Dallas Bar Association
HEADNOTES |
|
Focus | Immigration/Labor & Employment Law
November 2021 Volume 46 Number 11
Nina Cortell to Receive 2021 Morris Harrell Professionalism Award BY MICHELLE JACOBS
Nina Cortell—this year’s recipient of the Morris Harrell Professionalism Award—often cites a passage from Pirkei Avot, a book of Jewish ethical teachings, as a personal guiding principle: “It is not incumbent on us to complete the task of making the world a better place, but neither are we free to desist from trying.” This has led her to prioritize service to others throughout her career and to always treat everyone with respect. It is thus fitting for her to receive an award that honors an “attorney who best exemplifies, by their conduct and character, truly professional traits who others seek to emulate and who all in the bar admire.” Nina began her career in 1976, when she was hired by Haynes and Boone as its first female lawyer (and 13th lawyer overall). At that time, the legal landscape looked quite different. There were far fewer women attorneys and attorneys of color. That presented challenges that Nina wanted to address. “If you think of your career like a pie, there are only so many slices to go around,” Nina says. “One slice comprises the work and time that you devote to becoming a good lawyer. But you need to also save some slices for helping others and for causes that are meaningful to you.” Her career shows she has done just that. At the request of then-State Bar President Martha Dickie, Nina chaired the State Bar Task Force on Hiring, Retention, and Promotion of Women and Minorities in Law Firms and Corporations. Under her leadership, the Task Force produced a comprehensive report that provided detailed guidance on best practices—all designed to provide pathways for the advancement of women and
Nina Cortell
minorities in the legal profession. For her landmark work, she received a State Bar Presidential Citation for leadership in furtherance of the Bar’s diversity initiatives. Nina also co-founded and served as president of the University of Texas Law School’s Center for Women in Law (CWIL), which was launched in 2009 after a multi-year effort and is now the premier legal educational institution dedicated to the success of the entire spectrum of women in law—from firstyear law students to the most experienced attorneys—providing them with the tools to advance both their careers and the careers of other women. Locally, Nina has, among other things, served for many years as a member of the Advisory Board of the Dallas Women Lawyers Association, led diversity initiatives at her law firm, and frequently spoken at bar events on issues
relating to diversity. Nina has also counselled countless young professionals, including women and diverse attorneys, who routinely seek out her professional and life advice. “One of the mantras of my career is whenever I’m asked to help someone, I always respond ‘yes,’” she said. This has only become more important as the legal profession continues to suffer from high levels of burnout and substance abuse—a situation that has grown potentially more precarious as people have been forced to isolate amid the COVID-19 pandemic. Nina makes a point to emphasize the deep satisfaction she has derived from mentoring others. “When you give to others, you get it back many times over, in ways big and small.” When asked who has influenced her, Nina speaks glowingly of both her professional and personal family. She considers herself very lucky to have joined a firm with lawyers like Dick Haynes, Mike Boone, and George Bramblett, who were committed to attracting and developing diverse lawyers and who encouraged the firm’s lawyers to exhibit the highest standards of professionalism and to become actively engaged in bar and community activities. Nina also feels greatly indebted to her parents, who were forced to flee Nazi Germany and modeled for Nina the values of resilience and self-determination—and of giving back to one’s community. They loved this country deeply and passed along a profound appreciation for the safeguards provided by our Constitution and the rule of law. Nina’s immediate family—her husband of 45 years, Dr. Robert Fine, and her daughters, sons-in-law, and grandchildren—are another enduring source
of strength and inspiration in her life. She considers it a deep privilege to have had the opportunity of a rewarding career, combined with a very rich family life. While Nina is not one to revel in discussing her case victories, they are in any event too numerous to detail here. Suffice it to say, Nina has enjoyed a distinguished career as a litigator and appellate practitioner, achieving high-profile wins in state and federal courts, and she is fittingly recognized in the Chambers USA 2021 directory and other listings as one of the top appellate lawyers in Texas. Nina also cites with pride the prominence of Haynes and Boone’s highly acclaimed appellate group, which she helped start. In short, Nina has demonstrated the heights lawyers can reach when they strive not only for personal excellence in their profession, but also to lift others around them. “Nina is who we all aspire to be,” said Aaron Tobin, President of the Dallas Bar Association. “She has not only become one of the top lawyers in the country in her field, but she has done so with an unwavering commitment to the highest level of professional conduct. She mentors and enriches the lives and careers of many. She always practices with complete humility. Importantly, she ascribes to the principle of zealous advocacy by relentlessly attacking the problem, but never the people. The DBA is proud to have Nina as this year’s recipient of the Morris Harrell Professionalism Award.” Please join us in congratulating Nina on this well-deserved recognition, which will be presented on November 12 at the DBA’s Award Luncheon. HN Michelle Jacobs is a Partner at Haynes and Boone, LLP and can be reached at michelle.jacobs@haynesboone.com.
Thank You to Our Major Donors The Dallas Bar Association and Legal Aid of NorthWest Texas kicked off their annual Equal Access to Justice Campaign benefiting the Dallas Volunteer Attorney Program. A number of Dallas firms, corporations, and friends have committed major support. Join us in recognizing and thanking the following for their generous gifts*:
CHAIRMAN’S COUNCIL
GOLD PATRON
PLATINUM SPONSORS
Jerry & Sherri Alexander Condon Tobin Sladek Thornton Nerenburg PLLC Margaret & Jaime Spellings
Witherite Law Group
Akin Gump Strauss Hauer & Feld LLP DBA Business Litigation Section Katten Muchin Rosenman LLP Latham & Watkins LLP Mike McKool Munsch Hardt Kopf & Harr, P.C. Simon Greenstone Panatier, PC Toyota
DIAMOND SPONSORS AT&T Capital One Haynes and Boone Foundation Vistra Corp.
*As of October 11, 2021
Inside 6 Margaret and Jaime Spellings Provide Critical Support to DVAP 12 How Employment & Labor Law and Immigration Issues Intersect 17 Pro Bono Attorney & Firm of the Year 20 Best Practices for Pre-Employment Criminal Background Checks
2022
DBA
COMMITTEE
SELECTIONS
You can now select your Committees with your 2022 dues renewal. Make sure to pay your DBA dues by December 31, 2021 to continue receiving all Committee communications & benefits. Thank you for your ongoing support and commitment to volunteer!
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 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 November Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. Criminal Cases,” Cynthia Alkon. (MCLE 1.00)*
NATIVE AMERICAN HERITAGE MONTH
November is Native American Heritage Month. For additional resources, visit www.ncai.org. For more on the DBA’s Diversity Initiatives, log on to www.dallasbar.org. NOVEMBER 5 Noon
FRIDAY CLINICS
“Just Ask: How to Stop Minding Your Own Business in the Legal World,” Erica Grigg, John McShane, Kelly Rentzel, and moderator Terry Bentley Hill. (Ethics 1.50)* Co-sponsored by the CLE & Peer Assistance Committees.
NOVEMBER 19 Noon
“Fighting Human Trafficking Through Civil, Criminal, and Civic Action,” Andrew Briggs, Michael K. Hurst, and Martina E. Vandenberg. (MCLE 1.00)* Virtual only.
MONDAY, NOVEMBER 1 Noon
Criminal Justice Committee “Prosecutorial Reform in Dallas County: Non-Prosecution of Marijuana Possession,” Professor Pamela R. Metzger. (MCLE 1.00)* Virtual only.
TUESDAY, NOVEMBER 2
Corporate Counsel Section “Taking Advantage of Opportunity: Building Your In-House Career the Right Way,” Jane McBride and Sterling Miller. (MCLE 1.00, Ethics 0.50)* Virtual only. Tort & Insurance Practice Section “Recent Developments in the Proof and Review of Noneconomic Damages in Personal Injury Cases,” Jeff Levinger. (MCLE 1.00)* Virtual only.
WEDNESDAY, NOVEMBER 3 Noon
7:00 p.m. Bench Bar Conference at Horseshoe Bay. Register online at dallasbar.org.
THURSDAY, NOVEMBER 4 9:30 a.m. Bench Bar Conference at Horseshoe Bay. Register online at dallasbar.org.
Tax Law Section Topic Not Yet Available. Virtual only.
Noon
4:30 p.m. Equality Committee. Virtual only.
Employee Benefits & Executive Compensation Law Section “Remote Employee Tax Implications,” Ken Hauser and Stephen Kenney. (MCLE 1.00)* Virtual only.
Solo & Small Firm Section “Legal & Ethical Update on Blockchain including Cryptocurrencies and NFTs,” Peter Vogel. (MCLE 1.00, Ethics 0.50). Virtual only.
Public Forum Committee. Virtual only.
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
Noon
Construction Law Section “Limiting Beliefs: Do Limitation of Liability Clauses for Design Professional Violate Texas Law and Public Policy,” Michel Gerstle. (MCLE 1.00)* Virtual only. Admissions & Membership Committee. Virtual only.
FRIDAY, NOVEMBER 5
Real Property Law Section “Environmental Considerations for Real Estate Lawyers,” Tim Wilkins. (MCLE 1.00)* Virtual only.
4:00 p.m. Equality Committee “Faiths in Conversation Session 3: Sikhism & Justice.” Virtual only.
TUESDAY, NOVEMBER 9
Entertainment Committee. Virtual only.
WEDNESDAY, NOVEMBER 17 Noon
Health Law Section “What to Expect with the Changes to the Stark Law Group Practice Compensation Requirements and Other Compliance Considerations,” Phil Kim and Jennifer Kreick. (MCLE 1.00)* Virtual only.
Energy Law Section “Wind and Solar Lease Differences & Ensuring the Lease is Financeable,” Brent Stahl. (Ethics 1.00)*
Immigration Law Section Topic Not Yet Available
Law in the Schools & Community Committee. Virtual only.
Mergers & Acquisitions Section “The COVID Evolution of Purchase Agreements: Where are we Now,” Kevin Crews and Melissa Kalka. (MCLE 1.00)* Virtual only.
Pro Bono Activities Committee. Virtual only.
Home Project Committee
Legal Ethics Committee
WEDNESDAY, NOVEMBER 10 Blockchain Law Study Group Topic Not Yet Available. Virtual only.
Publications Committee. Virtual only.
Labor & Employment Law Section “Labor & Employment Year in Review,” Joe Gillespie and Christie Newkirk. (MCLE 1.50)* Virtual only.
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
On August 3, 1990, President George H. W. Bush declared the month of November as National American Indian Heritage Month, thereafter commonly referred to as Native American Heritage Month. First sponsor of "American Indian Heritage Month" was through the American Indian Heritage Foundation by the founder Pale Moon Rose, of Cherokee-Seneca descent and an adopted Ojibwa, whose Indian name Win-yan-sa-han-wi "Princess of the Pale Moon" was given to her by Alfred Michael "Chief" Venne.
Community Involvement Committee. Virtual only.
Native American Heritage Month
Business Litigation Section “Lessons From the Kennedy Assassination About Witness Testimony,” Quentin Brogdon. (MCLE 1.00)*
Friday Clinic “Just Ask: How to Stop Minding Your Own Business in the Legal World,” Erica Grigg, John McShane, Kelly Rentzel, and moderator Terry Bentley Hill. (Ethics 1.50)* Co-sponsored by the CLE & Peer Assistance Committees.
Alternative Dispute Resolution Section “Negotiation and Dispute Resolution in
International Law Section “Impatriations: Labour, Social Security, and Tax Issues,” Juan Carlos Lombardia. (MCLE 1.00)* Virtual only.
Noon
Bankruptcy & Commercial Law Section “Bankruptcy Law Clerk Panel.” (MCLE 1.00)* Virtual only.
MONDAY, NOVEMBER 8 Noon
Government Law Section “What you need to know about Public Improvement Districts,” Christopher Klement and Julie Partain. (MCLE 1.00)* Virtual only
Noon
8:00 a.m. Bench Bar Conference at Horseshoe Bay. Register online at dallasbar.org. Noon
Family Law Section Topic Not Yet Available
THURSDAY, NOVEMBER 11 Noon
CLE Committee. Virtual only.
Criminal Justice Committee. Virtual only.
FRIDAY, NOVEMBER 12 Noon
DBA Awards Luncheon All members invited. We will honor DBA award recipients and present our Committee and Section awards. RSVP to lhayden@ dallasbar.org.
Trial Skills Section “Laugh and Learn: Sharpen Your Trial Skills with Wit and Wisdom from the Judiciary,” Hon. Lana Myers, Hon. Tonya Parker, Hon. Brantley Starr, and moderator Beverly Godbey. (MCLE 1.00)* Virtual only.
SATURDAY, NOVEMBER 13 7:00 p.m. JLTLAF Scholarship & Awards Gala. Details at jlturnerfoundation.org
MONDAY, NOVEMBER 15 Noon
Labor & Employment Law Section “Sexual Harassment Law, Sexual Orientation Law, and Individual Liability of Managers, Supervisors and Owners,” Robin Foret. (MCLE 1.00)* Virtual only. Courthouse Committee “Courthouse Updates & E-Filing Updates in Dallas County,” Hon. D’Metria Benson, Hon. Maricela Moore, Felicia Pitre, and John Warren. (MCLE 1.00)* Virtual only.
5:00 p.m. EAJ Holiday Happy Hour Benefitting the Equal Access to Justice Campaign. Register at dallasbar.org. or contact martinm@lanwt.org for more information.
THURSDAY, NOVEMBER 18 Noon
Appellate Law Section Topic Not Yet Available
Living Legends Program Hon. Karen Gren Scholer, interviewed by Stacey Cho Hernandez and Meyling Ly-Ortiz. (Ethics 1.00)* Virtual Only.
Minority Participation Committee. Virtual only.
3:30 p.m. DBA Board of Directors
FRIDAY, NOVEMBER 19 Noon
MONDAY, NOVEMBER 22 Noon
Noon
No DBA Events
THURSDAY, NOVEMBER 25 DBA Offices closed in observance of Thanksgiving
FRIDAY, NOVEMBER 26
DBA Offices closed in observance of Thanksgiving
MONDAY, NOVEMBER 29 No DBA Events Scheduled
TUESDAY, NOVEMBER 30 Noon
Antitrust & Trade Regulation Section Topic Not Yet Available
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.
Probate, Trusts & Estates Law Section “Professionalism and Interacting with Opposing Counsel,” Cameron McCulloch. (Ethics 1.00)*. Virtual Only.
WEDNESDAY, NOVEMBER 24
Senior Lawyers Committee
*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.
Science & Technology Law Section Topic Not Yet Available. Kim Askew and Veronica Lewis Moyé. (MCLE 1.00)* Co-sponsored by the Minority Participation and Professionalism Committees.
TUESDAY, NOVEMBER 23
TUESDAY, NOVEMBER 16 Noon
Friday Clinic “Fighting Human Trafficking Through Civil, Criminal, and Civic Action,” Andrew Briggs, Michael K. Hurst, and Martina E. Vandenberg. (MCLE 1.00)* Virtual only.
