand technical issues, the cost can be shared and a single expert will be partycontinued on page 18
Inside 8 When Loyalty and Collaborative Transparency Collide 12 Overcoming the Sunk Cost Fallacy and Settlement Dynamics 24 Entrepreneurs in Community Lawyering Class of 2021 29 Using C.O.V.I.D. to Increase Chances of Settling Mediations
RENEW ONLINE MID-OCTOBER
You may renew your 2022 DBA Dues online beginning October 15, 2021! Go to dallasbar.org and click on the My DBA button to log in and Renew online or print the 2021 Renewal Dues Invoice to mail in with payment. Your 2022 DBA DUES must be paid by December 31, 2021 in order to continue receiving ALL your member benefits. Thank you for your support of the Dallas Bar Association!
2 He a d n o t e s l D a l l a s B a r A s s o ciation
October 2021
We look forward to seeing you in-person at the hybrid programs listed below. Programs in green are Virtual Only programs. Check the DBA website (www.dallasbar.org) for the most up-to-date information.
Calendar October Events Noon
THURSDAY, OCTOBER 14
FRIDAY CLINICS
OCTOBER 1
“How Lawyers Can Use Social Media & Technology: The Legality & Ethical Ramifications,” Bruce Bowman. (MCLE 1.00)*
OCTOBER 15 Noon
“Can Psychology Change What Your Jury Thinks About Damages? Anchoring and Other Tips,” Clint Townson, PhD. (MCLE 1.00)*
FRIDAY, OCTOBER 1
9:00 a.m. Dallas Minority Attorney Program This is an in-person only program. Details at www.dallasbar.org. Noon
Friday Clinic “How Lawyers Can Use Social Media & Technology: The Legality & Ethical Ramifications,” Bruce Bowman. (MCLE 1.00)*
MONDAY, OCTOBER 4 Noon
Tax Law Section Topic Not Yet Available
Tort & Insurance Practice Section “Trial Legends Program: Award recipients: Jerry Clements, Brent Cooper, Sid Stahl, and Mark Kinkaid, moderated by Jennifer Johnson.” (MCLE 1.00)*
WEDNESDAY, OCTOBER 6 Noon
6:00 p.m. DHBA Noche de Luz Details at dallashispanicbar.com.
MONDAY, OCTOBER 11
8:30 a.m. 2021 Dallas County Criminal Practice Seminar Details at www.dallasbar.org. (MCLE 6.00, Ethics 1.00)* Virtual only.
TUESDAY, OCTOBER 5 Noon
SATURDAY, OCTOBER 9
Noon
ADR, Business Litigation, Corp Counsel, Trial Skills Sections “The Art of Negotiation,” James Sebenius. (MCLE 1.00)* Real Property Law Section “Reimagining Redbird: A Discussion of the Development that is Making Healthcare Accessible and Reinvigorating the Local Economy in South Dallas,” Beall Carothers, Dr. Michael Horne, and Terrence Maiden. (MCLE 1.00)* Virtual only.
TUESDAY, OCTOBER 12 Noon
Immigration Law Section “Parole,” Paul Hunker. (MCLE 1.00)*
Solo & Small Firm Section Topic Not Yet Available
Mergers & Acquisitions Section Topic Not Yet Available
Juvenile Justice Committee. Virtual only.
Public Forum/Media Relations Committee
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
Noon
Living Legends Program “Harriet Miers, interviewed by Melissa Hayward and Rachael Smiley.” Pre-recorded program. (Ethics 1.00)* Virtual only. Sponsored by Hayward PLLC. Construction Law Section Topic Not Yet Available. Virtual only.
FRIDAY, OCTOBER 8 Noon
CLE Committee
Publications Committee
Legal Ethics Committee
Noon
Bankruptcy & Commercial Law Section “Commercial Real Estate – Issues & Trends After 18 M onths of COVID,” Josh Beets, Greg Milligan, and Will Mogk. (MCLE 1.00)* Virtual only.
Blockchain Law Study Group Topic Not Yet Available. Virtual only.
Family Law Section “Experts and Lawyers and Writing—Oh My! How Experts’ Writing Reflects Their Thinking,” Dr. John A. Zervopoulos. (MCLE 1.00)*
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
Trial Skills Section Topic Not Yet Available
WELCOME BACK Relax & Reconnect
celebrate 39 years of Pro Bono! RSVP at www. dallasbar.org.
SATURDAY, OCTOBER 23
3:30 p.m. DBA Board of Directors
7:00 p.m. DAYL Bolton Ball Details at dayl.com.
FRIDAY, OCTOBER 15
MONDAY, OCTOBER 25
Noon
Bankruptcy Tips, Part IV “Common Issues to be Aware of with Distressed Real Estate.” (MCLE 1.00)*
Friday Clinic “Can Psychology Change What Your Jury Thinks About Damages? Anchoring and Other Tips,” Clint Townson, PhD. (MCLE 1.00)*
MONDAY, OCTOBER 18 Noon
Labor & Employment Law Section “Mental Health Issues in the Workplace,” Rachel Ziolkowski Ullrich. (MCLE 1.00)*
TUESDAY, OCTOBER 19 Noon
Franchise & Distribution Law Section “Pivot Pitfalls and Successes – the Legal Impact on System Changes During COVID-19,” Trish MacAskill. (MCLE 1.00)* Virtual Only.
International Law Section “An Update and/or Developments Related to International Space Law,” Charles Mudd. (MCLE 1.00)* Virtual Only.
Community Involvement Committee
WEDNESDAY, OCTOBER 20
Noon
Science & Technology Law Section “Technology Trends in Human Trafficking, Including Legislative and Legal Challenges,” Dr. Vanessa Bouché. (MCLE 1.00)* Virtual only.
Securities Section “Rethinking Securities Law,” Prof. Marc Steinberg. (MCLE 1.00)*
6:00 p.m. Public Forum “Can We Talk? Rules of Engagement for Civil Discourse,” Bob Bordone and Courtney Simmons Elwood. (MCLE 1.00, Ethics 0.50)* Co-sponsored by the Dallas Holocaust and Human Rights Museum, and Project Unity. Register at www.dallasbar.org. Virtual only.
TUESDAY, OCTOBER 26 Noon
Probate, Trusts & Estates Law Section “Is There a Trustee Get Out of Jail Free Card? The Use of Exculpatory Clauses in Trust Documents in Texas,” David Johnson. (MCLE 1.00)* Judiciary Committee
6:00 p.m. Virtual Evening of Ethics “Hon. Tina Clinton, Rachel Craig, Hon. Kerry FitzGerald, Michael Holmes, E.X. Martin, III, Hon. Ernest White. (Ethics 3.00)* Free for DBA members; Non-members: $190. Virtual only.
Energy Law Section “ESG and What It Means to the Industry,” Michael Cooper. (Ethics 1.00)*
WEDNESDAY, OCTOBER 27
Health Law Section “Alpha to Zeta - Healthcare Transactions in an Evolving Covid World,” Evie Lalangas and Amy Lott. (MCLE 1.00)* Virtual Only.
Noon
Collaborative Law Section Topic Not Yet Available
Entertainment, Art & Sports Law Section Topic Not Yet Available
Law in the Schools & Community Committee. Virtual only.
Legal History Discussion Group “William Pitt Ballinger: Texas Lawyer, Southern Statesman,” Prof. John Moretta. (MCLE 1.00)* Virtual only.
Pro Bono Activities Committee. Virtual only.
Noon
WEDNESDAY, OCTOBER 13
4:30 p.m. Equality Committee. Virtual only.
THURSDAY, OCTOBER 7
Noon
Peer Assistance Committee
Employee Benefits & Executive Compensation Law Section “Executive Compensation Trends in the Oil & Gas Industry,” Matt Porter and Vance Yudell. (MCLE 1.00)* Virtual only.
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
THURSDAY, OCTOBER 21 Noon
Appellate Law Section Topic Not Yet Available. Virtual only.
Government Law Section “COVID Vaccine Incentives: Getting Employees to Want to be Vaccinated When You Can’t Make Them,” Jason McClain. (MCLE 1.00)*
Minority Participation Committee “Ethics Symposium, Part I,” Kathy Roux, Robert Tobey, and Russel Wilson II. (Ethics 1.50)* Virtual only. Free for DBA members; $95 for non-members.
FRIDAY, OCTOBER 22 Noon
Pro Bono Awards Celebration Help the Dallas Volunteer Attorney Program
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
THURSDAY, OCTOBER 28 Noon
Criminal Law Section Topic Not Yet Available
Environmental Law Section Topic Not Yet Available. Virtual Only.
Intellectual Property Law Section “How I Became an FBI Informant,” Ashley Kyle Yablon. (Ethics 1.00)*. Virtual Only.
Minority Participation Committee “Ethics Symposium, Part II,” Laura Frase, Kelli Hinson, Michelle Martell, Greg Sampson, Suzanne Westerheim, and moderator Neil Isssar. (Ethics 1.50)* Virtual only. Free for DBA members; $95 for non-members.
FRIDAY, OCTOBER 29 3:30 p.m. DBA Annual Meeting
Still working from home? Not quite ready to wear a suit and tie or high heels? That works for us! When returning to in-person meetings and events at the Arts District Mansion, feel free to dress business casual. And yes, we consider jeans to be business casual. We look forward to seeing you soon! Please visit the COVID resources page on our website for the DBA mask policy.
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.
O c t o b e r 2 0 21
D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
October 2021
President’s Column
Headnotes
Mentoring and Training in a Virtual World Bring a Young Lawyer to Everything
BY AARON TOBIN
Mentoring and training the next generation of lawyers has been a challenge during the pandemic. Yet, there has never been a greater need. Lawyers, especially young lawyers, are feeling isolated. They are longing for connectivity, collaboration, and daily training. While none of us have practiced through a pandemic before, seasoned lawyers have experienced sudden change, uncertainty, and economic cycles in the profession before. Our veteran lawyers are prepared to counsel our younger colleagues on the change and uncertainty that surrounds them. To not engage in the process of mentoring and training, risks further isolation and a greater chance of losing more and more young lawyers to other professions. Now more than ever, it is important to be intentional and systematic about mentoring and training. While in the past many mentor/mentee relationships have developed organically through the office environment or even working together on bar association and professional initiatives, it is much more difficult to grow and cultivate organic relationships in a virtual setting. Building training and mentoring opportunities into our routine and calendars will help ensure younger lawyers do not become more isolated and under-trained. Pre-pandemic, a go-to tool for mentors was to meet mentees for lunch or a coffee offsite to discuss professional development and life issues. I know that many of us are experiencing Zoom fatigue, but if in person meetings are not an option, then it is important to commit to virtual coffees or happy hours with our mentees. This should be done at the end of the day or during lunch so there is a recognized break in the work day where it is possible to unplug for 30 minutes to concentrate on the mentoring relationship.
