Dallas Bar Association
HEADNOTES June 2010 Volume 34 Number 6
Focus Family Law
Ethics Fest
Law Day Luncheon
On May 7, local judiciary and attorneys attended the 2010 Law Day Luncheon at which Hon. Barbara M.G. Lynn was the guest speaker. In addition to awards presented to the winners of the Law Day DISD art and essay contests, the Dallas Association of Young Lawyers also presented awards for Outstanding Young Lawyer (Jennifer Tobin), Outstanding Mentor (Tonya Parker) and the Liberty Bell Award (Jigna Vyas Gosal). The DAYL award winners are shown with DBA President Ike Vanden Eykel, DAYL President Jennifer Edgeworth and DAYL President-Elect Penny Brobst Blackwell.
More than 150 DBA members attended the annual evening Ethics Fest May 13, which included topics such as an Expert on Ethics panel (featuring Edward V. Smith, Hon. Mark Greenberg, Hon. Jorge Solis, Hon. Douglas S. Lang and James E. Coleman), the Top 10 Ways to Avoid Getting Sued for Malpractice, Avoiding Big Problems for Small Firms and a session on the current issues in multiple party representations. The event, sponsored by the DBA Legal Ethics Committee, garnered attendees three hours of Ethics MCLE.
The Basics of Marital Property by Dana Lim
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s an attorney, you never know when a family law issue may arise. That’s why it is important to know the basics of marital property and how it applies to your client’s situation. First, Texas is a community property state. Unlike the common law marital property system used in many other states, the community property system presumes that all property acquired during marriage is community property. On the other hand, separate property, as defined by the Texas Constitution, is “[a]ll property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent.” Although these terms may seem pretty broad, they are fairly easy to understand. For example: Grandma’s china that you received when she died—separate property; wages from your job—community property. The difficulties in classifying property as community or separate usually arise when an item of separate property is mixed with either community property or community effort. The two landmark Texas cases which explain how to characterize marital property are De Blane v. Hugh Lynch & Co., 23 Tex. 25 (1859) and Stringfellow v. Sorrells, 18 S.W. 689 (Tex. 1891). To summarize, Texas law presumes that wages, earnings and increases
Inside 6 Common Law Marriage in Modern Days 8 Pro Bono Golf Tournament 11 Electronic Evidence: Who’s Getting Caught in the Act? 16 4C Court—An Addict’s LAST “Last Chance”
acquired during marriage are the results of the joint efforts of both husband and wife; therefore they are community property. However, if an item of separate property increases in value, it remains separate property, even if it is the other spouse who put forth the effort to enhance the value. Though these cases may be old, the concepts are still evident in modern case law. For instance, the legal evolution of De Blane has led the Texas Supreme Court to reason that, because wages earned during marriage are community property, any money saved during marriage as part of a retirement plan is also community property. Thus, it is subject to a just and right division upon the end of the marriage, even if the retirement benefits had not matured at the time of the dissolution of the marriage. Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976). Modern day examples of Stringfellow can best be understood through the lens of two other legal concepts: reimbursement and economic contribution. Under common law, the community estate was entitled to reimbursement for the expense and effort used to enhance the value of one spouse’s separate property. As you can imagine, this would sometimes lead to inequalities when the trial court divided the community estate. In order to fix these inequalities, continued on page 14
2 H e a d n o t e s l D a l l a s B a r A s sociation
Calendar
June Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS June 4 — Belo Mansion
Noon
“Alternative Dispute Resolution in Professional Sports: The Evolution of Major League Baseball Salary Arbitration,” Greg Torborg and Matt Morris. Sponsored by the DBA’s CLE Committee and the Sports and Entertainment Law Section. RSVP, contact kzack@dallasbar.org. (MCLE 1.00)*
June 18 — Belo Mansion Noon
“Update on the Medicare Recovery Act,” Sally Stalcup. (MCLE 1.00)*
June 11 — North Dallas**
Noon
“Substance Abuse and the Grievance Process,” Daniel Garrigan, Dr. Benjamin Albritton. Sponsored by the DBA’s Peer Assistance Committee. (Ethics 1.00)*
TUESDAY, JUNE 1 Noon
Corporate Counsel Section “ADR—Pros and Cos and Different Avenues,” Stan Eigenbrodt. (MCLE 1.00)*
Tort and Insurance Practice Section “How to Preserve Error,” Scott Stolley. (MCLE 1.00)*
Morris Harrell Professionalism Committee
5:30 p.m.
Bar None Production Company Rehearsals
WEDNESDAY, JUNE 2
Noon
Employee Benefits/Executive Compensation Section “Effectively Navigating Through an Employee Plans Audit,” Loretta Dollar. (MCLE 1.00)*
Solo & Small Firm Section “What To Do When Your Client’s Employee Is Being Investigated,” Michael R. Goldman. (Ethics 1.00)*
Summer Clerks Pro Bono Luncheon. Learn about the many pro bono opportunities in Dallas. Co-sponsored by the DBA Pro Bono Committee and DVAP. RSVP to reed-brown@lanwt.org. (MCLE 1.00, including 0.5 Ethics)*
3:30 p.m.
Texas High School Mock Trial Competition
TUESDAY, JUNE 8
Public Forum Committee
6 p.m.
DAYL Board of Directors
5:30 p.m.
Bankruptcy & Commercial Law Section “Landlord Tenant and Related Issues,” Robert D. Albergotti, Michelle E. Shriro, Mark E. Andrews. (MCLE 1.00)*
Home Project Committee
Bar None Production Company Rehearsals
DAYL CLE Committee
J.L. Turner Legal Association Lunch & Learn The State of the Real Estate Market
5:30 p.m.
Bar None Production Company Rehearsals
Noon
Friday Clinic – Belo “Alternative Dispute Resolution in Professional Sports: The Evolution of Major League Baseball Salary Arbitration,” Greg Torborg and Matt Morris. Sponsored by the DBA’s CLE Committee and the Sports and Entertainment Law Section. RSVP, contact kzack@dallasbar.org. (MCLE 1.00)*
FRIDAY CLINIC– North Dallas** “Substance Abuse and the Grievance Process,” Daniel Garrigan, Dr. Benjamin Albritton. Sponsored by the DBA’s Peer Assistance Committee. (Ethics 1.00)*
Trial Skills Section “Malpractice Trends,” Randy Johnston. (Ethics 1.00)*
Minority Clerkship Luncheon. Keynote speaker Hon. James C. Ho, Solicitor General of Texas. Learn about the broad range of opportunities in Dallas. RSVP to bavina@dallasbar.org.
MONDAY, JUNE 14
Alternative Dispute Resolution Section Topic Not Yet Available
TUESDAY, JUNE 15
Senior Lawyers Committee
Family Law Section Board Meeting
Noon
Peer Assistance Committee
4 p.m.
Judiciary Committee
FRIDAY, JUNE 11
Legal Ethics Committee
J.L. Turner Legal Association
Tax Section “Recent Developments in Federal Income Taxation,” Ira Shepard. (MCLE 1.00)*
DAYL Equal Access to Justice Committee
Construction Law Section “Subcontractor Default Risk in 2010,” Jonathan Halloran. (MCLE 1.00)*
6 p.m.
Noon
Noon
Collaborative Law Section “Overcoming the Impasse,” Bruce Solis. (MCLE 1.00, including .5 Ethics)*
MONDAY, JUNE 7
Business Litigation Section “Advocacy in Business Litigation Appeals Before Intermediate Appellate Courts and the Supreme Court of Texas,” Justice Eva Guzman. (MCLE 1.00)*
THURSDAY, JUNE 3
Noon
Noon
Noon
FRIDAY, JUNE 4
June 2010
WEDNESDAY, JUNE 9 7:45 a.m.
Dallas Area Real Estate Lawyers Discussion Group
Noon
Family Law Section “Managing Negotiations and Settlements,” Vicki M. James. (MCLE 1.00)*
CLE Committee
House Committee
Publications Committee “The Legal and Ethical Implications of Allowing the Creation of a Test-Tube Baby with Five Parents.” Sponsored by the Dallas Women Lawyers Association. (Ethics 1.00)*
Real Property Law Section “Residential Real Estate Update,” Marsha L. Williams. (MCLE 1.00)*
MONDAY, JUNE 21
Noon
Labor & Employment Law Section “2010 Immigration Compliance Update,” Richard A. Gump, Jr. (Ethics 1.00)*
TUESDAY, JUNE 22 Noon 6 p.m.
Courthouse Committee American Immigration Lawyers Association Dallas Hispanic Bar Association
WEDNESDAY, JUNE 23 Noon
Sports & Entertainment Law Section “The Electronic Copyright Registration System,” Amy Mitchell. (MCLE 1.00)*
Juvenile Justice Committee
DAYL Aid to the Homeless Committee
DVAP New Lawyer Luncheon
Environmental Law Section “TCEQ: Water & Air Quality Perspectives,” Carlos Rubinstein. (MCLE 1.00)*
DAYL Elder Law Committee
Library Committee
DAYL Animal Welfare Committee
Federal Bar Association
WEDNESDAY, JUNE 16
Pro Bono Activities Committee
Christian Lawyers Fellowship
Judiciary Committee—Local Rules Working Group
Non-Profit Law Study Group
5:15 p.m.
LegalLine
DAYL Judiciary Committee
5:15 p.m.
LegalLine
Sponsored by the DBA Media Relations Committee
Friday Clinic - Belo “Update on the Medicare Recovery Act,” Sally Stalcup. (MCLE 1.00)*
International Law Section Topic Not Yet Available
Library Committee
Panelists include: U. S. District Judge Barbara M.G. Lynn Assistant U.S. Attorney Sarah Saldana Dallas Morning News Reporter Jason Trahan Fox 4 T.V. Reporter Shaun Rabb Moderator Paul Watler, Partner at Jackson Walker, L.L.P.
Noon
June 29, Noon, Belo Mansion, MCLE
FRIDAY, JUNE 18
Criminal Law Section “Issues with Electronic Evidence,” Mike Gibson. (MCLE 1.00)*
Health Law Section “Trends in Healthcare Reimbursement and Revenue Cycle Management,” Timothy Martin. (MCLE 1.00)*
15 Years Since the O.J. Simpson Trial
DBA Board of Directors
Noon
PRESS COVERAGE OF THE LEGAL SYSTEM IN THE DIGITAL AGE:
3:30 p.m.
Government Law Section Pro Bono Opportunities,” Chris ReedBrown, Katherine Saldana, Kristen Salas. (MCLE 1.00, Ethics 0.25)*
Energy Law Section Topic Not Yet Available
DAYL Barristers for Babies
Dallas Gay and Lesbian Bar Association
Noon
11:30 a.m.
Franchise & Distribution Law Section “Social Media Legal Issues that Businesses Need to Know,” Peter Vogel. (MCLE 1.00)*
Dallas Women Lawyers Association “Special Event & Book Signing. Surprise Guest Speaker: New York Times Best-Selling author and one of the 100 Most Influential People in the World” Sponsored by the Dallas Women Lawyers Association.
THURSDAY, JUNE 10
Dallas Criminal Defense Lawyers Association
Noon
11:30 a.m.