DBA CSF Board Meeting
N o v e mb e r 2 0 2 1
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
Novem ber 2021
President’s Column
Headnotes Published by: DALLAS BAR ASSOCIATION
Civility Tools BY AARON TOBIN
President Kennedy once said, “civility is not a sign of weakness, and sincerity is always subject to proof.” Fresh off of Civility Month, and days before a new crop of lawyers will take the oath and are welcomed into our profession, we are reminded that now more than ever lawyers need to set the example when it comes to civil discourse. The atmosphere is one that is still politically charged. The pandemic has contributed to shorter fuses and less tolerance. The isolationism that is a byproduct of the pandemic has provided fewer opportunities for lawyers to witness the practice in action and pick up good habits when it comes to professional conduct. Fortunately, we have tools to help guide and keep us on the civility path. I am proud of the Dallas Bar Association’s commitment to professionalism and civility. It was a few years ago under the leadership of past president Michael Hurst that the DBA started A Day of Civility, where judges and lawyers come together on one day to focus on civility—the most effective tool that lawyers have to promote the efficiency of our legal system. This program gained such overwhelming support that it is now an annual statewide program. This year’s program which recently concluded, went beyond our state’s borders as the Honorable Carl Stewart, Chief Justice of United States Fifth Circuit Court of Appeals, served as a keynote speaker.
Read the Creed and Take (or Retake) the Oath
It was members of the Dallas Bar Association that composed the language that now largely represents the Texas Lawyers Creed. These words are important. The written Creed not only serves as a beacon for lawyer conduct, but it also strengthens the image of our profession and bolsters the community’s respect for the legal system. Broken down, the Creed is a short outline of a lawyer’s responsibilities to our clients, to other lawyers and to the legal system. Inherent within the Creed is the principle that we are fortunate to be a part of an honored and respected profession. Our members are leaders. We must hold ourselves to the highest of standards when it comes to professional conduct. A yearly revisit of the Creed will help keep us on the right path. Earlier this year when violence erupted at our nation’s Capitol, the Dallas Bar Association quickly organized a statewide assembly for lawyers to come together and in an act of solidarity affirm that we stand for civility and the rule of law by retaking our oath. Texas was one of the first states to amend the oath to require attorneys to pledge to practice with “integrity and civility when dealing with and communicating with the court and
all parties.” As new lawyers come into the practice this month, we should all take a few brief moments to revisit the oath and remember our commitment to civility.
Build a Civility Support System
Similar to the influence our parents have on us during childhood, our professional parents have a significant impact on the practice habits we develop early on. The difference is that we all at least have some influence on selecting our professional parents. Do not miss this opportunity to pick and seek out mentors that make you better. I was fortunate to be mentored and influenced by the likes of Bill Holston, and this year’s recipient of the Morris Harrell Professionalism Award, Nina Cortell, just to name a few. These fine lawyers led by their actions, not their words. They showed me that there is not only a place for kindness, empathy and civility in our legal system, but that this is the only way to practice for our most respected attorneys and judges. It is my hope that all young lawyers starting out are able to find their Nina or their Bill, and the Dallas Bar Association is here to help STEER you in the right direction. In 2008, the DBA under the leadership of president Frank Stevenson and former president Doug Lang developed the Transition to Law program to help young lawyers assimilate into the practice and understand the social norm that is expected for those who have the privilege to practice in an honored profession. The program has evolved and this year the program became STEER, a joint initiative of the DBA and the Dallas Association of Young Lawyers. STEER will start its second cycle in January. It affords new lawyers the opportunity to be paired in small groups with several senior lawyers to learn from and to have as a resource for when one is in a professional conduct or ethical quandary. Whether you are brand new in the practice, in the middle of your career, or a more seasoned practitioner, this program has built in tools to help all lawyers focus on mentorship and civility.
The Civility Incentive
Former United States Supreme Court Justice, Sandra Day O’Connor once pointed out the value we receive from practicing civility. She expressed that practicing with civility increases the enjoyment of the practice, makes a lawyer a more effective advocate, increases the efficiency of the justice system, and improves the public perception of attorneys. I have found this to be very true, and I trust that you do as well. Be well, and always strive for civility, my friends. Aaron
THANK YOU for supporting Thursday, November 18 | Noon - 1:00 PM MCLE: 1.00 Ethics Hosted virtually on Zoom. Register at Dallasbar.org.
Hon. Karen Gren Scholer U.S. District Court Northern District of Texas Interviewed by Stacey Cho Hernandez, Carter Arnett PLLC and Meyling Ly-Ortiz, Toyota Motor North America, Inc.
Sponsored by
and raising over
$36,000 Thanks to your support during North Texas Giving Day, DVAP exceeded its goal and raised more than $36,000! You can still donate to the Equal Access to Justice Campaign. Visit www.DallasBar.org or contact Michelle Alden, aldenm@lanwt.org. TOGETHER, WE CAN MAKE A DIFFERENCE.
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.
N o v e mb e r 2 0 2 1
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
Novem ber 2021
Margaret and Jaime Spellings Provide Critical Support to DVAP BY MICHELLE ALDEN
As autumn is underway, the Equal Access to Justice (EAJ) Campaign is in full swing. In this time of continuing pandemic uncertainty, longtime Dallas Volunteer Attorney Program (DVAP) supporters Margaret and Jaime Spellings have graciously donated $25,500. The Spellings have a long history of supporting pro bono in Dallas through the Campaign. Including this gift, they have donated more than $98,000 to legal aid for low-income people since 2014. Jaime Spellings is the Treasurer and General Tax Counsel for ExxonMobil Corporation. Margaret Spellings is a retired corporate attorney who most recently worked at Hallett & Perrin, P.C. Margaret and Jaime met at UT Law School, and both graduated in 1986. When Margaret stopped working at Hallet & Perrin in 2013, she decided to accept some pro bono cases from DVAP. Since then, Margaret has represented several clients a year, most of whom are seeking a divorce or custody of a child. As Margaret worked with her DVAP clients, she and Jaime came to appreciate the depth of the need for legal representation in lowerincome areas of Dallas. “Jaime and I support the EAJ Campaign because we believe that DVAP serves a real need in Dallas. People come to DVAP seeking help for a wide range of legal problems, including divorce, custody and estate matters. The DVAP staff do a great job to sup-
Margaret and Jaime Spellings
port its pro bono lawyers and their work. In my volunteer work, I felt fortunate to have the DVAP mentor attorneys as a resource if I had questions or needed help with a case. We want to help ensure that DVAP can continue this good work,” Margaret stated. Access to legal services continues to be extremely important during the pandemic as more people are isolated and in dire economic straits. In response, DVAP started a weekly eviction clinic in May to help those in danger of losing their homes. Jake Torres, an associate with Vinson & Elkins, LLP, was
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/lawyerreferralservice or call (214) 220-7444.
Local Solutions. Global Reach.
able to assist “Debbie,” a DVAP client. According to Jake, “I left my fancy office on the 40th floor of a skyscraper in downtown Dallas and drove across town to JP Court. My client was about to be evicted from her apartment because she owed her landlord $1,750. I am a corporate lawyer, not an expert in tenant’s rights, but once a month I try to volunteer at a legal clinic in East Dallas to represent tenants facing eviction with DVAP. At last month’s clinic, I met Debbie, who had fallen behind on her rent. Debbie missed her July rent payment, and when August came due her landlord demanded both months be paid in full, or she would be evicted. And that’s pretty much all Debbie had time to tell me as we stood in the hallway outside the courtroom. Debbie had applied for rental assistance with the City of Dallas, but since her landlord moved quickly, her court date arrived before she had received any funds. Luckily, her landlord agreed to reset her case so the city could process the application. We
negotiated for two more extensions, but no rental assistance came. Last week her landlord’s patience ran out.” “When a deal that I’m working on dies, we measure the loss in dollars. As in, ‘our client wasted X dollars on this deal that didn’t close’ or ‘the company could have made X amount of money if only this deal had gone through.’ But when a person is evicted from their home, you can’t measure that loss with money. This week Debbie and I discussed her appeal. But the day before her paperwork was due, we finally got the news we had been hoping for. Her check from the city had finally arrived. And in exchange for accepting a check worth six months’ rent, the landlord agreed to let her stay. I am thrilled that she doesn’t have to leave, and Debbie is so grateful that she still has a place to live,” Jake explained. Although Debbie’s story had a happy ending, evictions are expected to continue to increase in Dallas County, with devastating results for the families impacted. Support for DVAP is critical to making a difference. “Margaret and I are proud to continue our support of the EAJ Campaign. Every Dallas resident deserves access to legal representation, and DVAP provides those services through its clinics and the services of its pro bono lawyers. We are committed to doing our part to provide those services,” Jaime said. 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.
N o v e mb e r 2 0 2 1
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
Novem ber 2021
Labor & Employment Law/Immigration Law
The Evolution of the Migrant Protection Protocol Program BY NADIA SEHR KHALID
In December 2018, the Department of Homeland Security (DHS) initiated the Migrant Protection Protocol Program (MPP). Its stated goal was to reduce the number of arriving aliens at the U.S.Mexico border. At the time, DHS said that the number of immigrants arriving at the border was historical and close to a million. As a direct response, DHS implemented MPP, colloquially known as the “Remain in Mexico” policy. Prior to MPP, arriving individuals, upon establishing a credible fear of return to their home country, were allowed to enter and stay in the U.S. for the duration of their removal proceedings. In this time, immigrants often sought legal counsel and applied for relief in the form of asylum. The major difference created by MPP is that immigrants arriving to the
U.S. border via one of seven designated ports of entry now remained in Mexico for the duration of their removal proceedings. The seven designated ports of entry included San Ysidro, CA; Calexico, CA; Nogales, AZ; El Paso, TX; Eagle Pass, TX; Laredo, TX; and Brownsville, TX. Thus began MPP. The governing law for MPP is Section 235(b)(2)(C) of the Immigration and Nationality Act (INA), which provides that if “[i]n the case of an alien... who is arriving on land… from a foreign territory contiguous to the [U.S.],” the Secretary of Homeland Security “may return the alien to that territory pending a [removal] proceeding under [Section 240 of the INA]”. In its early stages, MPP allowed DHS to return individuals seeking admission to the U.S. to the contiguous country from which they arrived, to wait there for a hearing in Immigration
Court. Since its inception, in December 2018, MPP has evolved in three major stages. The initial stage facilitated removal proceedings for individuals in Mexico by providing massive tent facilities, later known as “tent courts.” There, an individual would appear in person in Mexico and register their appearance with the Immigration Judge, who appeared in the tent by video from the United States. This setup proved difficult at times for individuals to make their court appearances depending on the logistics of the tent court in Mexico. However, the Board of Immigration Appeals ruled that “where [DHS] returns an alien to Mexico to await an immigration hearing pursuant to the Migrant Protection Protocols and provides the alien with sufficient notice of that hearing, an Immigration Judge should enter an inabsentia order of removal if the alien fails to appear for the hearing.” Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020). In March 2020, the second stage of MPP was defined by the COVID-19 pandemic, resulting in the suspension of all MPP hearings and hundreds of rescheduled hearings. The third and current stage has seen the unwinding of MPP to allow individuals to be paroled into the United States. The MPP policy remains the subject of ongoing litigation. In January 2020, a family separated at the border and placed into MPP filed a lawsuit in the U.S. District Court alleging that MPP violated the INA, the Administrative Procedure Act, and the due process and equal protection clauses of the U.S. Constitution. Constanza Lemus, et al. v. Wolf, et al. In
May 2020, immigration rights organizations filed a lawsuit in the U.S. Northern District of California in response to failed attempts to procure government records about the implementation of the MPP Program. AILA Doc. No. 20051431. In June 2021, MPP was rescinded via a policy memorandum issued by the new Secretary of Homeland Security. In response, District Court Judge Kacsmaryk vacated the decision by DHS to rescind MPP and ordered the current administration to revive MPP in “good faith.” Texas, et al. v. Biden, et al., 8/13/21. Most recently, on August 24, 2021, the Supreme Court refused the application for a stay from the District Court Judge’s ruling that would require the reinstatement of MPP. The Supreme Court stated that “the applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” As of now, the future of MPP remains unknown. Depending on the outcome of District Court Judge Kacsmaryk’s decision to reinstate MPP, the program will be revived as described in the first stage above. Depending on pending litigation, MPP could be terminated as a whole, thus allowing immigrants to enter and stay in the U.S. for the duration of their immigration court proceedings. What we know for sure is that MPP remains a contentious topic, enveloping a multitude of concerns from border safety, government transparency, international collaboration, and the immigration system. HN Nadia Sehr Khalid is Senior Staff Attorney at Catholic Charities Dallas. She can be reached at nkhalid@ccdallas.org.
- 2016-2021 WINNER -
B EST LA WY ER I N
DA L L A S
DBA MEMBER BENEFIT
FREE Room Rental in 2021 & 2022 MONICA LIRA BRAVO BOARD CERTIFIED ATTORNEY
Immigration & Nationality Law
4144 N. Central Expy Suite 300 Dallas, TX 75204
/Lira Bravo Law
monicalira.com
214.390.6294
Book a personal or professional event by December 31, 2021 and the rental fee will be waived. Event must be held by December 31, 2022. Contact Dawn Finley to book your event today. 214-220-7472 or dfinley@dallasbar.org Rental fee waived for current DBA Members and their firms. Membership will be verified by the Dallas Bar Association. Events must be booked by 12/31/21 and held by 12/31/22.