Training
I have heard a number of senior lawyers comment that they enjoy going into the office more during the pandemic because it is quieter, and they can get more done. Having time to focus is wonderful, but we are not doing our clients and the profession a service if we do not carve out time to train our young lawyers. Mentors and senior lawyers should make a point to schedule weekly or monthly virtual meetings on the most important matters on a young lawyers’ case docket. Consider opening the session with 15 minutes for the younger lawyer to ask questions about cases and the practice before diving into the docket. Larger firms and organizations should consider having partners lead virtual training sessions. Topics such as expert depositions, effective presentation during a virtual hearing, e-discovery, and on the transactional side, drafting and diligence tips are a few topics to hit.
Have an Open Communication Policy
Many more experienced lawyers. pre-pandemic. were used to saying that they had an “open-door policy” for young lawyers to come in and bounce questions around. Why not express the same message now? Since office doors are literally closed for many of us, encourage your younger teammates to call or text you at any time. Set an internal goal of responding within an hour even if it is just to say, “I’m tied up. Let’s speak at 5 p.m.”
No matter whether your practice exists in a law firm, a government office, agency, or in corporate America, there are opportunities for hands-on training in all of our practices. Lawyers not only learn from instruction and what they read, but also from what they observe. You would be surprised how much we learn from observing lawyers’ body language, their mannerisms, and how they react to opposing counsel and the judge. Be sure and invite young lawyers to everything even if you have to write off the time or write down the bill. Having these young lawyers observe hearings, mediations, depositions, calls with opposing counsel, and with clients will pay off in the long-run.
It Takes a Village
Finally, do not take on the task alone. Encourage young lawyers to take advantage of, and participate in, the programs that are already in place. STEER is a joint program offered by the Dallas Bar Association and the Dallas Association of Young Lawyers (DAYL) that assists first and even second- and third- year lawyers with navigating pitfalls while transitioning into the practice of law. STEER offers group programming on important topics such as attorney wellness, malpractice traps, professionalism, and business development. Additionally, the program groups at least two seasoned mentors with six to eight young lawyers. In these small groups, lawyers discuss tough subjects such as how to handle the demanding client or the difficult opposing counsel. There are opportunities within these small groups for natural one-on-one mentoring relationships to develop. WE LEAD is a leadership program offered by the Dallas Bar Association that focuses on professional development during a critical time in a lawyer’s career—the 7-15-year mark. It is during this stage, that too many lawyers leave the practice, especially women lawyers when the demands of a career, having a family, and many other pressures are present. WE LEAD offers a class of 25 women lawyers the opportunity to be mentored by other women lawyers who have experienced many of the issues that the class is going through at this stage in their careers. There is also the opportunity to hear from a host of dynamic speakers (lawyers and non-lawyers) who focus on topics that are important to professional women. Both STEER and WE LEAD will start up with new classes at the beginning of the year so be on the lookout for application opportunities this quarter. Additionally, many of our Sister Bar organizations have programs that can assist young lawyers, such as the DAYL leadership class and DWLA/DAYL mentoring circles for women. There are many opportunities for young lawyers to seek guidance and professional development. The young lawyers need to take the initiative to capitalize on these opportunities, and firms and employers need to recognize the need to grow by encouraging and allowing our younger lawyers the space they need to go through these important programs. The need for mentoring and training our young colleagues has never been greater. In order to train and not lose our next generation of great lawyers, the current generation must be intentional with our efforts to train and mentor. Mentoring can no longer be aspirational and must be part of our weekly, if not daily, routine. If we all commit, the profession and our lawyers will be in good hands whenever the new normal is upon us. Aaron
BANKRUPTCY TIPS
for the Non-Bankruptcy Practitioner
A Dallas Bar Association 2021 Bankruptcy Program Series
Thursday, October 7 | Noon - 1:00 PM MCLE: 1.00 Ethics Hosted virtually on Zoom. Register at Dallasbar.org.
Harriet Miers Locke Lord
Interviewed by Melissa Hayward, Hayward PLLC & Rachael Smiley, Ferguson Braswell Fraser Kubasta PC
SAVE THE DATE FRIDAY, OCTOBER 15, 2021 NOON - 1:00 PM PROGRAM IV:
Common Issues to be Aware of with Distressed Real Estate
Sponsored by Register at Dallasbar.org
Published by: DALLAS BAR ASSOCIATION
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Aaron Z. Tobin President-Elect: Krisi Kastl First Vice President: Cheryl Camin Murray Second Vice President: Bill Mateja Secretary-Treasurer: Ebony Rivon Immediate Past President: Robert L. Tobey Directors: Vicki D. Blanton (Chair), Rob Cañas, Jonathan Childers (Vice Chair), Stephanie G. Culpepper, Whitney Keltch Green (President, Dallas Association of Young Lawyers), Marissa Hatchett (President, J.L. Turner Legal Association), Stacey Cho Hernandez (President, Dallas Asian American Bar Association), Hon. Martin Hoffman, Kate Kilanowski, Jennifer King (President, Dallas Women Lawyers Association), Hon. Audrey Moorehead, Javier Perez (President, Dallas Hispanic Bar Association), Hon. Monica Purdy, Lindsey Rames, Kelly Rentzel, Bill Richmond, Sarah Rogers, Mary Scott, Amy M. Stewart, and Mary Walters Advisory Directors: Ashlei Gradney (President-Elect, J.L. Turner Legal Association), Andy Jones (PresidentElect, Dallas Association of Young Lawyers), Jonathan Koh (President-Elect, Dallas Asian American Bar Association), Elsa Manzanares (President-Elect, Dallas Hispanic Bar Association), Derek Mergele-Rust (President, Dallas LGBT Bar Association), and Marisa O’Sullivan (President-Elect, Dallas Women Lawyers Association) Delegates, American Bar Association: Hon. 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 Beth Johnson Vice-Chairs: Elisaveta (Leiza) Dolghih and Joshua Smeltzer Members: Logan Adcock, Benjamin Agree, Dallas Andersen, Andrew Botts, David Brickman, Catherine Bright Haws, Ian Brown, Srinivasan Chakravarthi, Lindsay Drennan, Alexander Farr, Dawn Fowler, Candace Groth, Ted Huffman, Neil Issar, Alexandra Jones, Krisi Kastl, Katherine Kim, Brian King, Jared Knight, John Koetter, Margaret Lyle, Majed Nachawati, Keith Pillers, David Ritter, Carl Roberts, John Shipp, Jared Slade, Sarah Spires, Jay Spring, Sarah-Michelle Stearns, Scott Stolley, Robert Tarleton, Paul Tipton, Anastasia Triantafillis, Pryce Tucker, Kathleen Turton, Peter Vogel, Benton Williams, Jason Winford DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Jessie Smith Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Director: Biridiana Avina LRS Program Assistant: Marcela Mejia LRS Interviewer: Viridiana Rodriguez Law-Related Education & Programs Coordinator: Melissa Garcia Marketing Coordinator: Mary Ellen Johnson Membership Director: Shawna Bush Publications Coordinator: Judi Smalling Receptionist: Araceli Rodriguez Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Star Cole, Tina Douglas, Carolyn Johnson, Suzanne Matthews, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Copyright Dallas Bar Association 2021. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
October 2021
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
October 2021
Introducing the New Members of the DBA Staff STAFF REPORT
As we welcome you back to the Arts District Mansion, Home of the Dallas Bar Association, we want to also introduce you to our new Dallas Bar Association staff members. Shawna Bush is a familiar face around the DBA. Previously the Accounting Assistant, Shawna is now the new Membership Director. She has been with the DBA for nearly 14 years and in addition to her accounting responsibilities, she has helped with the DBA Golf Tournament, Bench Bar Conference, and Inaugural. In her new role as Membership Director, she will take on a more active role assisting members, organizing the DBA New Member Reception, and working with the Admissions & Membership Committee. Congratulations Shawna! Two new faces to the DBA include staff members Araceli Rodriguez and Jessie Smith. Araceli is our new Receptionist and CLE Coordinator. You will see her smiling face at the front desk and she will be your go-to person for filing for CLE credit with
Shawna Bush
Araceli Rodriguez
Jessie Smith
the State Bar of Texas. She will also be the staff liaison to the Home Project Committee. She joined the DBA staff in January 2021.
Joining the staff in August 2021, Jessie is the new Accounting Assistant. In addition to her accounting responsibilities, she will also be the liaison to the Section Treasurers,
and will assist with membership. Help us congratulate Shawna, and welcome Araceli and Jessie next time you are at the Arts District Mansion. HN
Mark Your Calendar! DBA Annual Meeting Friday, October 29, 4:00 p.m. DBA Awards Program & Luncheon Thursday, November 12, Noon More information to come. Stay up-to-date at www.dallasbar.org.
FREE MCLE One of the many Member Benefits that the DBA offers is more than 400 CLE courses each year, most of which are offered at no charge. JOIN OR RENEW NOW AT WWW.DALLASBAR.ORG.
FEDERAL & STATE CRIMINAL DEFENSE | FEDERAL & STATE CIVIL TRIAL MATTERS
Knox Fitzpatrick ✯ Jim Jacks ✯ Bob Smith ✯ Mike Uhl ✯ Ritch Roberts 500 NORTH AKARD STREET, ROSS TOWER, SUITE 2150 DALLAS, TEXAS 75201-6654 | 214-237-0900 *Independent Law Offices
October 2021
D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Focus
October 2021
ADR/Collaborative Law
When Loyalty and Collaborative Transparency Collide BY CURTIS W. HARRISON
Two of the foundational cornerstones of the collaborative model are transparency and candor. In practice, however, reconciling those principled commitments with the attorney’s undivided duty of loyalty to the client frequently proves challenging and, occasionally, irreconcilable. For example, during a collaborative divorce, the wife belatedly discloses to her attorney that she is already involved in a serious relationship outside of the marriage. The husband is unaware and the wife does not want the information to be disclosed before the conclusion of the case out of fear that the disclosure will disadvantage her in the final settlement. How should the collaborative attorney navigate issues like this?