Judiciary Committee –Local Rules Working Group
Municipal Justice Bar Association
THURSDAY, JUNE 17
Noon
Appellate Law Section “Federal Mandamus and the East Texas Venue Wars,” O. Rey Rodriguez. (MCLE 1.00)*
J. Reuben Clark Society
Minority Participation Committee
UPL Subcommittee
THURSDAY, JUNE 24
FRIDAY, JUNE 25 Noon
Intellectual Property Law Section “In re Bilski-Supreme Court Update,” Brian C. McCormack. (MCLE 1.00)*
Media Relations Committee
MONDAY, JUNE 28 Noon
Computer Law Section “Electronically Stored Information: Digital Forensics and E-Discovery,” Dr. Gavin Manes. (MCLE 1.00)*
Securities Law Section “Update of Financial Markets Regulation Overhaul,” Philip D. Weller. (MCLE 1.00)*
TUESDAY, JUNE 29
Noon
“Press Coverage of the Legal System in the Digital Age Panel,” Panelists include Hon. Barbara M.G. Lynn, Sarah Saldana, Jason Trahan, Shaun Rabb, moderator Paul Watler. Sponsored by the Media Relations Committee. (MCLE 1.00)*
WEDNESDAY, JUNE 30 No DBA meetings scheduled.
THURSDAY, JULY 1 Noon
Construction Law Section Topic Not Yet Available
Family Law Section
DAYL CLE Committee
FRIDAY, JULY 2
No DBA meetings scheduled.
The new 2010 DBA Membership Directory (available in print and online) is coming in June. Check out the directory and legal resource guide used daily by Dallas attorneys! To view the online directory go to www.dallasbar.org/pictorial and login.
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KTarangioli@dallasbar.org.
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Dal l as Bar A ssoci ati on l Headnotes 3
Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC Dallas 214.373.7676 Plano 214.473.9696 :: gbfamilylaw.com
4 H e a d n o t e s l D a l l a s B a r A s sociation
June 2010
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
VISION 2020 by ike vanden eykel
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s the 101st President of the Dallas Bar Association, I am proud of our organization as it operates efficiently in 2010. The DBA is relevant to the Dallas community and to the legal community, and it provides value to its members. We have many fine attorneys doing great work on behalf of our organization and we can, and should, be proud of our accomplishments. However, as important as it is for us to realize and appreciate where we are today as a bar association, I am of the firm belief that it is imperative that we look to the future to see what needs to be done to maintain our position as the most prominent bar association in this country. Our leadership in the 1970s did not just sit back and be content with what had been accomplished by the DBA up to that point. They looked into the future and as a result made the decision to purchase and refurbish the Belo Mansion. In 2000, our leadership took on the challenge of looking forward when it tackled the expansion of our facility that resulted in the building of the Pavilion and parking garage. We owe it to the future members of our profession and of the Dallas Bar Association to once again look forward in time. That responsibility led to the formation of the Vision 2020 Commission in January of 2010. The charge to this group is to look critically at our organization, to determine the resources available to us to determine what needs to be done in order to ensure that the DBA is able to remain relevant in the year 2020 and continue to be able to service the needs of our members, as well as our community. This is no small task, but I am committed as the 2010 President of the DBA to the efforts of Vision 2020. My successor for 2011, President-Elect Barry Sorrels, is also committed to this project, which is expected to take up to two years to complete. The Chair of Vision 2020 is Jerry Alexander, who is a shareholder at Passman & Jones. Jerry has already put in many hours into the organization of the commission. He brings great leadership skills to the table, as well as a passion for the future of our profession. I am grateful for Jerry’s willingness to take on this formidable task. In describing the work of the Commission, Jerry put it as follows: “We will be involved in collecting information, thoughts and ideas about what the DBA needs to be considering for 2013, 2015 and 2020 regarding how it can: • Stay relevant; • Have value to its members; and • Remain GREAT into the foreseeable future.” Working with and complementing Jerry’s leadership in Vision 2020 are our Co-Vice Chairs of the Commission, Kim Askew and Rob Crain. Both of these individuals bring to this Commission an energy level and commitment to the Dallas Bar Association that is evident to everyone working on the project. Kim is a shareholder at K&L Gates and has a resume of public service to our profession that is remarkable. Her service to the Dallas Bar, as well as the State Bar of Texas and the ABA, makes her role on the commission a natural fit. Kim is in charge of the External Group for Vision 2020. This group draws information and expertise from sources outside of the DBA to help determine the path of our organization. When asked about the significance of Vision 2020, Kim made the following observation: “The DBA is one of the country’s strongest bars because our leaders have always looked to the future and positioned the DBA to be responsive to the needs of our lawyers, judiciary and com-
Board of Directors Roundup
S
cott McElhaney, chair, called the April 15 meeting to order and welcomed and introduced guests. Scott Conrad and David Diaz, co-chairs of the Home Project Committee, reported to the board that the DBA is the longest running Habitat for Humanity sponsor in the city, and that this year’s house is currently under construction. He reminded the Board that May 22 is the dedication and May 27 is the wrap party. Reporting on the High School Mock Trial Program, cochair Steve Gwinn stated that this was another successful year for the program, with 151 teams in the state competition, up from 137 in 2009. He announced that Booker T. Washington High School won the state competition and went on to represent Texas at the national competition in May. Mr. McElhaney then explained that in an effort to coordinate with the work of the Vision 2020 Commission, it is his and DBA President Ike Vanden Eykel’s hope to have guest speakers each month who can share their vision for the upcoming years. The first speaker was Dean John Attanasio of SMU Dedman School of Law. The next speakers were Dr. Edward Rincon and Dr. Kevin Karlson who spoke on the future of the legal profession.
munity. Vision 2020 continues that tradition. Many changes are taking place in the profession that will dramatically impact the delivery of legal services and our bar in coming years. Vision 2020 allows us to think about the future and continue to build the DBA in a manner that brings value to our members.” Rob is a principal in the firm of Crain & Lewis and is a member of the Dallas Bar Board of Directors. In addition to his work with the DBA, Rob has worked for years in his efforts on behalf of the Dallas Association of Young Lawyers. Rob heads the Internal Group for Vision 2020. Its charge is to tap the outstanding resources we already have in place at the DBA–staff, committees and sections–for information. In reflection on the Vision 2020 Commission, Rob summarized his feelings: “Thanks to the leaders who came before us, 70 percent of Dallas lawyers find it important to be members of the Dallas Bar Association, a percentage greater than any other metropolitan area in Texas. The 2020 Commission is charged with examining how the Bar Association remains relevant to its membership and continues to add value to lawyers in every practice area. Ike’s vision is groundbreaking; Bar Associations from around the country are watching what we do and asking for our findings. As we move forward and collect information from inside and outside our membership, every idea is on the table. I believe we can make the best bar association in the country even better.” The distinguished list of the members of the Vision 2020 Commission is as follows: Karen McCloud Jerry Alexander Mark Melton Margaret Allen Lauren Mutti Kim Askew Jose Ortiz Steve Bolden Dustin Paschal Cheryl Camin Jana Paul Adam Connatser Mary Scott Rob Crain Hope Shimabuku Jennifer Edgeworth Barry Sorrels Laura Benitez Geisler Paul Stafford Bob Hinton Scott Stolley Ladd Hirsch Dena Stroh Nicola Hobeiche Aaron Tobin Hon. Martin Hoffman Jennifer Tobin Martha Hoffmeister Aimee Williams Pat Keane Elisabeth Wilson Kate Kilanowski Kimberly Wilson Jennifer King Robert Witte Chris Lewis Wesley Young Catharine Maher As the work of this Commission proceeds, we would like to ask our members to share your thoughts and ideas on the project with members of the Commission. You can go to any of the listed members and give them your input. This is a project of your Association and it is intended to improve what the DBA does now for you and what it can do in the future. You can also e-mail your ideas and suggestions to dbavision2020@dallasbar.org. We owe it to the lawyers who will be following in our footsteps to have done everything we can to keep the Dallas Bar Association in the lead among bar associations. Vision 2020 is a big part of that responsibility and I commend our members who are giving back to HN our profession on this effort. Reporting from the Texas Equal Access to Justice Foundation, Betty Torres reported on the financial state of pro bono legal services in Texas. She then gave an update on the Prime Partner Program. As the chair of the 2010 Pro Bono Golf Classic, co-chair John Polk encouraged the board to become a “friend “ of pro bono at $255 and to play in the May tournament. Robert Tobey, chair of the Business Litigation Section gave an update on the programs that are scheduled for his section. Areya Holder, chair of the Bankruptcy Section, explained that the section has continued to grow and now has 615 members. Reporting on the Appellate Law Section, vice chair Ben Mesches explained that their primary program this year is to coordinate the Pro Bono Appellate Program with DVAP. Nicole LeBoeuf, Collaborative Law Section chair, also gave an update on her section. Bryan Rutherford reminded the board that he serves as the DBA’s appointment to the Judicial Nomination Commission and gave an explanation of the commission. During his president’s report, Mr. Vanden Eykel congratulated Diane Sumoski who received the Women’s Advocacy Award in April. There being no further business, the meeting was HN adjourned.