N o v e mb er 2021 Epstein-HeadNotesAd-FINAL.pdf
C
M
Y
CM
MY
CY
CMY
K
1
10/11/21
11:56 AM
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
Novem ber 2021
Labor & Employment Law/Immigration Law
Sexual Harassment Law Expands to Protect Employees BY DANIEL N. RAMIREZ
The Texas Legislature made notable “employee-friendly” changes to the sexual harassment law that applies to employers doing business in Texas. Over the summer, Texas Governor Abbott signed two bills (SB 45 and HB 21) that significantly expand the protection of employees asserting sexual harassment under the Texas Labor Code. These changes became effective on September 1, 2021. Over the past few years, we have seen the “Me Too” and other anti-sexual-harassment movements, which focus on the experience of individuals who have been impacted by sexual harassment and workplace offenders. Although Texas is generally considered an “employer-friendly” state, these movements compelled the
Texas Legislature to revise the sexualharassment law to favor employees who file a claim alleging sexual harassment. The Texas sexual harassment law is now different in four areas. First, the Texas Labor Code previously aligned with federal law that requires an employer to have 15 or more employees for a plaintiff to sue for sexual harassment. Now, the definition of “employer” in Texas has expanded to include those who employ one or more employees. Thus, all employers are now vulnerable to sexual harassment claims under Texas law regardless of the number of employees. This change will force small businesses with at least one employee to ramp up their compliance efforts, since their employees can now file sexual-harassment claims against them. Second, the definition of “employer”
now allows a plaintiff to sue an individual who “acts directly in the interests of an employer in relation to an employee.” Under federal law in the Fifth Circuit, the law clearly provides that there is no individual liability for sexual harassment claims and that a plaintiff may only properly sue their employer, not individuals. .Prior to the September 1, 2021 change, Texas courts aligned with this standard. Now, this major change opens the door to individual liability in sexual-harassment lawsuits, which means a human-resources director, manager, or supervisor may now be subject to individual liability in a sexual-harassment lawsuit, even if they did not engage in the alleged sexual-harassment conduct. Allowing plaintiffs to sue management as part of their sexual-harassment lawsuit is a seismic change. We will likely see plaintiffs suing multiple individuals in addition to the employer, because the new law does not place any parameters on how many individuals may be sued. On the defense side, the new law will require employers to revisit their policies on providing legal counsel to their employees and whether they will pay the resulting legal fees. Additionally, employers should put their supervisors and managers on notice that their own conduct may personally implicate them in a sexual-harassment lawsuit. Third, the Texas Labor Code now imposes a greater burden on employers with respect to sexual harassment. Before the new law, the Texas Labor Code provided a possible defense to an employer if it took “prompt remedial action” to stop the harassment, which is a common standard defined by many courts that was relatively easy for employers to follow. Now,
the new sexual-harassment law states that an employer commits an unlawful employment practice if an employer knew or should have known about the sexual harassment and the employer failed “to take immediate and appropriate corrective action.” However, the new standard for Texas sexual-harassment cases creates ambiguity as the statute does not define how “immediate” an employer must act and what “appropriate correction action” is required. The courts will be tasked with defining the scope of this new standard. Lastly, the Legislature expanded the statute of limitations for employees to file their sexual-harassment claims. Before filing a sexual-harassment lawsuit, Texas law previously required an employee to file a charge of discrimination with the Texas Workforce Commission (TWC) within 180 days of the alleged unlawful employment practice. As of September 1, 2021, an employee is allowed to file their charge with the TWC within 300 days after the date of the alleged sexual harassment. This statute-of-limitation change now aligns the Texas Labor Code with federal law. It will be interesting to see how courts interpret these four changes to the Texas sexual-harassment law. These changes broaden the protection of employees in the sexual-harassment arena, aligning with the legislative intent. The new law will also force employers of all sizes to revisit their sexual-harassment compliance efforts, and it will require smaller employers with less than 15 employees to implement policies and standards not previously required. HN Daniel N. Ramirez is a partner at Monty & Ramirez LLP and can be reached at dramirez@montyramirezlaw.com
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
N o v e mb e r 2 0 2 1
D al l as Bar A ssoci ati on l Headnotes 11
E M OT I O N A L LY I N T E L L I G E N T D I V O R C E A M O D E R N A P P R O A C H TO
®
FAMILY MATTERS
®
Calabrese Budner offers Emotionally Intelligent Divorce®—a modern approach that addresses the “emotional divorce” inherent in every case In family law, intense emotions are part of the job. Divorce goes
acknowledging the emotional components that are part of
straight to the heart of what you value most. Your property and
every divorce, we can offer resources to help clients meet
financial security. Your parenting rights and relationships. Yet
“the day after” in the best possible position, financially and
studies show that lawyers score high on intelligence but below
emotionally. We want to be part of the solution instead of the
average on emotional intelligence. That explains a lot.
problem.
Emotional intelligence means identifying and understanding
If this sounds like a bunch of therapy talk, make no
emotions in ourselves and others. It correlates with better
mistake. Calabrese Budner attorneys have the credentials
communication, faster assessment of risk, and sharper
and experience to stand toe-to-toe with any family lawyer
identification of an unbiased strategy to achieve the desired
in the most complex and contentious of property and
outcome. You want a lawyer who possesses emotional
custody
intelligence to guide you through turbulent times—without
Calabrese Budner provides an additional set of tools and skills
riding the emotional waves along with you.
to protect your interests without the unnecessary damage that
matters.
With
Emotionally
Intelligent
Divorce ®,
results from emotionally reactive lawyering. We believe that Calabrese Budner offers Emotionally Intelligent Divorce
®
because divorce is more than just a legal document. By
gives you the best chance at not only surviving your divorce, but thriving.
Emotionally Intelligent Divorce ® because your FAMILY MATTERS ® PARK CITIES | PRESTON HOLLOW | DALLAS | COLLIN
214.939.3000 | calabresebudner.com
12 He a d n o t e s l D a l l a s B a r A s s ociation
Focus
Novem ber 2021
Labor & Employment Law/Immigration Law
How Employment & Labor Law and Immigration Issues Intersect BY RICHARD A. GUMP AND KELLI GAVIN
Immigration law coexists, and sometimes conflicts, with labor and employment law. Actions or certain protocols that have no repercussions in an employment law context may have significant immigration-related consequences. Some examples include: 1. A restaurant cook makes a sexual harassment claim against chef who threatened her with deportation if she accused him of sexual harassment. HR has the responsibility to roll out a sexual harassment policy, which includes retention of the cook during the investigation. But, if the cook has now admitted she is an unauthorized worker, HR also has a duty to terminate her. How does HR address these conflicting requirements? 2. A business owner determines a key employee is unauthorized and orders HR to falsify the employee’s authorization on the Form I-9. What civil and criminal liability exists for the business owner? If the HR person hires an attorney for advice as to her obligations or liability, what advice does the attorney provide? Can the company’s attorney advise her? 3. An office building owner tells its management company to contract with a staffing company for janitorial services at a certain price point. However, all parties involved know that only unauthorized workers can be provided at that price point. Immigration law states that a person or entity cannot use a contract or subcontract to circumvent the verification rules. How do attorneys for the owner, manage-
ment company, and staffing company advise their respective clients regarding contracts and I-9 verifications without subjecting them to potential conspiracy to encourage unauthorized aliens to remain in the U.S.? 4. An IT company prefers H-1B workers over U.S. citizens, and a rejected U.S. citizen applicant complains. If the company follows the H-1B rules does the U.S. citizen have a discrimination argument? The H-1B rules do not prohibit preference for the H-1B employee but the EEOC and DOS Immigrant and Employee Rights Division (IER) can pursue discrimination claims if applicants are treated differently based on citizenship status. 5. A company with a subsidiary in Italy wants workers from Italy to travel to the U.S. on a B-1 business visa because the workers do not yet qualify for an L-1 intracompany transfer visa. What business activities are the workers allowed to do in the U.S. and how can they be paid? 6. ICE conducts an I-9 audit, and the audited company must terminate several unauthorized employees. The union contract forbids such action without union consultation. Company also enrolls in E-Verify to protect against unauthorized employees, but the union contract prohibits enrolling in E-Verify. Are these actions labor union contract violations? The examples above have nuances that can create significant liability for the unwary. Immigration attorneys should be consulted whenever an employment decision involves a foreign national to ensure no mis-
steps are made. Companies must be coached to ask for advice before acting because damage can be done through the smallest activity. Large fines, monitoring, and backpay could result from an adverse finding. Egregious violations in certain circumstances may elicit Racketeer Influenced and Corrupt Organizations Act (RICO) claims, criminal harboring, or fraud indictments. Something as simple as deducting from an employee’s pay to cover uniforms, attorney’s fees, insurance, etc. could cause the Department of Labor or U.S. Citizenship and Immigrations Services to investigate whether a foreign national is receiving the required wage. Even the employee onboarding process can be hazardous if employment and immigration counsel are not consistent with advice to HR. The duty to verify employees on Form I-9 can lead to civil fines for Form I-9 mistakes or hiring or continuing to employ violations once the employer knows of unauthorized workers. A pattern or practice of employing unauthorized aliens can be a criminal misdemeanor. If fraud or harboring is involved, criminal felony charges result. On the flip side, if the employer becomes too zealous in the verification process IER may investigate document abuse. If non-
citizen workers are prevalent in a workforce, IER and the Equal Employment Opportunity Commission (EEOC) may examine whether the employer preferred non-citizens over U.S. workers or unlawfully required certain documents in the verification process. Certain verification documentary acts may be deemed unfair immigration-related employment practices if made for the purpose or with the intent of discriminating against an individual. The government takes the position that “intent” includes acting in a way that has a disparate impact even though no intentional harm or discrimination was intended. Labor and employment claims tend to arise in a multitude of situations. Immigration-related issues may provide another layer of concern when verification laws are violated, or non-citizens are part of the workforce. Employment and labor attorneys and immigration attorneys should empower themselves with enough knowledge concerning potential issues that they know when to communicate and collaborate with their counterparts to protect their clients. HN Richard Gump and Kelli Gavin are attorneys at the Law Offices of Richard A. Gump, Jr., P.C., and can be reached at rick@rickgump.com and kelli@rickgump.com, respectively.
DAYL Foundation Fellows Luncheon Thursday, December 9, Noon – 1:00 p.m. at the Arts District Mansion
What We Do What We Do | ICE Audits | | | |
Family-Related Immigration ICE Audits Permanent Immigration Visas Family-Related Immigration
| Naturalization & Citizenship | Permanent Immigration Visas | Temporary Immigration Visas | Naturalization & Citizenship | Immigration Special Circumstances | Temporary Immigration Visas | Employer Resources | Immigration Special Circumstances Consular Processing || Employer Resources | Consular Processing
Rick Gump has completed his 48th year of practicing immigration law. Our firm of four accomplished lawyers concentrates on strategic planning for international personnel. Our practice consists of business and family visas, citizenship and worksite compliance audits for companies which may be facing an ICE investigation or engaging in a merger and acquisition. We represent all types of businesses, schools and universities, athletes, agricultural firms, investors, and individuals seeking a managed plan through the immigration maze. Mr. Gump has been selected by his peers as a Texas Super Lawyer for the past 18 years and recognized in the International Who’s Who in Business. He is one of a distinguished group of attorneys who have now been listed in Best Lawyers in Dallas 2014-2021 and listed in Texas Lawyer’s Go-to-Guide for top notch lawyers. An active speaker and published writer, he has served as an expert witness in various immigration cases and has been a faculty member for numerous immigration conferences.
13355 Noel Rd. | Suite 1940 | Dallas, Texas 75240 | 972-386-9544 | www.rickgump.com 13355 Noel Rd. | Suite 1940 | Dallas, Texas 75240 | 972-386-9544 | www.rickgump.com
Keynote speaker: John Creuzot, Dallas County District Attorney For more information, email cherieh@dayl.com.
TURLEY LAW CENTER Legal Research Access - Group Rates Friendly On-Site Security and Management 24-hour Cardkey Access Complimentary Covered VALET Parking for Tenants & Guests Reserved Conference Rooms - No Charge High-Speed Internet Access Deli/Sandwich Shop Beauty & Barber Shop ATM FedEx Drop Box Close to Dart Station Satellite TV Connections Car Detail Service Furnished Executive Suites
Take a tour at: www.turleyproperties.com or Email us at: brendag@wturley.com Convenient at N. Central Exp. & University Blvd.
Competitive lease pricing and hepful on-site staff. Is your office building “Dog Friendly?” OURS IS! 214-382-4118
N o v e mb e r 2 0 2 1
D al l as Bar A ssoci ati on l Headnotes 13
WINNING starts before the trial begins.
When the stakes are high, your choice of counsel matters more than ever. Loewinsohn Deary Simon Ray delivers a level of tenacity, legal acumen and sheer commitment to winning that is second to none. Our experience handling high stakes cases on both sides of the docket has earned us nationwide recognition, including The National Law Journal’s #1 Elite Trial Lawyers Firm in the Business Torts category. When your case is best served by a negotiated resolution, our reputation for winning at trial puts you in the best possible negotiating position. And when litigation is warranted, our team has the distinction of winning the 9th largest verdict in U.S. history. When winning matters most, call 214.572.1700 or visit LDSRLaw.com.
B U S I N E S S L I T I GAT I O N
•
E M P LO Y M E N T L I T I GAT I O N
•
BUSINESS RESTRUCTURING
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
New Culinaire Staff at the Arts District Mansion
Novem ber 2021
Negotiation Principles, Techniques and Strategies BY KATHRYN J. MURPHY
STAFF REPORT
The Arts District Mansion, Home of the Dallas Bar Association, welcomes two new members to the Culinaire staff. Executive Chef Andrew Bell has a wide range of culinary experience. He has owned and operated a catering company and BBQ restaurant in Dallas. Before joining the Culinaire team he was the Executive Banquet Chef at the Joule Hotel. In addition, Chef Andrew was the Executive Chef for Saint Ann with Harwood in Dallas for five years and prior to that, he worked at Aurora; a restaurant styled after a Michelin star caliber restaurant that focused on multiple-course tasting menus. Chef Andrew lived in Austin for several years, where he worked with Tyson Cole at Uchi Sushi Bar and was one of the opening chefs for Wink restaurant, a pioneer in the farm to table movement in the Austin dining. He loves to find local ingredients that he can use in the restaurant and his home, cooking with his family. Also joining the Culinare staff at the Arts District Mansion is Hillary Slatton, Catering Sales Manager. Hillary was born in Marfa, Texas, but grew up in San Antonio. After receiving a degree from the University of Texas Austin, she moved to the Dallas area and has been working in the hospitality industry ever since. She has worked at a variety of hotel venues in the sales and catering capacities for over the last 18 years, including urban luxury hotels, a convention center property, and a lakeside resort. Most recently, she was Conference Services Manager for the historic Le Méridien Dallas, The Stoneleigh Hotel in Uptown. In her free time, Mrs. Slatton’s hobbies include spending time
Being an effective negotiator takes skill, practice, and preparation. When you negotiate in ways that work, you will have a significantly better outcome.
Preparing for the Negotiation Process
Chef Andrew Bell
Prepare for the negotiation by making sure you have all the information you need to negotiate, including financial, legal, and other information necessary to make informed choices, such as appraisals and expert opinions. Understanding the goals and interests of both parties can often lead to a creative win-win agreement—or at least a settlement that each party will find acceptable. In preparing for the negotiation, an opening offer should be prepared in writing even if you decide not to present it to the other party first. It is also a good idea to prepare an initial draft of the settlement agreement prior to the negotiation so it can be carefully considered, and the draft can be compared to the final agreement to make sure all terms are included.
Problem-Solving Model
Hillary Slatton
with her family and friends (including her husband, 3 children and 3 fur babies) trying new restaurants, watching horror movies, and traveling. The Dallas Bar Association is pleased to welcome Chef Andrew and Mrs. Slatton to the Arts District Mansion. HN
DAMAGES Personal injury Wrongful termination Intellectual property Commercial damages/lost profits Business valuations
When you need a number call our number
214.665.9456
DALLAS • FORT WORTH • HOUSTON • ATLANTA
WWW. TH OMAS R ON EY L L C . C O M
An effective problem-solving model is to identify the problem, brainstorm all options for solving it, discuss and evaluate the likely outcomes of each option, and select the most acceptable option. The options should be evaluated from emotional, financial, and legal perspectives. You should look at the options based on what might happen at the courthouse, and how important it is to have certainty instead of the risk of a judicial outcome.
Concessions
Negotiators should carefully plan their strategy and not rush to make concessions or concede too much at once. It is also generally a mistake to make concessions when the other party is not moving. Skilled negotiators should make concessions on issues that are least important to them. Offer the other party something valuable to them in exchange for something valuable to you. The concessions should taper toward the end to communicate to the other side you are nearing your walk away number or position. It is almost inevitable in negotiations that one party will suggest “splitting the difference” to close the gap. However, one party may have made significant concessions, and then when the other
party suggests splitting the difference, it is as if the past never occurred.