Ethical Standards in Theory v. Practice
Section 15.110 of the Texas Collaborative Family Law Act specifically states that signing a participation agreement does not affect either the lawyer’s duty of undivided
2022
DBA
loyalty to the client or the lawyer’s professional responsibilities to others. Among other things, this means that a collaborative lawyer has the same ethical duty as the litigation attorney to refrain from disclosing the client’s confidential information without the client’s permission or as otherwise provided by law. In practice, it is not quite that simple. Information about the existence of adultery during a divorce proceeding can materially affect the outcome of the case. Although Texas is a no-fault divorce state, adultery is one of four statutorily defined fault-based grounds for divorce. Fault grounds can be pleaded to try to gain a larger share of the community estate or to justify a request for post-divorce spousal maintenance. In divorce litigation, attorneys therefore not only routinely resist disclosing such bad facts to the other side, but also counsel clients to hold such information close to the vest: Don’t lie, but don’t volunteer an answer until the lawyer has exhausted all efforts to obfuscate or redirect the inquiry. In fact, the litigation lawyer’s duty to disclose is triggered only (i) when a client makes
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a false statement of a material fact; (ii) when necessary to avoid making the lawyer a party to a criminal act; or (iii) to avoid knowingly assisting a fraudulent act perpetrated by the client. As a result, unless the client actually lies about the adultery, the attorney-client privilege trumps and the lawyer avoids having to reconcile the potential ethical conflict.
A Higher Standard Favoring Disclosure
By design, the standard for disclosure is higher in a collaborative proceeding, potentially making the lawyer’s ethical quandary unavoidable. By signing the participation agreement, the participants contractually agree to proactively provide “full and candid disclosure of information.” This language mirrors the statutory language found in Section 15.109 of the Act, calling for participants to make “timely, full, candid, and informal disclosure of information related to the collaborative matter without formal discovery.” Although the statutory version of the duty is specifically conditioned “on the request of another party,” the standard family law participation agreement imposes an additional duty on the clients to “correct known mistakes, errors of fact or law, or miscalculations” of the other side. Further, the clients affirmatively “authorize every member of the Collaborative Team to do the same.” Taken together, these additional duties effectively raise the bar on transparency and candor in a collaborative proceeding. The clients assume responsibility for voluntarily and proactively disclosing material facts relevant to the collaborative matter, especially if those facts are unknown to the other side and could disadvantage the ignorant party.
The collaborative lawyers, by extension, undertake the same obligations. In the adultery example, the husband’s ignorance of this material fact triggers both the wife’s and the attorney’s affirmative duty to correct that mistake of fact. Had the wife been candid with her lawyer about bad facts before signing the participation agreement, the quandary could have been avoided – one way or another. Yet, in the middle of the case, the collaborative lawyer’s options are limited. If the wife steadfastly refuses to disclose, then her lawyer cannot disclose the information and must withdraw. Under the terms of the participation agreement, however, the withdrawing attorney also possesses the conditional right to terminate the collaborative process in its entirety. Therefore, the lingering question with which the withdrawing lawyer must contend is whether mere withdrawal under such circumstances is sufficient to cure the conflict without leaving a taint on the integrity of the collaborative process.
Conclusion
The collaborative model provides participants with the tools, the process, and the environment in which to jointly build a constructive path to resolution. It only works, however, so long as collaborative lawyers hold themselves and their clients accountable to adhere to the standards undertaken. When the competing duties of loyalty and transparency collide, preserving the integrity of the model could require the collaborative attorney to make the hard call. HN
Curtis W. Harrison is a Master Credentialed Collaborative Divorce practitioner and a Partner with GoransonBain Ausley. He can be reached at charrison@gbafamilylaw.com.
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October 2021
D al l as Bar A ssoci ati on l Headnotes 9
10 H e a d n o t e s l D a l l a s B a r A s s ociation
Focus
October 2021
ADR/Collaborative Law
High-Income Divorce by Mediation BY FELISA OMOLAJA
Mediation is an effective tool for high asset divorce cases. This article addresses considerations on how to prepare and conduct a high-asset divorce mediation and covers issues that are more prevalent in high-income divorce proceedings, such as pre- and post-nuptial agreements, trust funds, and division of business assets. A high-income divorce is one that involves spouses who earn more than $500,000 per year or who have a total net worth of more than $5 million. Many middle-class married people who have been married more than 20 years may qualify as high-income under this definition. The mediator should prepare for mediation by familiarizing him or herself with the issues particular to the divorce matter that will need to be mediated, some of which are included in the list below. The
mediator should be able to support the mediation by suggesting experts that could support the parties in formulating information that could be useful in conducting a successful mediation. Since the mediator does not want to step on the parties’ attorneys’ toes, the mediator may simply provide a list of experts to the attorneys and let the attorneys and parties decide which experts, if any, they will use. It is generally also helpful for the mediator to obtain various reports from the parties, especially sworn Domestic Relations Financial Affidavits, prior to the mediation. Potential issues to be mediated might include the following: • children, including custody and visitation; • child support; • healthcare (physical and mental healthcare) and insurance coverage; • education funding and extracurricular
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activities; • support for weddings or help with the purchase of a first home; • life insurance covering the person paying alimony and child support in the event of the payor’s death; • religious or spiritual training; and • decision-making and procedures for solving disagreements. When there is no pre-nuptial or antenuptial agreement, additional issues may have to be mediated, including: • alimony or spousal support; • division of financial assets, including the marital home; • retirement accounts, including pensions; • joint business assets including ownership and control of any privately-held business, book deals, real estate gains; • collectibles, including art and antiques; • digital assets and accounts with passwords, e.g., Facebook, Twitter, blogs, You Tube channels, branding value, and other intellectual property; • outstanding debt, including taxes; • separate or personal assets of each spouse, including trust funds and inheritances; • disability and long-term-care insurance; • employer and business stock options and incentives; • Social Security; • estate matters, including healthcare proxy, power of attorney, will and trusts; • payment for professional support (attorneys, accountants, financial planners, etc.); and • confidentiality agreements and penalties for breach.
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Many of these issues will have been addressed when the parties executed a prenuptial or ante-nuptial agreement; however, issues, assets, and debts that may not have been expressly addressed in the written agreement will need to be resolved at mediation. An objection to using mediation is that the parties may not have full financial disclosure of all marital assets. One way to resolve this issue is to have the parties wait to mediate until all of the finances have been disclosed under traditional discovery. A belt and suspenders approach is to have language in the mediated settlement agreement that each party has fully disclosed all assets and debts, in accordance with the local rules of the court that will oversee the case, with penalties and remedies for incomplete disclosure. If the parties cannot agree to full financial disclosures, the case is inappropriate for mediation. Parties should be encouraged to consult financial professionals, such as CPAs, financial advisors, actuaries, appraisers, and business valuation experts. A mediator may know how judges in the jurisdiction tend to rule on issues where parties are not in agreement. The mediator may use this knowledge to “reality test” with the parties and let the parties and attorneys know whether the parties’ position is one that may be a winner with the judge. Finally, a mediation can result in a partial mediated settlement agreement, leaving unresolved issues for the court to decide. HN Felisa Omolaja is an Attorney Adviser for the Federal Government who serves as a mediator in her leisure time and may be reached at felisaomolaja@gmail.com.
October 2021
D al l as Bar A ssoci ati on l Headnotes 11
TEXAS CHAPTER The The Academy Academy is is pleased pleased to to recognize recognize our our Dallas Dallas Metro-Area Metro-Area Members Members for for
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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
October 2021
ADR/Collaborative Law
Overcoming the Sunk Cost Fallacy and Settlement Dynamics BY CHRISTOPHER NOLLAND
“You just don’t get it,” the client explains. “I have great claims and I’ve spent over $300,000 in legal fees and two years of my life to get here. Obviously, my lawsuit must be worth more than my investment in money, time, energy, stress, and opportunity costs. How can you possibly suggest I should consider settling for less than what I have put into the case or, even worse, write a check to resolve counterclaims that are a bunch of BS?” That in a nutshell, is the Sunk Cost Fallacy: the idea that there is necessarily some relationship between one’s past investment in an asset and the current value of that asset—and in this case the “asset” is the claim in the lawsuit. Of course, the asset does not “remember” how much you have invested in it. $20,000 investments at $20 per share in both Enron and in Amazon in 1998 will result in vastly different values for each of those assets or investments today— with today’s values having no relationship whatsoever to the amount previously invested. Essentially, the irrelevance of Sunk Costs demands that you ignore your past investment and focus only on what your
asset is worth today. Stated another way, a rational economic player must fully embrace and understand that their past investments—their “Sunk Costs” —are irrelevant to a rational decision about the value of that asset now. The inability to ignore Sunk Costs when making decisions about whether to continue with an endeavor or investment is what leads to staying in unrewarding (or worse) business or personal relationships because of “all of the years already invested”; continuing to pour money and time into losing business or professional endeavors (such as litigation) in the hope that somehow it will all ultimately work out in your favor; and not cutting one’s losses and moving on. It ignores a primary rule of life. To paraphrase Will Rogers: “The first step to getting out of a deep hole is to stop digging.” Most reasonably intelligent people can logically understand that the amount previously invested in a lawsuit does not inform the determination of the current settlement value of the case. Why then do even highly-experienced, rational, smart litigants (and their counsel) often fall prey to the Sunk Cost Fallacy and let their past investment in a lawsuit largely drive case valuation and settlement decisions?
The evil enabler of the Sunk Cost Fallacy is the classic psychological concept of Cognitive Dissonance—the mental discomfort or conflict that occurs when a person’s behavior and beliefs do not align or when their actions contradict their beliefs. In this case, the cognitive dissonance syllogism leading to poor settlement decisions is: 1) I am a smart person (Belief #1); 2) A smart person would not invest $300,000 and two years into a lawsuit that was not worth that much (Belief #2); I invested $300,000 and two years into this lawsuit (Undisputed Action); 4) Therefore, the lawsuit must have a value of at least $300,000 or otherwise I am not a smart person—a direct conflict with Belief #1 above. The error in the above syllogism is that one of the Beliefs is incorrect and leads to an erroneous conclusion about the value of the case. Assuming their Belief #1 (“I am smart”) is either correct or that you are unlikely to convince them otherwise, how do you help litigants make a sound decision that is not in conflict with Belief #1—that they are smart? The answer is to help them understand that their Belief #2 is erroneous. Very smart people make losing investments all the time based upon the information available when
they invested. Warren Buffet has made many losing investments—some involving losses of hundreds of millions or even billions of dollars—yet no one would seriously dispute that he is brilliant and one of the most successful investors of all time. The question is not whether every decision or investment works out well but whether your portfolio of decisions and investments works out well overall. Not every investment, endeavor, or decision by even the smartest and most sophisticated folks will be successful. That failure does not mean it was an unwise decision made by an unwise person. Rather, it was simply a good decision made by a smart person utilizing available information and appropriate risk/reward metrics that happened not to work out well. Once your clients (or you, in the case of contingentfee attorneys) understand and truly internalize that they are still very smart even if this particular lawsuit was not a successful economic endeavor, you and your clients can begin the journey of defeating the enemy of logical-case valuation and rational-settlement decisions—the Sunk Cost Fallacy. HN Christopher Nolland has a national practice as a Mediator-Settlement Counsel-Arbitrator and may be reached at chris@nolland.com.