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBAís 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: Ike Vanden Eykel President-Elect: Barry Sorrels First Vice President: Paul K. Stafford Second Vice President: Sally Crawford Secretary-Treasurer: Wesley Young Immediate Past President: Christina Melton Crain Directors: Scott M. McElhaney (Chair), Brad C. Weber (Vice Chair), Jerry C. Alexander, Hon. Jane J. Boyle (At Large), Wm. Frank Carroll, E. Leon Carter, Rob Crain, Jennifer Edgeworth (President, Dallas Association of Young Lawyers), Laura Benitez Geisler, Michael K. Hurst, Hon. Marty Lowy, Michele Wong Krause, Karen McCloud (President, J.L. Turner Legal Association), Jose Ortiz (President, Dallas Hispanic Bar Association), Mary L. Scott, Hope Shimabuku (President, Dallas Asian American Bar Association), Scott P. Stolley (At Large), Diane M. Sumoski and Debra K. Thomas. Advisory Directors: Penny Brobst Blackwell (PresidentElect, Dallas Association of Young Lawyers), Eric Blue (President-Elect, J.L. Turner Legal Association), Eunice Kim Nakamura (President-Elect, Dallas Asian American Bar Association) and Hon. Teresa Guerra Snelson (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Kim J. Askew, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Beverly B. Godbey, Timothy W. Mountz, Robert R. Roby, Mark K. Sales HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Jessica D. Smith Calendar: Kathryn Zack In the News: Judi Smalling Art Director: Laura E. Heymann Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen, Timothy G. Ackermann and Suzanne Raggio Westerheim Vice-Chairs: Lea N. Clinton, Paul R. Clevenger Members: H. Joseph Acosta, Natalie L. Arbaugh, Wesley J. Bailey, Heather J. Barbieri, Vance L. Beagles, Eric Blue, Barbara Boudreaux, Quentin Brogdon, Lance E. Caughfield, Pat Driscoll, Dawn E. Fowler, Floyd R. Hartley Jr., John Thomas Hayes, Paul W. Herring, Mary Louise Hopson, Arshil A. Kabani, Mike Keliher, Jamie McKey, Elizabeth Jo McShan, Thomas L. Mighell, Mitchell S. Milby, Clay Miller, Jennifer Mitchell, Hon. Jim Moseley, Sonia Navia, Heather Bailey New, Jenna Page, Kirk Pittard, Irina B. Plumlee, Laura Anne Pohli, Robert D. Ramage, Andrew Baxter Ryan, Gregory W. Sampson, Steven D. Sanfelippo, Barry Sorrels, Paul K. Stafford, Scott B. Stahl, Amy E. Stewart, Sherry L. Talton, Debra K. Thomas, Ike Vanden Eykel, Peter S. Vogel, Thomas Williams, Courtney Willis, Elizabeth A. Wilson, Sarah Q. Wirskye. DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications / Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Michelle Dilda Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects & Communications Assistant: Kathryn Zack Publications Assistant: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas. Data Entry/Office Support: Patsy Quinn Copyright Dallas Bar Association 2010. 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 Associationís sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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Dal 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 sociation
Focus
June 2010
Family Law
“What’s your status?” Common Law Marriage in Modern Days by Aimee Pingenot and Rebecca Armstrong
R
icky Gervais, actor and creator of the television series The Office, was recently quoted by the Associated Press explaining why he had not married his “partner” of 25 years, Jane Fallon: “I don’t see the point. We are married for all intents and purposes, everything’s shared, and actually our fake marriage has lasted longer than a real one ....” According to the 2000 United States Census there are 5.5 million unmarried people, like Ricky Gervais and Jane Fallon, living together in the same household. Unmarried partners should be aware that certain actions and behaviors could lead to finding a common law, or informal marriage, as defined by the Texas Family Code. The question of whether domestic partners have entered into a common law marriage is not an issue confined to family law. The issue can arise in numerous areas of law, including personal injury, probate, criminal, employment, insurance and immigration. Thus, domestic partners must be aware of the potential legal ramifications of their actions and of a finding of common law marriage. Under Section 2.401(a)(2) of the Texas Family Code, common law marriage exists when (1) there is an agreement to be married, (2) after such an agreement, the couple lived together in Texas as husband and wife, and (3) the couple represented to others that they were married. All three of the requisites under Section 2.401(a)(2) must exist at the same time for a court to find
that a common law marriage exists. An agreement to be married may be express or implied based on the representation to others that they were married, and actions and words may suffice to establish such intent. Proof of cohabitation and representation to others that they are married may constitute circumstantial evidence of an agreement to be married. And the agreement to be married must be a present agreement and must be evident on both sides. Establishing that the parties lived together as husband and wife does not require the parties to have lived together for a certain amount of time. Courts have found that living together for as little as two months satisfies this element. When determining whether the parties represented to others that they were married, the courts look to the facts and circumstances of each case. Facts the courts have considered relevant include: filing a joint income tax return, a credit application listing the other party as a spouse, joint accounts, property titles referencing the parties as husband and wife, and witness statements. Typically, a marriage is dissolved by divorce or death of a spouse. This also applies to common law marriage. However, under Texas Family Code Section 2.401(a)(2), if a suit to prove the common law marriage has not been filed within 2 years from the date on which the parties separated and ceased living together, there is a rebuttable presumption that the parties did not enter into an agreement to be married,
and, therefore, none existed. What is your status? If you are one of the 5.5 million people living together in the United States, one way to prevent your being found, unwillingly, to be in a common law marriage is to execute a cohabitation agreement with your domestic partner. Texas Family Code Section 1.108 requires a cohabitation
agreement to be in writing and signed by the parties. Courts have upheld the validity of such an agreement as a con HN tract between two parties. Aimee Pingenot is a partner in McClure Duffee & Eitzen LLP, and can be reached at apingenot@mde-lawfirm.com. Rebecca Armstrong is an associate at McClure Duffee & Eitzen LLP, and can be reached at rarmstrong@mde-lawfirm.com. Both practice primarily in family law.
Bar None presents Alice in BarNoneLand: 25 Years Through the Looking Glass June16-19 at the Greer Garson Theatre on the SMU Campus All proceeds benefit the Sarah T. Hughes Diversity Scholarships. To buy tickets, visit www.barnoneshow.com or contact Elizabeth Philipp at (214) 220-7487 or ephilipp@dallasbar.org.
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Dal l as Bar A ssoci ati on l Headnotes 7
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8 H e a d n o t e s l D a l l a s B a r A s sociationâ€
June 2010
Pro Bono Golf Tournament In May, nearly 100 golfers participated in the 19th Annual Pro Bono Golf Classic at The Golf Club of Dallas to benefit the Dallas Volunteer Attorney. With the support of more than 30 sponsors, particularity the presenting sponsor Koons, Fuller, Vanden Eykel & Robertson, P.C., early projections show proceeds of more than $40,000 was raised to help provide pro bono legal services to low-income residents of Dallas. Thank you to all of our sponsors! We appreciate you!
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Focus
Dal l as Bar A ssoci ati on l Headnotes 9
Family Law
Collecting Unpaid Awards in Divorce Proceedings by Andrew Emerson
F
requently, Texas divorce decrees include monetary judgments against one spouse for purposes of equalizing the division of assets. Similarly, divorce decrees and orders for modification many times include awards of attorney’s fees on behalf of one spouse. Unfortunately, on many occasions these monetary awards are not pursued for collection but instead languish in the family lawyer’s file. The reality is that Texas law provides a myriad of collection procedures that can frequently result in collection of these monetary awards with minimal effort. Rule 621a of the Texas Rules of Civil Procedure provides that all of the discovery mechanisms allowed in pretrial proceedings are available for purposes of collecting judgments. A common starting point for collection of the award is service of a comprehensive document request on the debtor requiring production of documentation that will disclose all of the debtor’s assets and sources of income. Tex. R Civ. P. 192.3(b). The documents are due for production 30 days after service of the request, and in tandem therewith, the creditor’s attorney can serve a deposition notice on the debtor scheduling a depo-
sition within seven days after the date for the document production. On numerous occasions, the debtor will fail to respond to the document request or the deposition notice, and a motion to compel can immediately be filed. Tex. R. Civ. P. 215.1. The debtor will frequently fail to appear at the hearing on the motion to compel, leaving the creditor with an order for debtor to produce responsive documents and appear for deposition in short order. Moreover, the order to compel can frequently be used to increase the debtor’s obligations, such as obtaining all documents available from a third party and paying all costs associated with securing the documents. Remarkably, debtors frequently disregard the order to compel, and creditor’s counsel will proceed with a simple motion to hold the debtor in contempt, requesting a jailing until he or she purges the contempt. If the debtor fails to appear at the contempt hearing, a writ of attachment will be issued resulting in the embarrassment of the spouse being arrested at his or her place of work or residence and jailed if the court is unavailable to immediately conduct the hearing. A short period in jail, itself, frequently persuades the debtor that the better course
of action is to simply end the ordeal by paying the amounts awarded in the original divorce decree or order. Conversely, if the debtor cooperates from the inception with post-judgment discovery, the creditor, for a minimal cost, can obtain comprehensive information concerning the assets and financial wherewithal of the debtor. The creditor need not hire a court reporter for the deposition, but rather, the deposition can be taken by video or other recording device. Tex. R. Civ .P. 199.1(c). One other recommended tactic is to schedule the deposition and document request simultaneously on a Friday morning in hopes that bank account statements will be produced. This will hopefully afford the creditor’s counsel an opportunity to file a garnishment proceeding before the debtor has an opportunity to withdraw monies from bank accounts. With the information and documentation obtained from the deposition and document request, the creditor has a variety of means by which to collect the award. First, the creditor may resort to garnishment of bank accounts. Simultaneously, the debtor may pursue a turnover proceeding.
Tex. Civ. Prac. & Rem. Code §§ 31.002, 31.0025, and 31.010. The turnover statute provides great flexibility to the creditor in shaping terms and conditions for the turnover of non-exempt property including the appointment of a receiver, or entry of a temporary restraining order or injunction. Additionally, it provides the remedy of ordering monthly or otherwise systematic payments into the court’s registry or to a designated constable or receiver until the judgment is paid in full. Finally, the turnover order can ask for and provide for the turnover of nonexempt property without identifying the specific property subject to turnover. Tex. R. Civ. P. 31.002(h). In conclusion, while Texas law does provide some of the nation’s most extreme legislative protection for the debtor, the state also provides a series of collection mechanisms that can readily impose sufficient pressure on the debtor to avoid the ordeal of the collection process through a voluntary payment or, alternatively, obtain collection through use of Texas’ many collection HN mechanisms. Andrew Emerson is Of Counsel at Palmer & Manuel, L.L.P. He can be reached at aemerson@pamlaw.com.
Substance Abuse and the Grievance Process
Minority Clerkship Luncheons Friday, June 11 • Noon • Belo Mansion For more information or to RSVP, e-mail BAvina@dallasbar.org
DVAP’s Finest
Kara Altenbaumer-Price Kara Altenbaumer-Price is the Director of Complex Claims and Consulting at USI Southwest. As soon as she arrived in Dallas in 2004, she began volunteering monthly at the South Dallas Clinic, as well as the Housing Crisis Center clinics her firm staffed on a quarterly basis. She later started taking on DVAP cases for full representation and made a personal commitment that she would always have at least one pro bono matter on her docket at all times, and more when her caseload allowed. She has taken divorces, landlord-tenant matters, consumer cases, contract disputes and name change cases. In Kara’s opinion, DVAP has given back to her as well. Not only has it given her an outlet to feel good about helping out her community, it has also helped her in practical ways. DVAP has given her courtroom experience that is difficult to obtain and the opportunity to do work outside litigation. Kara states, “My DVAP cases have been some of my most rewarding legal experience—not because the cases or legal issues are complex, but because the people I’ve worked with really needed and appreciated the help. I feel that in some small way, I’m helping to correct some of the inequities in our community—a few individuals at a time. I am very grateful to DVAP for giving me that opportunity and making it so easy to do rewarding pro bono work.” Thank you for all you do, Kara!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
A joint legal aid program of the Dallas Bar Association and Legal Aid of NorthWest Texas (formerly Legal Services of North Texas).
June 11 at Noon • North Dallas Friday Clinic Speakers: Daniel Garrigan, Attorney and Dr. Benjamin Albritton, Psy. D., P.C. (Ethics 1.00, pending) Presented by the DBA Peer Assistance Committee
10 H e a d n o t e s l D a l l a s B a r A ss ociation
June 2010
DBA State Bar President’s Update by Roland Johnson
I
want to thank you for the opportunity to serve as president of the State Bar of Texas. It has been an eventful year, to say the least, but also a fulfilling one. I am particularly proud of how our profession stepped up to the plate during the debate over professional liability insurance disclosure (PLID). Last fall, the State Bar worked to gather information and solicit input on the PLID issue from attorneys and the public so that the State Bar Board of Directors could make a recommendation to the Supreme Court of Texas. As part of the process, the State Bar held public hearings throughout the state, including one at the Belo Mansion in October. I am grateful to all of you who attended and provided your comments. Your response was tremendous. The Dallas public hearing had more than 50 lawyers and members of the public in attendance—and turned into quite a lively debate. In January, the State Bar Board voted to recommend to the Supreme Court that lawyers not be required to disclose whether or not they carry professional liability insurance unless a client or prospective client asks for that information. In April, Chief Justice Wallace Jefferson sent a letter commending the Board for its efforts and stating that “the Court will retain the status quo.”