Handling Impasses
An impasse can be handled by setting aside the major problem issues and talking about some of the smaller issues to gain momentum. Enough issues should be kept open so that both sides can feel they have won, and if you are down to one issue, determine if you can add other issues to the discussion. The dynamics of the negotiation can also be changed to create momentum, such as changing the people in the negotiating team, finding ways to ease the tension, restructuring the deal, or changing the style of the negotiation. Asking questions can also assist with an impasse, such as what would happen if we did this; what do you see happening as the likely outcome of the options; and what is the most effective thing we can do right now?
Ultimatums
You can project that you are prepared to walk away, and you are considering that option, however, ultimatums should be avoided. Ultimatums should only be used when you are prepared to do what you have threatened to do because most people who issue ultimatums are bluffing. You can respond to an ultimatum of the other party by calling their bluff and find a face-saving way for them to continue the negotiations.
Emotions In Negotiation
You should emotionally prepare for the negotiation to stimulate positive emotions that will enhance the effectiveness of the negotiation. You should have a clear understanding of the substantive issues and feel calm and confident enough to maintain a clear focus during the negotiation. If strong negative emotions such as anger, fear, or frustration are unaddressed, there is a good likelihood those emotions will prevent you from making a wise agreement. Some people believe they can behave aggressively in a negotiation to intimidate and weaken the other party. Those who have temper tantrums are often not effective negotiators as many temper tantrums are not genuine. An apology can be very powerful in a negotiation. An apology should express empathy for the other person’s feelings and express regret. If you believe you have not done anything that would require an apology, you can still apologize that the situation has caused the other party sadness and stress. HN
Kathryn Murphy is a partner at Goranson Bain Ausley, PLLC. She can be reached at kmurphy@gbafamilylaw.com.
N o v e mb e r 2 0 2 1
D al l as Bar A ssoci ati on l Headnotes 15
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
Novem ber 2021
EMERITUS MEMBERS
The Dallas Bar Association honors members who have contributed to the legal profession for 50 or more years. All 50-year members are invited to attend the DBA Annual Meeting on Friday, October 29, 2021 at 3:30 p.m. to be recognized. Send RSVP to Elizabeth Hayden at 214-220-7474 or lhayden@dallasbar.org. Licensed in 1948 Florence K. Fletcher Licensed in 1949 William N. Hamilton Licensed in 1950 D. Louise Boucher William C. Herndon Dave Horger, Jr. Licensed in 1951 Ramsey Clark H.E. Walker, Jr. Licensed in 1952 Robert F. Ashley John H. Chiles Jerry N. Jordan James A. Williams Licensed in 1953 William R. McGarvey Licensed in 1954 Frederick H. Benners Paul M. Brewer Charles W. Hall Harold F. Kleinman Allen P. Schoolfield Maxel (Bud) Silverberg Licensed in 1955 Hon. Ted M. Akin Dennis G. Brewer, Sr. Thomas N. Griffith Lawrence P. Hochberg Jack Pew, Jr. Lewis T. Sweet, Jr. Lee D. Vendig Licensed in 1956 Joseph J. French, Jr. Marvin L. Levin Wilmer D. Masterson Elton M. Montgomery Sidney Stahl Claude R. Wilson, Jr. Gerry N. Wren Licensed in 1957 Barton E. Bernstein Bill H. Brister Frank W. Elliott Jerry C. Gilmore Hon. Tom James William C. Koons Kenneth J. Mighell Harold E. Moore Neil J. O’Brien Merlyn D. Sampels Hon. Milton Sturman Louis J. Weber, Jr. Licensed in 1958 Walton P. Bondies, Jr. Robert C. Cox Robert Edwin Davis Hon. John M. Duhe F. Lynn Estep, Jr. Ernest John Flowers Robert (Jim) Foreman Ben A. Goff Jerry Lastelick John E. Lawhon, III
William T. Satterwhite Billy Joe Smith Barney T. Young Licensed in 1959 Wm. Jerome Adams Marshall J. Doke, Jr. A.D. “Gus” Fields Frederick W. Fraley, III Larry L. Gollaher Jack W. Hawkins Norman P. Hines, Jr. Herbert L. Hooks Richard A. Lempert Aglaia D. Mauzy G. David Neal Burton H. Patterson Joe A. Stalcup Licensed in 1960 E. Karl Anderson P. Oswin Chrisman Edward A. Copley Alan D. Feld Paul L. Fourt Lawrence W. Jackson Leo J. Jordan, Sr. John L. Lancaster, III Albert J. Leviton Joe H. Loving Jr. Hon. Robert B. Maloney Hon. Pat McDowell Hon. Don Metcalfe Robert F. Middleton Jerome L. Prager Cecil A. Ray, Jr. Rust E. Reid James B. Sales Malcolm L. Shaw C. Freeman Stallings, Jr. Donald A. Swanson, Jr. Arthur I. Ungerman William D. White, Jr. Licensed in 1961 Arch A. Beasley, Jr. William T. Burke, Jr. Roy C. Coffee, Jr. Jim E. Cowles John A. Gilliam David G. Glickman Jay Rodney Kline Larry M. Lesh Clark J. Matthews, II Stan McMurry Virgil E. Rogers Miles L. Schulze Wade C. Smith Simeon R. Trotter Paul B. Underkofler Fred D. Ward Ben B. West Licensed in 1962 Bruce Baldwin Charles G. Barnett Joseph T. Cain George C. Chapman Raymond J. Elliott Christie S. Flanagan Houston E. Holmes, Jr. A. Holt Irby Tim K. Kirk Hon. William F. Kortemier, II David R. Latchford
O. Fred Lohmeyer Lawrence R. Maxwell, Jr. Frank E. McLain William H. McRae Curtis W. Meadows, Jr. William C. Roberts, Jr. Norman R. Rogers John Q. Stilwell, PhD James A. Walters Licensed in 1963 Douglas Adkins Joseph E. Ashmore, Jr. Jerry W. Biesel Kenneth E. Blassingame John Willard Clark, Jr. George W. Coleman A.B. Conant, Jr. J.W. Dewbre Lawrence B. Gibbs Major Cyrus Ginsberg Jay L. Gueck R, Brooks Hamilton William M. Hayner Ronald M. Holley Joe T. Hood P. Mike McCullough Jon T. Oden Walter E. (Rip) Parker James E. Price Harry M. Roberts, Jr. Michael E. Rohde G. Dennis Sullivan Roy J. True J. Glenn Turner, Jr. Robert W. Turner Bill R. Womble Licensed in 1964 Neil D. Anderson James F. Bowen Eugenio Cazorla Ernest Conner Dale F. Crowder James W. Deatherage Jim F. Evans Ernest E. Figari, Jr. Lawrence Fischman John M. Gillis Kenneth R. Glaser Charles (Mickey) M. Hunt William D. Jordan Donald J. Lucas John H. Marks, Jr. Morton D. Newman Thomas W. Oliver Don M. Sallinger Peter M. Tart Maridell Templeton Jim A. Watson Dennis L. White Licensed in 1965 Scottie H. Ashley, Jr. John E. Collins Robert D. Conkel John P. Gargan Herbert Garon, Jr. Hugh G. Hart, Jr. Robert G. Mebus Norman L. (Happy) Nelson, Jr. Charles R. Nixon Erle A. Nye Jarrell B. Ormand Florentino Ramirez
Arthur Raphael Robert S. Rendell John K. Rothpletz Larry L. Schoenbrun Winfield W. Scott Douglas M. Smith John M. Stephenson, Jr. T. McCullough Strother Windle Turley Peter Winstead Licensed in 1966 Nathan Allen, Jr. J. Michael Amis James P. Barklow, Jr. Andrew Barr John R. Bauer Jerrold (Jerry) M. Bell Ronald W. Bradley Donald Campbell Dewey M. Dalton Jack H. Davis Michael G. Denton William C. Dever Cal L. Donsky Marshal W. Dooley Hon. Kerry P. FitzGerald Richard A. Fogel Carl Allen Generes Robert G. Hallam R. Chris Harvey James C. Harvey Walter J. Humann Gene L. Jameson Stephen W. Johnson H. Norman Kinzy William A. Kramer Robert H. Kroney W. (Nick) Kuntz Michael Lowenberg Jay J. Madrid Jack Manning Joe N. McClendon David G. McLane Paul McNutt Michael P. Metcalf Durward D. Moore Raymond D. Noah David R. Noteware Vincent W. Perini Edward A. Peterson Gerard B. Rickey Robert F. See, Jr. James A. Showers Arthur Skibell Mel Stein David H. Tannenbaum Jay M. Vogelson Licensed in 1967 Jim S. Adler James R. Alderson Dennis E. Alvoid G. William Baab Douglas A. Barnes David E. Bird M. Robert Blakeney Michael M. Boone Sam P. Burford, Jr. Joseph F. Cantebury, Jr. David Carlock Richard J. Corbitt Ronald R. Cresswell Ronald A. Dubner Stewart Frazer
MINDFUL EXECUTIVE COACHING, LLC Regina Winikates Mentesana, JD Performance and Direction Coach
8300 Douglas Ave., Dallas, TX 75225 (972) 752-3193
H. Martin Gibson Kenneth A. Herridge Kathleen E. Irvin John J. Klein Edward S. Koppman Gerald W. Livingston Donald J. McClure Robert W. McLaughlin John V. McShane Jerry W. Mills W.W. Mitchell Don D. Montgomery, Jr. Harrell Pailet Noel Portnoy Joseph C. Putnam, Jr. William B. Sechrest G. Lynn Smith William C. Strock Raymond J. Termini James H. Wallenstein Licensed in 1968 Roger E. Beecham Jack L. Blachly Michael A. Bloom Rees T. Bowen III Bruce W. Bowman Jr. Lawrence J. Brannian T. Daniel Brittain Roger C. Clapp Gerard H. Clements Robert W. Coleman John D. Copeland George Randle Earle Byron F. Egan James A. Ellis Jr. George A. Engelland Thomas A. Giltner Sam Glast Christopher M. Gores Howard Hallam John W. Harris John B. Holden Jr. Kenneth M. Horwitz R. Clayton Hutchins Joe Bailey Hyden Lawrence R. Jones Jr. Jack M. Kinnebrew Richard M. Kobdish Ben L. Krage Richard A. Massman Charles R. McBeth Stuart A. Morse James Newth George A. Otstott Richard Ouer Robert L. Owens Craig Penfold John B. Peyton Grier H. Raggio Jr. Hon. Wm. F. Sanderson Jr. Robert J. Stokes Stephen A. Ungerman Gerald P. Urbach Robert N. Virden S. Ray Walker Hon. Timothy A. Whisler J. Ward Williford Licensed in 1969 David G. Adler Hon. Roland C. Anderson Hugh T. Blevins, Jr. Frank L. Branson, III Garry D. Brown
Stuart M. Bumpas Bennet W. Cervin Charles L. Chapman Richard M. Dooley Jack R. Dugan W. Robert Dyer, Jr. Louis M. Fouts, III C. Edward Fowler, Jr. Peter A. Franklin, III Tom C. Fuller Hon. W. Royal Furgeson Richard E. Gutman W. Majors Harris J. Mike Holt Gregory E. Jensen William E. Johnson, III Robert O. Lamb Leslie Paris LeGrand, Jr. Hervey P. Levin Robert E. Luna Samuel O. Macaluso Frederick W. Marsh Edgar (Ed) A. Mason Michael P. Massad, Jr. Ronald E. Massingill George H. McCleskey Katherine S. McGovern George S. McKearin J. Hamilton McMenamy Barry F. McNeil T.E. Millard Jack C. Myers George J. Nachman Donald O. Pratt Jon M. Robertson Charles H. Robertson Charles W. Rowland Wayne R. Shahan Aubyn K. Shettle, Jr. Phillip N. Smith, Jr. Robert M. Thornton Charles F. Tupper, Jr. Edward D. Vassallo, Jr. Robert E. Wilson Licensed in 1970 Shirley A. Baccus-Lobel Alvin H. Badger, III Martin Barenblat Samuel F. Baxter Charles C. Clymner Robert B. Cousins, Jr. Martin C. Cude, Jr. Dee W. Dilts William V. Dorsaneo, III Melvyn L. Douglas Barry D. Drees Robert S. Driegert Suzanne Mann Duvall Hugh E. Hackney Gary Hall Daniel K. Hennessy Robert L. Hoffman Donald C. Hood Dennis F. Houfek Jerry R. Huff Guy W. Hull, II Walter L. Irvin John D. Jackson Keith W. Kennedy Carl Klinke Herman A. Lusky Schuyler B. Marshall, IV Charles W. Matthews Tom M. McCrory, III
Harriet E. Miers Robert Milbank, Jr. Samuel R. Miller William J. Neilon Charles A. Oliver Robert H. Osburn Rick Oshman Jay Patterson Thomas C. Railsback Rosemary E. Redmond Joseph M. Revesz, Sr. Gary R. Rice Marc H. Richman Carl E. Roberts Robert F. Ruckman James M. Schendle David H. Segrest David W. Shuford Bennett Stokes G. Leroy Street David M. Sudbury Richard B. Turbiville David E. Watkins Robert H. Westerburg Richard E. Zadina Licensed in 1971 Shirley A. Baccus-Lobel Rowe Jack Ayres, Jr. Philip S. Barker Robert F. Begert Mickey Bonesio Larry R. Boyd James P. Broome Paul Brumley Corbet Franklin Bryant, Jr. Scott Chase Loretta Lee Clemens Edward B. Cloutman, III Stephen A. Coke Louis I. Cole Waymon G. DuBose, Jr. W. John Glancy Tom P. Goranson Keith Griffin Gary A. Grimes Robin P. Hartmann Frank Jackson John Michael Jackson Carleton E. Knechtel Robert A. Kraft Carl B. Lee Robert E. Mangum, Jr. Harlan A. Martin Robert J. Matlock Robin E. Phelan Rod L. Poirot Robert C. Prather, Sr. Richard D. Pullman David Radunsky Thomas L. Raggio D. Ronald Reneker Paul D. Rich Matt Rosenstein Joe A. Rudberg R. Jeffrey Schmidt Cameron Dee Sewell Jody Sheets Thomas L. Staley Kim R. Thorne Joseph R. Weaver, Jr. Clark S. Willingham Addison G. Wilson, III
N o v e mb e r 2 0 2 1
D al l as Bar A ssoci ati on l Headnotes 17
Sidley Austin Named Pro Bono Law Firm of the Year Fawaz Bham Named Pro Bono Lawyer of the Year STAFF REPORT
At the Annual Pro Bono Awards program on October 22, the Dallas office of Sidley Austin LLP was recognized as Pro Bono Law Firm of the Year. Each year, the Dallas Volunteer Attorney Program (DVAP), a joint project of the Dallas Bar Association and Legal Aid of NorthWest Texas, honors the lawyers, judges, and other legal professionals who donate pro bono legal services. Sidley Austin has been instrumental in supporting pro bono for many years, volunteering at DVAP’s various clinics, representing pro bono clients, and providing pro bono help wherever they can. The Dallas office of Sidley really stepped up this year, providing more than 620 hours to DVAP and 4,636 total hours of pro bono service. Since the firm’s founding, they have cultivated a tradition of, and commitment to, pro bono efforts. In 2020,
world-wide, the firm dedicated more than 169,000 hours of pro bono work. In addition to their pro bono work with DVAP, Sidley has also worked to influenced the legality of Americans to live freely and proudly; protected the constitutional rights of prisoners, including the rights of inmates on death row; saved the lives of immigrants who fled their home countries seeking religious freedom; and lifted up women trying to make a better life for themselves and their families by starting businesses in developing countries.