Jerry and Sherri Alexander Support Access to Justice CONTINUED FROM PAGE 1
legal services for residents, both new and old, who simply cannot afford an attorney.
These people need our help in entering and navigating our wonderful legal system.” “While the courthouse work is very important, they also need our help with
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important non-courthouse matters,” he continued. “This cannot be over-emphasized. Many people have lost loved ones due to COVID and need to settle estates that are too small for billing attorneys to handle. Oftentimes the main—if not the only— asset of the estate is a dwelling that other generations need to use. The title and property tax questions, though relatively simple to attorneys, are astonishingly complex and daunting to someone who has never dealt with property before. A little legal guidance at the right time is sometimes the difference that prevents someone from becoming homeless. Attorneys should make a financial contribution, if they can, but should always remember they can contribute their time, and that ‘office work’ is just as important as ‘courthouse work’ in helping those who cannot afford an attorney.” “Contributing to DVAP is something
we have done for years and hopefully can continue into the future. It simply feels like the right thing for us, as lawyers, to do. The people who run the Campaign and the day-to-day program are very good at what they do. They are also caring and wonderful people who deserve all of our support,” added Sherri. DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www.dallasvolunteerattorney program.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
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October 2021
D al l as Bar A ssoci ati on l Headnotes 13
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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
Column
October 2021
Ethics
What if Mediation Isn’t as Confidential as We Thought? BY LINDA A. SULIK
Mediation, with few exceptions, is considered a confidential proceeding to encourage settlement discussions among the participants. Even when signing up for mediation, parties are often asked to sign mediation agreements containing confidentiality clauses. This is also true for remote or online mediation, which became increasingly popular due to the 2020 pandemic. But what if these proceedings, held in person or remote, are not as confidential as we thought, and, in fact, may even be discoverable, despite confidentiality laws and agreements? For example, suppose a suit was filed in Wyoming state court and was later removed to Federal court based on diversity jurisdiction. The district court ordered the parties to attend mediation, which was conducted in Colorado. The parties signed a mediation agreement, agreeing that all written or oral commu-
nications made during mediation were confidential pursuant to the mediation agreement and the Colorado Dispute Resolution Act. During mediation, the defendant presented a PowerPoint presentation outlining the issues of the lawsuit. The parties reached a settlement during mediation and, in the following weeks, began working on a Mutual Release and Settlement. A dispute ensued as to the proper terms to include in the Mutual Release and Settlement, and a motion to enforce the terms of the settlement agreement was filed. Prior to the hearing, the plaintiff sought through discovery the presentation used at mediation, and the district court, finding the presentation to be discoverable under Wyoming law, ordered its production. On appeal, the Tenth Circuit reviewed for abuse of discretion and affirmed the production of the presentation. The court reasoned that Wyoming’s choice-of-law rules would
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not result in application of the law of another jurisdiction where it is contrary to the law, public policy, or general interests of Wyoming’s citizens. Even though the parties mediated the case in Colorado, under Colorado laws, and signed a confidentiality agreement citing the Colorado Dispute Resolution Act, the circuit court applied Wyoming’s less stringent Dispute Resolution Act and ordered the production of the presentation. This case was not a mere outlier. The Washington Court of Appeals similarly held that a trial court properly admitted mediation evidence because it was not offered for the purposes of liability but to prove state of mind. Many other cases across the nation have either disregarded the confidential nature of mediation due to choice-of-law statutes or used choice-of-law statutes to compel communications deemed to be privileged under another state’s law. This has also become increasingly problematic as more litigants opt for remote mediations to accommodate parties located in different states. The issue may then become determining the state in which the mediation and communications actually took place and how that state’s confidentiality laws impacted the mediation. Here in the Lone Star State, however, we have a broad rule of confidentiality within the Alternative Dispute Resolution Act (ADR Act), protecting the confidential nature of mediation. The ADR Act provides that “a communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative
dispute resolution procedure … is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding.” This broad protection, however, is not absolute. The Texas ADR Act contains several exceptions to the presumption of confidentiality, one being a situation where such documents or communications used in, or made a part of, an alternative dispute resolution proceeding are otherwise admissible or discoverable independent of the ADR procedure. Even with the broad confidential protection the Texas ADR Act provides, lawyers should use caution when reviewing a mediator’s confidentiality agreement and when advising clients of the confidential nature of mediation. It is important to advise clients that, although the general presumption in Texas is that mediation is a confidential proceeding, there are exceptions to the general rule, and other state’s laws, if applicable, may impact the confidentiality of the mediation. Even if a mediation agreement promises confidentiality and contains a choice-of-law provision, lawyers should still advise clients of the extent to which this may hold true. Failing to properly advise clients that mediation may not be as confidential as they may think could also run afoul to Rule 7.02 of the Texas Rules of Professional Conduct. Accordingly, properly advising clients that there may be exceptions to mediation’s confidentiality will ensure fewer surprises in the long term. HN Linda A. Sulik may be reached at linda.a.sulik@gmail.com.
Register Now! 2021 Dallas County Criminal Practice Virtual Seminar Monday, October 11, 2021 8:30 a.m. - 4:30 p.m. via Zoom MCLE: 6.00, Ethics 1.00
Can We Talk? Rules of Engagement for Civil Discourse Join the Dallas Bar Association, the Dallas Holocaust and Human Right Museum, and Project Unity for a discussion on how we can lead by example in engaging in honest, thoughtful, and respectful dialogue, even concerning divisive topics.
Courtney Simmons Elwood Former General Counsel of the U.S. Central Intelligence Agency & Advisory Board Member to the National Institute for Civil Discourse
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Monday, October 25, at 6:00 p.m. | MCLE .00, Ethics 0.50 Register at www.dallasbar.org
October 2021
PMR Firmad_Headnotes_011221_fin.indd 1
D al l as Bar A ssoci ati on l Headnotes 15
1/12/21 5:20 PM
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
October 2021
ADR/Collaborative Law
Advantages of Collaborative Law Outside of Family Law BY MELINDA EITZEN
Texas has had a collaborative statute in the Texas Family Code since 2011. The Uniform Collaborative Law Act has been adopted in 22 states, and this year it has been introduced in two additional states. While the Uniform Collaborative Law Act has not been adopted in Texas beyond the Texas Family Law Code, the formal collaborative-law process, with all of its privileges and duties, can be entered into by contract in other civil cases. According to the statute, the collaborative process is initiated by signing a participation agreement. Per statute, using the collaborative process requires dedicated settlement counsel and 2 lawyers. Individuals may not represent themselves in collaborative cases. Dedicated settlement counsel means that the collaborative lawyers will not be litigation counsel if the case fails in the collaborative process. Upon a failed collaborative process, the parties will have to change lawyers, and those lawyers cannot be from the same firms that began the collaborative process. The reason for this statutory rule is that in the collaborative process, the collaborative team typically meets together and asks the clients to state their true interests and concerns and goals openly and honestly, and those disclosures should not be able to be used against them in a litigation setting later. The collaborative statute also requires the parties to provide full transparency and full disclosure of any information anyone wants, rather than
a formal discovery process. Neutral professionals assist the team in collaborative cases. Commonly the collaborative team includes a neutral mental health professional (MHP) that serves as the leader of the team and the facilitator of the meetings. The MHP does not provide therapy; instead he or she helps manage the emotions—including anger, sadness, and fear—that get in the way of the parties’ objective. If the parties have children, the MHP is the facilitator of the conversation regarding the parenting time schedule. A neutral financial professional (FP) is commonly included on collaborative teams, and that person is the facilitator of the conversations about money. Another neutral commonly used in family-law collaborative cases is a child specialist. The role of a child specialist depends on the case, but generally, the specialist interviews the children and provides the team and the parents with the child’s desires and needs. There are many different reasons that people are attracted to the collaborative process. One is privacy. People want their personal business kept private. Some people appreciate the ability to be very creative in their solutions. Parties to a collaborative agreement are not limited by what the Family Code says or what the judge would likely order; they are only limited by their imaginations. It is different from mediation, in that, typically in mediations, the parties compare the settlement offer on the table to what would likely happen at the courthouse. In a
collaborative process, there is less of a focus on what would happen at the courthouse and more of a focus on the clients’ goals, interests, and concerns. As a simple example, the Texas Family Code provides a guideline child support calculation. Most of the time, a judge will apply the child-support guidelines to determine child support, and he or she does not have much discretion in this area. In collaborative cases, parties seldom just apply the guideline childsupport formula. Instead, the clients are asked “how do you want to pay your children’s expenses going forward?” which facilitates a more comprehensive approach to that question based on the clients’ actual situation and the needs of their children. Another reason people are attracted to collaborative is control. Under the statute, once the court is noticed that the parties are engaging in the collaborative process and have signed the participation agreement, the court must maintain the case on the docket and cannot force a trial for up to two years. It is appealing to people to make decisions for themselves and not have
a stranger in a black robe make decisions for them. Additionally, people like to control the pace of their case. The collaborative process is appealing to some because it is forward looking, not backward dwelling. People make mistakes, and while those mistakes may be why they are getting divorced, they do not necessarily want to dwell on those mistakes. In litigation, much more focus is placed on past mistakes. For example, sometimes a deposition of the paramour will be taken in litigation, but that does not happen in collaborative case, where there are no depositions. The collaborative process is a transparent process with full disclosure required by statute. If you want bank statements for the last 10 years, you get them. That level of transparency does not exist in litigation cases. The collaborative process allows people to divorce with dignity and is an option that should be considered in all cases. HN Melinda Eitzen is a Partner at Duffee+Eitzen and can be reached at melinda@d-elaw.com
VOTE NOW!