The PLID process is a great example of what the organized bar does best—give lawyers and the public a proper channel to consider and discuss important issues and to make their voices heard. Your opinions are important, and your input was vital in helping the State Bar Board make its recommendation. And with the new bar year comes another question for our profession to consider—revised proposed amendments to the Texas Disciplinary Rules of Professional Conduct (available on the Supreme Court Web site at http://www.supreme.courts.state.tx.us/ rules/rules.asp—scroll down for April 2010 revisions and related documents). The State Bar expects to conduct a referendum of its members this fall on the proposed changes, so please review them carefully.
Mentoring Programs
We have made great strides this year to reach out to our newest members of the profession by working to implement and expand mentoring initiatives throughout the state. By connecting with young lawyers early in
their careers, we help ensure they are prepared for the responsible practice of law and are committed to professionalism. Last July, we launched AfterTheBarExam.com, a free online resource that gives those who have taken the Texas Bar exam the opportunity to continue learning while they await their results. Similarly, Transition to Practice offers young lawyers in their first years of practice the chance to meet one on one with an experienced lawyer and receive the benefits of that experience. Transition to Practice, which is based on the Dallas Bar Association’s successful pilot project, has already been implemented by a number of other local bar associations, including Amarillo, Cameron County, Denton County, San Antonio and Tarrant County, with several more in the planning stages. I am proud to have been a part of this effort and want to give special thanks to Justice Douglas Lang, who is an unwavering champion of mentoring. His assistance has been invaluable in helping make Transition to Practice a continued success.
Annual Meeting
Make your plans to attend this year’s State Bar Annual Meeting in Fort Worth. We’ve got an exciting event planned for you, with two days of interesting speakers, a full slate of ethics courses and a record number of participating State Bar Sections. Among our featured speakers are former U.S. Secretary of the Army Pete Geren, as well as two Annual Meeting favorites, popular legal analysts Roger Cossack and Jeffrey Toobin. And for all the football fans out there—and here in the Metroplex, I think we have a few—we have veteran NFL referee Walt Coleman, who will speak on something lawyers and football referees have in common—maintaining professionalism under fire. We also have a fantastic line-up of CLE speakers, including new Baylor University President Ken Starr, former U.S. Attorney General Dick Thornburgh, University of Houston Law Center Professor David R. Dow, Senior U.S. District Judge Royal Furgeson, Alcon Senior Vice President and General Counsel Elaine Whitbeck and legal technology expert Richard Susskind, just to name a few. I encourage you to check out all the annual meeting has to offer, from premium CLE to fellowship with friends and colleagues. To register online or for more information, visit www.texasbar. HN com/annualmeeting.
Register Now for the State Bar of Texas Annual Meeting
June 10-11 in Fort Worth • The Omni Hotel
For more information, visit http://www.texasbar.com/annualmeeting.
Available NOW! Vision 2020—Your View As the work of the Vision 2020 Commission proceeds, the committee wants your thoughts and ideas on the project. This is a project of your Association and it is intended to improve what the DBA does now for you and what it can do in the future. E-mail your ideas and suggestions to dbavision2020@dallasbar.org. Trial lawyers on both sides of the aisle agree there is no better way to prepare for trial than to research your judge through
The 2010 Dallas County Bench Book* *A portion of the proceeds from the sale of this book goes directly to the Dallas Bar Association.
Call 800-456-5484 to order your copy today!
June 2 0 1 0
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Family Law
Electronic Evidence: Who’s Getting Caught in the Act? by Emily Miskel
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any clients have questions about whether they can record phone calls, hide a camera to catch a cheating spouse in the act or access a spouse’s e-mails. Attorneys wonder whether such evidence may be used at trial. Electronic evidence can be a trap for both client and attorney, exposing them to extensive civil and even criminal liability. A confusing mix of state and federal laws on wiretapping and computer security can have significant effects on divorcing spouses. Further, a spouse can be subject to private suits and common-law tort liability. This article will address the most common types of surreptitiously-acquired electronic evidence and the pitfalls associated with each.
Wiretap Laws
The federal Wiretap Act, 18 U.S.C. §§ 2510-2522, regulates interception of oral and electronic communications, whether those conversations are inperson, by telephone or by cell phone. Under the federal act, civil remedies include liquidated damages of $10,000, punitive damages, and attorney’s fees. Criminal penalties can include imprisonment of up to five years. Texas has both a criminal wiretap law, Texas Penal Code § 16.02, and a civil cause of action for interception of communication, Texas Civil Practices & Remedies Code, Chapter 123. Unlawful interception of communications is a felony and additional civil
remedies can include statutory damages of $10,000 for each occurrence, punitive damages and attorney’s fees. The federal and Texas wiretapping laws are “one-party consent” laws, meaning you may record any conversation to which you are a party without the consent of the other party. However, planting a bug to record conversations between others would be a violation, as would installing an application on someone else’s cell phone to record his or her calls with others. Courts have found a limited “vicarious consent” exception allowing a parent to record his or her child’s conversations with others if there is a good faith, reasonable basis that it is necessary for the welfare of the child.
Electronic Data Laws
The federal Stored Communications Act, 18 U.S.C. §§ 2701-2712, regulates access to electronic communications including e-mail, faxes, and voicemail. Despite the use of the term “stored,” the Act only regulates access to communications that are stored during electronic transmission. This means that accessing e-mails saved to the hard drive of a shared computer is permitted, since these e-mails are only being stored after they were electronically transmitted. But accessing e-mails through a spouse’s webmail account without consent is a violation. Penalties include fines and imprisonment for up to five years. Under the Texas stored communication law, Texas Penal Code § 16.04, unauthorized access to electronic communications is a state jail
felony. Texas also has a law regarding the breach of computer security, Texas Penal Code § 33.02, which makes it a crime to access a computer or network without consent. Using evidence obtained from Facebook, MySpace, blogs and other online sites is a growing trend in family law. It is a violation to log in to a spouse’s online account without consent; however, the stored communications laws do not contain the same strict exclusionary rule as the wiretap laws. This means that even illegally intercepted Internet communications may be used at trial.
Torts
Texas recognizes several torts for invasion of privacy. Victims of wiretapping, videotaping and intercepted e-mails can sue for (a) intrusion upon seclusion, (b) public disclosure of private facts, (c) appropriation of name or likeness for defendant’s advantage, and even (d) intentional infliction of emotional distress, depending on the facts. Liability does not always depend on whether the private matters were ever publicized. Hiding a camera in a master bedroom can give rise to an invasion of privacy claim. In tort, a plaintiff can recover actual and punitive damages. A divorcing spouse would not have to file a separate lawsuit, because a court can consider tort claims in making a disproportionate division of a marital estate.
Consequences for Attorneys
An attorney’s use or disclosure of intercepted communications violates
the wiretap laws, even if the attorney did not direct a client to make the recording. This means that attorneys can face criminal and civil penalties for using evidence that a client obtained in violation of the wiretap laws. If an attorney has reason to believe that recordings were illegally obtained, the attorney should immediately cease reviewing the recordings and should not use or disclose the communications in any way. Although it is very tempting for clients to try to obtain smoking-gun evidence, attorneys must be aware of the serious consequences that can flow from violating laws governing electronic and oral communications. This article is a brief overview of a nuanced legal subject, and the family law practitioner would be well-advised to study HN these laws in more detail. Emily Miskel is a family law attorney and mediator practicing in Dallas and Collin Counties. She is an associate with Koons, Fuller, Vanden Eykel & Robertson. She can be reached at emiskel@koonsfuller.com.
Alternative Dispute Resolution in Professional Sports: The Evolution of Major League Baseball Salary Arbitration MCLE 1.00 Speakers: Greg Torborg and Matt Morris Friday, June 4, Noon at the Belo
Sponsored by the DBA’s CLE Committee and the Sports and Entertainment Law Section.
For more information or to RSVP, contact kzack@dallasbar.org.