Lawyer of the Year
Fawaz Bham, of Hunton Andrews Kurth, was named Pro Bono Lawyer of the Year. Fawaz was instrumental in helping initiate DVAP’s Virtual Clinics, as well as getting his firm lined up to sponsor many virtual clinics—at least one per month. He has also put together small business workshops for low-income DVAP applicants, featuring Hunton attorneys speaking on various issues. Fawaz is also a frequent volunteer at the Dallas Bar Association’s LegalLine service. He was also named 1 of the 20 Most Inspiring Leaders of
2020 by the Dallas Business Journal for his pro bono service accomplishments and community advocacy. When asked why he does pro bono work, Mr. Bham replied: “All of us work on important and complicated matters that yield small pivotal victories for our clients, but it only takes a limited interaction with a pro bono client to remember how fundamental and essential a pro bono client’s needs can be and come to the realization of how your small drop in the pro bono service bucket ripples into an incredible wave of relief in their lives. Pro bono helps you expand your scope of knowledge, helps you with business development, and helps you re-energize your legal soul. Pro bono is an indispensable part of being an amazing lawyer, period.” DVAP and the DBA congratulate Sidley Austin and Fawaz Bham! Thank you for all you do for Pro Bono! HN
Fawaz Bham
Diversity: From Roadblocks to Runways
Where do we go from here? Join the Dallas Bar Association for an interactive evening as we explore our own barriers and privileges and how we can more intentionally tackle diversity, equality, and inclusion in the legal profession.
Wednesday, November 10 5:30pm - 7:00pm West End Square
November 30, 2021 Celebrate Giving by Giving Back to DVAP! www.dvapcampaign.org
607 Corbin Street Dallas, Texas 75202 MCLE Pending
Learn more & register at DallasBar.org Guest Speaker: PJ Dunn, Certified Coach, Professional Speaker & Educator
2021 Pro Bono Awards Lawyer of the Year
Fawaz A. Bham Hunton Andrews Kurth LLP
Pro Bono Appreciation Award Aaron Tobin Condon Tobin Sladek Thornton Nerenberg
Hartman Judicial Pro Bono Service Award
Law Firm of the Year Sidley Austin LLP
Pro Bono Coordinator of the Year Jared M. Slade Alston & Bird LLP
Oustanding Corporate Pro Bono Coordinator of the Year Rachel Morgan AT&T Legal
Hon. Lela Lawrence Mays 283rd District Court
Outstanding Sole Practitioner
Ken Fuller Outstanding Mentor Attorney Award
Outstanding Small Firm Lawyer
Lois Bacon Special Services Award
Outstanding Government Attorney
Gold Award for Pro Bono Service
Outstanding Virtual Clinic Sponsor
Silver Award for Pro Bono Service
Outstanding Virtual Clinic Volunteers
Melinda Hartnett The Hartnett Law Firm
Chante Brantley SMU Dedman School of Law VanSickle Family Law Clinic
Kilpatrick Townsend & Stockton LLP Hunton Andrews Kurth LLP Haynes and Boone, LLP
Alston & Bird LLP Akin Gump Strauss Hauer & Feld LLP Gibson, Dunn & Crutcher LLP Holland & Knight LLP
Bronze Award for Pro Bono Service Sheppard Mullin Baker Botts L.L.P.
Robert J. Anderson
Patrick Lewis Andrea Sager Law PLLC
André Craig, Jr. Dallas County Public Defenders Office
Hunton Andrews Kurth LLP
Bradley M. Smyer, Alston & Bird LLP John C. Vanbuskirk, Attorney at Law
Krisi Kastl 2022 President
Save the Date Dallas Bar Association
Inaugural Dinner & Dance Saturday, January 22, 2022 Westin Galleria Dallas Hotel
Outstanding Children’s Justice Project Attorney Craig Stango Attorney at Law
Tickets available online in December.
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
Novem ber 2021
Building an Elder Law Case BY ELISA REITER, J.D.
The National Council on Aging research indicates that approximately 1 in 24 cases of elder abuse is reported to the proper authorities. How does one build a case regarding elder abuse or abuse of the disabled? There may be communication issues between the caregiver and the person with concerns; or the person with concerns may fear retribution, alienation of a loved one who has cared for the individual, or simply that restitution is impossible. Abuse includes involuntary seclusion, intimidation, humiliation, harassment and threats of punishment, deprivation, assault (physical or sexual), or verbal abuse. Neglect includes a caregiver’s failure to provide the elderly or incapacitated individual with goods or services, including medical services. Exploitation includes illegal use of an elderly or incapacitated person’s resources by a caregiver for the caregiver’s personal benefit. Each day, approximately 10,000 baby boomers turn 65 and will have all reached
that age by the year 2030. The over-65 population in the U.S. is projected to reach 80.8 million by 2040 and 94.7 million by 2060. The mere fact that a caregiver holds a power of attorney for a loved one does not preclude the possibility of financial exploitation. Often, a multidisciplinary approach is needed to assure that the elderly (65 and older)—or a disabled person (over 18 or under 18 who has had the disabilities of minority removed)—are safe or have a mechanism for protecting their rights. Not every office visit merits a forensic investigation, but the following actions can assist in determining whether there is a case of elder abuse or abuse of a disabled individual: 1. establish a protocol to curtail potential bad acts of caregivers; 2. assign tasks within a multidisciplinary team; 3. prepare a list of potential fact and expert witnesses: • treating physician (medical history);
Prosecutorial Reform in Dallas County: Non-Prosecution of Marijuana Possession Sponsored by the DBA Criminal Justice Committee
Monday, November 1 • Noon to 1:00 PM • MCLE: 1.00 Hosted on Zoom with
Professor Pamela R. Metzger SMU Dedman School of Law
• medical examiner/forensic pathologist (cause of death); • pharmacist (drug interaction); • psychiatrists focused on geriatric issues; • VA or other public hospital employees with acumen in geriatric issues; • APS social worker; • hospice care provider; • frontline workers—EMTs, emergency room doctors/nurses; • nursing home administrator; • forensic accountant; • certified fraud examiners; • handwriting analysts; or • bank fraud investigator; 4. review relevant documents, including civil and criminal records, such as guardianships, criminal convictions, civil judgments, bankruptcy records, and protective orders; 5. consider going on a site visit or reconstructing the scene; 6. create a timeline. 7. determine if a breach of law exists. Abuse of legal authority to act on behalf of an elderly or disabled individual may be subject to criminal or civil prosecution. For instance, if someone abuses their power as an attorney-in-fact (via power of attorney) or over a ward (via a guardianship order), potential causes of action include: • breach of fiduciary duty; • conversion; • larceny; • theft; • embezzlement; • financial abuse; • forgery; • financial exploitation; and • fraud. Just as a parent is to act in their child’s best interest, a proxy decision maker is charged with upholding a fiduciary duty and must act in the best interest of the older adult or disabled person for whom care is
provided. When faced with potential nursinghome neglect, an offer of a plea deal or immunity to someone less culpable might lead to successful prosecution of more culpable parties. Trauma training may also influence the results of an investigation. Trauma training familiarizes trainees with how a victim reacts. Not everything comes out in the first interview. Sometimes—particularly when dealing with someone who is elderly or disabled—the story may come out in bits and pieces. While “holes” may make for great cross examination, understanding trauma, and teaching judges and juries how to understand the impact of trauma, is essential. Those involved in developing a case of elder abuse or abuse of the disabled should be practical information gatherers, beginning with intake, planning the investigation, addressing all of the allegations, garnering information pertaining to history of the victim, as well as the history of the alleged perpetrator and of the witnesses. In Dallas, a special task force at SENIOR SOURCE is working with the Dallas County Probate Court and the Dallas County District Attorney’s Office to assist in developing cases involving the abuse of the elderly or disabled. Contact Julie Krawcyzk or Steve Benton at (214) 823-5700 or www.theseniorsource.com. Adult Protective Services can be reached at 1-800-2525400 or www.txabusehotline.org. When building an elder law case, or a case involving abuse of a disabled person, consider the use of a multidisciplinary team. Develop an effective case. Help those who may not be able to help themselves. HN Elisa Reiter, J.D. is a Senior Attorney with Underwood Perkins, P.C. She is Board Certified in Family Law and in Child Welfare Law by the Texas Board of Legal Specialization, and can be reached at ereiter@uplawtx.com.
Journey to the Netherlands MAY 1-5, 2022
WITH OPTIONAL 2-NIGHT EXTENSION MAY 5-7 ORGANIZED BY CLE ABROAD
LEARN MORE AT WWW.CLE-ABROAD.COM/TRIP/TXNL
N o v e mb e r 2 0 2 1
D al l as Bar A ssoci ati on l Headnotes 19
KOONSFULLER SHAREHOLDERS LEFT TO RIGHT:
R1: Liz Porter*, Charla Bradshaw*, Ike Vanden Eykel*, Rick Robertson*, and Heather King R2: Sean Abeyta*, Neda Garrett*, Brian Loughmiller*, Sally Pretorius*, Chris Meuse*, Jessica Janicek*, Fred Adams*, Julie Crawford*, Rob McEwan*, and Laura S. Hayes*
FAMILY LAW IS NOT ONLY WHAT WE DO. IT’S ALL WE DO. With more than thirty proven attorneys in four offices across North Texas, KoonsFuller is one of the largest family law firms in the Southwest. We offer clients a level of legal representation and range of resources unmatched by any other family law firm. Working together, as a fully integrated team, there is no case too large or complex for us to manage. To learn more about KoonsFuller, visit koonsfuller.com.
DALLAS** | 1717 McKinney Avenue, Suite 1500 | Dallas, Texas 75202 | 214.871.2727 DENTON | 320 West Eagle Drive, Suite 200 | Denton, Texas 76201 | 940.442.6677 PLANO | 5700 W. Plano Parkway, Suite 2200 | Plano, Texas 75093 | 972.769.2727 SOUTHLAKE | 550 Reserve Street, Suite 450 | Southlake, Texas 76092 | 817.481.2710 *Board certified in family law by the Texas Board of Legal Specialization. **Principal office.
KO O N S F U L L E R : D I V O R C E , C H I L D C U S T O D Y, P O S T- D I V O R C E M O D I F I C AT I O N S , C H I L D S U P P O R T, M A R I TA L P R O P E R T Y A G R E E M E N T S , E N F O R C E M E N T S , G R A N D P A R E N T S ’ R I G H T S , P A T E R N I T Y, C O L L A B O R A T I V E L A W , A N D A P P E A L S
20 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
Novem ber 2021
Labor & Employment Law/Immigration Law
Best Practices for Pre-Employment Criminal Background Checks BY MARGARET ALLEN AND SOPHIE GREEN
In today’s world, it is easier than ever for employers to evaluate and investigate job candidates. But in this brave new world of internet searches and social media reviews, it is critical that employers not forego the most basic review of them all: the criminal background check. A thorough criminal background check is an inexpensive—but incredibly effective—way for an employer to help insulate itself from liability that may arise out of an employee’s wrongful conduct on the job, particularly for crimes like sexual assault. A thorough criminal background check includes three main components: (1) federal criminal records, (2) state criminal records, and (3) the national sex offender registry. While an employer can run its own background checks, third-party background check companies ideally should be used because they have access to more types of records and will help ensure compliance with various state and federal background check laws, many of which prohibit searches of records older than seven years or refusing to hire a candidate based on such records without prior disclosure to the candidate. Importantly, to ensure a thorough review it is critical to run not only the candidate’s name as provided but
also multiple reasonable iterations of the name. This will help to account for potential errors or discrepancies between databases, especially when the candidate’s last name consists of multiple words, or when a candidate may have multiple family names. For example, if the candidate’s last name is “De la Garza,” the background review should also include a search for “Delagarza,” “La Garza,” or even just “Garza.” While this may appear excessive, this is a critical step to take to avoid missing key background information. Between human error and variations from jurisdiction to jurisdiction—certain states, for example, do not permit spaces in last names in their sex offender databases—this is an easy additional step to take to ensure that your employment candidates are fit for the job. Being thorough on the front end will help to ensure a safe, effective environment for all of your employees and customers. Of course, an employer may still hire someone with a record—the fact that a candidate has a criminal record does not automatically render them ineligible for hire, nor does it open up an employer to liability should they choose to hire the candidate. Instead, the key inquiry is this: is there anything in the candidate’s record that makes them unfit for the position in which they are applying, or that makes a future bad-act foreseeable?
If an employer seeks to hire an accountant, for example, but discovers a single DUI in the candidate’s criminal history, that does not necessarily render the candidate unfit to be employed as an accountant. If the position were for a professional driver, however, the outcome could likely be different. Going further, if this individual is hired as an accountant, but the accountant later sexually assaults a co-worker, it would be unlikely that the employer could be found negligent for hiring the accountant, given that knowledge of a past DUI arguably does not make it foreseeable that the accountant would later commit sexual assault. But if the accountant’s history instead included a conviction for sexual misconduct, the risk of liability becomes higher, as the foreseeability of a later assault is arguably greater. To summarize, employers can help insulate themselves from potential negligent hiring liability by conducting a thorough criminal background check followed by a job-related risk analysis, to determine if the candidate’s criminal background renders them unfit for the role for which they are being considered. In this regard, all Texas employers should be aware of the new sexual harassment statute that went into effect on September 1, 2021. This new statute creates potential liability for all
employers for workplace sexual harassment, a significant expansion from the former standard, under which employers with fewer than 15 employees were exempt. The new act potentially creates liability for failing to take action quickly after a report of sexual harassment: An “unlawful employment practice” occurs if there is sexual harassment of an employee “and the employer or employer’s agents or supervisors: (1) knows or should have known that the conduct constituting sexual harassment was occurring; and (2) fails to take immediate and appropriate corrective action.” The new act also lengthens the statute of limitations from 180 to 300 days. In sum, to help protect against liability, an employer can do the following: 1. Conduct thorough background checks of job candidates that comport with the law using a third-party firm. 2. Train its managers, supervisors, and executives to recognize incidents of sexual harassment, and know when and how to report it. 3. Update company policies to ensure they comply with the new law, especially with respect to reporting. HN Margaret Allen, Partner, and Sophie Green, Associate, are attorneys at Sidley Austin. They can be reached at margaret.allen@sidley.com and sophie.green@sidley.com, respectively.
Texas Lawyers’ Assistance Program
Monday, November 15, 2021 Noon via Zoom
TLAP provides confidential help for lawyers, law students, and judges who have problems with substance abuse and/or mental health issues. In addition, TLAP offers many helpful resources, including: Live Ethics CLE presentations
Courthouse & E-Filing Updates in Dallas County
Speakers: Hon. D'Metria Benson Hon. Maricela Moore Felicia Pitre John Warren
Request of specific educational materials
TLAP Newsletter
1-1, group telephone calls on topics
Friday noon AA telephone meeting 1-800-393-0640, code 6767456
Find out more at www.texasbar.com.