DALLAS COUNTY COURT STAFF AWARDS The Dallas Bar Association Judiciary Committee developed these awards to encourage court staff to do their personal best. This year, the awards will recognize the court staff team (court clerks, court coordinator, bailiff, etc.) that has consistently demonstrated a friendly and polite attitude, helpfulness, professionalism, and spirit of cooperation. Awards will be presented at the DBA Awards Luncheon in November to court staff teams in each of the following categories: • Dallas Civil District Courts • Dallas County Courts at Law • Dallas Criminal District Courts • Dallas County Criminal Courts • Dallas Family Courts • Dallas Probate Courts
TOGETHER, WE CAN MAKE A DIFFERENCE. Access to justice is hard to come by. There is less than one full-time legal services attorney for every 7,100 Dallas citizens living in poverty. That means that if you filled AT&T Stadium to its maximum capacity, you’d have 11 attorneys to service them. And if each client received a single 30-minute session, it would take those attorneys nearly five months of round-the-clock work, with no breaks, just to meet with everyone. That’s where DVAP comes in. DVAP provides access to justice by recruiting, training, and supporting over 2,000 volunteer attorneys each year who take meaningful time from their “day jobs” to provide pro bono legal aid to low-income people in Dallas County. Your support of DVAP will assist low-income people with eviction issues, family law matters, estate planning, bankruptcy filings, veterans benefits, and more. Find out more at dallasvolunteerattorneyprogram.org
For questions, contact kzack@dallasbar.org. Deadline to vote October 15. Visit: https://tinyurl.com/2021courtawards to vote!
October 2021
D al l as Bar A ssoci ati on l Headnotes 17
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18 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
October 2021
ADR/Collaborative Law
An Update on the Texas General Arbitration Act BY YVETTE OSTOLAZA AND MARGARET ALLEN
Most practitioners are accustomed to arbitrations that are administered by an arbitral body such as the AAA, CPR, or JAMS, or otherwise are carried out without any administrative oversight simply by the parties themselves. But the Texas General Arbitration Act (TAA) expressly permits administration of an arbitration by a court. See Tex. Civ. Prac. & Rem. Code §171.001, et seq. In a court-administered arbitration, parties can file a lawsuit before a Texas or other court, and the judge is charged with appointing an arbitrator and administering the arbitration proceedings. See §171.086 (providing that the parties may file “an application for a court order” “[b]efore arbitration proceedings begin,” “[d] uring the period an arbitration is pending before the arbitrators or at or after the conclusion of the arbitration”). As described below, the case law discussing how this process should work under the TAA is sparse.
How to Initiate an Ad-Hoc Arbitration in Court
Case law does not specify the application process in detail. Courts “require the applicant seeking to compel arbitration to attach a copy of the agreement and define the issue subject to arbitration.” Rachal v. Reitz, 347 S.W.3d 305, 314 (Tex. App.—Dallas 2011). In addition, the TAA gives the
court certain powers before the arbitration begins, such as: • to restrain or enjoin destruction of evidence or “of all or an essential part of the subject matter of the controversy”; • to obtain from the court “in its discretion an order for a deposition for discovery, perpetuation of testimony, or evidence needed before the arbitration proceedings begin”; and • to obtain “other relief, which the court can grant in its discretion, needed to permit the arbitration to be conducted in an orderly manner and to prevent improper interference or delay of the arbitration.”
The Court’s Role in Appointment of an Arbitrator
The TAA provides that “[t]he court, on application of a party stating the nature of the issues to be arbitrated and the qualifications of the proposed arbitrators, shall appoint one or more qualified arbitrations if: (1) the agreement to arbitrate does not specify a method of appointment; (2) the agreed method fails or cannot be followed; or (3) an appointed arbitrator fails or is unable to act and a successor has not been appointed.” §171.041. Courts are allowed—but not required—to consider the parties’ input. See § 171.041. Moreover, cases indicate that courts may honor the parties’ agreement to select an arbitrator even in the absence of a con-
DVAP’s Finest EMILY BUCHANAN
Emily Buchanan is an Associate at Haynes and Boone, LLP. How did you first get involved in pro bono? I became involved in pro bono as a summer associate with Haynes and Boone, LLP, which really encourages their attorneys to become involved early (and often) in pro bono matters. Describe your most compelling pro bono case. I recently helped a veteran who was in hospice finalize and execute his will. He and his family were so appreciative to have one less thing to worry about during an emotional and stressful time. Why do you do pro bono? It reminds me about the reason I got into this profession in the first place. It isn’t about the status, the money, or the accolades—it’s about helping people who need it the most. My passion for pro bono matters also stems from my dad, who is a Vietnam veteran, and knows the true meaning of sacrifice and service. For every veteran’s will I prepare, I see it as a small token of appreciation for their service to our country. What impact has pro bono service had on your career? I have been able to connect with more people in the community and analyze legal issues that are outside of my immediate practice area. What is the most unexpected benefit you have received from doing pro bono? Other than the general benefit of feeling good about giving back to the community, I once received a pop-up flower card from one of my pro bono clients, which included a hand-written thank you note. It was the first time I’ve ever received a personalized thank you note from a client and I still keep it in my office to remind myself of why I love pro bono!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
tractual provision stating so. Case law indicates that courts retain broad discretion in appointing an arbitrator, and can make such appointments even over party objections.
A Court’s Role in Administering the Ongoing Arbitration Proceedings
Once the arbitrators are appointed and the arbitration is underway, the statute provides that a court can issue orders “to require compliance by an adverse party or any witness with an order … by the arbitrators during the arbitration.” §171.086(b). The statute indicates that a party can request that the court order “the arbitrators to proceed promptly with the hearing and determination of the controversy.” (Emphasis added.) There is little case law authority available on these ongoing administrative powers.
Comparison with Other Statutes
The Federal Arbitration Act (the FAA) permits a court to appoint an arbitrator in the event if the agreement to arbitrate lacks an appointment method, or any party “fails to avail
himself of such method,” or “for any other reason there shall be a lapse in the naming of an arbitrator.” 9 U.S.C. 5. Similarly, the arbitration statutes of many states, including New York and Oklahoma, permit a court to appoint an arbitrator. See, e.g., N.Y. CPLR § 7504; 12 Okla. Stat. § 12-1859. And, unlike the FAA or the New York statute, the Oklahoma statute provides that a “court may order consolidation of separate arbitration proceedings as to all or some of the claims.” See 12 Okla. Stat. § 12-1861. But neither the FAA, nor New York or Oklahoma, provide for courtadministered arbitration to the extent of the TAA.
Conclusion
The TAA permits parties to have a court administer their arbitration proceedings. But, at present, there is little case law available to provide guidance about how such administration should proceed beyond initiation of the proceedings and arbitrator appointment, and the FAA and other states’ laws provide little guidance. HN
Yvette Ostolaza serves as an arbitrator through AAA and CPR. She and Margaret Allen are litigation partners at Sidley Austin LLP. They can be reached at yvette.ostolaza@ sidley.com and margaret.allen@sidley.com, respectively.
Collaborative Practice and Civil Disputes CONTINUED FROM PAGE 1
neutral. The process itself takes only as much time as necessary for the parties to come to a resolution. Because the parties themselves are involved directly with the process, they are cognizant of costs as well as time. They are encouraged to work diligently toward resolution if they want to return to work with this conflict resolved. Knowing they must hire new counsel for litigation should the process fail to produce a resolution also helps keep clients focused. Because the discussions are both contractually and procedurally subject to confidentiality, this is a private process. The parties may prefer that their industry or their neighbors not be aware of their dispute, allowing them to avoid negative publicity. Confidence in the process is elevated because trained conciliation counsel will frame the issues and manage each meeting for maximum efficiency. Even a partial agreement of facts or issues will reduce the cost of any subsequent litigation. Collaborative law is not a short process. When compared with the average trial, however, it is remarkably fast.
After the initial meeting at which ground rules and agreements about the process are reached, each subsequent meeting between the parties is a meeting in which issues are addressed. Every meeting is structured as a step toward resolution, allowing the process to move at the parties’ pace. The collaborative process capitalizes on the value of face-to-face communication, which brings into play body language and emotions. Collaborative counsel help guide their clients into constructive use of emotions to improve communication. Spontaneous admissions of responsibility or requests for forgiveness are moments of connection that allow the parties to reconcile the relationship while resolving the dispute. The parties remember the reasons they got into business with one another to begin with. When the process concludes, the parties have been heard, the dispute is resolved, and your client appreciates that you were thoughtful enough to offer this very civilized dispute resolution process. No hammers involved. HN Dianne E. Carlson, of Carlson Legal, PLLC can be reached at dianne@dcarlsonlegal.com.
Client Development— Speak at a DBA Program Interested in sharing your legal knowledge and expertise with your colleagues? The CLE Committee is looking for speakers and hot topics for the Friday Clinic programs it holds throughout the year. Please submit a short bio, title, and 2-3 sentence description of your presentation to yhinojos@dallasbar.org. Submissions will be discussed at monthly CLE Committee meetings.
October 2021
D al l as Bar A ssoci ati on l Headnotes 19
20 H e a d n o t e s l D a l l a s B a r A s s o ciation
October 2021
Tips for Connecting (Without Contracting) on Social Media BY REGAN DONNENFIELD
Social media blurs the lines between the personal and professional. Have you ever wondered how to safely build connections using social media without compromising professional integrity? Ethical rules are implicated with attorney usage of social media platforms like Facebook, Twitter, LinkedIn, and Instagram. With the rise of platforms, we face new challenges in navigating our personal and professional accounts. The recent amendments to the Texas Disciplinary Rules of Professional Conduct which took effect July 1, 2021 are referenced herein. 1. Friend Requests and Connections may form an attorney-client relationship. Whether intentionally or not, an attorney’s social media activity can create an attorney-client relationship with someone online and may cause a conflict with a client. When a lawyer accepts a friend request from a non-client, is an attorney-client rela-
tionship formed? No, not automatically. Accepting a friend request from an attorney’s professional Facebook or LinkedIn page is more likely to be construed as an attorney-client relationship as opposed to accepting a request from the attorney’s personal account. However, a request accompanied by a message to the lawyer for legal services may inadvertently create such relationship. As attorneys are increasingly creating a professional presence for themselves on social media sites as an affordable way to expand their network, there is a greater need to be mindful of potential client expectations. Generally, when an attorney comments publicly on a legal matter, it does not alone create an attorney-client relationship with readers of the commentary. Attorneys are increasingly posting articles opining on legal topics to their Facebook and Twitter accounts to publicize their legal practice. These posts constitute what is defined as public
D BA W E L E A D
commentary and attorneys who communicate online to the public shall comply with the Rules of Professional Conduct. 2. Avoid disclosing confidential information.Attorneys must be cautious to avoid disclosing confidential information on social media sites unless they meet an exception under Rule 1.05(c) and (d) or if disclosure is required under paragraphs (e) and (f). The duty of confidentiality prohibits lawyers from describing information with a hypothetical and from disclosing facts generally known to the public or contained in a court order that is public record, unless the lawyer secures the client’s informed consent. As such, attorneys should avoid disclosure of any identifying information that could be linked to their cases. 3. Avoid creating unjustified expectations about the results you can achieve. Attorneys need be cautious of creating unjustified expectations for prospective clients. Rule 7.01(a) addresses “Communications Concerning a Lawyer’s Services” and provides, “...A statement is misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation, or if the statement is substantially likely to create unjustified expectations about the results the lawyer can achieve.” For example, an attorney who advertises a verdict but fails to disclose the fact that the judgment was later reduced creates unjustified expectations to prospective clients. The strict character limit on social media sites increases the potential risk for misleading or false statements. Instagram captions are limited to 2,200
WHO DBA WE LEAD is accepting applications from women lawyers who graduated from law school between 2006 and 2013, have established themselves in their careers and communities, and want to further explore advancement opportunities and leadership skills.