DBA 100 CLUB—Get on the LIST! What is the DBA 100 Club? The Dallas Bar Association 100 Club is a special membership recognition category that reflects a commitment to the advancement of the legal profession and the betterment of the community. The DBA 100 Club consists of Firms, Government agencies, and corporate legal departments with two or more attorneys that have 100% membership in the DBA. Recognition for 100% support will be given to the 2010 DBA 100 Club members in our June, July and August HEADNOTES. Many Firms encourage their newly hired attorneys to join the DBA and take advantage of our many member benefits including over 400 FREE CLE programs each year, plus many other member benefits as well as the opportunity to qualify for the DBA 100 Club. The DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. Don’t see your name on the list? It is not too late to JOIN! To become a 2010 DBA 100 Club member, please submit your request via email including a list of all lawyers in your Dallas office or corporate legal department to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2010 DBA 100 Club membership list! Send in your list TODAY! DBA 100 Club Members As of May 13, 2010 Law Firms With 6 or More Attorneys Ackels & Ackels, L.L.P. Addison Law Firm P.C. Anderson Tobin, PLLC Baker Botts L.L.P. Beasley, Hightower & Hartmann, P.C. Blanscet Sutherland Hooper & Hale, LLP Brown & Hofmeister, L.L.P. Brown McCarroll, L.L.P. Burford & Ryburn, L.L.P. Canterbury, Elder, Gooch, Surratt, Shapiro & Stein, P.C. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Cavazos, Hendricks, Poirot & Smitham, P.C. Cobb Martinez Woodward PLLC Collins Basinger Pullman Condon Thornton Sladek Harrell LLP Cowles & Thompson, P.C. Curran Tomko Tarski LLP ELROD, PLLC Ford, Nassen & Baldwin, P.C. Godwin Ronquillo PC Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC Griffith Nixon Davison, P.C. Guida, Slavich & Flores, P.C. Johnson, Jordan, Nipper & Monk, P.C. Key Harrington Barnes PC Koons Real Estate Law Koons, Fuller, Vanden Eykel & Robertson P.C. Little Pedersen Fankhauser LLP Locke Lord Bissell & Liddell LLP
Loewinsohn Flegle Deary L.L.P. Lynn Tillotson Pinker & Cox, L.L.P. Macdonald Devin, P.C. Malouf Lynch Jackson & Swinson, P.C. Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P. McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Munsch Hardt Kopf & Harr, P.C. Passman & Jones, P.C. Raggio & Raggio, P.L.L.C. Riney Palter PLLC Scheef & Stone, L.L.P. SettlePou Shannon, Gracey, Ratliff & Miller, L.L.P. Sorrels, Udashen & Anton Staubus & Randall, L.L.P. Stinnett Thiebaud & Remington L.L.P. Stutzman, Bromberg, Esserman & Plifka, P.C. Susman Godfrey L.L.P. Taber Estes Thorne & Carr PLLC The Bassett Firm, P.C. The Hartnett Law Firm The Law Offices of Frank L. Branson, P.C. Thomas, Feldman & Wilshusen, L.L.P. Winstead PC Zelle, Hofmann, Voelbel, & Mason, L.L.P. Law Firms With 2 to 5 Attorneys Adair, Morris & Osborn, P.C. Aldous Law Firm Ashley & Laird Badmus Law Firm
Beirne, Maynard & Parsons, L.L.P. Blankenship, Wiland & O’Connor, P.C. Broden & Mickelsen Brousseau Graham & Dooley Brown Fox PLLC Bruegger & McCullough, P.C. Calloway, Norris, Burdette & Weber Campbell & Chadwick, P.C. Carlock, Gormley, & Hight LLP Crain Lewis, L.L.P. Daniel Sheehan & Associates, LLP Deans & Lyons, LLP Dedman & Handschuch PLLC Ellis & Tierney, LLP Garlitz Bell, LLP Geisler Hays, LLP Hamilton & Squibb, LLP Hance & Wickham, P.C. Helms, Johnson & Diaz LLP Holmes Firm PC Horton & Archibald, P.C. Johnson & Silver, LLP Johnston • Tobey, P.C. Kapioltas & Forni, PLLC Kastl Law Keane, Fowler & Donohue Kurzner PC Law Office of Emily Horton PLLC Law Office of Lynn Davis Ward Law Offices of Terrence G. Turzinski, P.C. Lidji & Dorey Maris & Lanier, P.C. McFarlin Yu, PLLC Milby PLLC Miller and Bennett, Attorneys and Counselors Mincey-Carter, PC
Nowak & Stauch, LLP Park Segler LLP Peters Smith Law Firm Prager & Miller, P.C. Puls & Liebrecht PC Quaid & Quaid, L.L.C. Ramirez & Associates, P.C. Sessions Fishman Nathan & Israel LLP Simpson Woolley, L.L.P. Simpson Martin, LLP Smith, Stern, Friedman & Nelms, P.C. Stanley • Iola, LLP Stradley & Wright Sullivan & Holston The Elliott Law Firm, P.C. The Foret Law Firm The Krenik Law Firm The Law Offices of Richard A. Gump, Jr., P.C. The Law Offices of Tim O’Hare Thomas, Cinclair & Beuttenmuller, PC Tobolowsky & Burk, P.C. Walker & Long Wesner Coke & Clymer, P.C. Whaley, Letteer & Mock, P.C. Winn, Beaudry & Winn, L.L.P. Corporate Legal Departments Belo Corp. Contran Corporation Gearbox Software, LLC Genesco Sports Enterprises Morgan Management Corporation Government Agencies City of Irving
12 H e a d n o t e s l D a l l a s B a r A ss ociation
Focus
June 2010
Family Law
The State of Non-Parent Rights in Texas by Nathan Anderson
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ith the dramatic increase in reproductive technology, samesex unions and the change of family dynamics in general, today more than ever there are battles ensuing for non-parents to obtain parental rights in Texas courts. This article addresses the concepts of standing for a non-parent to bring a suit affecting the parent-child relationship (SAPCR) and the current divide between Texas appellate courts reviewing the same. Pursuant to Section 102.003(a)(9) of the Texas Family Code, a non-parent has standing to bring a SAPCR if that person is not a foster parent, and has “had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition” (the “Standing Section”). Currently Texas appellate courts are divided regarding the “care, custody and control” required to confer standing under the Standing Section. In In re K.K.C., the Beaumont court of appeals required a non-parent to show that the care, custody and control exercised was at all times like the rights of
parents. In re K.K.C., 292 S.W.3d 788, 792-93 (Tex. App.—Beaumont 2009, orig. proceeding). More recently, however, the Dallas court of appeals held that the care, custody and control required to assert standing need not be like the rights of parents at all times. In re M.K.S.-V., --- S.W.3d ---, 2009 WL 4263820 (Tex. App.—Dallas Dec. 1, 2009) (en banc). Prior to deciding the M.K.S.-V. case, the Dallas court of appeals also examined the issue of non-parent standing in In re M.P.B. The court admitted that the non-parent’s actual care, control and possession was not exclusive but, with the mother’s consent, the non-parent provided the child with a fixed place of abode, occupied consistently over a substantial period of time, that was permanent rather than temporary. In re M.P.B., 257 S.W.3d 804, 809 (Tex. App.–Dallas 2008, no pet.). The court held that the nonparent had standing to bring a SAPCR because she exercised certain parental duties with the consent of the parent. In Doncer v. Dickerson, the El Paso court of appeals held that the stepmother of the child had standing to sue for conservatorship. Doncer v. Dickerson, 81 S.W.3d
DBA Loses Past President H. Louis Nichols III
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he Dallas Bar Association lost its 54th president on April 25, 2010. He was 94 years old. H. Louis Nichols was born on November 7, 1916, in McKinney, Texas, and graduated from SMU School of Law in 1940. He was the First Assistant City Attorney for Dallas from 1949 to 1952. He retired from the Army Reserves in 1968 with the rank of colonel. In 2008, Mr. Nichols was of counsel with the firm of Nichols, Jackson, Dilliard, Hager & Smith. It was during his DBA presidency in 1963 that President John F. Kennedy was assassinated in Dallas. Seeing that Lee Harvey Oswald had no legal representation, Mr. Nichols, though a civil lawyer himself, visited Oswald at the Dallas city jail to inquire if the accused assassin wanted his or the Dallas Bar’s assistance in acquiring an attorney. After Oswald declined, Mr. Nichols left the jail cell feeling that he had done
his duty as president of the Dallas Bar Association. During his term as president, among many topics of discussion, the Board discussed whether or not criminal trials should be televised, in particular the Jack Ruby trial. After much discussion, the Board adopted a Resolution which was transmitted to the Courts stating that the Board unanimously recommended that the Jack Ruby trial not be televised. As President of the DBA, Mr. Nichols oversaw a membership of approximately 1,200. Board members in 1963 included J. Edward Fleming, Grover Hartt, Jr., Hubert D. Johnson, Hugh L. Steger, O.M. Stubblefield and Robert P. Woodruff. Mr. Nichols remained an active member throughout his career and continued to give much to the organization and the community. He will be truly HN missed.
Ted M. Akin
349, 361–62 (Tex. App.–El Paso 2002, no pet.). The Doncer court held that, after the father’s death, the stepmother met the six-month requirement for standing due to the frequency of possession of the child. Remarkably, the Doncer court then analyzed the issue of principal residence and found that a child can have more than one permanent residence. Another case, which appears at odds with K.K.C., is In the Interest of Y.B. The San Antonio court of appeals acknowledged the purpose of the standing requirement is “[t]o create standing for those who have developed and maintained a relationship with a child over time.” In the Interest of Y.B., 300 S.W.3d 1, 5 (Tex. App.–San Antonio 2009, no pet.). In Y.B., the non-parent, estranged husband sought a courtordered relationship with the mother’s children. The evidence showed that the non-parent babysat the children, helped them with their homework, took them fishing and drove them to and from school. In the non-parent’s estimation, he generally shared the responsibility for raising the children.
A dispute arose regarding whether the non-parent met the six-month requirement under the Standing Section. The Y.B. court took as true all evidence favorable to the non-parent and found there to be a fact issue precluding dismissal as to the six-month requirement. The court then noted that control over the children by the non-parent did not have to be exclusive. So where do we go from here? There is a division between the courts as to what is required to satisfy the Standing Section. Courts following the K.K.C. opinion out of Beaumont liken the standard to a more difficult one, whereas new case law out of the Dallas court of appeals apparently relaxes the burden to satisfy the Standing Section. Given the dramatic number of cases interpreting non-parental standing to sue for SAPCRs, this issue is ripe for the Supreme Court of Texas’ HN review. Nathan Anderson is a partner in the law firm of O’Neil Anderson and limits his practice solely to family law. He can be reached at nathan@oneilanderson.com.
~ In Memoriam ~ Since 1875, the DBA has honored recently deceased members by passing resolutions of condolences. This tradition continues through the work of the DBA Memorial & History Committee. To view the Memorial Resolutions presented to the families of deceased members, visit http://www.dallasbar.org/inmemoriam. Michael Steven Becker (1954-2010), a 1979 graduate of the Brooklyn Law School John P. Koons (1925-2010), a 1948 graduate of SMU Law School Ernest A. Laun (1952-2010), a 1977 graduate of SMU Law School James Howard Lennon, Sr. (1924-2010), a 1948 graduate of Baylor Law School Romina Lorena Mulloy Bossio Levine (1974-2009), a 2001 graduate of Vanderbilt University Law School Jack Merville Little (1934-2009), a 1959 graduate of the University of Texas Law School William A. McKenzie (1923-2010) a 1949 graduate of of SMU Law School Cheryl Milkes Jerome Moore (1951-2010), a 1976 graduate of Syracuse University Law School H. Louis Nichols, III (1916-2010), a 1940 graduate of SMU Law School Hon. R.T. Scales (1923-2009), a 1951 graduate of SMU Law School
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Mark your calendar! DWLA General Meeting June 10 at noon Vinson & Elkins Ballroom, Belo Mansion “The Legal and Ethical Implications of Allowing the Creation of a Test-Tube Baby with Five Parents,” presented by Linda Eads, Associate Professor of SMU Dedman School of Law. (Ethics 1.00)
June 2 0 1 0
Dal l as Bar A ssoci ati on l Headnotes 13
Pro Bono—What It Really Means by Christina McCracken
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EAM DBA is the inspiration emblem of this year’s DBA President, Ike Vanden Eykel. As members of legal teams, sports teams and organizational teams, we know that every successful and prosperous team must have a guiding principle. TEAM DBA is no different. Its guiding principle can be summed up as follows: the participation of all of its TEAM members. As we begin this new year, the President asked me to address TEAM DBA’s pro bono initiatives and discuss a misconception in relation to pro bono legal services. A misconception that I once also held. I recently discussed pro bono service with a fellow lawyer. During the conversation, the lawyer described years of providing legal services to friends, family, neighbors and referrals – without pay. By the end of his oration, the lawyer looked rather exasperated with his “pro bono” service. I politely asked, “Do any of the persons you mentioned have an income at, near or below the poverty guidelines?” To which the lawyer replied, “No.” “Have you ever provided free legal services to individuals at, near or below the poverty guidelines?” I next inquired. He thought about it a minute and then replied, “I don’t think so.” The State Bar of Texas has a Web site that answers some common questions we all have related to pro bono service and provides illustrations of the distinction between public service and pro bono service. Pro bono service, as opposed to public service, involves the following two necessary components: 1. pro bono service provided by the attorney must be for a low income individual or a group that serves low income individuals; and 2. pro bono service provided must involve the unique legal skills that only attorneys possess. The State Bar lists the following comparisons between public and pro bono service: • Pro Bono: Counseling a lowincome individual on an eviction matter • Public Service: Coordinating a community drive to collect clothing for low-income persons • Pro Bono: Mentoring a new attorney as they handle their first pro bono case • Public Service: Mentoring a student at a school in a low income community
• Pro bono: Service on the board of directors of a legal aid or volunteer attorney program • Public Service: Serving on the board of directors of a non-profit theatre company The Bar also provides the definition of pro bono services as follows: 1. The direct provision of legal services to the poor without an expectation of compensation, or at a substantially reduced fee, whether civil or criminal; 2. Services without a fee, or at a substantially reduced fee, related to simplifying the legal process for, or increasing the availability and quality of, legal services to the poor persons; 3. Legal services without a fee, or at a substantially reduced fee, rendered to charitable, public interest organizations with respect to matters or projects designed predominately to address the needs of poor persons; 4. Legislative, administrative or systems advocacy services without a fee, or at a substantially reduced fee, provided on behalf of poor persons; 5. Unsolicited, involuntary appointed representation of indigents in criminal and civil matters. The State Bar does not define “poor,” but instead leaves the definition to the individual program or attorney. The Texas Access to Justice Foundation (IOLTA) defines “poor” to be 125 percent of the federal poverty guidelines (e.g., in 2009, $27,562 gross income for a family of four, and $13,537 for an individual). No doubt DBA lawyers provide countless hours of public service within the community and abroad. As lawyers we are well positioned to volunteer in a variety of civic, religious and community activities and we should all continue to serve in these forums. However, lawyers have a talent that the non-legal community does not possess and thereby we are the only individuals who can offer pro bono legal services to indigent individuals. In other words, the volunteer pool for legal aid assistance to indigent persons solely rests upon each one of us. That is what makes pro bono legal services unique, as well as challenging to our most honorable profession. Below is a list of the DBA’s pro bono opportunities (see sidebar). Whether you volunteer your time to serve at an intake clinic, mentor another lawyer
in pro bono, offer your time to write a will for an indigent person or take a pro bono case, you are serving in a role distinct to you and limited only to those in the legal profession. Whatever your personal motivation, as a member of TEAM DBA and on behalf of this year’s DBA President, Ike Vanden Eykel, I encourage every TEAM member to participate
in the pro bono initiatives offered through the DBA. In doing so, we at TEAM DBA can collectively partner to bridge the gap in providing access to the justice system to everyone; HN including the indigent. Christina L. McCracken is an attorney with the law firm of Gordon & Rees, LLP. and a Co-Chair on the DBA Pro-Bono Activities Committee. She can be reached at cmccracken@gordonrees.com.