Sponsored by the DBA Courthouse Committee
You are invited to the
DBA AWARDS LUNCHEON Friday, November 12, Noon at the Arts District Mansion
Most insurance companies think with their wallet. We also use our heart. TLIE cares about its members. We support organizations that help them succeed and thrive. The BEST liability coverage for the BEST people.
#DoGoodBigD
WE WILL HONOR AWARD RECIPIENTS: Nina Cortell, Morris Harrell Professionalism Award Diane Sumoski, Kim Askew Distinguished Service Award Koi Spurlock, Karen McCloud Outstanding Minority Attorney Award Equality, Mock Trial, and Morris Harrell Professionalism Committees, Jo Anna Moreland Outstanding Committee Awards Intellectual Property Law, Cathy Maher Special Section Award
FIND OUT MORE:
TLIE.ORG or
(512) 480-9074 5x5in_TLIE Ad Campaign 2020_DallasHeadnotes_120120.indd 4
All members are invited to attend. Register at www.dallasbar.org 12/1/20 11:55 AM
N o v e mb e r 2 0 2 1
D al l as Bar A ssoci ati on l Headnotes 21
HEALTHY RESULTS ARE BETTER
We are hiring. Send resumes to resume@danapalmerlawgroup.com HEALTHYESTATEPLAN.COM
214-789-4735
SOFTDIVORCE.COM
DANIEL BOHMER - MANAGING FAMILY LAW ATTORNEY
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
Novem ber 2021
Why Your Law Firm Should Offer Legal Fee Financing to Clients BY CALLISTA HINMAN
What if you could receive your full fee upfront at the beginning of an engagement while still giving your clients the ability to pay in installments? That’s what using an online payment solution with flexible payment options such as legal fee financing (also known as “Buy Now, Pay Later” or BNPL) allows you to do.
the total cost of a purchase. This is likely influenced by the demographic’s growing aversion to credit cards—in fact, about one in four Millennials don’t have a credit card. Using a legal-focused payment solution to add financing as one of your available payment methods can make a huge difference for your firm. Here are some of the biggest benefits of embracing legal fee financing and BNPL options.
The Rising Popularity of Buy Faster and More Reliable Now, Pay Later Payments Statistics show that, when given a choice, consumers are increasingly opting for BNPL plans. Between July 2020 and March 2021, the use of online payment plans grew by nearly 50 percent. Cardify, a market research firm, found younger adults in particular are frequently choosing online payment plans even when they have the funds to cover
One of the most common reasons lawyers hesitate to let clients pay over time is that traditional payment plans can have a higher incidence of late and non-payments. With BNPL solutions, however, there’s no risk of either. Your firm receives the full requested amount upfront, and clients still have the opportunity to split
November Friday Clinics Friday, November 5, Noon | Ethics 1.50 “Just Ask: How to Stop Minding Your Own Business in the Legal World,” Erica Grigg, John McShane, Kelly Rentzel, and moderator Terry Bentley Hill. Co-sponsored by the CLE & Peer Assistance Committees. This program is a Hybrid program (both in-person and via Zoom). Friday, November 19, Noon | MCLE 1.00 “Fighting Human Trafficking Through Civil, Criminal, and Civic Action,” Andrew Briggs, Michael K. Hurst, and Martina E. Vandenberg. This program is Virtual only. 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.
an invoice into multiple payments. The other major benefit of legal fee financing is that it increases how quickly you collect your full fees. When it comes to traditional payment plans, giving clients the ability to make multiple smaller payments over time means, by definition, you receive smaller deposits. Allowing clients to use a BNPL option, on the other hand, means you can secure your total invoiced amount at the start of the engagement.
More Time Back in Your Day
According to a report from Thomson Reuters, 74 percent of small law firms say they spend too much time on admin tasks (such as billing and collections) and not enough on practicing law. And in a survey of small law firms conducted by LexisNexis, almost half of respondents reported that 10–39 percent of their total client accounts are typically past due. In short, the average lawyer is spending a non-negligible portion of their day exclusively on following up with clients about overdue invoices. And, depending on the amount of the invoice, at a certain point, chasing after an outstanding payment becomes more trouble than it’s worth. Along with giving you the power to offer legal fee financing, online payment
technology simplifies and streamlines the overall invoicing process and makes it easier for your clients to pay.
Larger Pool of Potential Clients
Most likely, acquiring new clients is always somewhere in your top five priorities, so identifying ways to provide an exceptional client-focused payment experience is crucial. Rather than being put in the challenging position of having to find a way to pay one large lump sum, BNPL solutions enable your clients to secure legal representation and still allocate funds for other expenses. For example, legal fee financing is a great option for a solo business owner who is in need of legal services but also has to keep money in reserves for unexpected costs. BNPL solutions also open up access to legal representation to people who want an alternative to credit cards. These individuals may not currently have a credit card and would prefer not to apply for one. Additionally, legal fee financing is an attractive option for prospective clients who do have a credit card but would rather not charge a large amount. The ability to offer legal fee financing can be a game-changer for your firm. HN
Callista Hinman is the Content Team Manager at LawPay. She can be reached at chinman@lawpay.com.
DBA/DAYL Moms in Law
Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is a no pressure, no commitment, informal, fun, support group for lawyer moms. Email cpleatherberry@gmail.com to join the Moms in Law email listserv.
DVAP’s Finest S. BENJAMIN SCHINDLER
S. Benjamin Schindler is an Associate at Haynes and Boone, LLP.
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.
What types of cases have you accepted? I recently took on an insurance coverage pro bono case— the perfect fusion of pro bono and my day-job. This was incredibly rewarding as my colleague, Rae Guyse, and I, were able to obtain a victory for our client, bringing him relief following losses from Winter Storm Uri. Which clinics have you assisted with? I have participated in pro se clinics as well as intake clinics. All have been a great way to see the kinds of cases people in the community are dealing with on a grand scale. Describe your most compelling pro bono case. As previewed above, my most compelling and rewarding case to date was obtaining relief on behalf of a client after their insurer denied coverage for losses related to Winter Storm Uri. While we represent corporate clients against their insurers every day, it was particularly gratifying to obtain relief on behalf of an individual who was literally living with many of his losses up until he received the coverage he was owed. Why do you do pro bono? I do pro bono as a way to give back to the community that has given so much to me. Quality legal representation should not be out of reach for anyone, and I am glad to be a part of a firm that encourages all of its attorneys to do their part in making that a possibility. What impact has pro bono service had on your career? Pro bono has introduced me to many people both within and outside of my community, and allows me to stay in touch with areas of the law I may otherwise not have exposure to.
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
Find out more at dallasvolunteerattorneyprogram.org
N o v e mb e r 2 0 2 1
D al l as Bar A ssoci ati on l Headnotes 23
I love LawPay! I’m not sure why I waited so long to get it set up.
+
– Law Firm in Ohio
Member Benefit Provider
Trusted by more than 150,000 professionals, LawPay is a simple, secure solution that allows you to easily accept credit and eCheck payments online, in person, or through your favorite practice management tools. 22% increase in cash flow with online payments Vetted and approved by all 50 state bars, 70+ local and specialty bars, the ABA, and the ALA 62% of bills sent online are paid in 24 hours
YOUR FIRM LOGO HERE
Trust Payment IOLTA Deposit New Case Reference ***
**** **** **** 9995
TOTAL: $1,500.00 POWERED BY
PAY ATTORNEY
Get started at
lawpay.com/dallasbar 877-260-1115
Data based on an average of firm accounts receivables increases using online billing solutions. LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA and Synovus Bank, Columbus, GA.
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
Novem ber 2021
Wealth Manager, an Estate Planning Attorney’s Copilot BY AMANDA BRENNER
Estate Planning can be as emotional and costly for the estate-planning attorney (Attorney) as it is for the clients. From clients “forgetting” to mention a sticky family situation to marshalling a client’s assets and goals, an Attorney can be taxed with much more than simply designing the perfect estate plan. This article highlights a few reasons Attorneys need a wealth manager (Advisor) as their copilot. An internet search of a copilot’s duties yields the following: conducting pre-flight briefings, preparing the cabin for communications, and setting up equipment. Similarly, an Advisor can be the Attorney’s copilot by conducting pre-meeting briefings, maintaining communication, and coordinating the individual’s completion of the post-execution tasks.
Pre-Meeting Highlights
Sticky Situation: Countless indi-
viduals avoid going to an Attorney’s office. They cast off the need for planning with comments such as “I have no need for an estate plan,” “attorneys are out for my money,” and, the infamous, “I can get this done online.” Individuals generally do not harbor these same misgivings towards Advisors. Having an Advisor make the introduction to the Attorney smooths the onboarding process for several reasons, including communicating and reminding the importance of having an estate plan and recommending an Attorney as another trusted professional. Asset Organization: Marshalling a client’s assets has always been an obstructive part of the planning process. Frequently, this process may be hindered by issues including difficulties getting a client to fill out the initial client-repellent questionnaire, the client overlooking (or forgetting) critical assets, and struggles organizing the client’s asset information. However, these prerequisites are necessary for
Texas HS Mock Trial Needs Volunteers! HOW YOU CAN HELP Coach a Team • • • •
Help team prepare for competition Schools located in Dallas No litigation experience required Work around your schedule!
Score a Compet it ion • • • •
Earn self-study CLE & network with attorneys No litigation experience required Only 3 hour time commitment It takes over 20 0 at t orneys to score a day of competition! We need you!
20 22 Compet it ions: Sat , J anuary 22nd, Sat , J anuary 29 t h, Sat , February 5t h, Fri, March 4 t h - Sat , March 5t h Quest ions? Cont act t he St at e Coordinat or at t exashsm ockt rial@dallasbar.org or call 214 -220 -74 8 4 w w w.t exashighschoolm ockt rial.com
proper and effective planning. Luckily, an Advisor may already have the pertinent information at hand.
Planning Phase Highlights
Preparation: The time spent in the initial client meeting can vary but what does not vary are the hazards that can undermine a complete implementation of the client’s objectives: the child that the individual “forgot” to mention; the onslaught of bad internet advice; or the peak procrastinator’s response, “I’ll get back to you.” For the forgotten child and beneficiary designations, Advisors can discuss with the client the emotional aspects of these decisions. While Advisors cannot provide legal advice, they can filter out some of the client’s misleading internet results. Additionally, Advisors can provide the Attorney with a pre-meeting executive summary to prepare the Attorney for the initial client meeting. Lastly, Advisors can help save the client money on the estate-planning drafts by handling the client’s investments, taxes, insurance, etc. The Advisor’s broader view can help the client become aware of issues that need to be considered before the Attorney begins drafting. Translator: Attorneys went to law school and enjoy speaking legalese. However, estate-planning meetings can run long, which may frustrate prospective clients. An Advisor can leverage the existing client relationship to facilitate both sides of the planning process. Specifically, the Advisor can assist when the client becomes frustrated, help translate the Attorney’s proposals into terms and concepts that are easier for the client to understand, and establish open lines of commu-
nication between the client and the Attorney.
Post-Planning Highlights
Post-Estate Planning: Post-estate planning can be where good plans go to die (pun intended). Attorneys can only do so much. An Advisor can help coordinate the post-planning phase. Not only is it sometimes easier for the Advisor to follow-up with the client, but the Advisor also can coordinate the small details and paperwork that might otherwise frustrate the Client and incur unnecessary attorney’s fees. Life Event Planning: For many Attorneys, clients are one-time customers. Attorneys meet with the client, draft the plan, execute the documents, and upon completion, advise the clients to come back for changes or at least when there is a material life event. Generally, Attorneys will not see the clients again until it is too late. An Advisor can help an Attorney in this aspect because Advisors are often in regular contact with the client outside of the estate-planning process, and know to follow a congratulatory message regarding a new baby or marriage with a recommendation to visit the Attorney for any necessary changes or updates.
Conclusion
Given the various ways in which an Advisor can facilitate the estate-planning process, Attorneys should consider whether having an Advisor as a copilot could ensure smoother “flights.”
Amanda Brenner is employed at Cadent Capital, Raymond James. She can be contacted at amanda.brenner@ raymondjames.com.
A Mentoring Partnership Between the Dallas Association of Young Lawyers and the Dallas Bar Association Transition to Law Practice Program
NEW CODE FOR FREE ONLINE CLE 15 Hours of FREE Online CLE per year for DBA Members Use code 2021FREECLE to access your free CLE in 2021. Go to onlinecle.dallasbar.org to get started!
Is it your birthday month? Need CLE? Need Ethics?
onlinecle.dallasbar.org
Find what you need in the DBA Online CLE Catalog Anytime - Anywhere!
The DAYL and the DBA are excited to launch STEER, a hybrid mentorship program that will focus on cultivating relationships and providing substantive and practical legal advice, through programming and mentoring groups, throughout 2022. Young lawyers (1-3 years) and recent graduates are encouraged to apply Program participants are matched based on practice area, practice goals, and other criteria Mentors and mentees will meet in large and small groups several times throughout the year
Apply at www.DAYL.com/mentoring
N o v e mb e r 2 0 2 1
Column
D al l as Bar A ssoci ati on l Headnotes 25
Ethics
Ethical Considerations in the Use of Artificial Intelligence BY HISHAM A. MASRI
The Texas Rules of Professional Conduct require lawyers to know “the benefits and risks associated with relevant technology.” Artificial Intelligence (A.I.)—defined as “the capability of a machine to imitate intelligent human behavior”—is one such relevant technology. The legal industry has already seen the use of A.I. in electronic discovery for predictive coding, automated document creation, legal research, and even analysis of a particular court’s reaction to a particular type of case and pleading. These technologies allow lawyers to manage time more efficiently and potentially avoid tedious tasks. Before embracing these tools, however, lawyers must understand the benefits and risks associated with using A.I. and the ways in which the use may potentially implicate the Rules of Professional Conduct, including the lawyers’ duty of competence, duty to communicate, duty of confidentiality, and duty to supervise. A lawyers’ duty of competence requires knowing the benefits and risks associated with relevant technology. For example, A.I. has the ability to significantly decrease time spent on discovery through the use of predictive coding. Predictive coding uses A.I. to learn how lawyers classify documents and then classify documents based on the previously reviewed documents. This significantly limits the number of documents that require manual review by lawyers and thus significantly decrease the cost for the client. Along those same lines, the legal industry has already seen the creation of legal documents based on inputs from clients, which saves time and money for both the lawyer and client. Based on A.I.’s already existing ability to impact routine representation matters, lawyers are required to understand the benefits and risks associated with it. This knowledge serves as the bedrock for Texas lawyers’ ability to fulfill their other ethical obligations. Additionally, lawyers must not neglect to properly communicate the benefits and risks of A.I. to clients. The Texas Rules require a lawyer to “explain a matter to the extent reason-
ably necessary to permit the client to make informed decisions regarding the representation.” If a lawyer intends to use A.I., then the lawyer has an obligation to explain the risks and benefits associated with its use. A lawyer should also communicate to the client when choosing not to use the technology and explain the reasons for that choice. A client’s ability to make an informed decision about the representation rests on the lawyers’ ability to explain the benefits and risks. As with all aspects of the representation, lawyers are strictly prohibited from revealing a client’s confidential information except under very limited circumstances. However, most A.I. requires lawyers to use third-party vendors who are not lawyers or associated with a law firm. As such, lawyers must take appropriate steps to safeguard their client’s confidential information. A lawyer must take diligent steps to ensure that the information provided to the third-party will not reveal client confidences and that the third-party vendor will secure the information disclosure. While A.I. provides lawyers with many tools for the efficient representation of clients, lawyers must remain diligent and cautious in their use of the technology. The Texas Rules of Professional Conduct require lawyers to supervise the work of both lawyers and nonlawyers, including supervising others’ compliance with the Rules. Thus, lawyers using A.I. must adequately supervise the A.I. and review the A.I.’s work to verify the information is complete, correct, and does not otherwise violate the Texas Rules of Professional Conduct. A.I. has and will continue to impact the ways lawyers practice law. Further technological advances will improve on its ability to replicate routine legal work and improve the ability of lawyers to provide competent legal advice. So, it is lawyers’ ethical obligation to understand the technology to better represent clients and comply with the Texas Rules of Professional Conduct. HN Hisham Masri, of Flowserve Corporation, can be reached at hmasri@flowserve.com.