Regan Donnenfield is an Associate at KoonsFuller, P.C. She can be reached at rdonnenfield@koonsfuller.com.
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characters. Twitter posts are capped at just 280 characters. These limitations make including all facts of a complex case unattainable. To work around the strict character limit, include a statement directing the reader to the comments which continue the story. In cases where the attorney creates public commentary about winning a case but did not play a substantial role in the advertised verdict or settlement is subject to discipline for misrepresenting his/her experience and in some cases, for creating unjustified expectations. What constitutes “a substantial role” depends on the circumstances. It is established that lead counsel is a substantial role for purposes of claiming credit and advertising results that lawyer can achieve. 4. Social media connections between attorneys and judges are permissible. Is it prohibited for attorneys and judges to be “friends” on social media? While some states explicitly prohibit this, Texas does not. However, attorneys should not use the relationship to interact with judges in an ex parte manner or to engage in other unethical conduct set out in Rule 8.04(a)(6). Attorneys should use the same principles of face-to-face interaction with judges on social media sites. Additionally, the circumstances of a digital relationship may require judges to disqualify themselves in proceedings if their impartiality might reasonably be questioned or a lesser remedy of disclosing the relationship. As you can see, navigating the social media landscape can be advantageous or detrimental to attorneys. HN
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D al l as Bar A ssoci ati on l Headnotes 21
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22 H e a d n o t e s l D a l l a s B a r A s s o ciation
October 2021
The New Ad Rules: Now is the Time to Become and Stay Compliant BY JEANNE M. HUEY
As most of you know, the new Advertising Rules took effect on July 1, 2021. They apply to all attorney public marketing efforts. They are intended to simplify, modernize, and clarify Part VII of the Texas Disciplinary Rules (the Ad Rules). They are significantly shorter and more concise than the prior version and, just like every other disciplinary rule, Texas attorneys have a duty to know and comply with them. In the new rules as in the old, the dissemination of false or misleading communications about the qualifications or services of a lawyer or law firm (Rule 7.01) remains the bright line that cannot be crossed. To disseminate such information would violate both Rule 7.01 and Rule 8.04(a)(3) which prohibits Texas attorneys from engag-
ing in any conduct involving dishonesty, fraud, deceit or misrepresentation regardless of the forum. One of the most burdensome requirements of the old rules, filing and pre-approval of some communications, are continued in the new rules but with modifications intended to make compliance easier. To try and accomplish this, the new Ad Rules both increase and clarify the kinds of communications that are exempt from the filing requirement. Time will tell if this actually lessens the burden of filing for most Texas attorneys. There is good news if you filed and obtained approval for your website or other public marketing efforts under the old Ad Rules; there is no need to re-submit them unless you are making substantive changes. And if a new filing is required, Gene Major, who leads
DALLAS MINORITY ATTORNEY PROGRAM Friday, October 1 • 9:00AM - 5:00PM MCLE: 7.00, Ethics 1.00 at the Arts District Mansion Home of the Dallas Bar Association
Legacy Award Recipient Eddie Bernice Johnson U.S. Representative-30th District of Texas
The Dallas Bar Foundation Announces the
Twenty-Ninth Fellows Luncheon honoring
2020-2021 Fellows Justinian Award Recipient
Hon. W. Royal Furgeson, Jr.
U.S. District Judge (retired), Northern District of Texas Dean Emeritus, UNT Dallas College of Law Life Senior Fellow, Dallas Bar Foundation Thursday, November 11, 2021 Reception at 11:30 a.m., Luncheon at 12:00 p.m. Arts District Mansion Home of the Dallas Bar Association 2101 Ross Avenue
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the Advertising Review Department of the State Bar of Texas, says the Department’s job is “to help get attorneys in compliance so they do not run afoul of the rules. We are there to give guidance no matter whether you have a big marketing company doing your advertising or you are a solo or small firm doing it on your own.” To those concerned about being fined ($250) for not getting advance approval for a website that launched years ago, Major says “just submit it.” He sees the Ad Review Department serving the members of the Bar in more of a “customer service role” and emphasizes the need to assist Texas attorneys in becoming compliant as opposed to “making people feel like they are going to be in trouble.” Perhaps the most talked about Ad Rule change is to allow a Texas lawyer to practice law under a trade name that is not false or misleading. This change drew a lot of attention and comment but, from what Major has seen, there have not been a flood of firms making drastic changes to their name as a result. Major notes that most of the firm name changes that have come to his attention involve adding a type of law practice to an existing firm name such as “John Doe Construction Law” or “Jane Doe Family Law.” If you are changing your firm name to include a trade name, just remember that you don’t have to register or submit a trade name for approval with the State Bar, but that other forms of registration of that name are also no guarantee of compliance with the Ad Rules (i.e. that the name is not false or misleading).
For those who want to experiment with a trade name Major suggests making small changes first: “Really look at your URL—be creative with that if you don’t want to change your firm name. Use something creative for marketing and try it out.” You may find you get the desired marketing benefit without changing the name of the firm at all. Yes, the Advertising Review Department is there to help, but you can’t ignore them. The very small percentage of Ad Rule violations that are referred to the Chief Disciplinary Counsel are made only after the Department has made repeated efforts to contact the attorney responsible for the advertisement/solicitation and not received any response. The take-away here is that if you get an inquiry from the Ad Review Department, respond to it right away. Major wants Texas attorneys to know that the Department will make numerous efforts to reach you if there is a problem and urges “if we send you a letter that says you have a violation of the Ad Rules, get back to us and let us work with you to figure out how to fix it.” For Major, the key to the new Ad Rules is something we can all get behind: “These rules make life a little bit easier for people if they take the time to read them all.” So read them, file your application to get your nonexempt advertisements and solicitations approved, and rest easy knowing that you are in compliance with the new Ad Rules. HN Jeanne M. Huey, of Hunt Huey PLLC, may be reached at jhuey@hunthuey.com.
October 2021
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
October 2021
Entrepreneurs in Community Lawyering Class of 2021-2022 STAFF REPORT
The third year of the Dallas Bar Association’s Entrepreneurs in Community Lawyering (ECL) program welcomed nine attorneys who will launch solo practices aimed at serving Dallas residents of modest means. The attorneys will spend the year building their practices with the aid of mentoring, business development training, access to practice management resources, and oneon-one coaching. “I am excited to welcome another group of aspiring solo practitioners into our attorney incubator program,” ECL Director, Saedra Pinkerton, said. “With the support of the Dallas Bar, the ECL attorneys have built thriving law practices that serve everyday people in our community who were previously priced out of hiring an attorney.” Attorney Laura Baez Torres joined the new ECL class with the goal of forging inclusivity. “My background as an immigrant has fueled my desire to help others. I want to my clients to feel included and empowered when making legal decisions that will impact their entire life,” Ms. Torres said. Compelled by the idea of supporting the profession while expanding access to justice at the same time, Laura Benitez Geisler brought the incubator model to the DBA during her year as president of the organization. Geisler structured the program to require 200 hours of pro bono service from each of the participating attorneys during the program year. “Some of our ECL attorneys have really gone above and beyond,” Ms. Pinkerton said. “John VanBuskirk and Robert Anderson, attorneys from our first ECL cohort, received back-to-back DVAP Pro Bono Attorney of the Year awards, and Claudia Brice from the 2020-2021 cohort, logged 281 hours of pro bono service during
ECL Class of 2021-2022
the year—hours which were primarily dedicated to child advocacy work.” Incoming ECL member Morgan Richardson is looking forward to the boost provided by ECL. “While I could try to start a law firm all on my own, I know having a village of mentors is exactly what I need,” Morgan said. “I am willing to learn, grow, and be taught.” For attorney Frank Morphis, the program is perfectly timed. “Representing people of modest means is what made me want to be a lawyer in the first place,” Morphis said. “Growing up experiencing family and friends in need of legal help, and (seeing) how, in some cases, that help could be life changing, was a deep influence. But law school is expensive. Now, after a decade of representing primarily large corporate clients to save and
2021 Sustaining Members of the Dallas Bar Association
The DBA sincerely appreciates the support of its Sustaining Members whose financial contributions enhance the preservation of the historic Arts District Mansion, Home of the Dallas Bar Association.
Randolph D. Addison Addison Law Firm P.C.
David L. Godsey Godsey - Martin, P.C.
Micah Adkins The Adkins Firm, P.C.
Hon. Bonnie L. Goldstein Fifth District Court of Appeals
Carmen Blankenship Law Office of Carmen Blankenship
Nancy A. Nasher NorthPark Development Company Robert H. Osburn Law Office of Bob Osburn
Krista Hanvey
Roy Powell Jones Day
James J. Hartnett, Jr. The Hartnett Law Firm
Ellen S. Pryor UNT Dallas College of Law
Christina Heddesheimer Dentons US LLP
Glynis W. Redwine G. Redwine, PLLC
Kathleen E. Irvin Attorney at Law
Angel L. Reyes, III Reyes Browne Reilley
Kristina N. Kastl Kastl Law, P.C.
S. Theis Rice Trinity Industries, Inc.
Wm. Kevin Cherry Cherry Petersen Landry Albert LLP
Sang Eun Lee Greenberg Traurig, LLP
Michael L. Riddle Middleberg Riddle Group
William Cox Cox Jordan LLC
Douglass List Banner Legal Servics, P.C.
Sydney Sadler Crawford, Wishnew & Lang PLLC
Mary B. Campbell Law Office of Mary B. Campbell David Carlock Carlock & Gormley J. Scott Chase Farrow-Gillespie Heath Witter, LLP
David A. Eldridge Law Office of David A. Eldridge
Ron MacFarlane The MacFarlane Firm, P.C. Joshua Mahaffey Daryl Flood, Inc.
Al Ellis Sommerman, McCaffity & Quesada & Geisler L.L.P.
Samuel Mallick Haynes and Boone, LLP
Stephanie Elovitz
Justin Martin Godsey - Martin, P.C.