Get Involved! With so many options, it’s easy to find your place in Pro Bono. Here are a few ideas on how you can get started: DVAP Intake Clinics Taking a DVAP Case Mentoring a Younger Attorney in DVAP Vickery Meadow Legal Clinic Low Income Elder Outreach Veterans Outreach Clinic (First Friday of Every Month—June 4, July 2, Aug. 6, etc.) Pro Bono Week (Oct. 24-30, 2010) For more information, or for future dates, contact Alicia Hernandez at AHernandez@dallasbar.org or Chris Reed-Brown at Reed-BrownC@lanwt.org. Or log on to www.dallasbar.org/dvap/.
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14 H e a d n o t e s l D a l l a s B a r A ss ociation
June 2010
Column Ethics Report
Joint Representation Requires Caution by Suzanne Raggio Westerheim
T
wo or more clients sometimes come to a lawyer to undertake a transaction, to pursue or defend litigation, or perhaps to draft an estate plan. Clients with similar interests and needs sometimes prefer to hire a single lawyer to avoid the expense of engaging separate counsel. These clients often do not understand the risks and disadvantages of shared counsel. Nor do they necessarily realize that if their interests diverge unexpectedly during the representation, they will be forced to hire separate counsel, eliminating the expected financial savings. There are always potential conflicts and confidentiality issues whenever multiple parties are involved in a single representation, and a lawyer must address these issues before undertaking the representation.
Conflicts of Interest
A lawyer must always consider the possibility of a conflict of interest when undertaking a new matter. Once the parties whom the lawyer will represent have been identified, the lawyer must determine whether he can ethically represent all of these potential clients in the matter. In addition to Rule 1.06, the general conflicts rule, and Rule 1.09, the former client conflicts rule, the lawyer must consider Rule 1.07 when the proposed representation involves representation of multiple clients. The rule actually concerns joint representation even though it, somewhat confusingly, refers to the lawyer as an “intermediary.” Assuming that the representation does not violate Rule 1.06 or Rule 1.09, multiple representation is only proper (1)AM Commercial Properties Ad_finalHR.pdf 5/22/09 if: 9:02:52 the clients can agree among themselves
to a resolution of any issue concerning the matter; (2) each client can understand what is in that client’s best interest and make informed decisions; (3) the lawyer can deal impartially with each client; (4) multiple representation is unlikely to result in material prejudice to the interests of any client; and (5) the lawyer has made the appropriate disclosures and obtained the appropriate consents.
Confidentiality
Joint representation affects the lawyer’s duty of confidentiality and the attorneyclient privilege in ways the clients may not expect, but about which clients must be informed when consenting to the joint representation. A lawyer has a duty to disclose to a client all information material to the representation. Thus, a conflict can arise when one client asks a lawyer to keep information confidential that the other client would benefit from knowing. For this reason, there generally can be no secrets between or among joint clients about facts material to the representation. Each client should be informed and should agree that the lawyer will share with the other clients each client’s confidences that are material to the representation. Clients normally expect their communications with their lawyer to be privileged. Texas Rule of Evidence 503(d)(5), however, provides that there is no privilege “[a]s to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.” Clients should
be informed about this exception to the attorney-client privilege when agreeing to the joint representation.
Disclosure and Consent
Disclosures should always be made in writing, and a lawyer should always obtain each affected client’s written consent to the proposed representation. At a minimum, an effective conflicts waiver should disclose: (1) All known or reasonably foreseeable sources of potential conflict; (2) That separate counsel might be beneficial; (3) That the lawyer cannot take sides in a dispute that may arise among the clients related to the matter; thus, each client must be willing to make independent decisions without the lawyer’s advice regarding resolution of such issues; (4) That the lawyer must deal impartially with each of the clients; (5) The effect of the joint representation on the attorney-client privilege; (6) That the lawyer must disclose material information to all clients and
Focus
correct any material false or misleading statement or omission, even if one client requests that he not do so; (8) That the lawyer may not be able to continue representing any of the clients if discharged by any one of them or if the lawyer is ethically required to withdraw; and (9) That there is no guarantee that a single lawyer representing all clients will expedite the matter or result in decreased fees and expenses and that it could, in fact, have the opposite effect. Lawyers must also watch for potential conflicts as the representation progresses because a conflict may arise that was not foreseeable at the inception of the representation. In that case, a new disclosure and consent may be required or the lawyer may have to withdraw from representation HN of one or more of the clients. Suzanne Raggio Westerheim represents and advises lawyers and law firms on professional responsibility issues. Ms. Westerheim is the Co-Chair of the DBA Publications Committee and the former Chair of the DBA Legal Ethics Committee. She can be reached at suzanne@legallyethical.com.
Family Law
The Basics of Marital Property continued from page 1
the Texas Legislature enacted Sections 3.401–3.410 and Section 7.007 of the Texas Family Code. In practice, the common law principle of reimbursement and the statutory claims of economic contribution work together to determine how much of one spouse’s separate property belongs to the community estate. Of course, these concepts of reimbursement and economic contribution inevitably beg the question: Can a judge take property separately owned by one spouse and give it to the other? The answer is no. In Eggemeyer v. Eggemeyer, 554 S.W. 2d 137 (Tex. 1977) that specific question was presented to the Texas Supreme Court. The Court held that, no, a trial court may not simply take real property separately owned by one spouse and transfer title of it to the other as part of a just and right division of the community estate. Last, in today’s society, it is hard to ignore the fact that many couples live together without being married to each other. Obviously, the issue of common law marriage might arise. Requirements for proving a common law marriage can be found in Section 2.401 of the Texas
Family Code. If, however, a party is unable to prove a common law marriage existed, he or she may be able to argue that a partnership existed between them instead. This situation arose in Harrington v. Harrington, 742 S.W.2d 722 (Tex. App.—Houston [1st Dist.] 1987). In Harrington, the Houston court of appeals upheld a trial court’s decision that an oral partnership agreement between both parties existed at the time they purchased their home, even though the purchase occurred two years prior to the start of their marriage. In conclusion, marital property issues most commonly occur when either: (1) a couple divorces; or (2) one spouse dies, and the children of the deceased spouse claim an interest in property purportedly owned by the community estate. If your client begins to discuss the possibility of either of these two situations with you, keep these principles in mind and consult or refer your client to a family attorney for HN more details. Dana Lim is a solo practitioner attorney. She can be contacted either by e-mail at dlim@danalimlaw.com or through her Web site at www.danalimlaw.com.
Business Litigation Section
In April, Richard Ben-Veniste, a partner in the Washington law firm of Mayer, Brown, Rowe & Maw, chief of the Watergate Task Force and author of “The Emperor’s New Clothes: Exposing the Truth from Watergate to 9/11,” visited the Belo Mansion to speak at a well-attended CLE sponsored by the Business Litigation Section.
June 2 0 1 0
Dal l as Bar A ssoci ati on l Headnotes 15
Understanding PCI Compliance
T
he Law Firm Merchant Account is the Dallas Bar Association’s newest member benefit. As the only payment solution recommended by more than 50 state and local bar associations, it complies with ABA and state requirements for managing client funds. Unlike traditional merchant accounts, it correctly handles earned and unearned fees. Therefore, you can accept credit and debit card payments from your clients for services rendered or retainers. Call (866) 376-0950 or visit www.affiniscape.com/DallasBar. The challenge of any small law firm is cash flow. Accepting credit cards is a great solution for improving cash flow, reducing collections, and attracting new clients with payment flexibility, but it also requires careful handling. There are two major compliance issues that attorney’s face when accepting credit cards—commingling of earned and unearned fees and Payment Card Industry Data Security Standards (PCI-DSS). If your firm is already utilizing the DBA-endorsed Law Firm Merchant Account as a member benefit, then you are reaping the benefits of using a system that correctly safeguards and separates your client’s funds into operating and trust accounts. This allows your firm to comply with American Bar Association and State Bar guidelines for credit acceptance. Even though the PCI-DSS is not a federal law, several states have started mandating compliance to many of the provisions. Minnesota became one of the first states to adopt a set of enforceable standards which protect credit card data. Since then, Nevada, Washington and Massachusetts have also adopted similar laws. Texas could be next. Do you store paper copies of credit card data in a secure way? Do you use
a payment gateway or a terminal to process credit cards? These are practical security points addressed by the PCI-DSS and apply to any business that processes, stores, or transmits credit card data. Until recently, most of the focus has been on major retailers that process in excess of 6 million Visa® transactions per year (www.visa. com/cisp). All merchants, regardless of credit card processing volume, must comply with the regulations. Failure to meet requirements can result in security breaches, costly fines and forensic audits. It is important to note that the PCI Security Council does not enforce these standards. They are enforced by the major card brands and acquiring banks. Many acquiring banks have already mandated level 4 merchants (those who process fewer than 20,000 Visa transactions per year) to validate their compliance and are charging upward of $250 per month for noncompliance fees. You should check with your acquiring bank for specific deadlines and fees. Implementing small changes can have a big impact on your security posture. While there are guidelines in the PCI-DSS that address Internet security and payment applications, there are also guidelines for how businesses handle credit card data on a physical level (www.pcisecuritystandards.org). Assessing your firm’s vulnerabilities is a great way to fix potential issues and educate the staff. According to some reports, the majority of credit card fraud is caused by simple carelessness and theft. Office security policies that define procedures for changing passwords, storing information and disposing of credit card data can make the difference between compliance and non-compliance.