Santa Brings a Suit
Donations Collected Thursday, December 2, 9:00 a.m.-Noon at the Dallas Bar Association 2101 Ross Avenue
Benefits the Dallas Life Foundation
Elise Healy + Associates, PLLC is now Foster LLP Through decades of leadership, Foster has employers, EB-5 investors and individuals customized legal services to meet their
We assist with: ▪ H1-B and Other Work Visas ▪ Non-US Work Visas ▪ “Green Cards” ▪ I-9 and E-Verify Audits and Support ▪ EB-5 Investor Visas Visit us at www.fosterglobal.com to learn more.
26 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2021
DBF – Committed to the Future STAFF REPORT
The Dallas Bar Foundation (DBF) had an outstanding start to 2021. With the cancellation of our November 2020 in-person, fund-raising event, benefitting the Sarah T. Hughes Diversity Scholarships, the DBF trustees made the decision to host A Conversation with Walter Isaacson remotely in the Spring and switched the program to a lunch time event. DBF Chair, Talmage Boston, of Shackelford, Bowen, McKinley & Norton, LLP, successfully arranged the new interview format with historian Walter Isaacson appearing from his home in New Orleans and Mr. Boston conducting the interview from the studio at the Center for American and International Law. With the generous support of Presenting Sponsors, Toyota Financial Services/Toyota North America, Inc. and past DBF Fellows Chair, Leon Carter, of Carter Arnett PLLC, it was the most successful fund-raising event in our 10 years of hosting the interview series. This was an important milestone in ensuring the continuation of the Sarah T. Hughes Diversity Scholarships and the sponsorships from law firms and businesses were very much appreciated in helping us reach this goal. Interviews for the Sarah T. Hughes Scholarships were conducted in late March. More applications were received than in any previous year and the quality of the applications was noteworthy. Two afternoons were set aside for the selection committee of Mr. Boston, Brad Weber, of Locke Lord LLP; Tricia DeLeon, of Holland & Knight LLP; Joel Crouch, of Meadows Collier; Gabe Vazquez, of Vistra Corp.; and Kim Askew, of DLA Piper LLP, to participate in Zoom interviews with the 10 finalists. Three Hughes Scholars, receiving the multi-year
scholarship, were named: Darren Chen, SMU; Olivia Crumpton, UNT College of Law; and Gilberto Gomez, Texas A&M University School of Law. The DBF is proud to announce the graduation of the 2019 Hughes Scholars, Danielle Zapata and Brooke Lopez, who were ranked #1 and #3 respectively in their class at UNT Dallas College of Law. Danielle will be starting her career at Greenberg Traurig, LLP in their IP Division while Brooke has accepted a law clerk position, to become a trial attorney, at the EEOC in the Dallas District office, which she describes as her dream job. We are also proud to announce the graduation of 2018 Hughes Scholar, Semaj Garrett, UNT. Semaj was a part-time student who was able to balance a successful law school career with being a full-time mother and graduate in the top 30 percent of her class. In addition to the Hughes Scholarships, the summer internships and clerkships awarded to law students represents the other long-term commitment of the Foundation. The DBF Board of Trustees was pleased to announce, in January 2021, their decision to fully fund several summer clerkships for 10 additional years. The clerkships are the Justice James A. Baker Clerkship at the Supreme Court of Texas, the Bob Mow Judicial Internship at the U.S. District Court, and the Chief Justice Carolyn Wright Internship at the Fifth District Court of Appeals. Additionally, the six Collins Clerkships which were established in 1989 have now been funded through 2026. While most of the DBF’s summer internships for law students were cancelled again this year due to COVID, we were able to award the Chief Justice Carolyn Wright Internship at the Fifth District Court of Appeals. Justice Erin Nowell agreed to
serve as the student’s mentor again this year. Andrea Cos Mora, SMU 2L, was selected for the internship by the committee comprised of Aubrey Connatser, of Connatser Family Law, Laura Benitez Geisler, of Sommerman, McCaffity, Quesada & Geisler, L.L.P., and Judge Rhonda F. Hunter, 303rd District Court. We were also able to award 3 of the 6 Collins Clerkships this summer. Collins Clerkship Chair, Sean Hamada, of Hamada Smith, PLLC, was pleased to announce in May the placement of the 3 clerks: NhuThinh Nguyen, Texas A&M 2L, Joan Gregg, SMU 2L, and Maricela Gonzalez, Texas A&M 2L. The DBA Intellectual Property Section established a scholarship fund at the Dallas Bar Foundation in January 2021. IP Section Chair John Tower, of Hitchcock Evert LLP, introduced the three law students, selected to receive a $1,500 scholarship, at a virtual IP Section meeting this spring. The students, Sasha Mohammad, of SMU, Michael Campbell of UNT, and Jose “Alex” Martin del Campo, of Texas A&M, represented each of the three area law schools. BAR NONE 2021, Remotely Entertaining, will be a virtual event again this year due to COVID. The Bar None performers will be appearing in a 30-minute video montage of entertaining skits that you can enjoy remotely at your leisure. We applaud the Bar None cast for their commitment to raise funds in support of the Sarah T. Hughes Diversity Scholarships with their Remotely Entertaining show. You still have time to be a Best Friend of Bar None! The Stephen H. Philbin, II Award for Excellence in Legal Reporting was presented by the Dallas Bar Foundation in the spring. Journalists working in Texas were eligible to submit an entry for the statewide award. This
year the $5,000 prize was given to a team of journalists from the NBC Austin affiliate, KXAN, for their series, Locked in Limbo. The report described how mentally ill men and women languish in county jails, incapable of standing trial, and waiting for a bed placement in a state hospital. In 2019, their cases reached an historic level. It was with great sadness that we informed the trustees of Susan Philbin’s passing in February. Susan was a generous and caring individual. She made arrangements to ensure that the Stephen H. Philbin, II Award would continue to be given in perpetuity through the Dallas Bar Foundation in memory of her brother, a long-time member of the Dallas Bar Association and a partner with the firm of Locke Purnell Boren Laney & Neely. Stephen died in 1982 from leukemia. The Dallas Bar Foundation planned to end the year with the Fellows Luncheon honoring Judge Royal Furgeson as the recipient of the 2020-21 Fellows Justinian Award. It is difficult to imagine a more deserving person to receive this award, which recognizes professional excellence, commitment to serving the legal profession, and respect from his or her peers for adherence to the highest principles and traditions of the legal profession. However, given several factors, including the recent surge of the Delta variant and people’s reluctance to gather for an optional event right before the holidays, the decision to cancel the 2021 Fellows Luncheon was made. DBF Fellows Chair, Sakina Foster, of Haynes and Boone, LLP, affirmed the decision and said, “We are committed to protecting each other and following evidence-based measures so we all stay well.” We look forward to seeing everyone at the Arts District Mansion, Home of the Dallas Bar Association, and the Dallas Bar Foundation in 2022. HN
RENEW YOUR MEMBERSHIP DUES Don’t risk being dropped from the DBA membership!
The Dallas Bar Foundation Announces the
Twenty-Ninth Fellows Luncheon honoring
Renew TODAY in order to continue receiving all your member benefits including FREE online CLE programs and Committee Communications. Look for an email reminder with links to renew your Dues online or go online now and click on My DBA to log in to check your status and renew your Membership!
Thank you for your support of the Dallas Bar Association!
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
214.220.7487
PMS# 1807c
PMS# 1807c 79%
100% K
N o v e mb e r 2 0 2 1
Focus
D al l as Bar A ssoci ati on l Headnotes 27
Labor & Employment Law/Immigration Law
Withholding of Removal, Alternative Form of Humanitarian Relief BY YOVANNA VARGAS
Not everyone can apply for and win asylum. Blanca is a Salvadoran woman who suffered 15 years of physical and sexual abuse at the hands of her husband. An attempt to flee and enter the U.S. was unsuccessful and she was caught at the border and returned immediately to El Salvador where her husband further abused her. Local police refused to intervene in domestic matters. A second attempt to enter the U.S. was also unsuccessful and she was caught by Border Patrol. Blanca expressed fear of returning to her home country. Even though Blanca is almost certain to be persecuted if she is removed to El Salvador, she is not eligible for asylum. Consequently, her removal order is reinstated. In this scenario, how could Blanca potentially avoid deportation? An alternative form of relief is withholding of removal (called “non-refoulment” under the United Nations Convention Relating to the Status of Refugees). Withholding of removal is a form of protection available to individuals who demonstrate that their life or freedom would be threatened on account of certain specified grounds. The individuals must meet the clear probability of persecution standard that it is more likely than not that the individuals would be subject to persecution in their home country. There are two types of withholding of removal. The first, found in section 241(b)(3) of the Immigration and Nationality Act (INA), 8 C.F.R. 208.16, prohibits the Attorney General (AG)
from removing someone to a country where the AG has determined that the individual’s life or freedom would be threatened in statutorily enumerated ways on account of race, religion, nationality, membership in a particular social group, or political opinion. The second, found in 8 C.F.R. 208.16(c), prohibits the removal of an individual to a country where it has been determined that the individual would more likely than not be tortured. The latter, regulated by the Convention Against Torture, is beyond the scope of this article. Generally, individuals file an application for both asylum and withholding of removal at the same time on Form I-589. Even though these two applications may be filed at the same time, they are different forms of protection. First, asylum is a discretionary form of relief; withholding of removal is mandatory if the applicant meets the clear probability test set forth in INS v. Stevic. Note that the Supreme Court mandates that the individual must prove that “it is more likely than not” that he/she would be persecuted in the country to which he/ she was being deported. Moreover, this standard is quantified as more than 50 percent likelihood of persecution (INS v. Stevic at 429—430); Second, withholding of removal is only available as a defense to removal, whereas asylum may either be granted affirmatively or defensively; Third, winning a withholding of removal requires that the applicant meet a higher standard than for asylum; Fourth, withholding is granted by an Immigration Judge (IJ), not by an asylum officer. If the asylum is affirmatively denied by an asylum officer, it will be
referred to court in which withholding of removal will be available as an alternative protection. Fifth, withholding of removal is not subject to the one-year filing deadline, which is a statutory bar to asylum. 8 CFR § 208.4; Sixth, withholding of removal may be available despite criminal convictions that might otherwise bar asylum. In the Blanca scenario, the asylum officer found that she did have a reasonable fear of persecution on a protected ground (member of a particular social group defined by her gender: Salvadoran woman). Despite her unlawful reentry to the U.S. after being removed, Blanca was referred to immigration court for withholding-only proceedings. In the end, the immigration court granted her withholding of removal, so Blanca was able to stay in the U.S. and obtain authorization to work.
Withholding of removal is harder to win and offers fewer benefits than asylum. It does not provide a path to permanent residency and citizenship, but provides authorization to remain in the U.S. and work legally. If the individual is detained, the granting of withholding of removal will result in a 90-day post-removal detention period under INA§241(a)(1). The individual cannot leave the country, nor can the person petition to bring his/her family members to the U.S. Notwithstanding, for many individuals fearing harm in their home country, withholding of removal provides them an opportunity to get their lives back, learn to face their fears, and help them to achieve the life they truly desire in the U.S. HN Yovanna Vargas is the owner at the Law Office of Yovanna Vargas, PC. She can be reached at yovanna@yvargaslaw.com.
PLANNING TO DO SOME HOLIDAY SHOPPING ON AMAZON?
SHOP ON AMAZON AND GIVE BACK TO DVAP GO ONLINE TO SMILE.AMAZON.COM AND SELECT DVAP TO GET STARTED. When you shop through AmazonSmile, the AmazonSmileFoundation will donate .5% of the price of eligible purchases to DVAP.
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
Novem ber 2021
Renew Your Dues for 2022 and Join Us at the Arts District Mansion!
Harriet Miers was the Living Legend for the month of October. She was interviewed by Melissa Hayward and Rachael Smiley.
The statewide Day of Civility webinar was held on September 17. Judge Carl Stewart, of the 5th Circuit Court of Appeals, was the keynote speaker.
The Probate, Trusts & Estates Law Section held a successful hybrid program with speaker Lauren Davis Hunt, who spoke on the topic of “Face Masks, Zoom, and Quarantinis: Welcome to the 2021 Texas Estate and Trust Legislative Update.”
On October 1, the annual Dallas Minority Attorney Program was held in person at the Arts District Mansion. In addition to educational CLE hours and conversations with the judges, the Legacy Award was presented to U.S. Representative Eddie Bernice Johnson.
The DBA Technology Summit was held on September 27 and had nearly 200 participants. Thank you to (left to right): Timothy Newman, Rachel Ratcliff, Bill Cramer, and DBA President Aaron Tobin for their participation.
The Dallas-Fort Worth Lexus Dealers
D BA W E L E A D
Winner receives a 2022 Lexus NX 300*
WOMEN EMPOWERED TO LEAD
Ticket to Drive Raffle
APPLY NOW! DBA WE LEAD (Women Empowered to Lead in the Legal Profession) is a leadership program designed to address the challenges of high-performing women who have practiced law for 8 to 15 years.
Raffle tickets are $100 each - or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, which provides legal services to the less fortunate in our community. No more than 1,500 tickets will be sold. Runner-up receives: A choice of Belize All-Inclusive Trip, Tennessee Whiskey Adventure, or a Broadway in Chicago Trip. *Picture shown is not exact winning vehicle
Purchase raffle tickets online at www.dallasbar.org/dvapraffle Drawing will be held at the DBA Inaugural celebration on January 22, 2022 The winner need not be present to win. The winner is responsible for all taxes, title and licensing. Prize is non-transferable. No cash option is available.
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. WHEN DBA WE LEAD runs from February 2022 to November 2022 and includes four half-day sessions with mandatory attendance.
Cost: $1,000 Application Deadline: November 22, 2021 Need-based scholarships are available
For information and online application visit: www.tinyurl.com/2022DBAWELEAD Questions? Contact Judi Smalling at jsmalling@dallasbar.org.