Gary Fish Texas Retina Associates
Sawnie A. McEntire Parsons McEntire McCleary PLLC
Knox Fitzpatrick Knox Fitzpatrick PC William A. Galerston Iola Galerston, LLP
Mike McKool McKool Smith P.C.
pay the bills, I’m in a position to ‘hang my shingle’ and advocate for everyday people, so I’m moving forward with it.” The new cohort will focus on helping people with matters such as wrongful foreclosure, child custody, immigration and basic estate planning. Attorney Chassidy Guidry completed a fellowship in Elder Justice with Legal Aid of NorthWest Texas and is opening her practice in one of Dallas’s highest poverty zip codes. “One thing I would like to bring to the Dallas community through my law practice is trust in the legal system for everyday people,” Guidry said. “I want people to feel confident, empowered, and comfortable with seeking a lawyer to assist them with their needs. SaKinna Thomas, who previously worked as a public defender, was inspired by her indigent clients. “I learned that I like representing the underdog. I take pride in knowing that my clients of modest means still have the best representation,” she said.
Difficult life experiences laid the foundation for attorney Christine Mazurek’s dedication to public service. “Fighting my way out of homelessness and poverty, recovering from injury, and having been an established paralegal, I have sharpened my analytical and professional skills, giving me unique insight and perspective proven to be invaluable in this profession. Now that my children are grown, I am able to pursue my dream of opening my own law practice to help others in need,” Mazurek said. After spending years working for her family’s remodeling business, new cohort member Daniella Angarita aims to provide legal support through immigration and small business representation. “Working in remodeling and construction, I have been in close contact with many Spanish-speaking individuals that are working hard to (comply) with the law, but due to their lack of understanding of English, they have customers who do not pay for their services because they think they can get away with it. Giving them a basic contract to present to their customers or even by simply making a phone call on their behalf with my American accent has helped prevent them getting cheated by customers,” she said. Kristinia Anderson sees her new modest means firm as fulfilling her duty as a lawyer. “When I wake up every morning, I know that it is a privilege to be an attorney and to have the ability to provide legal representation to those that need it most,” she said. Stephanie Walker shares similar motivations. “I want to challenge laws that make it difficult for low-income people to exercise their rights against parties with more resources,” she said. “I also want to educate people on the importance of participating in the legislative system so that they can advocate for themselves.” To reach the ECL program attorneys or Saedra Pinkerton, email ecl@dallas bar.org. HN
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/lawyerreferralservice or call (214) 220-7444.
A heartfelt THANK YOU to our ECL’s supporters. You are helping to bring justice to everyday people. Windle Turley, Turley Law Firm Mike Howard, The Law Office of Mike Howard, PLLC
Charles Shewmake Holland & Knight LLP
Ellen Williamson, Ellen Williamson Law, PC
Darryl J. Silvera The Silvera Firm
Elaine Mosher, Mosher and Associates
Jay Spring Quilling, Selander, Lownds, Winslett & Moser, P.C. Damon Tanck Watson Law Group, PLLC
Alexandra Geczi, Alexandra Geczi PLLC
Kandace Walter, Walter Legal PLLC Marc Lewis, J Marc Lewis and Associates Beth M. Johnson, Appellate Attorney P.J. Dunn, Dunn Coaching Dunn Consulting LLC
Peter S. Vogel Foley & Lardner LLP
Chad Ruback, Appellate Attorney
Hon. Ingrid Warren Probate Court No. 2
Ditty and Vincent Bhatti, The Bhatti Law Firm
Rachel Khirallah, Khirallah PLLC
Jack Fan, Fan Law Office
www.dallasbar.org/ECL
O c t o bChip e r Brooker_Awardad_v2 2021 copy.pdf
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October 2021
Welcome back to the Arts District Mansion, Home of the DBA! We are so glad to be back to some in-person events. Be sure to check the online calendar at www.dallasbar.org to stay up-to-date on all hybrid or virtual programming.
(Above) On September 2, the DBA’s Public Forum Committee hosted its first program recognizing the 20th anniversary of September 11. David Kent interviewed Phil Zelikow, Executive Director of the 9/11 Commission. (Below) The second program was held on September 10 with Doug Dunbar, of KTVT11, interviewing former White House Counsel Harriet Miers and former Ambassador to Saudi Arabia Robert Jordan.
On September 2, the DBA hosted the judicial investiture of Hon. Rhonda Hunter, 303rd District Court. Judge Hunter is shown with DBA President Aaron Tobin.
On August 21 Corinna Chandler interviewed Maureen Armour, Professor Emeritus, SMU Dedman School of Law, as the August DBA Living Legend.
On August 28, the DBA dedicated it’s 31st Habitat for Humanity home to the Diaz family. Thank you to Co-Chairs Michael Bielby, Jr. and David Fisk for their years of dedication to this program.
October 2021
D al l as Bar A ssoci ati on l Headnotes 27
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
October 2021
Improve Your Client Intake: 10 Steps to Seal the Deal BY JORDAN TURK
The client intake process is arguably the most critical part of your law firm management. It is how you get clients, procure retainers, and generate cash flow. The initial client consultation sets the tone for the entire case, so make sure you start off on the right foot every time by adhering to these 10 simple steps. 1. Streamline Your Conflict Check Process. Anyone in your office should be able to confirm there are no conflicts of interest with an existing client. Sometimes the receptionist is out or busy, so it behooves you to train your paralegals to do it, too. 2. Collect the Consultation Fee Prior to the Initial Meeting Taking Place. If you charge a fee, make it very clear, in writing, that payment of said fee is due prior to the consulta-
tion. The simplest way to accomplish this is to email a link to the client that enables them to pay online. An online payment solution makes this easy. 3. Instruct the Potential Client to Fill Out Their Intake Paperwork in Advance. Use an online form or email the client the paperwork and ask them to send the completed form back to you prior to the initial consultation. This saves time and works great if you offer virtual meetings. Discourage the client from emailing sensitive information (e.g., social security numbers) to you. 4. Beware of Waiver of Privilege. Many clients want to bring a family member or friend with them to their initial meeting. This is problematic in that it could constitute a waiver of attorney-client privilege. Explain this issue and its potential ramifications to your client at the outset of your meeting before proceeding. 5. Be Clear About the Cost of the
Case. The retainer is not the actual cost of the client’s case, and that needs to be made abundantly clear so as to manage their expectations (and avoid future headaches). 6. Give the Client a Roadmap of the Process and Realistic Expectations. Too often, attorneys make promises at initial meetings because the matter seems so simple at first. Be careful about using absolutes and making any promises at the outset of the case—no matter how sure you might be. Curveballs happen in every matter. 7. Have the Fee Agreement Already Filled Out. The only thing you should need to do is plug in the retainer amount and print it out or email it to the client at the conclusion of your meeting. Having it ready to go at the meeting eliminates friction and prevents awkward pauses during the consultation. 8. Have the Client Initial by the Evergreen Clause. Many attorneys utilize retainers—as opposed to flat fees— for their payment. When the retainer dips below a certain amount, the cli-
ent will be sent an evergreen letter, which asks the client to replenish their retainer up to the original amount. If you utilize this practice (and you should), make sure to explain this in detail to the client and have them initial by a clause explaining the same in their fee agreement. 9. Trust Your Gut. When it comes to red flags during the intake process, be prepared to decline representation. If you would be the client’s fifth attorney on the same case, chances are they will cause more headaches than they are worth. Also ask yourself: Would this person be a future liability to the firm? No one ever wants to put a phone call into their malpractice carrier, so know when to say no. 10. Seal the Deal. Make it very clear to the client that you do not begin working, and you are not retained as their attorney, until you receive their fully executed fee agreement and their retainer payment. HN Jordan Turk is a practicing attorney and the Law Practice Advisor at LawPay. She can be reached at jturk@lawpay.com.
DBA Members Invited to Red Mass 5:00 p.m., Saturday, October 9, 2021 The Cathedral Shrine of the Virgin of Guadalupe The St. Thomas More Society invites you to join us for our annual Red Mass on Saturday, October 9, at 5:00 p.m., at the Cathedral Shrine of the Virgin of Guadalupe, followed by a dinner reception at the Petroleum Club with honoree and speaker Carter Snead, professor at Notre Dame Law School and Director of the de Nicola Center for Ethics and Culture. Children are encouraged to attend this family event. For more details, and to register for this event, visit www.stmsdallas.org.
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October 2021
Focus
D al l as Bar A ssoci ati on l Headnotes 29
ADR/Collaborative Law
Using C.O.V.I.D. to Increase Chances of Settling Mediations BY BILL UCHEREK II
C – Case Value
The true value of a case is the present value of a future outcome. All parties must assess a case’s true settlement value. One must think of all the various outcomes, guard against overinflating or underinflating the case, and factor in anticipated litigation expenses, including legal fees, litigation costs, and expert fees (not to mention the time value of money). In light of the dramatic reduction in trials because of COVID and the resulting backlog as trials resume in 2021 and beyond, case values have changed. All of the aspects above must be analyzed and discussed in detail prior to the mediation so all participants are prepared.
O – Opening
Insist on an opening or joint session, even if the other side objects. This meeting could be the only time that the parties are able to put names and faces with what might otherwise be just another claim or cause number. Your opening statement should be short and persuasive but not offensive. Remain civil, focus on the specific case, emphasize that all persons necessary are in attendance with full settlement authority, and stress that your goal is to explore in good faith reasonable settlement options with an open mind. Also, actively listen closely to the other side. When handled as outlined above, an opening statement sets the appropriate tone for a productive and meaningful negotiation session.
V – Virtual
The trend away from in-person mediation toward virtual mediation has gained
even more traction because of the pandemic. All lawyers and their clients should embrace technology that allows mediations to be conducted remotely, using video platforms such as Zoom, WebEx, Teams and others. For virtual mediations to be effective, all parties should agree to participate with audio and video. Virtual mediations are not only here to stay, but in certain cases, they can be more effective than in-person mediations because what used to require at least a full day away from in-office work can now be accomplished remotely in a half-day or less. The technology also permits participants to present evidence through a screen sharing feature—a very effective way to make sure that the other side understands your framing of the case. Even as in person mediations resume, many parties will continue to prefer remote mediations. Embrace these mediations in certain cases. As outlined above, the technology arguably permits more costeffective and productive mediations without the same time constraints and costs.
the event that the recipient needs additional information prior to the mediation session. If you are the party receiving the pre-mediation demand and are surprised, then request a postponement of the mediation until your decision-maker has all information necessary to participate in good faith. No mediated settlement is effective unless it is documented. The key terms should be formalized in a written mediated settlement agreement stating that it is enforceable, admissible in Court, and signed by all of the parties. Be prepared to address terms such as confidentiality, indemnity, and subrogation, so that the parties are not addressing these issues for the first time after the agreement is reached. In the context of virtual mediations during the pandemic, execution of an enforceable agreement, signed by all parties, is more important than ever. HN
D – Demand and Document
To maximize chances of settlement, every Plaintiff should submit an initial demand before the mediation. A pre-mediation demand avoids one side claiming surprise or that the person with the level of authority necessary to reach settlement for that amount is unavailable on the day of mediation. In fact, a pre-mediation demand should include a request to be contacted in
Bill Ucherek II is a Certified Mediator at McCullough Mediation. He can be reached at bill@mcculloughmediation.com.