There are several steps a merchant must complete to become PCI Compliant: • Identify Validation Type (this is based on how credit card transactions are processed) • Complete the SAQ (Self Assessment Questionnaire) • Complete and provide evidence of a vulnerability scan, if necessary, from an approved vender on a quarterly basis. • Complete the Attestation of Compliance • Submit the SAQ/Attestation of Compliance and evidence of a passing scan (if required) to acquirer. The Law Firm Merchant Account group recognized the need to help guide small law firms through the compliance process and developed www.pcicentral.com as a solution for our clients. PCI Central has a wealth of information including videos, state and ethic opinions, reference downloads and a Frequently Asked Questions section. PCI Central is not only available to current clients, but also to any member of our 1000+ association network. This suite of services and resources is offered as an additional Law Firm Merchant Account member benefit for $95 and
includes: • PCI 1-2-3 Self Assessment Questionnaire • PCI 1-2-3 Scanning • PCI 1-2-3 Policy Builder • PCI 1-2-3-Security Awareness Training You can take the first steps toward getting PCI Compliant by visiting www. pcicentral.com or calling Amy Airhart at (866) 376-0947. To set up your own Law Firm Merchant Account, please visit www.lawfirmmerchantaccount.com or call (866) 376-0950. Remember, as a DBA member you will receive discounted member fees and your law firm can save up to 20–25 percent off standard credit card fees. If you are currently accepting credit cards, compare your current processor with the Law Firm Merchant Account. When you team up with Affiniscape, you not only gain a credit card merchant, you increase your firm’s ability to guarantee payments for services HN rendered. Affiniscape Merchant Solutions, the exclusive provider of the Law Firm Merchant Account™, is professional payment solution for attorneys and their clients. For more information, visit www.affiniscape.com/DallasBar.
DBA Directory Photo Session The DBA Directory Photographer will be at the Belo on the following dates to take photos for the 2011 DBA Directory:
Monday, July 12, 9 a.m. to 3 p.m. Friday, July 16, 9 a.m. to 3 p.m.
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16 H e a d n o t e s l D a l l a s B a r A ss ociation
June 2010
4C Court*—An Addict’s LAST “Last Chance” by Judge Robert Francis
I
n January of 2009 the Texas Legislature funded the 4C ReEntry Court, designed to stem the flow of people headed to prison and to ensure they remain drug free and productive neighbors. Defendants who are placed on probation and ordered to attend in-prison treatment at a SAFPF (Substance Abuse Felony Punishment Facility) have traditionally lacked an effective aftercare program. In 2001 the first ReEntry Court in Texas was started here in Dallas and provided a strict and effective aftercare for SAFPF attendees. Over the next eight years it proved to have a positive impact and greatly improved the success rate for its graduates. With this in mind, the Legislature and TDCJ moved forward to create 4C, a court designed to deal with aftercare on a full-time basis. After a probationer completes a 6-9 month inpatient treatment at a SAFPF, they are returned to Dallas, directly to the 4C Court. Upon arrival each person will go home or to transitional housing for up to 90 days. The probationers are expected to appear in court the next day to have an in-depth meeting with their probation officer and the court coordinator. In these meetings, they are made aware of what is expected of them and the requirements of the program. In their first court appearance
they meet the Judge and the rest of the staff. Probationers will meet with their officers weekly for the next 11 months, depending on their progress and individual needs. Participants are scheduled to appear in court on Monday, Tuesday or Thursday. Appearance in court is required weekly for the first six weeks and every other week thereafter, so long as the probationer is compliant. In their individual meeting the probationers discuss every aspect of their life with their officers, and the officers work to ensure they are making appropriate changes in their lifestyle. 4C has five counselors on staff; they guide and assist each participant through a 90-day aftercare curriculum designed specifically for this type of program. The counselors monitor their progress and help each participant deal with the problems associated with changing their thought processes. Counselors and probation officers meet to discuss each participant and prepare staffing notes for each court session. On Monday and Thursday the court meets with regular-needs clients and on Tuesday with special-needs clients. Tuesdays always prove to be interesting because the participants have mental health issues, as well as addiction. Fortunately, several Dallas-area providers of mental health services attend court to brief the judge on the participant’s progress. Court is a time for each par-
Senior Lawyers Dinner
ticipant to meet with the judge and discuss their progress and their life. What separates 4C from other treatment courts in the state is that it is a full-time court. Dallas has many wonderful judges who give of their time--a day a week when they can free themselves from their regular court duties. 4C however is a full-time, everyday job for the Judge and the 20+ staff members. In fact, 4C is the only full-time treatment court presently operating in Texas. As with all treatment courts, what makes 4C work is that all staff members truly want the participants to succeed. From the initial talk given to the probationers by the Judge and probation supervisor while they are still in jail awaiting transfer to SAFPF, to the graduation ceremony upon completion of the 4C program, everyone strives to instill a spirit of success in each participant. It can be difficult to convince some folks we want them to succeed; the average participant has already been to prison four times and been through treatment twice before. When dealing with this, getting them to “buy into” changing and trusting the Judge and his staff is quite a task in and of itself. Fortunately, the staff is hardworking and dedicated, and also determined to make a positive difference for Dallas County. Since starting just over a year ago,
4C has reduced the waiting time to get to a SAFPF unit by half. That saves jail costs and keeps participants from wasting their lives by merely sitting in jail. The success rate is higher than preceding reentry courts, which means participants are staying drug-free and crimefree, which everyone is happy about. They are also taking care of their families and responsibilities in a manner we applaud and that ensures their future success. *4C-Community Corrections Con HN tinuum of Care Judge Robert Francis has been a judge since 1997, presently presiding over the 4C ReEntry Court, is Board Certified in Criminal Law and a Past President of Dallas Criminal Defense Lawyers Association and Texas Association of Drug Court Professionals. He can be reached at judge7francis@ gmail.com.
Dallas Asian American Bar Association encourages all attorneys to attend a
DIVERSITY RECEPTION Held in conjunction with the SBOT Annual Meeting June 10, 5:00 - 7:00 p.m. Omni Hotel, Fort Worth, Texas Hosted by the Asian Pacific Interest, American Indian Interest and Hispanic Issues Sections. For more information, contact Bill Richmond at bill.richmond@sdma.com.
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June 2 0 1 0
Tort & Insurance Practice Section Announces Scholarships
T
he Tort & Insurance Practice Section (TIPS) of the Dallas Bar Association has announced that it will again be funding $3,000 in scholarships for interns to Dallas County courts. This year’s scholarships are dedicated to the memory of Sydney H. Davis, Jr. formerly of Touchstone Bernays. Mr. Davis, known to friends and colleagues as “Sid,” passed away October 26, 2009, at age 54. His passing was a sudden and shocking loss to the Dallas legal community. He was a devoted father and husband and a leader in his community, his church and his firm. He was also an extraordinarily honorable and talented lawyer. A great deal of his work was devoted to the skilled handling of insurance coverage and bad faith claims. He was also a respected appellate practitioner. “Sid Davis was respected by all insurance lawyers,” said TIPS Chair Michael W. Huddleston. “We looked up to him as a lawyer and colleague. He was always a gentleman and possessed a very wry sense of humor. He was also a great mentor. It is very appropriate that he be honored as a part of efforts to provide helpful support and experience to young lawyers serving as interns for our courts.” The TIPS intern scholarships are intended to assist in defraying the costs of law students working for the Dallas courts in otherwise unpaid internship positions. Last year, TIPS followed the lead of the Mac Taylor Inn of Court in providing scholarship money for interns serving the Dallas courts. This year TIPS has been joined in supporting the internship program by the DBA Business Litigation Section. Judge Mark Greenberg and Judge Martin Hoffman have agreed to serve as the coordinators for this pro HN gram.
Dal l as Bar A ssoci ati on l Headnotes 17
DISD Students Participate in Mock Voir Dire by Kirby Drake
L
aw Day is a yearly celebration in the United States and at the Dallas Bar Association. It is meant to be a time to reflect on the rule of law in the foundation of the country and to recognize its importance for society. The Dallas Bar Association celebrates Law Day and the rule of law in several different ways, including essay, art and photography competitions, sending lawyers into local classrooms to discuss legal and constitutional issues and hosting the Law Day luncheon. One of the highlights for the Law Day Committee each year is sponsorship of a mock voir dire program for
Dallas County high school students. The mock voir dire gives high school students the opportunity to visit the Dallas County courthouse, learn about the jury system and see a demonstration of voir dire by several accomplished trial lawyers. This year, the mock voir dire was held at the George C. Allen Courts building on May 6, 2010. More than 175 high school students from five different high schools participated. Kirby Drake, Co-Chair of the Law Day Committee,
along with DBA President Ike Vanden Eykel and Hon. Martin Hoffman (68th Civil District Court) each offered a welcome to the participating high school students. Michael Hurst, a partner at Gruber Hurst Johansen & Hail, LLP, then presented an overview of the jury
system and the voir dire process. The high school students were then treated to a demonstration of the voir dire process by several of Dallas’ finest trial lawyers—Karl Dial, of Fulbright & Jaworski L.L.P.; Kirk Willis of Helms & Greene, LLC; Rachel Montes of Montes Herald Law Group, LLP; and Tonya Parker, also of Gruber Hurst Johansen & Hail, LLP. The voir dire hypothetical concerned allegations of defamation by a corporate entity against the media and a user of social media. The high school students were asked to play roles as members of the jury panel. Judges Hoffman and Kenneth Molberg (95th Civil District Court) presided over the mock voir dire proceedings. Following the demonstration, the high school students were given an opportunity to ask questions of the lawyers, as well as the judges. The mock voir dire was well-received by the participating high school students, as well as the lawyers and judges that HN participated in the event. Kirby Drake is with Fulbright & Jaworski L.L.P. She can be reached at kdrake@fulbright.com.
J.L. Turner Legal Association Presents Trial Advocacy Series A free CLE seminar designed to instruct practitioners in the basic skills of Trial Advocacy.
Summer Law Clerks Pro Bono Luncheon Friday, June 4, at noon at the Belo Mansion Learn about the many pro bono opportunities in Dallas. Co-sponsored by the DBA Pro Bono Committee and DVAP. RSVP to reed-brown@lanwt.org. (1.00 CLE, including 0.5 Ethics).
14th Judicial District Court, George Allen Courts Bldg. • 4:45 to 6:15 p.m. June 15 ~ Evidence, Use of Exhibits, Objections; July 20 ~ Expert Testimony; August 17 ~ Closing Statements To register for the event or for more information, contact Karen McCloud at kmccloud@karenmccloud.com.