N o v e mb e r 2 0 2 1
Focus
D al l as Bar A ssoci ati on l Headnotes 29
Labor & Employment Law/Immigration Law
International Entrepreneur Parole – the Basics BY LISA SOTELO
The U.S. immigration system does not have a “start-up visa” despite attempts in Congress to create one. There are numerous international treaties that provide temporary visas to support investments, but those treaties rely on a traditional mode of investment where the visa holder must invest a substantial amount of capital in a business in the U.S. Start-up entrepreneurs, on the other hand, often do not have significant capital of their own to invest and are more often looking for investments themselves from venture capital or angel investors. Immigration attorneys in this space have had to rely on creative uses of existing immigration categories to support international entrepreneurs, which leave many potential innovators out of luck. The International Entrepreneur Program (IEP) is a federal regulation issued by the Department of Homeland Security (DHS) that creates a pathway for foreign entrepreneurs to start and grow new companies in the U.S. Its purpose was to attract high-potential foreign entrepreneurs who would stimulate economic development and job creation through their start-up endeavors. The rule did not create a “start-up visa” since only Congress can create a completely new visa category. Technically, the rule is based on the Secretary of Homeland Security’s discretionary authority to grant “parole” in limited circumstances. Parole in the immigration context means temporary entry into the United States for a specific purpose, such as seeking medical treatment, assisting communities after disasters, or cooperating with law enforcement. In this case, applicants would have to show that
their stay in the U.S. will provide a significant public benefit through their business venture. Promulgated in 2017 under the Obama administration, suspended in 2018 under the Trump administration, and revived by the Biden administration in May 2021, the IEP has only been recently utilized to help innovators initiate their start-ups in the U.S. The process is so new that there is little guidance or statistics on approval rates available, nor is there any established expectation regarding processing time. However, interest in the program is only increasing as foreign entrepreneurs seek the ability to turn concepts into reality through their startups in the U.S. Under the IEP program, DHS can grant parole for qualifying entrepreneurs on a case-by-case basis for a period of up to 30 months. Those granted parole can only work for their start-up business. Family members are permitted to accompany the investor and spouses are permitted to apply for work authorization. This is all welcome news; although, it remains hard to qualify for the program, and relatively few applicants have been granted parole. That said, the program has promise, and current estimates are that approximately 3,000 foreign entrepreneurs could qualify, resulting in the creation of more than 100,000 jobs over a ten-year period. To qualify for parole, the entrepreneurs must demonstrate that: they have a significant ownership stake in the start-up (at least 10 percent initially) and have an active and central role in its operations; the startup must have been formed in the U.S. within the past 5 years; and the startup must have “substantial and
demonstrated potential for rapid business growth and job creation” as evidenced by either: a) significant capital investment (at least $250,000) from qualified U.S. investors with established track records; b) significant awards or grants (at least $100,000) from federal, state, or local government agencies; or c) showing other “reliable and compelling evidence,” such as admission into a highly competitive startup accelerator. Under the IEP, up to three eligible entrepreneurs per startup may be permitted an initial stay of up to 30 months to oversee and grow their U.S. business. A 30-month extension can be granted if the startup continues to demonstrate “significant public benefit” through substantial increase in capital investment, revenue, or job creation.
To apply, one must file Form I-941, Application for Entrepreneur Parole, pay the required fees, and provide detailed supporting documentation to the U.S. Citizenship and Immigration Service. Separate fees and forms are required for dependent spouses and children. Upon approval, the applicant must then obtain travel documentation from a U.S. consulate abroad before appearing at a U.S. port of entry for a final parole determination. The relaunch of the IEP creates opportunities for foreign entrepreneurs, startups, and those who invest in them. Practitioners hope HN Lisa Sotelo is the Founder and Managing Partner of Sotelo Immigration Law Group PLLC. She can be reached at Lisa@ soteloimmigration.com
Let's Keep it Social. Follow us! Find out what's going on at #DallasBarAssoc
IF MARRIAGE WERE A CORPORATION, WE WOULD BE THE HR DEPARTMENT
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
Novem ber 2021
In The News KUDOS
Hilda Galvan, of Jones Day, has been elected Chair of the Texas Women’s Foundation. Kathryn Murphy, of Goranson Bain Ausley, received the 2021 Sam Emison Award from the Texas Academy of Family Law Specialists. The Dallas Chapter of the American Board of Trial Advocates (ABOTA) 2021 officers include: President Steve Khoury, of Kelsoe, Khoury, Rogers & Clark, P.C.; Secretary William Toles, of Munsch Hardt Kopf & Harr, P.C.; Treasurer Brian Lauten, of Brian Lauten, P.C.; and Membership Chair Jeff Tillotson, of Tillotson Law. Courtney Marcus, of Weil, Gotshal & Manges LLP, has been named a 2021 Top Women Lawyer Award winner by the Texas Diversity Council. Judge Audrey Moorehead, of County Criminal Court No. 3, was elected Presi-
dent of the Texas Association of County Court at Law Judges. She also was named the Dallas Women Lawyers Association 2021 Outstanding Jurist. Chief District Judge Barbara M.G. Lynn, of U.S. District Court Northern District, received the 2021 SMU Distinguished Alumni Award.
Woessner joined as Senior Counsel. Debra Crafton joined Walker & Doepfner, PLLC as Partner in the firm’s Addison office Logan Adcock joined Munsch Hardt Kopf & Harr, P.C. as Associate. William Toles joined the firm as Shareholder.
Hon. Rhonda Hunter has been named President of the Annette Stewart American Inn of Court.
Nate Christensen joined HN Capital Partners as Managing Director and General Counsel.
ON THE MOVE
Nicole Kintop Smith joined Greenberg Traurig, LLP as Shareholder.
Brad Foster and Laura Stapleton joined Frost Brown Todd LLC as Members.
Jonathan James joined GoransonBain
Emily Lesowski joined Turner McDowell Rowan, PLLC as Associate. Jackie Johnson joined Constangy, Brooks, Smith and Prophete, LLP as Partner. Sara Barfield and Nikki Britten joined Jackson Spencer Law as Associates; Ron
Habla 1 ._espaiiol
Ausley PLLC as Partner in the Plano office. Anne Elizabeth Burns, Christopher J. Volkmer, and Emily S. Wall joined Cavazos Hendricks Poirot, P.C. as Shareholders. Robert Epstein has founded Epstein Family Law, 5949 Sherry Lane, Suite 1070, Dallas TX 75225. Phone 972-2327673. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org.
Spanish for Lawyers 2022 Spring Session: January 11 - March 16 Cost: $180 Learn how to read, write, and speak Spanish at
The 2021 DBA Membership Directory is now available! Check out the directory and legal resource guide used by Dallas attorneys! To request a copy of the new directory, contact pictorial@dallasbar.org.
Two Two Texas Texas Regions. Regions. Two Must-Have Bench Books.
Two Must-Have Bench Books.
an adult continuing education level, with emphasis on legal terminology at the intermediate and advanced levels. (Classes held online via video conference)
Register on line at dallasbar.org.
DA Forensics is a private investigations company (A10518901) in the DFW area, which focuses on the electronic recovery and preservation of data for investigative and evidentiary purposes. Areas of Investigations: Discrimination • Sexual harassment • Wrongful termination • Defamation • Retaliation • Substance abuse • Violence (or threat of violence) • Vandalism • Breach of trust • Conflict of interest • Data theft • Theft of IP • Accounting fraud • Data manipulation • Violation of company rules George Rodriguez, Special Agent, HSI (Ret); Digital Forensics Examiner GRodriguez@da-forensics.com | www.da-forensics.com 817-391-1502
(1) Publication Title: Headnotes. (2) Publication Number: 1057-0144. (3) Filing Date: September 14, 2021. (4) Issue Frequency: Monthly. (5) Number of Issues Published Annually: 12. (6) Annual Subscription Price: $30. (7) Complete Mailing Address of Known Office of Publication: 2101 Ross Ave., Dallas, TX 75201-2768. Contact Person: Jessica D. Smith. Telephone: 214-220-7477. (8) Complete Mailing Address of Headquarters or General Business Office of Publisher: 2101 Ross Ave., Dallas, TX 75201. (9) Full Name and Complete Mailing Address of Publisher: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Editor: Jessica D. Smith, Editor, 2101 Ross Ave., Dallas, TX 75201. (10) Owner: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. (11) Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None. (12) Tax Status: Has Not Changed During Preceding 12 Months. (13) Publication Title: Headnotes. (14) Issue Date for Circulation Data: September 1, 2021.
There is no better way to prepare for trial There is no better way to prepare for trial than to research your judge through than to research your judge through
Texas Book Series! Series! Texas Lawyer’s Lawyer’s Bench Bench Book Call 800-756-8993 or shop online to order your county’s Bench Book today! www.TexasLawyerBooks.com
(15) Extent and Nature of Circulation. (First number is Average No. Copies Each Issue During Preceding 12 Months; Second number is No. Copies of Single Issue Published Nearest to Filing Date). (15a) Total Number of Copies (net press run): 11,494; 16,680. (15b1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 1,762; 1,490. (15b2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 8,495; 8,056. (15b3) Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS: 0; 0. (15b4) Paid Distribution by Other Classes of Mail Through the USPS: 0; 0. (15c) Total Paid Distribution: 10,257; 9,546. (15d1) Free or Nominal Rate OutsideCounty Copies Included on PS Form 3541: 220; 1,067. (15d2) Free or Nominal Rate In-County Copies Included on PS Form 3541: 984; 6,005. (15d3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 2; 6 (15d4) Free or Nominal Rate Distribution Outside the Mail: 9; 14. (15e) Total Free or Nominal Rate Distribution: 1,215; 7,092. (15f) Total Distribution: 11,472; 16,638. (15g) Copies not Distributed: 22; 42 (15h) Total: 11,494; 16,680. (15i) Percent Paid: 89.4%; 57.4%. (16a) Electronic Copy Circulation. 0 (16b) Total Paid Print Copies + Paid Electronic Copies: 10,257; 9,456. (16c) Total Paid Distribution + Paid Electronic Copies: 11,472; 16,638. (16d) Percent Paid: 89.4%; 57.4%. (17) Publication of Statement of Ownership. Publication required. Will be printed in the November 1, 2021, issue of this publication. (18) Signature and Title of Editor, Publisher, Business Manager, or Owner: Jessica D. Smith, Editor. Date: September 14, 2021 I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).
N o v e mb e r 2 0 2 1
Focus
D al l as Bar A ssoci ati on l Headnotes 31
Labor & Employment Law/Immigration Law
Electronic Communication Policies & Social Media BY NATHAN PEARMAN
Social media has come a long way from the early days of dial-up America Online chat rooms. Indeed, “social media” is now a broad concept including web- and mobile-based technologies that distribute user-generated content. More than 90 percent of adults in the United States now use some form of social media, according to a Pew Research Center survey. Social media issues have pervaded in the workplace from the beginning, necessitating the need for employer policies addressing social media use and other issues in the digital workplace. There has been a “tug of war” at play between employees expecting some level of privacy concerning their online activities and employers wanting to monitor employees’ on-duty— and off-duty—social media habits and use the information collected. Courts have struggled to sort out this conflict in light of existing legal principles related to the expectation of privacy and electronic communication regulation predating social media, as well as (in public workplaces) First and Fourth Amendment concerns. Employers should craft social media and technology policies that reflect the utility of social media. Social networking sites such as LinkedIn can serve as an efficient, cost-effective means for employers to recruit job candidates, as well as an investigative tool in the hiring process. Moreover, social media can be used to identify abuses of sick or FMLA leave, evidence of other policy violations (e.g., a tweet saying “took a one-hour nap in the supply room today” on company time), and potential violations of restrictive covenants (e.g., non-compete, non-solicitation, and confi-
dentiality agreements). However, a variety of pitfalls exist for employees using social media. By engaging social media, employers can learn a wealth of information about applicants or employees that would otherwise not be accessible, such as race/color, age, religious beliefs, sexual orientation, or political associations. Employees may use social media to complain or make disparaging remarks about their work environment or supervisors. The best way to minimize risk is to implement a well-written electronic communication or social media policy. Below are a few practical, helpful tips to consider in crafting a social media policy. First, address ownership of social media accounts, the contents of the social media site and contacts at the time of hire. Several courts have recently addressed whether an employer can assert an interest in social network accounts maintained by employees. One Texas district court found a former majority owner of a firearm business undergoing a Chapter 11 bankruptcy reorganization was required to relinquish control of social media accounts, even though he created the accounts himself and used them as an extension of his “personality” and personal social media account. A Kentucky district court required a former president of a local union to relinquish control of the social media pages made for the union while he was in power because the pages were “created to communicate with Union members, held out as official Union pages, promoted on business cards and the official website, and other members of the Union had administrative privileges.” Second, when using social media as an investigative tool to obtain evidence
of improper behavior justifying employee discipline or separation, the rules must be enforced evenly. Use of social media investigative tools to punish one employee while not similarly punishing a similarly situated employee who engages in the same behavior can be used as evidence of discrimination. Third, incorporate language in social media policies relating to non-competition and non-solicitation activities after an employee’s separation of employment. Moreover, maintain confidentiality agreements and social media policies that expressly address employee use of social media and confidential information. These policies would include defining what information constitutes “confidential” and “proprietary” information and restrictions for sharing on social media. Fourth, ensure that a social media policy, as well as the consequences for violating the social media policy, does not run afoul of the National Labor Relations Act (NLRA). In Boeing, Co., 365 NLRB No. (Dec. 14, 2017), the National Labor Relations Board (NLRB) addressed
facially neutral workplace rules and established a balancing test to determine when such rules violate the NLRA—including social media policies. Under Boeing and its progeny, broad rules preventing employees from disclosing any “employee information” on social media, or requiring employees to identify themselves by their real name when discussing their employer or work on social media, have been held to be facially unlawful. The NLRB has a dedicated website with advice memorandums on employer rules post-Boeing, which is extremely useful when crafting social media policies and is available at www.nlrb.gov/guidance/memos-research/ advice-memos/advice-memoranda-dealing-handbook-rules-post-boeing. Addressing the use of social media in the workplace is a rapidly changing and evolving area of the law, and employment counsel should readily track court and NLRB opinions relating to permissible—and impermissible—social media policies. HN Nathan Pearman is an attorney at Hesse & Hesse, PC, can be reached at npearman@hesselaw.com.
Office Space, Position Wanted, Positions Available, Services
Classified Ads Available Online Contact Judi Smalling jsmalling@dallasbar.org 214-220-7452
Attorney-led investigations
in all 50 states and around the world.
WES BEARDEN CEO & Chairman
MIKE THOMPSON Chief Operating Officer
ASHLEY MULÉ Attorney & Investigator
CHARLES STEEN Attorney & Economist
ANTHONY HEGG Work Place Investigations
JOE NELSON Cyber & Digital Forensics
GERALD SANGUINO International Investigations
CHRISTINE VINSON Physical Security Assessments
DALLAS
HOUSTON
NEW ORLEANS
NEW YORK
1.800.943.2670 BEARDENINVESTIGATIONS.COM Texas License # C 07124
Louisiana License # 9374-072618-LA
New York License # 11000215749
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 HN_Nov2021-MakeYourMove-Final.pdf 1 10/7/2021 11:36:02 AM
C
M
Y
CM
MY
CY
CMY
K
Novem ber 2021