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I – Invest
Investing in the process is the best way to avoid an impasse. As the session transpires, keep a positive attitude. Spend time preparing a negotiation strategy well in advance of the session, make well-timed concessions, and avoid emotional responses to the opposing parties’ negotiation tactics. Invest as much time, effort, and energy as is reasonably necessary. Trial settings that have been postponed and are now beginning to be reset. Delays in actually getting reached for trial are inevitable due to the pandemic. Fully exhausting settlement negotiations is in all parties’ best interests. An effective mediator, if a case is nearing impasse, will help everyone re-evaluate strengths and weaknesses, reassess
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risks, factor in the time value of money as well as remaining fees and costs, and further emphasize the benefits of settlement and closure. Before reaching an impasse, an effective mediator may help convince the parties to make additional moves, suggest conditional bracketed moves, or recommend a recess for a mediator’s proposal to be presented for consideration. Another key is investing time identifying the appropriate effective mediator based on the facts of your case.
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30 H e a d n o t e s l D a l l a s B a r A s s o ciation
October 2021
Objecting to Open Records Requests as a Third Party BY JAMES BRANDON PRUDEN
Enacted in 1973, the Texas Public Information Act (PIA) was intended by the legislature to be broadly construed for the purpose of preventing the government from hiding information from taxpayers, opening with: it is “the principle that government is the servant and not the master of the people.” Once an open records request is received, everything in the government’s possession must be turned over or made available for inspection, unless an exception applies. Unlike many other legal processes, where the objecting party asserts an objection and refuses production, the PIA requires that any governmental body that wishes to withhold information must submit a request to the Attorney General’s Office and show that the information falls within at least one of the exceptions to required public disclosure. While the Attorney General’s decisions are generally considered to be precedential, prior decisions offer little to no protection for failing to meet the prescribed deadlines. A governmental body need not request an Attorney General decision if there has been a previous determination that the requested material falls within one of
the exceptions to disclosure; however, what constitutes a “previous determination” is narrow in scope, and governmental bodies are cautioned against treating most published Attorney General decisions as “previous determinations.” The PIA further provides that if the governmental entity does not make a timely submission to the Attorney General and notify the requestor, then the requested information will be presumed to be open to the public, and only the demonstration of a “compelling reason” for withholding the information can overcome that presumption. But most importantly, failure to comply with the PIA in a timely manner can incur strict criminal and civil penalties for the withholding party. Because of this, most public entities have dedicated open-records staff and will either quickly produce the requested documents or file a request for an Attorney General Opinion. Often the information requested is for documents provided to the governmental entity by a third party, such as an engineer, and while the government cannot make an objection on behalf of a third party, they are required to make a good-faith effort to notify third parties whose proprietary interests may be implicated and allow for timely inde-
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pendent objections. That notice must be in writing and sent to the interested third party within 10 business days of the government’s receipt of the request. One example of information a third party might seek to withhold is any document submitted in accordance with the Professional Services Procurement Act (PSPA). Rather than rely on a lowest bidder method for procuring professional services, the PSPA follows a qualifications-based selection process for the government to retain the most qualified architect, engineer, land surveyor, or attorney. Under the PSPA, the governmental entity issues a Request for Qualifications (RFQ), which describes the project and selection criteria and allows interested professionals to submit a Statement of Qualifications (SOQ). A company’s SOQ can be highly individualized, explaining what sets that firm apart from its competitors, what processes and qualifications the firm has, and often contains audited financial statements reflecting the financial stability of the company. While the reasons for requesting copies of SOQs vary greatly, from interested members of the public to competitors seeking an advantage, it is easy to see why a company would seek to have this information protected. In recent years, Boeing Co. v. Paxton afforded significant protection, often prohibiting the production of SOQs in their entirety, as it allowed third parties to prevent the release of information that would “harm its
interests by providing an advantage to a competitor or bidder in a particular ongoing competitive situation or in a particular competitive situation.” However, the 86th legislature amended the law in response to Boeing and expressly limited these protections to only governmental bodies and not third parties. While these protections have been limited, it is now even more critical to carefully evaluate the information that may be produced, as financial data must be redacted or withheld before disclosure if objected to. Additionally, a careful review of the SOQ is recommended as the engineering processes contained within might be trade secrets and may also be redacted as exempt from disclosure. Finally, one critical and often overlooked objection is to present a standard copyright claim for the SOQ. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Because of this protection, the governmental entity may only allow for an in-person inspection of copyrighted materials and may not assist a member of the public who wishes to make copies of copyrighted materials. While this restriction may not prevent competitors from accessing or aggregating information, it does drastically increase the cost and effort of doing so, which dissuades many requesters. HN James Brandon Pruden is an Associate at Fisk Attorneys, PC. He may be reached at jpruden@fiskattorneys.com.
October Friday Clinics Friday, October 1, Noon | MCLE 1.00 “How Lawyers Can Use Social Media & Technology: The Legality & Ethical Ramifications,” Bruce Bowman Friday, October 15, Noon | MCLE 1.00 “Can Psychology Change What Your Jury Thinks About Damages? Anchoring and Other Tips,” Clint Townson, PhD These CLEs are hybrid programs (both in-person and via Zoom) In-person attendance is at the Arts District Mansion (2101 Ross Avenue, Dallas). To register for the virtual program, visit the Online Calendar at www.dallasbar.org.
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October 2021
Focus
D al l as Bar A ssoci ati on l Headnotes 31
ADR/Collaborative Law
COVID Considerations when Choosing ADR Format BY LISBETH M. BULMASH AND SHARMEEN LADHANI
In March 2020, the COVID-19 pandemic disrupted our world. People sheltered at home, while businesses and governments faced competing priorities of protecting constituents and keeping the economy afloat. Courts shut down, leaving disputes unresolved, and alternative dispute resolution (ADR) practitioners were forced to conduct mediations and arbitrations virtually. Parties have now grown accustomed to appearing in the virtual space, which offers convenience, flexibility, and cost savings. For complex cross-border disputes with multiple parties, scheduling is simpler, as there is no need to travel. In heated conflicts, the virtual format can help to diffuse tension between the parties; there is no risk of an uncomfortable interaction in the hallway. Despite the convenience and accessibility benefits of virtual ADR, humans still crave live connections. Some disputes are better suited for inperson proceedings, such as those involving personal relationships. Businesses have reopened and employees are returning to the office. Courts remain saddled with backlogs, highlighting ADR as a viable option. ADR practitioners now have a variety of formats at their disposal: inperson, virtual, and hybrid, which combines aspects of in-person and virtual proceedings. Choosing a format requires examining the relative advantages and disadvantages of each. But as the pandemic marches on, it is imperative that ADR practitioners manage health and safety with knowledge and care. First, ADR professionals should be aware of the latest local orders, state mandates, and Centers for Disease Control (CDC) guidelines, as well as the potential intersections
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with health privacy laws. For example, the reach of the Health Insurance Portability and Accountability Act (HIPAA) is often overestimated. Many ADR practitioners avoid asking questions about vaccination status because they do not want to run afoul of HIPAA. This is a common misconception. While HIPAA prevents medical providers from disclosing a patient’s confidential information, it is not a prohibition on asking whether a person has been vaccinated. Nevertheless, though not a violation of HIPAA, soliciting personal health information should be done with discretion. Responding to the nationwide surge in COVID-19 hospitalizations caused by the Delta variant, the CDC in July 2021 recommended that fully vaccinated people should wear masks in public indoor spaces within high-transmission areas and advised students and staff to wear masks during in-person learning, regardless of vaccination status. Texas Governor Greg Abbott has issued several executive orders contradicting CDC guidelines. The orders restrict Texas counties, cities, school districts and public health authorities from enacting mask mandates, and ban Texas public and private entities from requiring consumers to prove that they are vaccinated. Violators risk fines and the revocation of state funds. However, these orders appear to be silent on whether employers can require employees to be vaccinated. A federal judge recently dismissed a lawsuit filed by employees of Houston Methodist Hospital after the hospital required its staff to be vaccinated. The court upheld the hospital’s right to mandate vaccination, rejecting claims that the vaccine is “experimental and dangerous,” and upholding the hospital’s interest in a safe environ-
ment for staff and patients. Over 150 hospital employees either resigned or were terminated due to their refusal to be vaccinated. While an appeal is pending, the dismissal has empowered several hospital systems around the state to mandate vaccinations. After determining the current state of the law, ADR practitioners should carefully probe parties’ feelings regarding vaccination. Asking open-ended questions about a client’s preference for a remote or an inperson session can provide the practitioner with useful insight to avoid assuming certain views or passing judgment on a client’s sensitivities. Perhaps a family member of a party cannot receive the vaccine due to medical reasons. Religious beliefs may be another reason for declining to be vaccinated. ADR practitioners should be accommodating and nonjudgmental in receiving and safeguarding sensitive information. Showing flexibility to adapt policies and procedures will protect both practitioners and clients alike. It would be prudent for providers to check the requirements of their landlord, firm and/or building to confirm that their policies are not in conflict.
For example, while a practitioner’s firm may not require masks for vaccinated clients, the building’s policy may mandate masks in common areas. Advising clients of these policies in advance will prevent confusion and misunderstanding. Finally, ADR providers who wish to conduct a hybrid mediation should connect with the parties to iron out logistics and build rapport ahead of the mediation. If one party will be appearing virtually and the other will be in the same room as the mediator, the mediator should be deliberate in eliminating any perception that one party has an advantage over another. Such efforts will help the mediator build trust and encourage cooperation among the parties during the mediation. As ADR practitioners determine the most appropriate forum for their mediations and arbitrations, they should keep in mind that COVID-19 guidelines will continue to evolve. HN Lisbeth M. Bulmash, Esq., is a JAMS mediator and arbitrator. She can be reached at lbulmash@jamsadr.com. Sharmeen Ladhani, Esq., is a mediator for the Aga Khan Conciliation and Arbitration Board. She can be reached at sharmeenladhani@gmail.com.
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32 H e a d n o t e s l D a l l a s B a r A s s o ciation
October 2021