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18 H e a d n o t e s l D a l l a s B a r A ss ociation
In the News
June
FROM THE DAIS
Ian E. Davis, of Munsch Hardt Kopf & Harr, P.C., recently spoke at the 2010 Broadband Properties Summit held in Dallas. Robert (Bob) R. Smith, Jr., of Fitzpatrick Hagood Smith & Uhl, LLP, spoke to the SMU-Dedman White Collar Crime law school class about criminal tax prosecutions. Steven L. Russell, of Russell & Wright, PLLC, spoke on “Confidentiality Issues in Occupational Medicine Practice” at the University of Texas School of Public Health in Dallas. William R. (Trey) Cousins, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the San Antonio Estate Planning Council on “Litigating FLP’s: The Keller Decision” and for the Harvard Club of Dallas on “What’s Going On at the IRS and How it Affects You.” Chad Baruch, of The Law Office of Chad Baruch, was the keynote speaker for Houston Young Lawyers Association’s Annual Law Day Luncheon, speaking on “The Effect of 2010 Technology on Legal Writing.”
KUDOS
Jeffrey B. Thomas, of Raymond James Financial Services, has been selected Director Emeritus of Investment Management Consultants Association for nine years on the board. Randy Johnston, with Johnston Tobey, P.C., was inducted as a Fellow into the International Academy of Trial Lawyers at their meeting in Phoenix.
Kevin B. Ross, at Sorrels, Udashen & Anton, has become a partner and the managing attorney.
firm in their new Scottsdale, Arizona, Hilaree Casada has joined Cowles & office at 14555 N. Scottsdale Rd., Suite Thompson, P.C. as a senior attorney in 310 Scottsdale, AZ 85254. the firm’s appellate practice group.
Garrett W. Chambers, with McKool Smith P.C., has been named as Principal.
Frances A. Smith has joined Shackel- J. Dennis Weitzel has joined Morgan ford, Melton & McKinley, LLP as Of & Morgan in Orlando, Florida, as a Counsel. Partner.
Yvette Ostolaza, of Weil Gotshal & Manges LLP, has been named as one of 20 finalists for the 2010 Hispanic Business “Woman of the Year” Award. Scott P. Stolley, with Thompson & Knight LLP, has been named a Fellow of the American Academy of Appellate Lawyers. James C. Ho, Texas Solicitor General, received the 2010 Justice David Wellington Chew Award from the State Bar of Texas during the annual meeting of the Asian Pacific Interest Section in Austin.
Mary Elizabeth Conlon has joined the Jason Copling has joined Munsch Hardt firm Travis Calhoun & Conlon, P.C. as Partner and Director. Kopf & Harr, P.C. as an Associate.
Domestic Violence Training
ON THE MOVE
Cassandra Sepanik and Nathan Shackelford have joined Thompson & Knight LLP as Associates. Travis E. Schwaer has joined the firm Scheef & Stone, L.L.P. as an Associate. Stephen J. Womack has rejoined the
Kerry McGill of Greer & McGill, has been named Texas Managing Partner for Holden & Carr. The firm focuses on commercial, insurance and financial litigation services. Founding Partner Steve Holden said, “Kerry and I will team together on Texas cases. He has been lead counsel on countless jury trials and successfully steered appeals through many high
exposure jury trials in state and federal courts.” Holden & Carr’s three offices are networked to fully utilize high tech video conferencing which cuts client costs and gets cases resolved quickly. Make your first call to Holden & Carr for in depth legal experience in Texas.
sohn Flegle Deary L.L.P.
Charla G. Aldous, of the Aldous Law Firm, has been inducted into the prestigious International Academy of Trial Lawyers.
focus on commercial, insurance and financial litigation services
Steve Holden
Sorrels, Udashen & Anton has moved Todd Betanzos and Mark Tillman have to 2311 Cedar Springs Road, Suite 250, formed the law firm of Tillman BetanDallas, TX 75201. zos LLP at 5525 N. MacArthur Blvd, Kerry F. Shonwald has joined Loewin- Suite 280, Las Colinas, TX 75038.
Richard R. Orsinger, with McCurley Orsinger McCurley Nelson & Downing, L.L.P., has earned the prestigious Franklin Jones Best Continuing Legal Education Article Award for 2009 for his two-part paper “Practicing Family Law in a Depressed Economy.”
Trial Tested Litigation Firm Opens in Dallas
Kerry McGill
June 2010
Areas of Practice: · Commercial Litigation · Catastrophic & Complex Litigation · Excess Exposure Trial Defense · Financial & D&O · Medical Products/ Malpractice · Professional Liability · Environmental Litigation · Labor & Employment · Products Liability · Transportation · Bad Faith · Coverage & Appellate Practice · Construction
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The 3rd Annual Domestic Violence Training Conference was held April 23 at the Belo Mansion. The all-day event, hosted by DVAP and the DBA Domestic Violence Training Committee, was titled “The Many Faces of Domestic Violence: The impact of diversity on your criminal & family law practice.” Among the attendees were numerous judges, and Dr. Oliver Williams of the University of Minnesota was the keynote speaker.
June 2 0 1 0
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 19
June
OFFICE SPACE
Five offices available for rent in our historic West End building with a secretarial area available as well. Each of the two downstairs offices rent at $650 each and the secretarial area would be an additional $500. The three upstairs offices are $750 each. All offices can rent individually or as a package. Contact Craig Miley at (214) 692-8800 or craig@mileybrown.com. High-rise views at low-rise rates. Panoramic views from 63rd floor. Class-A downtown space close to courthouse, AV-rated law firm. Access to large conference room, library, kitchen. Secretarial, clerical, reception available. One office available with a very nice secretarial station. Negotiable. Call Kay (214) 761-6463. 4054 McKinney Ave. Real estate law firm has office available with shared kitchen, copier, DSL and conference room. Call Tom at (214) 520-0600. Own your own Office Space! 2600 rentable square feet in peaceful setting. 4 windowed offices. Beautiful views of mature trees just east of I75 (Walnut Hill/Meadow). Will lease too! Asking $16.75 / SF full service. For information, e-mail kevindym@gmail.com Northpark/Central Expwy—Law firm has “turnkey” office for sublease in Class A building for $1200. Includes use of office furniture (if needed), telephone, high-speed DSL, fax line, parking, and large conference room and
kitchen. Great location with downtown and Park Cities views, excellent finish out with hardwoods in lobby, elevator exposure, and easy access to/from Central Expwy. Call (214) 292-4202. North Dallas Tollway (Galleria area) office spaces. Hardwood floors and ornate mahogany paneled walls in common areas. Three available: one approx. 14.5’ x 19’ with built-in mahogany secretarial carrel (located in outer office area), one approx. 12.5’ x 14.5’, one approx. 12.2’ x 13.2”. All have access to three conference rooms, copier, postage meter and two kitchens. Receptionist services available. Please call Kristi at (972) 934-4100. Campbell Center: AV law firm has 2 offices for sublease. New space with exceptional finish out and elevator exposure, amenities included. Law firm also has overflow business litigation work for associate level attorney. Call Joy (214) 361-1262. Sublease opportunity in Richardson. Three window offices, one interior office and one legal assistant area available. Receptionist, telephone system linked with your desktop, internet, three conference rooms, two kitchens & free parking with 24-hour access to building. Office environment is friendly and quiet and has updated furnishings and technology. Contact Jennifer Som at Jennifer@baalegal.com or at (214) 570-0700 for more information. Galleria Area: Law firm located at Lincoln Centre has exterior window
Inspiring Women:
offices and interior secretarial offices available. Offices can be rented individually or as a package. Includes use of 2 conference rooms, 2 copiers/scanners, postage meter, fax, VoIP, T1 Internet phone service, 2 kitchens, reserved garage parking. On-site gym and restaurants. E-mail bcollette@dalpat.com for details. Carrollton. Great law firm space available in two story office building located on Belt Line and I-35 across from new Dart Station. Six offices & conference with kitchen ready to occupy. Low full service rates. Contact Bob Acuff at (972) 759-7723 North Dallas (Galleria Area) growing law firm has 2 partner and 2 associate size office and cubicles for sublease. Free parking; easy access; conference rooms; break room/kitchen; phone; copier; postage; fax. E-mail dallasipfirm@gmail.com for information. Ideal For Attorneys: Several outstanding locations in Skillman area of northeast Dallas. Broker specializing in commercial real estate, Marshall E. Surratt, (214) 890-7702.
encouraged to apply. Please submit resume and writing sample to cvreply222@gmail.com Appellate Attorney Position: 5 years minimum experience. Other requirements: not afraid of hard work; able to laugh at yourself, never at others; lose the ego; treat staff like you would treat your best client; willing to do things our way; don’t throw people under the bus. The Bassett Firm provides competitive salaries and exceptional benefits. Interested applicants send resume to nmenchaca@thebassettfirm.com. Insurance Defense Litigation Contract Attorney. Statewide law firm is seeking to hire, on a contract basis, a litigation attorney with 3-5 years experience, primarily in insurance defense litigation, first party, for its downtown Fort Worth office. Salary commensurate with experience. Send resume in confidence to: Dallas Bar Association, Box 06-10A, 2101 Ross Ave., Dallas, TX 75201.
Dallas area law firm seeks licensed Attorney with 1-3 years of significant litigation experience. Please submit resume and writing sample to cvreply222@gmail.com
Partner-Level: Patent law boutique, consisting of prep/pros lawyers with large-law firm experience, working in an “eat what you kill environment,” is seeking partner-level patent attorney with prosecution experience. A selfsupporting book of portable business is a positive, but not imperative. Please e-mail your resume to bcollette@dalpat.com.
Dallas area law firm seeks licensed Attorney for general associate position. Recent law school graduates are
PLACE YOUR AD HERE! For affordable classified advertising rates call Judi Smalling at: (214) 220-7452.
POSITIONs AVAILABLE
MONTHLY PARKING AVAILABLE AT BELO
Humor & War Stories to Reach the Top Back by popular demand for the 3rd year! Join us for inspiring, humorous, and honest insights into professionalism and excellence in the legal profession. Mark your calendars for this popular event: Friday, July 16, at 11:45 a.m. to 1:00 p.m. at the Belo Pavilion. (Ethics 1.00, pending) Featured panelists to be announced soon. Hear their war (and horror!) stories on working their way to the top of their game. Free to DBA members.
Women and enlightened men are welcome to attend! Space is limited. Please RSVP to Judi Smalling at jsmalling@dallasbar.org.
For more information about becoming a monthly parker in the Belo Mansion garage, contact Tom Grey at (214) 880-4459. The number of monthly parkers is limited.
Dallas Association of Young Lawyers Invites you to their June social: A performance of the musical Wicked, The Untold Story of the Witches of Oz Thursday, June 24, Music Hall at Fair Park 6:00 to 8:00 p.m. Reception • 8:00 p.m. Performance For tickets, log on to www.associateproducers.org. For more information, contact Cherie Harris at (214) 220-7420 or cherieh@dayl.com.
20 H e a d n o t e s l D a l l a s B a r A ss ociationâ€
June 2010